State v. Carr

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 90,044

STATE OF KANSAS,

Appellee,

v.

REGINALD DEXTER CARR JR.,

Appellant.

SYLLABUS BY THE COURT

1.

Whether a statute is constitutional is a question of law.

2.

Section 1 of the Kansas Constitution Bill of Rights states, "All men are possessed

of equal and inalienable natural rights, among which are life, liberty, and the pursuit of

happiness." The rights guaranteed under section 1 are judicially enforceable against

governmental action that does not meet constitutional standards.

3.

The court applies a two-part framework to determine whether an asserted right or

declared interest under section 1 of the Kansas Constitution Bill of Rights is judicially

enforceable. First, the court determines whether the asserted right or declared interest is

included within the guarantees or protections of section 1. Under this step, the court

begins by carefully describing the asserted right. Then, it determines whether that

asserted right or declared interest is protected under section 1 by looking to the language

of the Kansas Constitution. When the words themselves do not make the drafters' intent

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clear, courts look to the historical record, remembering the polestar is the intention of

the makers and adopters. If the asserted right or declared interest is established under

section 1, the court proceeds to the second part of the framework—exploring whether the

governmental action impairs the right and, if so, whether such governmental action

satisfies constitutional scrutiny.

4.

The historical record reflects the framers did not intend the term "inalienable" in

section 1 of the Kansas Constitution Bill of Rights to be construed as "absolute" and

"nonforfeitable." Instead, a careful reading of section 1, coupled with the transcripts of

the convention debate, demonstrates that the term "inalienable" refers only to one's ability

to transfer his or her right or interest to another person. Though inalienable, the framers

viewed the natural rights guaranteed within this section to be forfeitable in civil society.

So construed, the framers did not intend for section 1 to impede or limit the State's

authority to punish individuals for their criminal conduct.

5.

Section 1 of the Kansas Constitution Bill of Rights acknowledges a person's

inalienable right to life, but that right is not absolute or nonforfeitable. Once a defendant

has been convicted of capital murder beyond reasonable doubt, the defendant forfeits his

or her natural rights under section 1 ("among which are life, liberty, and the pursuit of

happiness") and the state may impose punishment for that crime pursuant to the

provisions of Kansas' capital sentencing scheme.

6.

Once a defendant has been lawfully convicted of capital murder, the imposition of

a capital sentence does not implicate section 1. However, other constitutional guarantees,

including those contained in sections 9 and 10 of the Kansas Constitution Bill of Rights,

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continue to regulate the state's authority to punish and guard against arbitrary applications

of such authority.

7.

Section 5 of the Kansas Constitution Bill of Rights, which provides that "[t]he

right of trial by jury shall be inviolate," preserves the jury trial right as it historically

existed at common law when our state's Constitution came into existence.

8.

In ascertaining the meaning of a constitutional provision, the primary duty of the

courts is to look to the intention of the makers and adopters of that provision. A

constitutional provision is not to be narrowly or technically construed, but its language

should be interpreted to mean what the words imply to persons of common

understanding.

9.

As used in section 5 of the Kansas Constitution Bill of Rights, the term "jury"

denotes a legally selected group of persons sworn to determine issues of fact and return a

decision based on the evidence and in accordance with the law as instructed.

10.

The process of death qualification under K.S.A. 22-3410 removes only those

prospective jurors who are excluded from the constitutional definition of a "jury," and

therefore neither the statute nor the process of death qualifying the jury implicate any

right protected under section 5 of the Kansas Constitution Bill of Rights.

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11.

Section 5 of the Kansas Constitution Bill of Rights does not require that juror

qualification or selection standards enacted by the Legislature be affirmatively authorized

by the common law. Rather, that provision merely preserves the right to jury trial as it

existed at common law when the Kansas Constitution was adopted.

12.

When reviewing the legal propriety of penalty phase instructions addressing

mitigating circumstances, the court must consider whether the instructions, considered

together as a whole, fairly and accurately state the applicable law, and whether a jury

could have been misled into not considering certain mitigating circumstances that, by

law, should have been considered.

13.

K.S.A. 21-4624(e), now codified as K.S.A. 2020 Supp. 21-6617(e), does not

require a jury to be instructed on the burden of proof for mitigating circumstances in the

penalty phase of capital sentencing proceedings, overturning the holding in State v.

Cheever, 306 Kan. 760, Syl. ¶ 5, 402 P.3d 1126 (2017).

14.

Under the law of the case doctrine, when a second appeal is brought to this court

in the same case, the first decision is the settled law of the case on all questions involved

in the first appeal, and reconsideration will not normally be given to such questions.

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15.

State law error during the penalty phase of a capital murder trial may be deemed

harmless where the party benefitting from the error shows there is no reasonable

probability the error affected the jury's ultimate conclusion regarding the death sentence

verdict.

16.

The avoidance-of-arrest statutory aggravating circumstance, K.S.A. 2020 Supp.

21-6624(e), effectively channels the discretion of the sentencer and is not facially

overbroad.

17.

In Kansas capital sentencing proceedings, the Confrontation Clause in the Sixth

Amendment to the United States Constitution applies only to testimonial hearsay relevant

to the jury's eligibility decision, i.e., evidence relevant to the existence of one or more

statutory aggravating circumstances. A defendant's confrontation rights do not extend to,

and are not implicated by, testimonial hearsay offered to impeach or rebut defendant's

mitigation witnesses.

18.

An expert's reliance on testimonial hearsay does not constitute a violation of the

Confrontation Clause in the Sixth Amendment to the United States Constitution per se.

Instead, the controlling question is whether the expert is testifying as a witness in his or

her own right or testifying as a mere "conduit" for the testimonial hearsay. The

Confrontation Clause forecloses the expert's opinion testimony only in the latter situation.

The problem of expert-as-conduit is not the amplification of multiple experts' opinions

but the fact that the so-called expert is not actually giving expert testimony.

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19.

Under the facts of the case, the State's expert witness was not a mere conduit for

the opinions of others and thus his testimony did not violate the Confrontation Clause in

the Sixth Amendment to the United States Constitution; although the expert witness

vaguely asserted that other experts agreed with him, he offered an independent opinion

and interpretation of PET (positron emission tomography) scans based on his own

synthesis of the evidence.

20.

During the penalty phase of a capital murder trial, any error that arises solely

under state law may be deemed harmless if the court is persuaded there is no reasonable

probability the error affected the jury's ultimate conclusion regarding the weight of the

aggravating and mitigating circumstances, i.e., the death sentence verdict.

21.

The court applies a four-step analysis to review jury instruction challenges. It first

considers the reviewability of the issue, which is then followed by reviewing whether the

instruction was legally and factually appropriate. If the court concludes there is error, it

then turns to reversibility. Where a death penalty defendant fails to request or object to an

instruction, the court applies the clearly erroneous standard of review and determines

whether it is firmly convinced that the jury would have reached a different verdict had the

instruction error not occurred.

22.

Under the facts of the case, the jury instructions and verdict forms, viewed

together as a whole, made clear that "the crime" referenced in the aggravating

circumstances instruction was capital murder.

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23.

Under the facts of the case, the jury instruction describing the verdict forms, which

improperly used a double negative in the grammatical structure of the sentence describing

the statutory weighing equation under Kansas' capital sentencing scheme, was not clearly

erroneous because the error was not readily noticeable and the jury's use of Verdict Form

1 on all counts indicated that jurors employed the proper statutory weighing equation and

determined beyond reasonable doubt that aggravating circumstances existed and

outweighed mitigating circumstances, thereby warranting a sentence of death.

24.

The district court's failure to instruct the jury that it must find the defendant was at

least 18 years old at the time of the offense, as a condition precedent to imposing the

death penalty, constitutes error. But such error is subject to a harmless error analysis.

25.

Under the facts of the case, the district court's failure to instruct the jury that it

must find defendant was at least 18 years old at the time of the offense in order to impose

capital punishment was harmless because the issue was not contested and the undisputed

evidence established that the defendant was 23 years old when the crime occurred.

26.

The district court's refusal to instruct the jury that "[y]ou must not draw any

inference of guilt from the fact that the defendant did not testify, and you must not

consider this fact in arriving at your verdict," as requested by the defendant, was not

erroneous; although the requested instruction was appropriate for the guilt phase, it was

not legally appropriate in the penalty phase after guilt had been adjudicated.

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27.

The court applies a two-step framework in analyzing claims of prosecutorial error.

Under the first step, the court considers whether prosecutorial error occurred by

determining whether the prosecutorial acts complained of fall outside the wide latitude

afforded prosecutors to argue the State's case and attempt to obtain a verdict in a manner

that does not offend the defendant's constitutional right to a fair trial. If error is found, the

court advances to the second step and determines whether the error prejudiced the

defendant's due process right to a fair trial.

28.

When analyzing prosecutorial error claims that implicate both constitutional and

nonconstitutional claims of error, the court need only address the more demanding

federal constitutional error standard. Under the federal constitutional error standard,

prosecutorial error is harmless if the State demonstrates beyond a reasonable doubt the

error complained of did not affect the trial's outcome in light of the entire record, i.e.,

when there is no reasonable possibility the error contributed to the verdict.

29.

In analyzing claims of prosecutorial error in the penalty phase of capital

proceedings, the overwhelming nature of evidence is to be considered, but its impact is

limited. To the extent there was constitutional error, the question is not what effect the

error might generally be expected to have upon a reasonable jury but what effect it had

upon the actual verdict in the case at hand. The inquiry, in other words, is not whether,

in a trial that occurred without the error, a verdict for death would surely have been

rendered, but whether the death verdict actually rendered in this trial was surely

unattributable to the error. If more than one prosecutorial error occurred in the

proceedings, the court considers the net prejudicial effect of those errors using the same

federal constitutional error standard applied to the individual errors.

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30.

The Eighth Amendment to the United States Constitution guarantees a capital

defendant a right to an individualized sentencing determination, meaning the sentencer

may not be precluded from considering, as a mitigating factor, any aspect of a defendant's

character or record and any of the circumstances of the offense that the defendant proffers

as a basis for a sentence less than death. It does not matter whether the barrier to the

sentencer's consideration of all mitigating evidence is interposed by statute, by a trial

court's evidentiary ruling, by jury instructions, or by prosecutorial argument.

31.

A capital sentencing jury must consider all relevant mitigating evidence, and such

evidence need not excuse or justify the crime or in fact relate to the defendant's

culpability as long as it serves as a basis for a sentence less than death. But the State has a

competing interest in challenging whether a circumstance is mitigating at all and to

contest the weight the jury should give to a mitigating circumstance.

32.

It is improper for a prosecutor to argue that certain circumstances should not be

considered as mitigating circumstances because they do not excuse or justify the crime.

Mitigating circumstances are those which in fairness may be considered as extenuating or

reducing the degree of moral culpability or blame or which justify a sentence of less than

death, even though they do not justify or excuse the offense. A prosecutor who argues

that mitigating circumstances must excuse or justify the crime improperly states the law.

33.

A prosecutor's argument concerning mitigation evidence violates requirements

under the Eighth Amendment to the United States Constitution when the State cuts off in

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an absolute manner the sentencer's consideration of such evidence. But comments that the

defendant's mitigating evidence is entitled to little or no weight based on the

circumstances of the case are constitutionally permissible.

34.

A prosecutor may properly argue a defendant is undeserving of mercy, so long as

there is no contention the jury's exercise of mercy is prohibited.

35.

Under the facts of the case, the prosecutors' argument did not misstate the law

concerning mitigating circumstances where the prosecutor never argued or implied the

jury could not consider the mitigation evidence unless it excused or justified the murders;

while the prosecutor questioned whether that mitigation justified the defendant's conduct,

this was consistently argued in the context of whether the circumstance reduced the

defendants' moral culpability or blame in a way that supported a sentence less than death;

and the defendants first suggested a relationship between the crimes and the mitigation

evidence by arguing a variety of medical, genetic, familial, environmental, societal, and

situational circumstances caused the defendants to commit the crime.

36.

Generally, a prosecutor is precluded from offering personal opinions about witness

credibility, and the court has applied the same rule in capital sentencing proceedings.

37.

Under the facts of the case, the prosecutor's statement "when the truth comes out"

was an impermissible expression of opinion intended to bolster the credibility of the

State's expert witness, but the death penalty verdict was surely unattributable to this

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isolated comment, which was a clumsy effort to turn a phrase more than a definitive

statement about the "truth."

38.

In the penalty phase of a capital murder trial, a prosecutor may argue that a

defendant deserves no mercy because he or she showed none to the victims, as long as

the prosecutor does not argue the jury is precluded from considering mercy in its

sentencing decision.

39.

Generally, a prosecutor has wide latitude in crafting arguments. Nevertheless, the

arguments must accurately reflect the evidence, accurately state the law, and cannot be

intended to inflame the passions or prejudices of the jury or to divert the jury from its

duty to decide the case based on the evidence and the controlling law.

40.

A "golden rule" argument is the suggestion by counsel that jurors should place

themselves in the position of a party, a victim, or the victim's family members. Such

arguments are generally improper and may constitute reversible error. The reason

"golden rule" arguments are not permitted is because they encourage the jury to depart

from neutrality and to decide the case on the improper basis of personal interest and bias.

41.

Under the facts of the case, the prosecutor did not make an improper "golden rule"

argument by referencing the murder victims' inability to form relationships where the

argument did not place the jury in the victims' shoes, but instead responded directly to the

defendant's argument about his ability to form relationships or attachments if sentenced

to life imprisonment and implied that the jury should give little weight to this evidence.

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42.

The wide latitude permitted a prosecutor in discussing the evidence during closing

argument in a criminal case includes at least limited room for rhetoric and persuasion,

even for eloquence and modest spectacle. It is not opening statement; it is not confined to

a dry recitation of the evidence presented.

43.

Generally, a prosecutor's argument that implies the jury may violate its sworn oath

has more force and carries greater potential for unfair prejudice than an argument that the

facts and applicable law compel a death sentence.

44.

Cumulative error analysis aggregates all errors and assesses whether their

cumulative effect is such that they cannot be determined to be harmless, even though

individually those errors are harmless. In assessing cumulative error in the penalty phase

of a capital trial, the errors aggregated include any errors in the guilt-phase proceedings

the court determines must be considered in conjunction with the penalty-phase errors. In

addition, the errors aggregated include those penalty-phase errors assumed by the court.

And they include penalty-phase jury instruction errors not raised in the district court that

are not clearly erroneous standing alone.

45.

When reviewing cumulative error in a capital penalty-phase proceeding, the

court's focus is on the errors' cumulative effect on the jury's ultimate conclusion

regarding the weight of the aggravating and mitigating circumstances. In other words, we

are looking for the errors' effect in their aggregate, recognizing errors can differ in their

individual or cumulative effect. This task is undoubtedly more subtle than simply

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counting up the number of errors discovered. Ultimately, the court must determine

whether the errors' cumulative effect, viewed in the light of the record as a whole, had

little, if any, likelihood of changing the jury's conclusion. When any errors being

aggregated in a cumulative error analysis are constitutional in nature, the cumulative

error must be harmless beyond a reasonable doubt.

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

21, 2022. Affirmed.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson,

of the same office, was with her on the briefs for appellant.

David Lowden, special appointed prosecutor, argued the cause, and Marc Bennett, district

attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Sharon Brett, of ACLU Foundation of Kansas, of Overland Park, and Cassandra Stubbs, pro hac

vice, and Brian W. Stull, pro hac vice, of American Civil Liberties Union Foundation, of Durham, North

Carolina, were on the brief for amici curiae Concerned Conservatives About the Death Penalty, Kansas

Coalition Against the Death Penalty, Dalton Glasscock, Steve Becker, Al Terwelp, Bob Weeks, Carolyn

Zimmerman, Celeste Dixon, Bill Lucero, Msgr. Stuart Swetland, Catholic Mobilizing Network,

Dominican Sisters and Associates of Peace of the Roman Catholic Church, Mount St. Scholastica, Sisters

of Charity of Leavenworth Office of Justice, Peace, and Integrity of Creation, Sister Christina Meyer,

Bishop Ruben Saenz Jr., Robert Sanders, Michael Birzer, and the American Civil Liberties Union and

ACLU of Kansas.

Alice Craig, of Lawrence, was on the brief for amicus curiae Midwest Innocence Project, joined

by Witness to Innocence and Floyd Bledsoe.

Elizabeth Cateforis, Clinical Professor of Law, University of Kansas School of Law, of

Lawrence, and Alexis J. Hoag, pro hac vice, Lecturer and Associate Research Scholar, Columbia Law

School, of New York, New York, were on the brief for amici curiae group of law professors and scholars.

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The opinion of the court was delivered by

WALL, J.: In State v. Carr, 300 Kan. 1, 331 P.3d 544 (2014) (R. Carr), rev'd and

remanded sub nom. Kansas v. Carr, 577 U.S. 108, 136 S. Ct. 633, 193 L. Ed. 2d 535

(2016) (Carr), our court affirmed one of Reginald Dexter Carr Jr.'s capital murder

convictions but vacated the death sentence after concluding the failure to sever the

penalty phase violated R. Carr's right to an individualized sentencing determination under

the Eighth Amendment to the United States Constitution. However, in Carr, the United

States Supreme Court held the failure to sever the defendants' penalty phase neither

implicated the Eighth Amendment nor offended protections afforded to R. Carr under the

Due Process Clause.

On remand, we now turn our attention to the penalty phase issues that remain

unresolved following the decision of the United States Supreme Court. In analyzing these

issues, we remain mindful that "given the myriad safeguards provided to assure a fair

trial, and taking into account the reality of the human fallibility of the participants, there

can be no such thing as an error-free, perfect trial, and that the Constitution does not

guarantee such a trial." United States v. Hasting, 461 U.S. 499, 508-09, 103 S. Ct. 1974,

76 L. Ed. 2d 96 (1983); see Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431,

89 L. Ed. 2d 674 (1986). While some of R. Carr's remaining issues demonstrate that his

trial was less than perfect, none suggest he received anything other than a fair trial.

Accordingly, we affirm Reginald Carr Jr.'s death sentence and hold this sentence was not

"imposed under the influence of passion, prejudice or any other arbitrary factor." K.S.A.

2020 Supp. 21-6619(c)(1).

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FACTUAL AND PROCEDURAL BACKGROUND

As noted, in its previous decision, our court affirmed one of R. Carr's capital

murder convictions but vacated his death sentence, concluding his Eighth Amendment

right to an individualized sentencing determination was violated when the district court

refused to sever the penalty phase from that of his codefendant brother, Jonathan Carr.

See R. Carr, 300 Kan. at 315. In a companion decision, this court also vacated J. Carr's

death sentence for failure to sever the penalty phase. State v. Carr, 300 Kan. 340, 371,

329 P.3d 1195 (2014) (J. Carr), rev'd and remanded Carr, 577 U.S. 108.

The court's disposition at that time made it unnecessary to complete a full review

of the alleged penalty phase errors, although it considered some for guidance on remand.

Among those considered, the court noted the same Eighth Amendment individualized

sentencing concerns were implicated when the district court failed to instruct the jury

that mitigating circumstances need not be proved beyond a reasonable doubt. That

question proved dispositive in this court's decision to vacate the death sentence imposed

in another death penalty case. See State v. Gleason, 299 Kan. 1127, 329 P.3d 1102 (2014)

(Gleason I), rev'd and remanded sub nom. Carr, 577 U.S. 108.

The United States Supreme Court granted the State's petition for writ of certiorari

on the two Eighth Amendment issues in R. Carr, J. Carr, and Gleason I. It disagreed

with our court's Eighth Amendment analysis on both issues. The Court held the joint

sentencing proceedings neither implicated the Carrs' Eighth Amendment rights nor

violated their rights under the Due Process Clause. It also concluded that the Eighth

Amendment does not require Kansas penalty-phase juries to be instructed that mitigating

factors need not be proved beyond a reasonable doubt. Carr, 577 U.S. at 122, 126.

15

Shortly after that decision, but before the United States Supreme Court issued its

mandate, R. Carr filed a motion with our court arguing that the alleged instructional error

(the district court's failure to instruct jurors that the existence of mitigating factors need

not be proved beyond a reasonable doubt) required his death sentence to be vacated under

state law. After the high Court issued its mandate, R. Carr filed another motion arguing

that cumulative error required this court to vacate his death sentence. In his separate

appeal, J. Carr also requested this court rule on the instructional issue as a matter of state

law. On the same day, he asked for additional briefing on penalty phase issues left

undecided in our prior decision. The State filed responses.

Our court ordered supplemental briefing addressing the remaining penalty phase

issues, including cumulative error. Two extensions to the briefing schedule occurred at

the State's request and were granted pursuant to Supreme Court Rule 5.02 (2021 Kan. S.

Ct. R. 32). The parties' supplemental briefs were filed simultaneously on November 7,

2016. The court heard oral argument in both cases on May 4, 2017.

In April 2019, this court filed its opinion in Hodes & Nauser, MDs v. Schmidt, 309

Kan. 610, 638, 440 P.3d 461 (2019), holding that "section 1 [of the Kansas Constitution

Bill of Rights] establishes the judicial enforceability of rights that are broader than and

distinct from the rights described in the Fourteenth Amendment." In response to that legal

development, the defendants in all the then-pending capital appeals sought leave to raise

and brief a new issue challenging the constitutionality of the death penalty under section

1 of the Kansas Constitution Bill of Rights. R. Carr and J. Carr each made this request in

motions filed on May 7, 2019.

On June 19, 2019, after having received responses from the State, we granted the

defendants, including R. Carr and J. Carr, leave to file supplemental briefing to address

"what effect, if any, the decision in Hodes & Nauser v. Schmidt . . . has on the issue of

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whether the Kansas death penalty is unconstitutional under § 1 of the Kansas Constitution

Bill of Rights."

R. Carr and J. Carr each filed supplemental briefs on August 16, 2019. In each

case, the State filed its brief in response on October 15, 2019. J. Carr filed a reply brief on

November 7, 2019, and R. Carr followed suit the next day.

On February 18, 2021, we scheduled both R. Carr's and J. Carr's cases for oral

argument on the May 24, 2021 docket. Various amici curiae sought and were granted

permission to file briefs.

In addition, the NAACP Legal Defense and Educational Fund, Inc. (LDF) sought

leave to participate in J. Carr's oral argument as a separately represented amicus curiae. In

its amicus brief, the LDF argued Kansas' death-sentencing scheme violates the right to

trial by jury under section 5 of the Kansas Constitution Bill of Rights. We denied the

LDF's motion to participate in oral argument but ordered the parties in J. Carr's case to be

prepared to address the issue at oral argument. On July 29, 2021, after oral argument had

concluded, R. Carr filed a motion requesting the court consider the same section 5

challenge in his appeal.

As with our previous decisions, this case necessarily covers many issues we must

also decide in J. Carr's case. We provide the reasoning for our decisions here. To the

extent possible, we retain the numbering applied to the issues in our previous decision,

although some are taken up in different order. See R. Carr, 300 Kan. at 255-58.

The facts were set forth fully in this court's original decision. 300 Kan. at 17-44,

258-75. In the "Discussion" section to follow, we highlight those facts as necessary to

resolve the issues we consider today.

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DISCUSSION

For purposes of clarity and organization, we first address the constitutional

challenges R. Carr and J. Carr asserted under section 1 and section 5 of the Kansas

Constitution Bill of Rights. Then, we address R. Carr's motion to apply state law to the

burden-of-proof instruction for mitigating circumstances. Finally, we examine the

remaining claims of penalty phase error, including cumulative error.

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

Constitution Bill of Rights

While R. Carr's and J. Carr's appeals were pending, this court released its decision

in Hodes. In Hodes, the court held that section 1 of the Kansas Constitution Bill of Rights

protects a broader range of rights than the United States Constitution. 309 Kan. 610,

Syl. ¶ 6. Based on that decision, R. Carr and J. Carr claim that Kansas' statutory scheme

authorizing capital punishment is unconstitutional under section 1. More specifically,

R. Carr and J. Carr contend section 1 protects the right to life, and Kansas' capital

sentencing scheme unconstitutionally infringes upon this right.

A. Legal Framework and Standard of Review

"'Whether a statute is constitutional is a question of law.'" Hilburn v. Enerpipe

Ltd., 309 Kan. 1127, 1132, 442 P.3d 509 (2019). Historically, this court presumed

statutes to be constitutional and required alleged constitutional violations to be clearly

established in order to overcome this presumption. 309 Kan. at 1132 (quoting Board of

Johnson County Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 [2016]). But in

Hodes, a majority of the court rejected this presumption of constitutionality when the

interests protected by the Kansas Constitution are deemed "fundamental interests." 309

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Kan. at 673-74 ("Section 1 protects an inalienable natural right of personal autonomy,

which [is] fundamental. Presuming that any state action alleged to infringe that right is

constitutional dilutes the protections established by our Constitution."). Other members

of our court have repudiated the presumption altogether. See In re A.B., 313 Kan. 135,

147-48, 484 P.3d 226 (2021) (Stegall, J., concurring; Wall, J., joining concurring

opinion). Regardless, based on established precedent, we apply no such presumption to

this section 1 challenge.

Section 1 of the Kansas Constitution Bill of Rights states, "All men are possessed

of equal and inalienable natural rights, among which are life, liberty, and the pursuit of

happiness." The rights guaranteed under section 1 are "judicially enforceable against

governmental action that does not meet constitutional standards." Hodes, 309 Kan. 610,

Syl. ¶ 7.

We apply a two-part framework to determine whether an asserted right or declared

interest is judicially enforceable under section 1—exploring whether the right itself is

protected by the constitutional provision and, if so, determining whether governmental

action unconstitutionally infringes upon that right. 309 Kan. at 620. Under the first part of

this analysis, we determine whether the asserted right or declared interest falls within the

purview of rights protected by section 1. 309 Kan. at 620. "'[T]he doctrine of judicial

self-restraint'" requires us to begin with "'a careful description of the asserted right.'"

Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993) (in

substantive due process analysis the court carefully defines the nature of the interest to

determine whether it is properly characterized as fundamental). Doing so ensures a

proper nexus exists between the asserted right or declared interest and its constitutional

foundation within section 1. Once properly defined, we examine whether that asserted

right or declared interest is protected under section 1 by looking to the language of the

Kansas Constitution. State v. Albano, 313 Kan. 638, 644-45, 487 P.3d 750 (2021).

19

When the words themselves do not make the drafters' intent clear, we look to the

historical record, remembering "'"the polestar . . . is the intention of the makers and

adopters."'" 313 Kan. at 645 (quoting Hunt v. Eddy, 150 Kan. 1, 5, 90 P.2d 747 [1939]).

Second, if the asserted right or declared interest is protected under section 1, we

determine whether the challenged governmental action unconstitutionally infringes upon

it. See Hodes, 309 Kan. at 660. This requires the court to first determine whether the

governmental action impairs the right. See 309 Kan. at 672. If so, the court scrutinizes the

governmental action to determine whether it passes constitutional muster. See 309 Kan.

at 662-63.

Ultimately, we conclude that R. Carr's and J. Carr's section 1 challenge fails at the

first step of this two-part framework. Their asserted right to, or declared interest in, an

absolute, nonforfeitable right to life is not included in or part of the guarantees or

protections of section 1. Instead, the natural right to life is forfeitable, and the state's

imposition of the death penalty under Kansas' capital sentencing scheme does not

infringe upon the "inalienable" right to life protected under section 1. To reach this

conclusion, we first construe the meaning of an "inalienable" right to life under section 1.

Then, we demonstrate how this construction forecloses defendants' section 1 challenge.

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

Absolute

R. Carr argues section 1 guarantees a right to life that necessarily precludes the

state from imposing capital punishment. We have no hesitation recognizing a right to life

under section 1. Unlike the implicit right to personal autonomy recognized in Hodes,

which found its source in the explicit rights of liberty and the pursuit of happiness, a

natural right to life is explicitly enumerated as one of the natural rights protected by

section 1.

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But R. Carr defines this right broadly to preclude capital punishment, even where

a jury has convicted a defendant of capital murder and determined beyond reasonable

doubt that one or more statutory aggravating circumstances exist and outweigh mitigating

circumstances, as prescribed under Kansas' capital sentencing scheme. R. Carr's argument

is premised on the assumption that the right to life guaranteed within section 1 is

absolute, meaning the law cannot limit or infringe upon this right in any circumstance.

See Merriam-Webster.com Legal Dictionary, Merriam-Webster, https://www.merriam-

webster.com/legal/absolute%20right (defining "absolute right" as "a legally enforceable

right to take some action or to refrain from acting at the sole discretion of the person

having the right").

Whether the framers intended the right to life to be absolute cannot be ascertained

solely from the text of section 1 because the plain language does not define the scope and

contours of the natural rights guaranteed therein. As such, we must also turn to the

historical record to glean insight into the scope of this right as intended by the framers.

See Hunt, 150 Kan. at 5. We do so by first exploring the comments and remarks of the

framers during the Wyandotte Constitutional Convention debates. Additionally, we

analyze the theory of natural rights as developed through the writings of John Locke and

William Blackstone, given their historic significance in the development of American

constitutional frameworks and jurisprudence. Cf. Hodes, 309 Kan. at 639-41 (discussing

Locke's and Blackstone's influence on Kansas' founding documents).

1. The Wyandotte Convention Debates

"[T]he territorial legislature of 1859 approved a fourth and final constitutional

convention" for the Kansas Territory. See Kansapedia, Kansas Historical Society,

"Wyandotte Constitutional Convention," https://www.kshs.org/kansapedia/wyandotte-

21

constitutional-convention/17884. On June 17, 1859, 52 delegates were elected to gather

in Wyandotte, Kansas, on July 5 for this constitutional convention. See Simpson, The

Wyandotte Constitutional Convention, reprinted in Kansas Constitutional Convention

652 (1920) (hereinafter Convention).

While vigorous debate over specific language was the exception, delegates did

engage in extensive discussions regarding section 1. See Perdue, Address Before the

Kansas State Historical Society: The Sources of the Constitution of Kansas, in 7 Kansas

Historical Collections 130, 134 (1902). The initial proposal for section 1, developed by

the Preamble and Bill of Rights Committee, provided:

"'SECTION 1. All men are by nature equally free and independent, and have

certain inalienable rights, among which are those of enjoying and defending their lives

and liberties, acquiring, possessing and protecting property, and of seeking and obtaining

happiness and safety, and the right of all men to the control of their persons, exists prior

to law and is inalienable.'" Convention, at 271.

After initial proposed amendments to this section were soundly rejected, including

one disreputable attempt to exclude "negroes and mulattoes" from the phrase "all men,"

one of the proslavery delegates challenged the use of the term "inalienable" in section 1.

Convention, at 271. Delegate William McDowell suggested the language in proposed

section 1 created a hierarchy of laws that rendered natural rights absolute and subject to

no limitation under the law:

"MR. MCDOWELL. I think the language of this section is an enunciation of the

higher law principle, that 'the control of a man's person is above and prior to all law and

inalienable.' It is a provision I do not want to see go into any Constitution which we shall

adopt; for if this doctrine is correct, you cannot make a man amenable to any criminal

law." (Emphasis added.) Convention, at 272.

22

Another proslavery delegate, Benjamin Wrigley, professed similar concern:

"I believe that this section, as it now reads, as remarked by the gentleman from

Leavenworth (Mr. McDowell) does embrace the 'higher law' doctrine, and is mischievous

in its character. I believe it was intended to set at defiance, and that it does in fact set at

defiance, the fugitive slave law as a law of the land." Convention, at 274.

As Wrigley's comment illustrated, the subtext of the discussion was primarily

motivated by proslavery delegates' concern that characterizing natural rights as

"inalienable" could preclude enforcement of criminal law, particularly the fugitive slave

law, within Kansas. Therefore, one of the first proposed amendments to section 1—

offered by Wrigley—included the following clause to address concerns that section 1's

text created a hierarchy of law with "absolute" natural rights at the apex.

"'Provided that nothing herein contained shall be construed to apply to any

person lawfully held to or owing service under the Constitution of the United States or

the Constitution and Laws of any other State, or to any person under indictment, or

lawfully under arrest or in custody, or lawfully imprisoned.'" Convention, at 273.

Without this clarifying language, Wrigley claimed section 1 would ensure that "no person

can forfeit his right to liberty under any circumstances." Convention, at 274.

"It matters not how great a criminal a man may be, or how lawfully he may have been

arrested, retained in custody, or arraigned under indictment for a grave offense, you

propose to have here an organic declaration, that this criminal's right to control of his

person is above all law, prior to all law, and inalienable. Now, sir, I contend, that the right

to the control of a man's person is not above the law, prior to law and inalienable. He may

forfeit that right by the commission of crime—and all must agree, that, under such

circumstances, he may be lawfully held in custody, and the control of his person

rightfully and legally taken away from him. Adopt this declaration here, and at once you

abolish the criminal law, and open all your jails." (Emphasis added.) Convention, at 274.

23

McDowell added to the objection, believing the original proposal could lead to an

absurd result—impairing the State's authority to punish crimes:

"[I]f adopted as it now stands, [the original proposal] will simply place us in the attitude

of the commission of this solecism; recognizing somewhere the right and power to punish

crime, yet in the Bill of Rights doing away with every provision of that kind, by asserting

that the control of the person is above, beyond, [and] anterior to all law. . . . Whatever

their notions may be on these questions in relation to the fugitive slave law, let us be

careful, at least, to avoid placing ourselves in an absurd position." Convention, at 276.

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

at 275.

Consistent with these remarks, Dr. James Blunt offered the following substitute

amendment to modify the natural rights preserved within section 1: "'Except in cases

where the party is charged with crime, or has been convicted thereof.'" Convention, at

276. According to Blunt, the substitute amendment would "remove all doubtful and

dangerous construction that might be put upon the section," though he acknowledged this

would not appease those seeking to protect the fugitive slave law. Convention, at 276-77.

After Blunt's speech, other delegates weighed in on the issue. Delegate William

Griffith explained the term "inalienable" means only that the right cannot be transferred

or assigned, and that the language did not create a hierarchy of law that prevented

punishment for criminal conduct. Griffith explained:

"It seems to me, sir, that this discussion and both amendments are unnecessary, and that

they result from a misconception of the clause in question. I see nothing of any higher-

law doctrine in this section. If it is there, I confess that I have not penetration enough to

discover it. The proposition is, 'that the right of all men to the control of their persons

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exists prior to law, and is inalienable.' It does not propose that the authority of the State

shall not hold the persons of men if they have committed crime, but simply that this right

exists prior to law, and is inalienable by the person holding it—that is, he cannot sell it or

dispossess himself of it. But, sir, the law of the land regulates this matter entirely."

(Emphasis added.) Convention, at 279-80.

The discussion continued with delegates expressing opposing views as to the

nature and scope of natural rights as set forth in proposed section 1. Convention, at 280-

82. Eventually, Wrigley's proposed amendment was put to a vote and approved. But

immediately thereafter, President James Winchell offered the following substitute:

"'All men are by nature free and equal and possessed of certain rights inalienable by law,

except for the commission of crime, among which rights are life, liberty, the pursuit of

happiness and the acquirement, possession and protection of property.'" Convention, at

282.

Winchell offered the substitute provision as a compromise, believing "there is some

foundation for the arguments . . . if we declare in the fundamental law, that men have

certain rights that are inalienable, we must mean that those rights are inalienable by law."

Convention, at 282.

At this juncture, Samuel Austin Kingman, a delegate who later served as one of

the original members of the Kansas Supreme Court following statehood in 1861 and

Chief Justice from 1867 to 1876, offered the version of section 1 ultimately adopted by

the convention and ratified by electors. See Convention, at 282-85; see also Samuel

Austin Kingman, Kansapedia: Kansas Historical Society,

https://www.kshs.org/kansapedia/samuel-austin-kingman/17072 (professional biography

of Kingman). In advancing what would become the final version of section 1, Kingman

made clear the term "inalienable" has an established legal meaning—referring to a right

or interest that cannot be disposed of by sale or assignment to another but which can be

25

forfeited. In this regard, Kingman explained that inalienable natural rights would not

impair the State's ability to punish individuals for criminal conduct:

"Mr. President, I do not propose to argue this question. I would be willing to vote

for the section as it stands, but I prefer the language of the substitute just offered. But I

hold in my hand a section which I prefer to both of them. I do not propose at this time to

offer it. But I hold that this use of the word 'inalienable,' is misunderstood and

misinterpreted in this House. A man's right to his life is inalienable in law under all

circumstances. He has no right to sell or give it away—no right to dispose of it at all. But

the word 'inalienable' has a fixed meaning in law. And when in the common use of the

word we say, that a man cannot alienate his property, none would suppose we mean to

say, he cannot forfeit his property. We propose, at the proper time, to propose in this

Constitution, that there shall be a homestead set apart to each settler in the State, which

shall be inalienable, but we do not propose to ordain that it shall not be forfeited for debts

due to the State, and so on. I do not like to see this doctrine impinged. I do not like to

depart from old, established usage. Therefore I hope the section which I hold in my hand

will be adopted. By the leave of the Convention I will read it:

'All men are possessed of equal and inalienable natural rights, among which are

those of life, liberty and the pursuit of happiness.'

"These terms, Mr. President, are fixed in the minds of the American people—

they have become traditional. And I offer to strike out and insert this, that the American

feeling might appear in this section. We all cling to old truths, and I love the very forms

of expression in which old truths have been presented. I dislike to change any old truth

from the forms of language to which I have been accustomed. I dislike to see them taken

from the habiliments in which I have so often seen them clothed and put into new and

doubtful phraseology; and our national Declaration of Independence is of this class of

truth. That Declaration of Rights forms a part of our political creed, from which no man

can extricate himself; and I do not wish to change the clothing of these ideas. It is this

feeling that makes a man who has long read one book—as the Bible or Blackstone—

value it a hundred fold above its intrinsic value. This makes a man like to read the

sentiments he cherishes in their original style of expression—makes him like to dwell on

26

the very words that cover the principles he holds closest to his heart. And we should

express these sentiments in few words—sufficient to cover their views and carry their

original force, and whatever goes beyond that is injurious to the sense. I say again, sir, I

love these old forms. They are, it seems to me, as the political Bible of every citizen of

the United States. If you change their language, you mar their beauties—carry the mind

away from the sense, and send it off into reflections on the phraseology and meaning of

these new terms. I think the amendment I have read, in these old terms, is broad enough.

It will show no man's prejudices, and it is broad enough for all to stand upon." (Emphases

added.) Convention, at 282-83.

Kingman's explanation proved to be persuasive, and the convention passed his substitute

proposal by a margin of 42 to 6. Convention, at 285.

This historical record indicates the drafters of section 1 never intended the term

"inalienable" to be construed as "absolute" or "nonforfeitable." Instead, a careful reading

of section 1, coupled with the transcripts of the convention debate, establishes that the

term "inalienable" refers only to one's ability to transfer his or her right or interest to

another person. This construction is consistent with the legal meaning ascribed to the

term "inalienable." See Black's Law Dictionary 683 (5th ed. 1978) (defining "inalienable"

as "[n]ot subject to alienation; the characteristic of those things which cannot be bought

or sold or transferred from one person to another, such as rivers and public highways, and

certain personal rights; e.g., liberty"). Though inalienable, the framers viewed these

natural rights as forfeitable in civil society. So construed, the framers were confident

section 1 could not be used as a device to impede or limit the state's authority to punish

individuals for their criminal conduct.

2. Natural Rights Theory According to Locke and Blackstone

During the Wyandotte Convention debates, the chairman of the Preamble and Bill

of Rights Committee, William Hutchinson, explained that section 1 is designed to declare

27

and protect the "natural rights" of all persons. See Convention, at 281-82. Based on the

established historical record, we have held the framers intended section 1 to incorporate

the "broad concept of natural rights." Hodes, 309 Kan. at 629 ("In short, the drafters . . .

incorporated the broad concept of natural rights" in adopting section 1.).

a. John Locke

The theory of "natural rights" traces its lineage from the writings of John Locke

through the Declaration of Independence, written by Thomas Jefferson, and the Virginia

Declaration of Rights of 1776, written by George Mason. 309 Kan. at 639. Thus,

"Locke's views on natural rights are significant" and offer insight into the framers' intent

in adopting section 1. 309 Kan. at 639.

Locke's theory describes the inherent rights of persons in nature before consenting

to civil governance. According to Locke, in nature all persons are in "a State of perfect

Freedom to order their Actions, and dispose of their Possessions, and Persons as they

think fit, within the bounds of the Law of Nature, without asking leave, or depending

upon the Will of any other Man." Locke, Two Treatises of Government, Bk. II, § 4

(1698). And consistent with such uninhibited personal freedom, the state of nature is also

a state of "Equality, wherein all the Power and Jurisdiction is reciprocal, no one having

more than another." Locke, Bk II, § 4.

In this perfect state of nature, these inherent rights are to be exercised according to

each person's free will and should not be impaired, unless the exercise of these rights

would place another's natural rights in peril:

"The State of Nature, has a Law of Nature to govern it which obliges every one, and

Reason, which is that Law, teaches all Mankind, who will but consult it; That being

all equal and independent, no one ought to harm another in his Life, Health, Liberty,

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or Possessions; . . . [E]very one as he is bound to preserve himself, and not to quit

his Station wilfully, so by the like reason when his own Preservation comes not in

competition, ought he as much as he can to preserve the rest of Mankind, and not

unless it be to do Justice on an Offender, take away, or impair the life, or what tends

to the Preservation of the Life, the Liberty, Health, Limb or Goods of another." Locke,

Bk. II, § 6.

"Locke's contention that man is endowed with free will means, however, that the

law of nature, though known by reason, is not necessarily universally obeyed." Suess,

Punishment in the State of Nature: John Locke and Criminal Punishment in the United

States of America, 7 Wash. U. Jur. Rev. 367, 377 (2015). Given this reality, "to uphold

natural law . . . the rational man has the right to punish criminals. For if no one had such a

right the law of nature would be in vain." 7 Wash. U. Jur. Rev. at 377.

Locke's justification for punishment in nature was that the offender, by infringing

the natural rights of another, had "declare[d] himself to live by another Rule, than that of

reason and common Equity." Locke, Bk. II, § 8. Such transgressions are "a trespass

against the whole Species." Locke, Bk. II, § 8. Thus, all persons "may restrain, or where

it is necessary, destroy things noxious to them, and so may bring such evil on any one,

who hath transgressed that Law, as may make him repent the doing of it, and thereby

deter him, and by his Example others, from doing the like mischief." Locke, Bk. II, § 8.

Without question Locke viewed the act of murder as a transgression of natural

law, warranting punishment up to and including capital punishment.

"The damnified Person has this Power of appropriating to himself, the Goods or Service

of the Offender, by Right of Self-preservation, as every Man has a Power to punish the

Crime, to prevent its being committed again, by the Right he has of Preserving all

Mankind, and doing all reasonable things he can in order to that end: And thus it is, that

every Man in the State of Nature, has a Power to kill a Murderer, both to deter others

29

from doing the like Injury, which no Reparation can compensate, by the Example of the

punishment that attends it from every body, and also to secure Men from the attempts of

a Criminal, who having renounced Reason, the common Rule and Measure God hath

given to Mankind, hath by the unjust Violence and Slaughter he hath committed upon

one, declared War against all Mankind, and therefore may be destroyed as a Lion or a

Tyger, one of those wild Savage Beasts, with whom Men can have no Society nor

Security." Locke, Bk. II, § 11.

According to Locke, individuals who commit capital offenses forfeit their own

natural rights, including the right to life, through their offensive conduct.

"Indeed having, by his fault, forfeited his own Life, by some Act that deserves Death; he,

to whom he has forfeited it, may (when he has him in his Power) delay to take it, and

make use of him to his own Service, and he does him no injury by it. For, whenever he

finds the hardship of his Slavery out-weigh the value of his Life, 'tis in his Power, by

resisting the Will of his Master, to draw on himself the Death he desires." (Emphasis

added.) Locke, Bk. II, § 23.

This concept of "forfeiture" enables Locke to philosophically justify notions of

punishment that result in the deprivation of the perpetrator's own rights as they would

have existed in nature.

Interestingly, for Locke, the right to life gave rise to a reciprocal duty for a person

to preserve his or her own life. Notwithstanding the vast freedom enjoyed by individuals

in nature, Locke did not believe such freedom granted individuals the power to end one's

own life. Locke, Bk. II, § 23. As a corollary, a person could not alienate that right to

another person because a person did not "hav[e] the Power of his own Life" in the first

place. Locke, Bk. II, § 23. Thus, a person "cannot, by Compact, or his own Consent,

enslave himself to any one, nor put himself under the Absolute, Arbitrary Power of

another, to take away his Life, when he pleases." Locke, Bk. II, § 23. "No body can give

30

more Power than he has himself; and he that cannot take away his own Life, cannot give

another power over it." Locke, Bk. II, § 23.

Consistent with delegate Kingman's commentary regarding the intended scope of

section 1, Locke's natural rights theory recognizes the right to life to be inalienable,

meaning it cannot be sold, transferred, or assigned to another. But the right is not

absolute, as it may be forfeited through acts of criminal conduct that give rise to the

power of punishment.

Even so, Locke's philosophical justification for punishment based on notions of

forfeiture leads to an obvious question: who should impose punishment? Locke observed

"it is unreasonable for Men to be Judges in their own Cases, that Self-love will make Men

partial to themselves and their Friends. And on the other side, that Ill Nature, Passion and

Revenge will carry them to far in punishing others." Locke, Bk. II, § 13. Therefore,

Locke concluded that "Civil Government is the proper Remedy for the Inconveniences of

the State of Nature." Locke, Bk. II, § 13.

According to Locke, individuals do not relinquish their natural rights of life,

liberty, and property merely by entering civil society. Locke, Bk. II, § 87. Instead, they

consent to the same power of punishment that existed in nature. But instead of being

meted out by the victim, punishment (including the death penalty) as it exists in the state

of nature is transferred to, and imposed by, the civil society itself. Locke, Bk. II, § 87.

"Man being born, as has been proved, with a Title to perfect Freedom, and an

uncontrouled enjoyment of all the Rights and Privileges of the Law of Nature, equally

with any other Man, or Number of Men in the World, hath by Nature a Power, not only to

preserve his Property, that is, his Life, Liberty and Estate, against the Injuries and

Attempts of other Men; but to judge of, and punish the breaches of that Law in others, as

he is persuaded the Offence deserves, even with Death it self, in Crimes where the

heinousness of the Fact, in his Opinion, requires it. But because no Political Society can

31

be, nor subsist without having in it self the Power to preserve the Property, and in order

thereunto punish the Offences of all those of that Society: There, and there only is

Political Society, where every one of the Members hath quitted this natural Power,

resign'd it up into the hands of the Community in all cases that exclude him not from

appealing for Protection to the Law established by it. And thus all private judgement of

every particular Member being excluded, the Community comes to be Umpire, by settled

standing Rules; indifferent, and the same to all Parties: And by Men having Authority

from the Community for the execution of those Rules, decides all the differences that

may happen between any Members of that Society, concerning any matter of right, and

punishes those Offences, which any Member hath committed against the Society with

such Penalties as the Law has established; whereby it is easie to discern who are, and

who are not, in Political Society together." (Emphasis added.) Locke, Bk. II, § 87.

b. William Blackstone

Though philosophically consistent with Locke, William Blackstone provided a

more complete description of the contours of natural rights, particularly the right to life,

in his Commentaries on the Laws of England. See Bedau, The Right to Life, 52(4) The

Monist 550, 553 (1968) ("If we were to look for the one thinker from the past whose

writings, in virtue of their antiquity, detail, and influence, have no peer as a source of the

classic doctrine of the right to life, we would have to choose, not Hobbes, Locke,

Rousseau, or Paine, but Sir William Blackstone.").

The United States Supreme Court has recognized Blackstone's influence on the

framers of the United States Constitution:

"Blackstone's Commentaries are accepted as the most satisfactory exposition of

the common law of England. At the time of the adoption of the Federal Constitution, it

had been published about twenty years, and it has been said that more copies of the work

had been sold in this country than in England; so that undoubtedly, the framers of the

32

Constitution were familiar with it." Schick v. United States, 195 U.S. 65, 69, 24 S. Ct.

826, 49 L. Ed. 99 (1904).

Likewise, members of the early state constitutional conventions were so immersed in the

common law as expounded by Blackstone that the language of these constitutions cannot

be well understood without reference to his teachings. See Bader, Some Thoughts on

Blackstone, Precedent, and Originalism, 19 Vt. L. Rev. 5, 7-8 (1994).

Blackstone divided individual rights into two categories: absolute and relative.

1 Blackstone, Commentaries on the Laws of England at 119 (1765). It is important to

recognize Blackstone did not define "absolute" rights in a way that established a higher

order of law (where "absolute" rights would be free from any limitation or infringement,

thereby limiting the authority of the government to exercise the power of criminal

punishment). Instead, his definition of "absolute" rights was consistent with Locke's

characterization of natural rights—those that "appertain and belong to particular men,

merely as individuals or single persons," whereas relative rights "are incident to them as

members of society, and standing in various relations to each other." 1 Blackstone, at

119. "For the most part, the purpose of 'relative' rights (including the right of access to the

courts, the right to petition for the redress of grievances and the right to bear arms) was to

preserve or implement 'absolute' rights in organized communities." Alschuler,

Rediscovering Blackstone, 145 U. Pa. L. Rev. 1, 28 (1996).

In other words, under Blackstone's terminology, absolute rights are those naturally

endowed to persons by the creator:

"The absolute rights of man, considered as a free agent, endowed with

discernment to know good from evil, and with power of choosing those measures which

appear to him to be most desirable, are usually summed up in one general appellation,

and denominated the natural liberty of mankind. This natural liberty consists properly in a

power of acting as one thinks fit, without any restraint or control, unless by the law of

33

nature; being a right inherent in us by birth, and one of the gifts of God to man at his

creation, when he endued him with the faculty of freewill." 1 Blackstone, at 121.

For Blackstone, political or civil liberty—"which is that of a member of society"—

"is no other than natural liberty so far restrained by human laws (and no farther) as is

necessary and expedient for the general advantage of the public." 1 Blackstone, at 121.

Moreover, the purpose of society, and thus government, "is to protect individuals in the

enjoyment of those absolute rights, which were vested in them by the immutable laws of

nature; but which could not be preserved in peace without that mutual assistance and

intercourse which is gained by the institution of friendly and social communities."

1 Blackstone, at 120.

Blackstone "reduced" these natural rights "to three principal or primary articles;

the right of personal security, the right of personal liberty, and the right of private

property." 1 Blackstone, at 125. He included the right to life under the umbrella of the

right of personal security: "The right of personal security consists in a person's legal and

uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation."

1 Blackstone, at 125.

Indeed, foremost in Blackstone's right of personal security was the right to life.

1 Blackstone, at 125. A person's life and limbs were "of such high value," "that it pardons

even homicide if committed se defendendo, or in order to preserve them." 1 Blackstone,

at 126. Whatever a person might do to save life or limb, "is looked upon as done upon the

highest necessity and compulsion." 1 Blackstone, at 126.

Like Locke, and consistent with delegate Kingman's interpretation of section 1,

Blackstone recognized the right to life is not alienable, meaning it cannot be assigned or

transferred to another, but it can be forfeited when a person's criminal conduct

necessitates punishment, up to and including capital punishment, in civil society.

34

"This natural life, being, as was before observed, the immediate donation of the

great creator, cannot legally be disposed of or destroyed by any individual, neither by the

person himself nor by any other of his fellow-creatures, merely upon their own authority.

Yet nevertheless it may, by the divine permission, be frequently forfeited for the breach

of those laws of society, which are enforced by the sanction of capital punishments; of

the nature, restrictions, expedience, and legality of which, we may hereafter more

conveniently enquire in the concluding book of these commentaries. At present, I shall

only observe, that whenever the constitution of a state vests in any man, or body of men,

a power of destroying at pleasure, without the direction of laws, the lives or members of

the subject, such constitution is in the highest degree tyrannical: and that, whenever any

laws direct such destruction for light and trivial causes, such laws are likewise tyrannical,

though in an inferior degree; because here the subject is aware of the danger he is

exposed to, and may by prudent caution provide against it. The statute law of England

does therefore very seldom, and the common law does never, inflict any punishment

extending to life or limb, unless upon the highest necessity; and the constitution is an

utter stranger to any arbitrary power of killing or maiming the subject without the express

warrant of law." (Emphasis added.) 1 Blackstone, at 129.

Commentators interpreting Blackstone and, by extension, Locke have confirmed

this interpretation of inalienable natural rights, i.e., recognizing that inalienable natural

rights may still be forfeited through criminal conduct warranting punishment:

"(a) If punishments of death are necessary for social defense, then the plea of absolute

individual rights will not bar the justifiable imposition of death penalties. But the death

penalty may be justifiably imposed only if the criminal's (right to) life is forfeit for his

crime (sc. one is excused for killing in self-defense because the aggressor forfeits his

right to life). (b) Whenever a person commits a crime, he violates the rights of another.

This in turn entails forfeiture by the criminal of those rights which he violated in his

victim. '[T]he offender, by violating the life or liberty or property of another, has lost his

own right to have his life, liberty, or property respected . . .' The result of (a) and (b) is a

justification of the forfeiture of the absolute right to life." 52(4) The Monist at 568.

35

While Bedau critiques this conclusion, it is, nonetheless, the conclusion that both

Blackstone and Locke reached in formulating their concept of natural rights.

In his discussion of crimes and punishments in Book IV, Blackstone reasons that

in the state of nature, the power or right of punishment is vested in every individual. See

4 Blackstone, at 7.

"It is clear, that the right of punishing crimes against the law of nature, as murder and the

like, is, in a state of mere nature vested in every individual. For it must be vested in

somebody; otherwise the laws of nature would be vain and fruitless, if none were

empowered to put them in execution: and if that power is vested in any one, it must also

be vested in all mankind, since all are by nature equal." 4 Blackstone, at 7.

Blackstone, like Locke, concludes that upon entering civil society, "this right is

transferred from individuals to the sovereign power." 4 Blackstone, at 8.

Blackstone also recognized a distinction between crimes that are mala in se—

wrong or evil in itself—and those that are mala prohibita—"offences of human

institution." 4 Blackstone, at 9. For Blackstone, it was apparent that civil society could

impose capital punishment for crimes that are mala in se.

"With regard to offences mala in se, capital punishments are in some instances inflicted

by the immediate command of God himself to all mankind; as, in the case of murder, by

the precept delivered to Noah, their common ancestor and representative, 'whoso

sheddeth man's blood, by man shall his blood be shed.'" 4 Blackstone, at 9.

36

But for crimes mala prohibita, capital punishment is only justified

"'when offences grow enormous, frequent, and dangerous to a kingdom or state,

destructive or highly pernicious to civil societies, and to the great insecurity and danger

of the kingdom or its inhabitants, severe punishment and even death itself is necessary to

be annexed to laws in many cases by the prudence of lawgivers.'" 4 Blackstone, at 9.

It was not only the frequency or difficulty in preventing a particular mala prohibita crime

that might warrant a penalty of capital punishment, but also its "enormity, or dangerous

tendency" that "alone" might warrant putting the offender to death. 4 Blackstone, at 9.

In sum, both Locke and Blackstone characterized inalienable natural rights,

including the right to life, as forfeitable when criminal conduct warrants punishment, up

to and including death, in civil society. See Locke, Bk. II, § 23; 1 Blackstone, at 129.

This conclusion is consistent with the record of the Wyandotte Convention debates,

where the framers made clear that the natural rights in section 1 are forfeitable in civil

society and cannot impair the state's ability to punish individuals for their criminal

conduct. And both (the teachings of Locke/Blackstone and the record of the Wyandotte

Convention debates) are consistent with the legal definition of the term "inalienable" as

used in section 1.

C. Kansas' Capital Sentencing Scheme Does Not Infringe Upon the Inalienable

Right to Life in Section 1

As noted above, R. Carr claims that section 1 affords him an absolute,

nonforfeitable right to life that precludes capital punishment. However, as discussed more

fully below, our construction of section 1 forecloses this argument. The text and relevant

historical record demonstrate the framers intended section 1's inalienable right to life to

be subject to forfeiture through criminal conduct. Accordingly, R. Carr's and J. Carr's

asserted right to or declared interest in an absolute, nonforfeitable right to life does not

37

fall within the purview of rights protected by section 1. Instead, when a person is

convicted of capital murder beyond reasonable doubt, he or she forfeits the inalienable

right to life under section 1 and the state may impose lawful punishment for that crime.

We adopted a similar rationale in Kleypas I, albeit under a substantially different

legal framework that predated this court's decision in Hodes. See State v. Kleypas, 272

Kan. 894, 136, 40 P.3d 139 (2001) (Kleypas I), cert. denied 537 U.S. 834 (2002),

overruled on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L.

Ed. 2d 429 (2006). There, Kleypas attempted to distinguish section 1 from the Fourteenth

Amendment by highlighting the fact that the text of section 1 does not contain any

limiting language or exception authorizing governmental infringement of natural rights

upon satisfaction of due process requirements. Kleypas I, 272 Kan. at 1051.

"Kleypas argues that, unlike the federal version which does not allow the taking

of life without due process of law, the above language in our state constitution simply

does not contemplate the taking of a life by the State under any circumstances. He

contends that the Kansas Constitution confers upon him an absolute right to life." 272

Kan. at 1051.

The court rejected Kleypas' argument without much discussion. It quoted from the

same constitutional convention debates discussed above in concluding that the right to

life under section 1 does not limit the state's power to impose punishments for crimes.

272 Kan. at 1051-52. The court characterized the argument as "somewhat novel" but

listed a variety of cases from other state courts that had "soundly rejected" similar

challenges. 272 Kan. at 1052 (citing Ruiz v. Arkansas, 299 Ark. 144, 152-53, 772 S.W.2d

297 [1989]; Missouri v. Newlon, 627 S.W.2d 606, 612-13 [Mo. 1982]; Slaughter v.

Oklahoma, 950 P.2d 839, 861-62 [Okla. Crim. App. 1997]). Ultimately, the court decided

Kleypas' argument stretched "the meaning of the venerable words in § 1 of the state Bill

38

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

at 1052.

It is no surprise the Kleypas I court focused on the framers' discussion of

"inalienability" in rejecting the section 1 challenge. The delegates' remarks reflect the

framers' intent to construe the term "inalienable" within section 1 consistent with its legal

meaning—a right or interest that cannot be transferred or assigned to another person.

Though inalienable, i.e., nontransferable, an individual may forfeit his or her natural

rights by engaging in criminal conduct that is subject to punishment in civil society.

Therefore, delegate Kingman believed his proposed language for section 1 (which was

ultimately adopted by the convention) would establish the existence of natural rights that

were forfeitable, thereby authorizing the state to impose punishment for criminal conduct

without offense to section 1.

Locke and Blackstone, whose teachings greatly influenced the development of

both federal and state constitutions alike, recognized a similar construction of

"inalienable" natural rights, i.e., that they were subject to forfeiture. Natural rights

theorists generally posited a state of nature that included within it a set of rights that

every individual possessed in that state of nature. But when humans enter civil society,

they relinquish certain powers and rights to the sovereign or government. As discussed

above, the right to impose punishment, up to and including capital punishment, was one

of the rights transferred from the individual to the sovereign. Thus, according to Locke,

Blackstone, and the drafters of the Kansas Constitution, an individual who commits a

crime warranting punishment in civil society forfeits his or her natural rights, thereby

enabling the state to impose just punishment.

After careful examination of the text of section 1, the historical record, and the

documents and writings that inspired the drafters of the Kansas Constitution, we conclude

39

that section 1 recognizes an inalienable right to life, but that right is not absolute or

nonforfeitable. We hold that once a defendant has been convicted of capital murder

beyond a reasonable doubt, the defendant forfeits his or her natural rights under section 1

("among which are life, liberty, and the pursuit of happiness") and the state may impose

punishment for that crime pursuant to Kansas' capital sentencing scheme.

In so holding, we do not mean to suggest the state's power to punish is unabated

upon a defendant's forfeiture of natural rights under section 1. To the contrary, a

defendant is entitled to due process of law throughout the penalty phase proceedings. See,

e.g., Kan. Const. Bill of Rights, § 10. Additionally, the punishment imposed may not be

"cruel or unusual." See, e.g., Kan. Const. Bill of Rights, § 9. But these protections do not

arise under section 1. In fact, where a defendant has been lawfully convicted of capital

murder, the imposition of the capital sentence no longer implicates his or her inalienable

natural rights under section 1. However, other constitutional guarantees, including but not

limited to those contained in sections 9 and 10, continue to regulate the state's authority

to punish and guard against arbitrary applications of such authority. Cf. Chapman v.

United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991)

(fundamental right to liberty limits government power to punish prior to jury's verdict of

guilt; thereafter a person "is eligible for, and the court may impose, whatever punishment

is authorized by statute for his offense, so long as that penalty is not cruel and unusual").

For these reasons, R. Carr's and J. Carr's asserted right to, or declared interest in,

an absolute, nonforfeitable right to life is not included within or part of the guarantees

or protections of section 1. Instead, the natural right to life is forfeitable, and the

government's imposition of the death penalty pursuant to Kansas' capital sentencing

scheme does not impair the "inalienable" right to life protected under section 1.

Accordingly, the jury's capital sentencing verdicts in R. Carr's and J. Carr's cases do not

implicate section 1 of the Kansas Constitution Bill of Rights.

40

II. Death Qualification of Jurors Under K.S.A. 22-3410 Does Not Violate Section 5

of the Kansas Constitution Bill of Rights

In an amicus brief filed in J. Carr's case, the NAACP Legal Defense and

Educational Fund, Inc. (LDF) raises a state constitutional challenge to the practice of

"death qualifying" juries in Kansas—the process of removing prospective jurors for

cause, pursuant to K.S.A. 22-3410, when their conscientious objection to capital

punishment substantially impairs their ability to fulfill the oath and obligations of a juror.

Though not raised by R. Carr, the LDF and the State briefed the issue to the court, and we

advised J. Carr and the State to be prepared to address the issue at oral argument.

After oral argument concluded, R. Carr filed a motion requesting the court

consider this section 5 challenge in his appeal. We deny R. Carr's motion because it is an

improper procedural vehicle for advancing this new, state constitutional challenge. See

State v. Cheever, 306 Kan. 760, 774, 402 P.3d 1126 (2017) (Cheever II) (denying similar

motion on instruction issue); State v. Gleason, 305 Kan. 794, 798, 388 P.3d 101 (2017)

(Gleason II) (same). Nevertheless, we address the merits of the claim given our statutory

obligation in capital appeals to both consider "the question of sentence" and "notice

unassigned errors appearing of record if the ends of justice would be served thereby."

K.S.A. 2020 Supp. 21-6619(b); Cheever II, 306 Kan. at 774 (electing to reach merits of

similar issue "[u]nder the unique circumstances of [the] case and in the interest of judicial

economy"); Gleason II, 305 Kan. at 798-99 (same).

Kansas statute authorizes a district judge to remove prospective jurors for cause

where their "state of mind with reference to the case or any of the parties is such that the

court determines there is doubt that [the prospective juror] can act impartially and

without prejudice to the substantial rights of any party." K.S.A. 22-3410(2)(i). Under this

provision, parties in a capital case may successfully challenge prospective jurors for

41

cause if their views on the death penalty prevent or substantially impair the performance

of their duties as jurors. See R. Carr, 300 Kan. at 113-14. The statute is designed to

balance a defendant's due process and jury trial rights with the State's strong interest in

seating jurors who can apply the sentence of capital punishment according to the

framework provided by law. 300 Kan. at 113. Nevertheless, the LDF contends the State's

removal of prospective jurors under this statute violates the right to trial by jury preserved

in section 5 of the Kansas Constitution Bill of Rights.

A. Standard of Review and Legal Framework

As previously noted, constitutional challenges raise questions of law over which

appellate courts have unlimited review. State v. Coleman, 312 Kan. 114, 117, 472 P.3d

85 (2020). To the extent resolution of this issue requires us to interpret the language of

section 5, our review is likewise unlimited. 312 Kan. at 117.

Section 5 of the Kansas Constitution Bill of Rights provides that "[t]he right of

trial by jury shall be inviolate." This court has consistently held that section 5 "'"preserves

the jury trial right as it historically existed at common law when our state's constitution

came into existence"'" in 1859. Albano, 313 Kan. at 641. A section 5 analysis generally

involves two inquiries: (1) "In what types of cases is a party entitled to a jury as a matter

of right?" and (2) "[W]hen such a right exists, what does the right protect?" State v. Love,

305 Kan. 716, 735, 387 P.3d 820 (2017). "Prosecutions for violations of state criminal

statutes unquestionably implicate Section 5." 305 Kan. at 736. Therefore, our analysis

focuses on the scope of that right—that is, does section 5 foreclose death qualification of

jurors under K.S.A. 22-3410?

42

B. The Plain Meaning of the Term "Jury" and the Historical Record Demonstrate

that "Death-Qualification" Under K.S.A. 22-3410 Is Beyond the Scope of

Section 5

To determine the scope of the jury trial right under the Kansas Constitution, it is

first instructive to explore the meaning of the term "jury" as used in section 5. In doing

so, we rely on established rules of constitutional construction:

"In ascertaining the meaning of a constitutional provision, the primary duty of the

courts is to look to the intention of the makers . . . and the adopters . . . of that provision.

A constitutional provision is not to be narrowly or technically construed, but its language

should be interpreted to mean what the words imply to persons of common

understanding. Words in common usage are to be given their natural and ordinary

meaning in arriving at a proper construction. [Citations omitted.]" Board of Leavenworth

County Com'rs v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 905, 933 P.2d 698 (1997).

When the words themselves do not make the drafters' intent clear, courts look to the

historical record, remembering "'the polestar . . . is the intention of the makers and

adopters.'" Hunt, 150 Kan. at 5; see State ex rel. Stephan v. Finney, 254 Kan. 632, 655,

867 P.2d 1034 (1994). Here, both the plain meaning of the term "jury" and the historical

record each undermine this section 5 challenge.

To ascertain the meaning of the term "jury" under section 5, we first look to the

common, ordinary meaning of this term. Dictionary definitions provide a reliable source

for that meaning. Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n, 306

Kan. 845, 851, 397 P.3d 1205 (2017). Black's Law Dictionary defines a "jury" as "[a]

group of persons selected according to law and given the power to decide questions of

fact and return a verdict in the case submitted to them." Black's Law Dictionary 1024

(11th ed. 2019). Similarly, the American Heritage Dictionary of the English Language

defines "jury" as "[a] body of persons selected to decide a verdict in a legal case, based

43

upon the evidence presented, after being given instructions on the applicable law." The

American Heritage Dictionary of the English Language 953 (5th ed. 2011); see also

Webster's New World College Dictionary 790 (5th ed. 2014) (defining "jury" as "a group

of people sworn to hear the evidence and inquire into the facts in a law case, and to give a

decision in accordance with their findings").

Thus, we construe the term "jury," as used in section 5, to denote a legally selected

group of persons sworn to determine issues of fact and return a verdict based on the

evidence and the law as instructed. This construction is also in accord with our precedent

defining the traditional function and duty of a Kansas jury. See State v. McClanahan, 212

Kan. 208, 217, 510 P.2d 153 (1973) ("[I]t is the proper function and duty of a jury to

accept the rules of law given to it in the instructions by the court, apply those rules of law

in determining what facts are proven and render a verdict based thereon."); see also State

v. Boeschling, 311 Kan. 124, 130, 458 P.3d 234 (2020) (recognizing same traditional

functions and duties of jury).

Under this plain meaning interpretation, section 5's right to trial by jury does not

prohibit the state from death qualifying juries. Importantly, K.S.A. 22-3410 does not

permit the removal of any or all prospective jurors who have conscientious objections to

the death penalty. The death qualification process is constrained by the Eighth

Amendment to the United States Constitution, which prohibits the state from excluding

jurors in capital trials "simply because they voiced general objections to the death penalty

or expressed conscientious or religious scruples against its infliction." Witherspoon v.

Illinois, 391 U.S. 510, 522, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Instead, the State

may only remove those prospective jurors whose opposition to the death penalty "would

'prevent or substantially impair the performance of [their] duties as [jurors] in accordance

with [their] instructions and [their] oath[s].'" Wainwright v. Witt, 469 U.S. 412, 424, 105

S. Ct. 844, 83 L. Ed. 2d 841 (1985).

44

In other words, death qualification eliminates only those prospective jurors who

cannot decide issues of fact and reach a decision based on the evidence presented and the

law as instructed—i.e., those persons who are unable to fulfill the traditional functions

and duties of a Kansas jury. And, as established above, the plain meaning of the term

"jury," as used in section 5, excludes these types of prospective jurors from its definition.

In this regard, the process of death qualification under K.S.A. 22-3410 facilitates the very

trial by "jury" that section 5 guarantees.

C. Death Qualification Does Not Implicate Section 5 Because the Common Law

Did Not Prohibit the Practice When the Kansas Constitution Was Adopted in

1859

Furthermore, the LDF concedes that when our state Constitution was adopted, the

common law permitted a trial judge to remove individuals whose conscientious scruples

against the death penalty would substantially impair their ability to perform the oath and

duties of a juror. However, the LDF asserts this common-law rule arose from

circumstances peculiar to the structure of capital trials at the time.

Historically, neither the jury nor the trial judge possessed sentencing discretion in

capital trials—once convicted, a judge sentenced the defendant to death as a matter of

law. See Novak, The Role of Legal Advocates in Transnational Judicial Dialogue: The

Abolition of the Mandatory Death Penalty and the Evolution of International Law, 25

Cardozo J. Int'l & Comp. L. 179, 210 (2017) ("At common law, the mandatory death

penalty shifted sentencing discretion from a trial judge to a clemency authority."). Thus, a

death-scrupled juror could only circumvent the death penalty by acquitting a defendant,

regardless of what the evidence established or the law required. The LDF speculates that

death-scrupled jurors were thus disqualified at common law for a very narrow reason—

the need to ensure the fair adjudication of the defendant's guilt. The LDF contends this

45

rationale no longer applies to Kansas' modern capital sentencing scheme, which requires

a bifurcated trial with separate guilt and sentencing phases. As such, the LDF concludes

that section 5 no longer authorizes death qualification under K.S.A. 22-3410.

We question the LDF's narrow characterization of the rationale behind the

common-law rule and the dubious assertion it has no application to Kansas' current

capital sentencing scheme. More fundamentally, however, the LDF's argument fails to

demonstrate how death qualification under K.S.A. 22-3410 offends any jury trial right

protected under section 5. Instead, the LDF's argument is founded on the mistaken

premise that section 5 authorizes the Legislature to create or modify juror qualification

and selection standards only if such legislation is affirmatively authorized by common

law (and the original rationale underlying it). But there is no support for this proposition.

In fact, the premise is simply incorrect.

Section 5 does not define the constitutional scope of legislative power. Instead,

such powers are defined in article 2 of the Kansas Constitution. State ex rel. Morrison v.

Sebelius, 285 Kan. 875, 898, 179 P.3d 366 (2008) ("Article 2 of the Kansas Constitution

gives the legislature the exclusive power to pass, amend, and repeal statutes."). Section 5

limits the Legislature's exercise of article 2 powers only when an act conflicts with or

limits a jury trial right that existed at common law when the Kansas Constitution was

adopted in 1859. See Jansky v. Baldwin, 120 Kan. 332, 334, 243 P. 302 (1926) ("Since

the people have all governmental power, and exercise it through the legislative branch

of the government, the legislature is free to act except as it is restricted by the state

constitution."); Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 665, 3 P. 284

(1884) (Kansas Constitution Bill of Rights limits legislative power where act "trenches

upon the rights guaranteed by them, or which conflicts with any limitation expressed in

them."); see also Love, 305 Kan. at 735 (rejecting defendant's argument that "because

46

juries were instructed on lesser included offenses at common law, the practice was frozen

for all time" as "an overbroad interpretation of Section 5 and its protections").

As established above, the parties agree that the prevailing common law in 1859

permitted death qualification, and Kansas' territorial laws were consistent with this

common-law rule. Kan. Terr. Stat. 1859, ch. 27, § 179. The LDF fails to identify any

common-law rule in Kansas that prohibited death qualification at the time our

Constitution was adopted in 1859. See Prouty v. Stover, 11 Kan. 235, 256 (1873) ("The

mere silence of the constitution on any subject cannot be turned into a prohibition.").

Therefore, death qualification under K.S.A. 22-3410 does not violate section 5. See

Kimball and others v. Connor, Starks and others, 3 Kan. 414, 432 (1866) ("Trial by jury

is guaranteed only in those cases where that right existed at common law.").

Quoting State v. Peterson, No. 116,931, 2018 WL 4840468, at *1 (Kan. App.

2018) (unpublished opinion), the LDF asserts that "'citizens called for jury duty have a

constitutional right to serve if they are otherwise qualified.'" (Emphasis added.) This

unpublished Court of Appeals decision fails to advance the LDF's section 5 claim.

Peterson addressed a challenge brought under the Equal Protection Clause of the United

States Constitution, not section 5. Also, Peterson does not identify any common-law right

incorporated into section 5 that would prohibit death qualification pursuant to K.S.A. 22-

3410. Moreover, Peterson acknowledges that potential jurors must still be qualified to

serve—that is, jurors must be able to fulfill the traditional functions and duties of a

Kansas jury. 2018 WL 4840468, at *1. And, as established above, the term "jury," as

used in section 5, excludes potential jurors who cannot fulfill these traditional functions

due to their conscientious objection to the death penalty.

47

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

Challenge

Finally, the LDF claims death qualification disparately impacts the racial

composition and biases of juries in capital sentencing proceedings, contrary to R. Carr's

section 5 right to trial by jury. Specifically, the LDF argues death qualification

disproportionately excludes Black venirepersons and produces a jury with higher levels

of implicit and explicit racial bias; and such juries are "'disproportionately guilt-prone

and death-prone.'"

These allegations most certainly warrant careful analysis and scrutiny. But the

issue—whether death qualification disparately impacts the racial composition of the jury

or its propensity to convict and sentence a defendant—raises a question of fact. Indeed,

the LDF cites several empirical studies to support its claims.

However, the issue was not raised or developed at trial. As a result, the district

court made no factual findings related to the LDF's claim. "'[A]ppellate courts do not

make factual findings but review those made by district courts.'" State v. Reed, 300 Kan.

494, 513, 332 P.3d 172 (2014). And the absence of such findings precludes us from

conducting any meaningful review of this issue. See State v. Wright, 305 Kan. 1176,

1179, 390 P.3d 899 (2017) (lack of factual findings precluded meaningful review of

harmless error analysis of constitutional challenge).

This holding is bolstered by our previous decision in R. Carr, where we affirmed

the district court's rulings on the for-cause challenges R. Carr had raised on appeal. In

other words, we previously determined that substantial competent evidence supported the

district court's conclusion that the individuals empaneled as members of R. Carr's jury

were impartial and qualified. R. Carr, 300 Kan. at 114-24. This holding, which is now the

law of the case, further suggests the sentence of death was not imposed under the

48

influence of passion, prejudice, or any other arbitrary factor, including the State's ability

to death qualify jurors under K.S.A. 22-3140. See K.S.A. 2020 Supp. 21-6619(c)(1)

(requiring court to determine whether sentence was imposed under such improper

circumstances).

In sum, both the plain meaning and historical record confirm that a "jury" is

defined as a group comprised of persons who will determine issues of fact and return a

decision based on the evidence and in accordance with the law as instructed. Death

qualification under K.S.A. 22-3410, as limited by the Eighth Amendment to the United

States Constitution, removes only those prospective jurors who cannot fulfill these

obligations due to conscientious objection to the death penalty, i.e., the statute authorizes

removal of those prospective jurors excluded from the constitutional definition of a

"jury." Thus, death qualification facilitates the very jury trial right guaranteed by section

5. Moreover, when the Kansas Constitution was adopted in 1859, the common law did

not preclude, and in fact authorized, this procedure. For these reasons, we hold that death

qualification under K.S.A. 22-3410 does not violate section 5.

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

Having resolved the challenges raised under the Kansas Constitution, we next

address R. Carr's pending motion to apply state law to the burden-of-proof jury

instruction for mitigating circumstances. This equivalent federal constitutional issue

was designated P10 in our earlier decision. R. Carr, 300 Kan. at 256, 302-03.

We deny the motion but reach the claim's merits. We hold that an instruction on

the burden of proof for mitigating circumstances is not required under state law,

overturning the holding in Cheever II, 306 Kan. 760, Syl. ¶ 5, that K.S.A. 21-4624(e),

now codified as K.S.A. 2020 Supp. 21-6617(e), requires such an instruction.

49

A. Standard of Review and Legal Framework

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

"(1) First, the appellate court should consider the reviewability of the issue from both

jurisdiction and preservation viewpoints, exercising an unlimited standard of review;

(2) next, the court should use an unlimited review to determine whether the instruction

was legally appropriate; (3) then, the court should determine whether there was sufficient

evidence, viewed in the light most favorable to the defendant or the requesting party, that

would have supported the instruction; and (4) finally, if the district court erred, the

appellate court must determine whether the error was harmless, utilizing the test and

degree of certainty set forth in [State v. ]Ward." State v. Plummer, 295 Kan. 156, 163,

283 P.3d 202 (2012).

To the extent the legal appropriateness of the instruction requires statutory interpretation

of K.S.A. 21-4624(e), we review that issue de novo. See State v. Harris, 311 Kan. 816,

821, 467 P.3d 504 (2020).

B. Discussion of the Motion and Underlying Merits

In its earlier decision, the court relied on Gleason I, 299 Kan. at 1196-98, to

provide guidance for the burden-of-proof instruction issue on remand. The court advised

that a district judge in Kansas must instruct a penalty-phase jury that the existence of

mitigating factors need not be proved beyond a reasonable doubt. R. Carr, 300 Kan. at

302-03. The court noted further that the failure to give this instruction would have

required it to vacate R. Carr's death sentence on Eighth Amendment grounds, were it not

already doing so because of the failure to sever. 300 Kan. at 303.

50

In Kansas v. Carr, the United States Supreme Court held the Eighth Amendment

does not require the instruction. 577 U.S. at 122. Thereafter, R. Carr filed his motion with

our court, arguing the instruction is compulsory under state law and the district court's

failure to give it was reversible error. R. Carr claimed we had effectively made that state

law determination in Gleason I and nothing in the United States Supreme Court's opinion

prevented this holding under state law. He also argued the instructions created a

"reasonable likelihood" the jurors applied a beyond-a-reasonable-doubt standard to his

proffered mitigation evidence when considered as a whole.

We deny R. Carr's motion because it is an inappropriate procedural vehicle to

advance this new, state-law instructional issue. See Cheever II, 306 Kan. at 774 (denying

similar motion on same instruction issue); Gleason II, 305 Kan. at 798 (same).

Nevertheless, we address the merits of the claim given our statutory obligation in capital

appeals to both consider "the question of sentence" and "notice unassigned errors

appearing of record if the ends of justice would be served thereby." K.S.A. 2020 Supp.

21-6619(b); Cheever II, 306 Kan. at 774 (electing to reach merits of similar issue

"[u]nder the unique circumstances of [the] case and in the interest of judicial economy");

Gleason II, 305 Kan. at 798-99 (same).

Turning to the merits, we conclude the failure to give the instruction was not error

under Kansas law. Granted, under the first component of the four-part framework, both

R. Carr and J. Carr preserved this challenge by requesting the mitigating circumstances

burden-of-proof instruction at trial. See State v. Perez, 306 Kan. 655, 667-68, 396 P.3d

78 (2017) (holding first step satisfied when defendant challenged on appeal district

court's failure to give requested instruction).

51

But our resolution of the issue turns on whether step two is also satisfied—i.e.,

whether the instruction as given is legally appropriate. State v. Pabst, 273 Kan. 658, 659,

44 P.3d 1230 (2002) (focusing analysis on whether instruction given fairly and accurately

stated the law as applied to the facts of the case where requested instruction denied). In

Cheever II, a majority of the court held that K.S.A. 21-4624(e) "provides greater

protection to a death-eligible defendant than required by the federal Constitution. In

Kansas, a capital jury must be instructed that mitigating circumstances need not be

proved beyond a reasonable doubt." 306 Kan. 760, Syl. ¶ 5. Although this court had not

previously addressed the burden-of-proof issue as a matter of state law, the Cheever II

court concluded that pronouncements in Kleypas I, although dicta, had recognized a

construction of the statute that requires a capital sentencing jury be instructed that

mitigating circumstances need not be proven beyond a reasonable doubt. Cheever II,

306 Kan. at 784; see Kleypas I, 272 Kan. at 1078. The court acknowledged that the

earlier rulings had been framed in the context of federal constitutional claims (claims that

were subsequently rejected by the Kansas v. Carr Court), but nonetheless concluded that

state statute independently required such an instruction. The court reiterated this position

in Gleason II, 305 Kan. at 798-806.

Despite this court's previous pronouncements, we revisit the issue today, and we

conclude that the district judge's instructions to R. Carr and J. Carr's jury correctly stated

the law. We recognize "[t]he doctrine of stare decisis provides that 'points of law

established by a court are generally followed by the same court and courts of lower rank

in later cases in which the same legal issue is raised.'" State v. Clark, 313 Kan. 556, 565,

486 P.3d 591 (2021). Application of the doctrine promotes stability within the legal

system, and "'we do not lightly disapprove of precedent.'" 313 Kan. at 565. But "'"stare

decisis is not an inexorable command."'" 313 Kan. at 565 (quoting State v. Hambright,

310 Kan. 408, 416, 447 P.3d 972 [2019]). Where, as here, we are convinced that the

original holding is neither sound nor firmly entrenched, it is incumbent on the court to

52

correct it. See McCullough v. Wilson, 308 Kan. 1025, 1036, 426 P.3d 494 (2018)

(acknowledging this court's authority to overturn precedent where rule of law erroneous

or no longer sound).

The challenged instruction provides:

"The State has the burden to prove beyond a reasonable doubt that there are one

or more aggravating circumstances and that they outweigh mitigating circumstances

found to exist."

The jury was also instructed that each member can decide what circumstances are

mitigating and that unanimity is not required in that regard:

"The determination of what are mitigating circumstances is for you as jurors to

decide under the facts and circumstances of the case. Mitigating circumstances are to be

determined by each individual juror when deciding whether the State has proved beyond

a reasonable doubt that the death penalty should be imposed. The same mitigating

circumstances do not need to be found by all members of the jury in order to be

considered by an individual juror in arriving at his or her sentencing decision."

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

"When considering an individual defendant, if you find unanimously beyond a

reasonable doubt that there are one or more aggravating circumstances and that they

outweigh mitigating circumstances found to exist, then you shall impose a sentence of

death. If you sentence the particular defendant to death, you must designate upon the

appropriate verdict form with particularity the aggravating circumstances which you

unanimously find beyond a reasonable doubt. That is Verdict Form (1).

53

"If you find that the evidence does not prove any of the claimed aggravating

circumstances beyond a reasonable doubt, your presiding juror should mark the

appropriate verdict form. That is Verdict Form (2). The court will fix a proper sentence

for the particular defendant.

"If one or more jurors is not persuaded beyond a reasonable doubt that

aggravating circumstances exist or that those found to exist do not outweigh mitigating

circumstances, then you should sign the appropriate alternative verdict form indicating

the jury is unable to reach a unanimous verdict sentencing the defendant to death. That is

Verdict Form (3). In that event, the court will fix a proper sentence for the particular

defendant."

When reviewing the legal propriety of penalty phase instructions addressing

mitigating circumstances, we must consider whether the instructions, considered together

as a whole, fairly and accurately state the applicable law and "whether a jury could have

been misled into not considering certain mitigating circumstances that, by law, should

have been considered." Gleason II, 305 Kan. at 820 (Stegall, J., concurring); see also

In re Care and Treatment of Quillen, 312 Kan. 841, 849, 481 P.3d 791 (2021) ("When

reviewing jury instruction challenges, we consider '''jury instructions as a whole . . . to

determine whether they properly and fairly state the applicable law or whether it is

reasonable to conclude that they could have misled the jury."'").

K.S.A. 21-4624(e) establishes the law governing the jury's consideration of

aggravating and mitigating circumstances during the penalty phase:

"If, by unanimous vote, the jury finds beyond a reasonable doubt that one or

more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments

thereto exist and, further, that the existence of such aggravating circumstances is not

outweighed by any mitigating circumstances which are found to exist, the defendant shall

be sentenced to death; otherwise, the defendant shall be sentenced to life without the

possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence

54

of death, shall designate in writing, signed by the foreman of the jury, the statutory

aggravating circumstances which it found beyond a reasonable doubt. If, after a

reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall

dismiss the jury and impose a sentence of imprisonment of life without the possibility of

parole and shall commit the defendant to the custody of the secretary of corrections. In

nonjury cases, the court shall follow the requirements of this subsection in determining

the sentence to be imposed." K.S.A. 21-4624(e); see also K.S.A. 2020 Supp. 21-6617(e)

(same).

The challenged instruction was patterned after this court's then-controlling interpretation

of K.S.A. 21-4624(e). See Kleypas I, 272 Kan. 894, Syl. ¶¶ 45-58 (holding equipoise

weighing equation favoring State unconstitutional, reformulating language to require

aggravating circumstances outweigh mitigating circumstances), overruled by Marsh, 278

Kan. at 544-45. Thus, the instruction properly and fairly stated the law governing

mitigating circumstances in Kansas. Cf. State v. Woods, 222 Kan. 179, 183, 563 P.2d

1061 (1977) (generally, "an instruction patterned after the statute is valid").

Furthermore, there is no reasonable likelihood the instruction misled jurors and

prevented them from considering relevant mitigating evidence as required under K.S.A.

21-4624(e). As the United States Supreme Court observed:

"The instruction makes clear that both the existence of aggravating circumstances and the

conclusion that they outweigh mitigating circumstances must be proved beyond a

reasonable doubt; mitigating circumstances themselves, on the other hand, must merely

be 'found to exist.' . . . 'Found to exist' certainly does not suggest proof beyond a

reasonable doubt. . . . Not once do the instructions say that defense counsel bears the

burden of proving the facts constituting a mitigating circumstance beyond a reasonable

doubt—nor would that make much sense, since one of the mitigating circumstances is

(curiously) 'mercy,' which simply is not a factual determination." Carr, 577 U.S. at 121.

55

For these reasons, "no juror would reasonably have speculated that mitigating

circumstances must be proved by any particular standard, let alone beyond a reasonable

doubt." 577 U.S. at 122. Under the same logic, the challenged instruction did not impede

jurors from considering appropriate mitigation under K.S.A. 21-4624(e). Although

R. Carr's proposed instruction might also be legally correct, it is not an indispensable part

of communicating to the jury the process by which it should carry out its deliberations

under state law.

The instructions viewed together as a whole correctly and clearly informed the

jurors of the law governing their consideration of mitigating circumstances. Accordingly,

we find no error in the instructions as given. See State v. McDaniel, 306 Kan. 595, 616,

395 P.3d 429 (2017) ("The trial court did not err by failing to instruct the jury with the

additional language [defendant] request[ed] because the instruction given fairly and

accurately stated the law and accordingly was legally appropriate.").

IV. The Remaining Penalty Phase Issues

Having resolved R. Carr's state constitutional challenge and his motion to consider

the instructional challenge under state law, our analysis turns to the remaining penalty

phase issues raised by the defendants.

A. P1/21—Severance

In the court's previous decision, it considered whether the district court should

have severed the trial's guilt phase under Kansas law. R. Carr, 300 Kan. at 93-94 (citing

K.S.A. 22-3202[3]; K.S.A. 22-3204; State v. Davis, 277 Kan. 231, 239, 83 P.3d 182

[2004] [listing five factors employed to determine whether prejudice sufficient to

mandate severance]). It concluded the district court erred in denying defendants' repeated

56

requests to sever. R. Carr, 300 Kan. at 95-97 (defendants had antagonistic defenses;

evidence in favor of one defendant admissible in separate trial not allowed in joint trial).

But a majority held the error was harmless in the guilt phase due to the overwhelming

strength of the evidence against the defendants. 300 Kan. at 100-01; J. Carr, 300 Kan. at

356.

The court separately analyzed whether the failure to sever penalty-phase

proceedings violated R. Carr's right to an individualized capital sentencing determination

under the Eighth Amendment to the United States Constitution. R. Carr, 300 Kan. at 275-

82. Utilizing factors similar to those relied on for the guilt-phase severance analysis

(antagonistic nature of mitigation cases, admission of evidence by one defendant not

likely to have been admitted in severed trial), it concluded that the failure to sever the

penalty-phase proceedings violated the Eighth Amendment. The court vacated the death

sentences and remanded the case to the district court because it was unable to find

beyond a reasonable doubt that the error had little, if any, likelihood of changing the

jury's ultimate conclusion regarding the weight of the aggravating and mitigating

circumstances, in light of the record as a whole. 300 Kan. at 281-82; J. Carr, 300 Kan.

at 371.

The United States Supreme Court rejected our court's Eighth Amendment analysis

in favor of a due process framework:

"As we held in Romano v. Oklahoma, 512 U.S. 1 (1994), it is not the role of the Eighth

Amendment to establish a special 'federal code of evidence' governing 'the admissibility

of evidence at capital sentencing proceedings.' Id., at 11-12. Rather, it is the Due Process

Clause that wards off the introduction of 'unduly prejudicial' evidence that would

'rende[r] the trial fundamentally unfair.' Payne v. Tennessee, 501 U.S. 808, 825 (1991);

see also Brown v. Sanders, 546 U.S. 212 (2006)." Carr, 577 U.S. at 123.

57

And it concluded without reservation that the district court's failure to sever did not

violate the defendants' constitutional protections under the Due Process Clause:

"In light of all the evidence presented at the guilt and penalty phases relevant to

the jury's sentencing determination, the contention that the admission of mitigating

evidence by one brother could have 'so infected' the jury's consideration of the other's

sentence as to amount to a denial of due process is beyond the pale." 577 U.S. at 124.

With the federal question answered, on remand we invited the parties to address

whether state law required the district court to sever the penalty-phase proceedings. We

directed them to designate the severance issue as P21, even though it was designated P1

in our previous decision.

R. Carr contends this court already decided the penalty-phase severance issue

under state law by applying the state-law severance standard to reach its Eighth

Amendment conclusion. The State urges us to reevaluate that conclusion in light of the

United States Supreme Court's unequivocal assessment that "[o]nly the most extravagant

speculation would lead to the conclusion that the supposedly prejudicial evidence

rendered the Carr brothers' joint sentencing proceeding fundamentally unfair." 577 U.S.

at 126. The State submits the same logic applies under state law. Like R. Carr, the State

treats the state-law penalty phase severance question as an issue distinct from the guilt-

phase severance issue.

J. Carr takes a different tack and suggests the question on remand is whether

the state law-based failure to sever during the guilt phase resulted in prejudice in the

sentencing phase. Or, as J. Carr puts it, "there is no basis in state law for this Court to

hold that the district court's failure to sever the trials ceased to be an error once the

sentencing phase of trial began."

58

We agree with J. Carr's framing of the issue. This court previously held that the

trial court's refusal to sever the defendants' trials during the guilt phase constituted error

under Kansas law. R. Carr, 300 Kan. at 97. This holding was not disturbed by the United

States Supreme Court's subsequent opinion in Kansas v. Carr. As such, this holding is

now the law of the case for purposes of this appeal. State v. Cheeks, 313 Kan. 60, 66, 482

P.3d 1129 (2021) (Under the law of the case doctrine, when a second appeal is brought to

this court in the same case, the first decision is the settled law of the case on all questions

involved in the first appeal, and reconsideration will not normally be given to such

questions.). The improper joinder of the defendants did not cease to be error at the

commencement of the penalty phase.

Accordingly, we hold today that this error continued into the penalty phase. That

said, the error does not require reversal of R. Carr's death sentence. We conclude there is

no reasonable probability this error affected the death sentence verdict. State v. Ward,

292 Kan. 541, 565, 256 P.3d 801 (2011).

As an error carried over from the trial's guilt phase, our penalty-phase harmless

error analysis necessarily begins with reviewing what circumstances caused us to

conclude there was error. In R. Carr, we held a state-law error occurred when the district

judge abused his discretion by refusing to sever the guilt phase trials. Reviewing the

factors supporting severance, we noted only two cut in defendants' favors. The first was

the defendants' antagonistic defenses that emphasized the strength of the evidence against

the other. We described this as "[e]ach . . . [doing] his best to deflect attention from

himself on the Birchwood crimes by assisting in the prosecution of the other." R. Carr,

300 Kan. at 95. The second was the conclusion that the joint trial resulted in the exclusion

of evidence each defendant could have used to bolster his antagonistic identity defense.

See 300 Kan. at 97.

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In deciding the district judge abused his discretion in denying severance, our court

cited two mistakes of law: failing to perform the necessary analysis when ruling on the

issue at a pretrial hearing; and ruling based on an incorrect view that defendants'

incriminating statements, inadmissible during the joint guilt-phase trial, would also be

inadmissible during separate trials. 300 Kan. at 97-98. We also observed

"an abuse of discretion in the dearth of record support for Judge Clark's virtually

indistinguishable, nearly completely unexplained rulings over time, even though the

conflict between the defendant's theories became more and more clear and the pile of

evidence that would be excluded because of the joint trial grew ever taller. Given Judge

Clark's continuing duty to carefully consider severance to avoid prejudice to a defendant,

and the overriding status of the defendant's right to fair trial, Judge Clark's decisions were

progressively unreasonable." 300 Kan. at 98.

But we held the error did not require reversal. "Although its path to R. Carr's

convictions was made somewhat smoother and straighter by the judge's related guilt

phase errors on severance and on third-party evidence and hearsay, the State presented

compelling evidence of R. Carr's guilt, all of which would have been admissible in a

severed trial." 300 Kan. at 100-01. Like the finding of error itself, this court's holding—

that the failure to sever did not contribute to the jury's guilt-phase verdict—is also settled

law for purposes of this appeal under the law of the case doctrine.

Therefore, today, we must determine whether this error, which was harmless in

the guilt phase, so prejudiced defendants in the penalty phase that we must vacate their

capital sentences. We place the burden of demonstrating harmlessness on the party

benefitting from the error, i.e., the State. 300 Kan. at 95 (evolving caselaw generally

places burden demonstrating harmlessness on party benefitting from error). Because

the error arises under state law, the State's burden is to show there is no reasonable

probability the error affected the jury's ultimate conclusion regarding the death sentence

verdict. See K.S.A. 2020 Supp. 60-261; Ward, 292 Kan. at 569.

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Though we now consider the severance issue under state law, the United States

Supreme Court's assessment of this issue under federal law remains instructive and

continues to inform our reversibility analysis. The higher Court concluded that the

brothers did not even raise an Eighth Amendment problem by arguing they were

prejudiced by mitigation evidence that would have been inadmissible in severed

proceedings. Instead, their argument is subject to due process analysis because "it is the

Due Process Clause that wards off the introduction of 'unduly prejudicial' evidence that

would 'rende[r] the trial fundamentally unfair.'" Carr, 577 U.S. at 123. Thus, the proper

question was not whether the "right to an individualized sentencing determination was

fatally impaired" by the failure to sever, but "whether the evidence 'so infected the

sentencing proceeding with unfairness as to render the jury's imposition of the death

penalty a denial of due process.'" 577 U.S. at 123-24; see R. Carr, 300 Kan. at 281.

Notably, "[t]he mere admission of evidence that might not otherwise have been

admitted in a severed proceeding does not demand the automatic vacatur of a death

sentence." Carr, 577 U.S. at 124. Although the higher Court focused on the question of

error rather than harmlessness, its analysis leaves little room to conclude the failure to

sever requires reversal now as a state-law error. The higher Court rejected all notion that

the failure to sever had any impact on the jury's penalty-phase verdict. See 577 U.S. at

126 (holding "[i]t is beyond reason to think that the jury's death verdicts were caused by"

allegedly prejudicial evidence in light of the evidence of the "almost inconceivable

cruelty and depravity" of the defendants' acts). Indeed, it essentially concluded the

defendants' argument was so weak that even assuming witness statements found in police

reports had been erroneously admitted without opportunity for confrontation, "We are

confident that [allowing defendants] cross-examination regarding these police reports

would not have had the slightest effect upon the sentences." 577 U.S. at 126. For us to

conclude that there is a reasonable probability the antagonistic evidence affected the

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jury's death sentence verdict, we would have to reject the higher Court's assessment that

even such a possibility was "beyond reason." Neither the record nor the parties briefing

offer any basis for our court to question the conclusion of the United States Supreme

Court.

The United States Supreme Court's assessment, coupled with the strength of the

State's penalty-phase evidence (discussed more fully below in our cumulative error

analysis), demonstrates that the state-law severance error was harmless.

B. P2—Notice of Aggravating Circumstances

R. Carr next alleges the State failed to give him constitutionally sufficient notice

of the aggravating factors it intended to rely on to seek the death penalty, despite

complying with K.S.A. 21-4624(a)'s notice requirements. In its previous decision, the

court rejected the argument under its established precedent. R. Carr, 300 Kan. at 282; see

State v. Scott, 286 Kan. 54, 101-02, 183 P.3d 801 (2008) (holding statutorily compliant

notice of intent to seek death penalty is sufficient to give defendant meaningful

opportunity to respond to statutory aggravating factors).

Neither R. Carr nor J. Carr submit any additional authority causing us to

reconsider that decision. Under the law of the case, we continue to hold that R. Carr had

constitutionally sufficient notice of the aggravating factors the State intended to pursue.

See Cheeks, 313 Kan. at 66.

C. P3—Channeling of Jury's Discretion

J. Carr originally challenged whether the four aggravating circumstances asserted

by the State adequately channeled the jury's discretion in arriving at the death sentence.

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The constitutional overbreadth challenge was noticed as an unassigned error in R. Carr's

appeal under K.S.A. 2020 Supp. 21-6619(b).

We rejected the challenge, explaining:

"We have rejected the defense arguments advanced here on each of the four

aggravators, when those arguments were made on behalf of other death penalty

defendants. See State v. Scott, 286 Kan. at 108-10 (rejecting argument on multiple

murder, monetary gain); State v. Kleypas, 272 Kan. at 1025 (rejecting argument on

avoidance of arrest; especially heinous, atrocious, cruel). The defense has not given us

cause to revisit these holdings in this case." R. Carr, 300 Kan. at 283.

The parties submitted no new authority addressing any of the four aggravators. Thus, we

affirm this holding as the law of the case. See Cheeks, 313 Kan. at 66.

However, one point of clarification is in order. In its earlier decision, the court

correctly observed that our precedent had previously rejected overbreadth challenges to

the "multiple murder," "monetary gain," and "especially heinous, atrocious, or cruel"

aggravators. R. Carr, 300 Kan. at 282-83. However, the statement about the "avoidance

of arrest" aggravator warrants additional discussion based on the original holding in

Kleypas I.

The Kleypas I court recognized the defendant had challenged this aggravator for

vagueness and overbreadth. 272 Kan. at 1019 (noting arguments on sufficiency of

evidence to support aggravator, aggravator's violation of federal and state constitutional

provisions by failure to narrow class of persons eligible for death penalty). It maintained

"[o]ther courts have determined that the avoid arrest aggravator on its face is not

unconstitutionally vague or overbroad." 272 Kan. at 1023. And it concluded there was

63

sufficient evidence to support the jury's finding of the aggravating circumstance.

However, it did not expressly rule on the constitutional challenge. 272 Kan. at 1024-25.

Today we take the step not quite articulated in Kleypas I by simply stating the

avoidance-of-arrest aggravator, K.S.A. 2020 Supp. 21-6624(e), effectively channels the

discretion of the sentencer and is not facially overbroad. Cf. Coulter v. State, 304 Ark.

527, 533, 804 S.W.2d 348 (1991); Wiley v. State, 750 So. 2d 1193, 1207 (Miss. 1999);

Castro v. State, 844 P.2d 159, 175 (Okla. Crim. App. 1992). With today's clarification

and additional holding, we reject this challenge.

D. P4—Unavailability of Transcript of Jury View

In its earlier decision, this court concluded R. Carr failed to establish that a

constitutional violation arose from the failure to have a court reporter present at the jury

view. R. Carr was provided a reasonably accurate and complete record of the proceedings

against him, which was all he was entitled to under the United States Constitution.

R. Carr, 300 Kan. at 284. Moreover, there was no substantive claim left unreviewable

because of the lack of transcript. See 300 Kan. at 283. We reached the same decision in

J. Carr's case. J. Carr, 300 Kan. at 368.

The parties submitted no additional authority to persuade us to reconsider these

holdings. Under the law of the case, no error occurred.

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

R. Carr claims hearsay admitted under K.S.A. 21-4624(c)'s relaxed evidentiary

standard during his penalty-phase trial violated both the Eighth Amendment's heightened

reliability standard and the Confrontation Clause. See Crawford v. Washington, 541 U.S.

64

36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (testimonial out-of-court statements by

witness barred under Confrontation Clause unless witness unavailable, defendant had

prior opportunity to cross-examine). The statute's language and our standard of review

were previously set out.

"K.S.A. 21-4624(c) provides for a relaxed evidentiary standard during the

penalty phase of a capital proceeding:

'In the sentencing proceeding, evidence may be presented

concerning any matter that the court deems relevant to the question of

sentence and shall include matters relating to any of the aggravating

circumstances enumerated in K.S.A. 21-4625 and amendments thereto

and any mitigating circumstances. Any such evidence which the court

deems to have probative value may be received regardless of its

admissibility under the rules of evidence, provided that the defendant is

accorded a fair opportunity to rebut any hearsay statements. Only such

evidence of aggravating circumstances as the state has made known to

the defendant prior to the sentencing proceeding shall be admissible, and

no evidence secured in violation of the constitution of the United States

or of the state of Kansas shall be admissible.'

"'When the application of a statute is challenged on constitutional grounds, this

court exercises an unlimited, de novo standard of review.' State v. Cook, 286 Kan. 766,

768, 187 P.3d 1283 (2008) (citing State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024

[1996], cert. denied 521 U.S. 1118 [1997]).

"'"The constitutionality of a statute is presumed. All doubts must

be resolved in favor of its validity, and before the act may be stricken

down it must clearly appear that the statute violates the constitution. In

determining constitutionality, it is the court's duty to uphold a statute

under attack rather than defeat it. If there is any reasonable way to

construe the statute as constitutionally valid, that should be done. A

statute should not be stricken down unless the infringement of the

65

superior law is clear beyond reasonable doubt. [Citations omitted.]"'

State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006)." R. Carr, 300

Kan. at 285.

1. K.S.A. 21-4624(c) Does Not Violate Heightened Reliability

Requirements of the Eighth Amendment

In R. Carr, the court unanimously rejected the argument that K.S.A. 21-4624(c)

offends the heightened reliability standard based on the court's previous denial of a due

process challenge to the statute in Scott, 286 Kan. at 99-101. R. Carr, 300 Kan. at 286-87.

The Scott court had concluded the statute was consistent with the United States Supreme

Court's "'all relevant evidence' doctrine"—a doctrine that encourages jurors to have all

possible relevant information about the individual defendant because heightened

reliability in sentencing is achieved by including more evidence on the presence or

absence of aggravating and mitigating factors. 300 Kan. at 286-87; see also Scott, 286

Kan. at 100 (citing Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929

[1976]; Gregg v. Georgia, 428 U.S. 153, 204, 96 S. Ct. 2909, 49 L. Ed. 2d 859 [1976];

Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 [1976]).

The parties cite no new authority to question this holding. Applying the law of the

case, we continue to reject R. Carr's heightened reliability challenge.

2. The Confrontation Clause Challenge Does Not Warrant Reversal of

the Jury's Death Verdict

R. Carr also contends his Sixth Amendment confrontation rights were violated

when the district court allowed prosecutors to reference out of court witness statements

(recorded in police reports) during cross-examination of several defense witnesses. See

R. Carr, 300 Kan. at 288. In its previous decision, this court did not reach a holding on

the question of error or reversibility concerning this issue. See 300 Kan. at 288.

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However, this court declared in general fashion that

"Kansas now holds that the Sixth Amendment applies in the [penalty-phase] proceeding

and that out-of-court testimonial hearsay may not be placed before the jury without a

prior opportunity for the defendant to cross-examine the declarant. This includes any

testimonial hearsay referenced in questions posed by counsel." 300 Kan. at 288.

We apply our previous rationale to R. Carr's challenge and assume that it was

constitutional error for the State to incorporate hearsay statements from police reports

into its cross-examination questions propounded to defense witnesses.

However, before turning to the question of reversibility, we first qualify our

previous declaration that the Sixth Amendment applies in the penalty phase of a capital

murder trial. We continue to hold that the Confrontation Clause applies during the

penalty phase, but its application is limited to evidence relevant to the jury's "eligibility"

decision, i.e., evidence relevant to the existence of one or more statutory aggravating

circumstances.

a. In Kansas Capital Sentencing Proceedings, the Confrontation

Clause Applies Only to Evidence Relevant to the Jury's Eligibility

Decision

In R. Carr, this court acknowledged a split in authority from jurisdictions

addressing the Confrontation Clause's application during the penalty phase of a capital

trial. See 300 Kan. at 287-88. Federal circuits addressing the issue have generally rejected

defendants' claims that the Confrontation Clause universally applies to all evidence

admitted during the penalty phase. See, e.g., United States v. Umana, 750 F.3d 320,

347 (4th Cir. 2014); Muhammad v. Secretary, Florida Dept., 733 F.3d 1065, 1073-77

(11th Cir. 2013); United States v. Fields, 483 F.3d 313, 324-338 (5th Cir. 2007). Since

67

our previous decision, the Eighth Circuit has also joined the list of federal circuits so

holding. See United States v. Coonce, 932 F.3d 623, 640-41 (8th Cir. 2019), petition for

cert. filed February 28, 2020.

Generally, these federal circuits treat Williams v. New York, 337 U.S. 241, 69

S. Ct. 1079, 93 L. Ed. 1337 (1949), as controlling precedent. Williams held that when

imposing a sentence, the Due Process Clause does not limit a trial judge's ability to

consider out-of-court sources of information admitted without the opportunity for cross-

examination. 337 U.S. at 251-52.

However, these federal circuits have not uniformly determined whether Williams

applies to evidence related to both the "eligibility" and "selection" decisions Kansas

juries must make during the penalty phase before imposing a sentence of death. As

detailed below, the distinction between the eligibility decision and the selection decision

is one with constitutional significance, and this distinction largely defines the scope of a

defendant's confrontation rights under Kansas' capital sentencing scheme.

Before delving into that analysis, however, it is helpful to clarify the meaning of

the "eligibility" and "selection" decisions in penalty-phase proceedings. "Our capital

punishment cases under the Eighth Amendment address two different aspects of the

capital decision-making process: the eligibility decision and the selection decision. To be

eligible for the death penalty, the defendant must be convicted of a crime for which the

death penalty is a proportionate punishment." (Emphasis added.) Tuilaepa v. California,

512 U.S. 967, 971, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994). In Kansas, a defendant

who has been convicted of capital murder becomes eligible for a sentence of death when

the State establishes the existence of "one or more of the aggravating circumstances

enumerated" by statute. See K.S.A. 21-4624(e), now codified as K.S.A. 2020 Supp. 21-

68

6617(e). The "eligibility" decision arises from the Eighth Amendment requirement to

narrow the class of individuals who may be lawfully sentenced to death. 512 U.S. at 972.

In the "selection" stage, the jury decides "whether a defendant eligible for the

death penalty should in fact receive that sentence." 512 U.S. at 972. Kansas juries make

their selection decision by applying the statutory weighing equation that pits aggravating

circumstances against mitigating circumstances. See K.S.A. 2020 Supp. 21-6617(e). The

selection decision is not influenced by any constitutional narrowing requirement. "What

is important at the selection stage is an individualized determination on the basis of the

character of the individual and the circumstances of the crime." Zant v. Stephens, 462

U.S. 862, 879, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Thus, the eligibility decision and the selection decision are influenced by separate

constitutional objectives within the Eighth Amendment. These distinct constitutional

objectives were largely created through significant developments in the United States

Supreme Court's death penalty jurisprudence beginning in the 1970s, years after

Williams. See, e.g., Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346

(1972); Gregg, 428 U.S. at 189; Lockett v. Ohio, 438 U.S. 586, 601-05, 98 S. Ct. 2954,

57 L. Ed. 2d 973 (1978); Godfrey v. Georgia, 446 U.S. 420, 428-33, 100 S. Ct. 1759, 64

L. Ed. 2d 398 (1980).

Further, more recent decisions in Apprendi, Ring, and Alleyne have incrementally

applied Sixth Amendment protections to the sentencing process, while substantially

altering the framework for the eligibility decision in capital proceedings. See Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Alleyne v. United States, 570

U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). In Apprendi, the Court held that

"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

69

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Ring, the Court held that

statutory aggravating circumstances are the functional equivalent of an element of the

greater offense and concluded the Sixth Amendment required a jury to determine the

presence or absence of such aggravators. Ring, 536 U.S. at 609. In Alleyne, the Court

extended the Apprendi rule to facts that increase mandatory minimum sentences. Alleyne,

570 U.S. at 116.

The development of this precedent subsequent to Williams strongly suggests the

Confrontation Clause applies to the "eligibility" decision in Kansas penalty phase

proceedings. As noted above, under Kansas' capital sentencing scheme, the State must

establish a defendant's "eligibility" for a sentence of death in the penalty phase by

proving beyond a reasonable doubt that one or more statutory aggravating circumstances

exist. These statutory factors restrict the class of death-eligible defendants in our state. In

Ring, the Court held that these types of statutory aggravators are effectively elements of a

greater offense for federal constitutional purposes and "subject to the procedural

requirements the Constitution attaches to trial of elements." Schriro v. Summerlin, 542

U.S. 348, 354, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004); see United States v. Fell, 531

F.3d 197, 239 (2d Cir. 2008) (Ring and its progeny suggest statutory aggravating factors

should be proven to a jury in the same manner as the other elements of the crime.). At the

time Williams was decided, "capital-sentencing proceedings were understood to be just

that: sentencing proceedings." Sattazahn v. Pennsylvania, 537 U.S. 101, 110, 123 S. Ct.

732, 154 L. Ed. 2d 588 (2003). But with the developments in Apprendi/Ring/Alleyne, the

statutory factors that make a defendant eligible for a death sentence are now deemed the

"'functional equivalent of an element of a greater offense.'" 537 U.S. at 111.

The logical corollary of the Apprendi/Ring/Alleyne rule is that the defendant

should also be afforded the Sixth Amendment's confrontation rights as well—at least to

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the extent evidence is relevant to the jury's determination of aggravating circumstances,

i.e., the eligibility decision. Even amongst those federal circuits that have applied

Williams to foreclose a defendant's Confrontation Clause challenge, several have

suggested Williams does not extend to evidence offered in connection with the jury's

eligibility decision.

For example, in Fields, the Fifth Circuit acknowledged that after Apprendi and

Ring, "there is a stronger argument to be made for the attachment of the confrontation

right where the government is attempting to establish eligibility-triggering factors:

Though labeled as 'sentencing factors,' those factors are more appropriately considered as

elements of a capital offense." Fields, 483 F.3d at 331 n.18. But in Fields, the defendant

had challenged only "evidence that the government introduced relevant to the jury's

ultimate selection decision," and the court declined to resolve whether the Confrontation

Clause applies to "eligibility-triggering factors." 483 F.3d at 331 n.18.

Likewise, in Umana, the Fourth Circuit held that the "Confrontation Clause does

not preclude the introduction of hearsay statements during the sentence selection phase

of capital sentencing." (Emphasis added.) 750 F.3d at 348. It rejected the defendant's

contention that the Apprendi/Ring/Alleyne rule compelled the extension of the

Confrontation Clause "to every fact that the jury finds, even during the sentence selection

phase." (Emphases added.) 750 F.3d at 347. The Fourth Circuit explained that under the

Federal Death Penalty Act (FDPA), "the jury finds the facts necessary to support the

imposition of the death penalty in the guilt and eligibility phases of trial. . . . It is only

during these phases that the jury makes 'constitutionally significant' factual findings." 750

F.3d at 347-48. However, the defendant in Umana had challenged hearsay evidence

introduced only in the selection phase. As such, the jury considered this evidence "to

assist it in exercising its discretion to select the appropriate sentence" only after finding

defendant was eligible to receive the death penalty. 750 F.3d at 348.

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Interestingly, in FDPA proceedings, federal courts commonly bifurcate the

sentencing phase

"(or, as some have phrased it, 'trifurcate' the entire trial) into an 'eligibility phase,' limited

to evidence relevant to mental state and to the existence of one or more statutory

aggravating factors, and, if the defendant is found eligible, a 'selection phase,' at which

evidence relevant to mitigating factors and non-statutory aggravating factors such as

victim impact and other crimes is received and weighed by the jury." United States v.

Bolden, 545 F.3d 609, 618 (8th Cir. 2008).

See Fell, 531 F.3d at 239 ("[A] number of district courts have 'trifurcated' capital

proceedings by splitting the sentencing phase into two separate hearings: one for the

eligibility phase and one for the selection phase."). The Second Circuit has explained

this procedure enables the court to "delineate clearly between the applications of the

Confrontation Clause in the eligibility and selection phases." Fell, 531 F.3d at 239. This

rationale implicitly acknowledges that the Confrontation Clause extends to evidence

relevant to the eligibility determination (i.e., the existence of one or more statutory

aggravating circumstances) but not the selection decision.

Utilizing this procedure, many federal courts since Crawford have held that

"confrontation rights persist through the eligibility phase." United States v. Fackrell,

No. 1:16-CR-26(2), 2018 WL 7822173, at *2 (E.D. Tex. 2018) (unpublished opinion);

see also United States v. Mills, 446 F. Supp. 2d 1115, 1125 (C.D. Cal. 2006) ("a

defendant's Sixth Amendment trial rights extend at least to the eligibility phase of capital

sentencing, where a jury is required to find facts that make the defendant eligible for the

death penalty"); United States v. Jordan, 357 F. Supp. 2d 889, 903-04 (E.D. Va. 2005)

(Confrontation Clause applies "at least in the eligibility stage"); United States v. Con-ui,

No. 3:13-CR-123, 2017 WL 783437, at *26-27 (M.D. Pa. 2017) (unpublished opinion)

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("[the Confrontation] Clause is fully operative at the eligibility phase" and "is

inapplicable only at the selection phase"); United States v. Lujan, No. CR 05-0924RB,

2011 WL 13210246, at *8 (D.N.M. 2011) (unpublished opinion) ("If the penalty phase is

reached, the Confrontation Clause would apply in the eligibility stage due to Ring [v.

Arizona's, 536 U.S. 584,] requirement that facts necessary to expose [the defendant] to a

death sentence must be found by a jury"; however, "[i]f [the defendant] is found eligible

for death, the trial would proceed to the selection stage and the general rule allowing

hearsay at sentencing would apply.").

With the foregoing in mind, we qualify this court's general pronouncement in

R. Carr (that the Confrontation Clause applies during the penalty phase) by clarifying

that in Kansas capital sentencing proceedings, the Confrontation Clause applies only to

evidence relevant to the jury's eligibility decision. A defendant's confrontation rights do

not extend to evidence relevant to the jury's selection decision.

While Kansas' capital sentencing scheme does not contemplate bifurcated penalty-

phase proceedings (only the guilt phase and penalty phase are bifurcated), district court

judges are still well-positioned to delineate between evidence relevant to eligibility and

other evidence relevant to selection. Going forward, trial courts in Kansas should apply

the Confrontation Clause when the State introduces evidence relevant to the existence of

one or more statutory aggravating circumstances. However, when the State introduces or

relies on testimonial hearsay during its rebuttal and cross-examination for purposes of

controverting or impeaching the testimony of a capital defendant's mitigation witnesses—

provided such evidence does not bolster an aggravating circumstance—the Confrontation

Clause shall not apply to such evidence. See State v. McGill, 213 Ariz. 147, 159, 140

P.3d 930 (2006) (recognizing a distinction between "hearsay used to establish an

aggravating factor, to which the Confrontation Clause applies, and hearsay used to rebut

mitigation, to which the Confrontation Clause does not apply").

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b. Any Confrontation Clause Violation Was Harmless

Despite the foregoing qualification, we will assume the contested evidence in this

case is subject to the Confrontation Clause based on the statements and rationale set forth

in the court's prior decision. On the facts of the case, however, we hold any Confrontation

Clause violation was harmless because there is no reasonable possibility the assumed

error affected the jury's ultimate conclusion regarding the weight of the aggravating and

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

(providing degree of certainty in outcome required to hold an error that implicates federal

constitutional rights was harmless).

In its petitions for writ of certiorari filed with the United States Supreme Court,

the State sought a ruling on this issue, but the Court declined review. See Carr, 575 U.S.

934 (2015) (No. 14-450) (grant of petition for certiorari limited to questions 1 and 3); 575

U.S. 934 (2015) (No. 14-449) (same); Petition for Writ of Certiorari, Kansas v. Carr,

2014 WL 5337864, at *i (2014) (No. 14-450) ("Whether the Confrontation Clause, as

interpreted in Crawford v. Washington, 541 U.S. 36 [2004], and Davis v. Washington,

547 U.S. 813 [2006], applies to the 'selection' phase of capital sentencing proceedings, as

the Kansas Supreme Court held here . . . . "); Petition for Writ of Certiorari, Kansas v.

Carr, 2014 WL 5337863, at *i (2014) (No. 14-449) (same). Nevertheless, the Court

opined that any cross-examination regarding such hearsay statements "would not have

had the slightest effect upon the sentences." Carr, 577 U.S. at 126.

We agree the hearsay statements forming the basis of the prosecutor's cross-

examination questions were innocuous, and the same or similar information was first

introduced by defendants in their mitigation cases. Therefore, even if we assume error

because R. Carr did not have a prior opportunity to cross-examine the declarants, such

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error alone does not require us to vacate the death sentence. The jury learned little, if

anything, it did not already know about R. Carr from the challenged declarations.

F. P6—Exclusion of Mitigating Evidence

Under the law of the case, we reiterate our previous conclusion that the district

judge did not abuse his discretion by excluding R. Carr's evidence about the likelihood

of being paroled, if not sentenced to death. As more fully explained in R. Carr, that

evidence lacked probative value. The district court correctly ruled it was irrelevant.

R. Carr, 300 Kan. at 291-92; see State v. Prine, 287 Kan. 713, 725, 200 P.3d 1 (2009)

(evidence failing to meet probative value or materiality element of relevance test is

inadmissible).

R. Carr also complained about the district court's decision to exclude as irrelevant

his sister's testimony about what she wanted the jury to do regarding his sentence and

how she would be affected if he were executed. R. Carr did not proffer the excluded

testimony. In its previous decision, the court said, "[A]ny admitted testimony of this

nature needs to have some bearing on the material question of the defendant's character,

i.e., be probative on that material fact." 300 Kan. at 292.

The failure to proffer leaves behind a record devoid of the information necessary

to conduct a meaningful review of the relevancy determination. See State v. Hudgins, 301

Kan. 629, 651, 346 P.3d 1062 (2015) (failure to proffer excluded evidence precludes

appellate review); R. Carr, 300 Kan. at 292-93 (holding that failure to proffer excluded

testimony precluded meaningful review of admissibility). Under the law of the case, we

find no error.

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G. P7—Agreement of Other Experts

R. Carr next contends the State elicited expert opinion testimony that violated

the Confrontation Clause. To fully analyze R. Carr's various challenges to the expert

witness testimony and to promote clarity in our discussion, it is helpful to first highlight

additional factual background relevant to these issues. See Issues P8 (surrebuttal

testimony); P18 (prosecutorial error); P22 (cumulative error).

"Dueling PET Scan Experts and Denial of Continuance for Surrebuttal

"The defense presented testimony from Dr. David Preston, a specialist in nuclear

medicine who was qualified as an expert for the defense at the penalty phase regarding

PET imaging and its use as a diagnostic technique. Preston said that a PET scan of a

person's brain is not accepted to predict or explain criminal behavior, but he did identify

what he said were abnormalities in both R. Carr's and J. Carr's scans. Specifically, he said

images of their temporal lobes demonstrated marked deficits in metabolism in the regions

of the hippocampus and amygdala.

"Preston testified that Exhibit A-39, an image of R. Carr's brain, and Exhibit JC-

2, an image of J. Carr's brain, displayed images that were higher in back and lower in

front to give a larger view of their temporal lobes. He also admitted on direct examination

that he had mistakenly classified Exhibit A-40 as a PET scan of a normal young male for

comparison purposes. In fact, it was an image of a 50-year old male with a memory

problem.

"Preston further testified that, in patients he has seen in the past, a closed head

injury would be the first thing he would suspect as a cause of the type of deficits he

observed in the defendants' scans. But he said that no history of closed head injuries was

provided to him in this case.

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"The State called Dr. Norman Pay, a neuroradiologist, in rebuttal to Preston. On

direct examination, Pay testified that he consulted with the person at Via Christi Medical

Center who performed the PET scans on the defendants, the doctor in charge of PET

scans at Via Christi, and a neurologist at Via Christi. The State had Pay identify these

colleagues, who were in the courtroom, and asked each of them to raise a hand, which

they did. Pay said all three were in agreement with him that Exhibits A-39 and JC-2 were

skewed in color and were manipulated so that the anterior portion of the temporal lobe,

which includes the amygdala, would not appear in the images. When the prosecutor

asked Pay if the manipulated images were 'by design,' he responded, 'We were told.'

"Pay further testified that, looking at all of the PET images, he and the others he

consulted had reached the opinion that the scans showed normal metabolism in both

defendants' brains.

"J. Carr's counsel objected to admission of opinions from Pay's colleagues in the

courtroom, but the objection was overruled.

"On cross-examination, Pay admitted that he normally does not read PET scans,

despite being asked to do so in this case. He said that the difference between JC-2 and

State's Exhibit 912, another of J. Carr's PET scan images on which he was relying to give

his opinion, might be the presence of 'scatter' in 912. Scatter can produce a halo effect

that can be eliminated by reducing the background color.

"When asked if he could tell whether Preston had manipulated the images so that

they would be higher in back and lower in front, Pay responded, 'You know, we have to

have Dr. Preston here to testify because I don't really know what he did.' Pay agreed that

if two dots in one of the images were indicative of J. Carr's eyes, it might necessarily

involve the area of the hippocampus and amygdala. He also testified on cross-

examination that he did not attempt to contact Preston to ask him how he arrived at his

conclusions and that he was not there to cast any aspersions on Preston's integrity or

competence.

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"The defense requested a continuance to confer with Preston and recall him as a

witness in surrebuttal. Counsel argued that he must be permitted to address the State's

allegation that he manipulated the PET images 'by design.'

"Judge Clark characterized the disagreement between Preston and Pay as 'a fact

question for the jury . . . between experts' and said that Preston 'would be repeating what

he had said in direct.' He denied the motion for continuance.

"In closing argument, one of the prosecutors argued that the 'truth' as revealed by

the 'doctors' showed that Preston's 'slick' PET scan images and related testimony were

'hocus pocus.' The prosecutor said that the 'foundation of the [defendants'] sympathy and

abuse excuse and blame' had come 'crashing down' and that they were simply dragging

their 'laundry' into court." R. Carr, 300 Kan. at 272-75.

R. Carr complains the State's rebuttal expert (Dr. Norman Pay) should not have

been allowed to testify that other experts agreed with his opinions about the positron

emission tomography (PET) scans. We set out this challenged testimony in our earlier

decision. 300 Kan. at 293-95. Considering the question only for guidance on remand, we

concluded the controlling question was whether the out-of-court statements qualified as

testimonial hearsay under the Sixth Amendment and Crawford. Our clarification today

concerning the application of the Confrontation Clause to Kansas penalty phase

proceedings—that confrontation rights apply only to evidence relevant to the jury's

eligibility determination, i.e., the existence of one or more aggravating circumstances—

potentially calls into question the framing of this issue prospectively. But for today's

purposes, in the spirit of the doctrine of the law of the case, we will continue to frame the

issue in this fashion.

Now, presented with th

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