State v. Kleypas

Davis, J.,

dissenting: I join the majority opinion in all respects except on the issue of equipoise. I respectfully dissent from the majority’s conclusion that the weighing equation within the Kansas death penalty statute, K.S.A. 21-4624(e), violates the Eighth Amendment to the United States Constitution because it mandates death where mitigating circumstances and aggravating circumstances are found to be equal (equipoise). The express provisions of K.S.A. 21-4624(e) mandate the imposition of a death sentence where “the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist.” Yet, the majority changes the express language of the legislature to say that death may be mandated only where aggravating circumstances outweigh any mitigating circumstances found to exist.

The majority reverses the weighing equation adopted by the legislature in K.S.A. 21-4624(e) with the idea that the intent of the legislature is to be carried out in a constitutional manner. There is no question, based on the express language of the legislature, that it intended to mandate the imposition of a death sentence where the existence of such aggravating circumstances is not outweighed by any mitigating circumstances found to exist. The precise question was brought to the attention of the legislature in testimony by the attorney general, who recommended that the statute provide for the aggravating circumstances to outweigh the mitigating circumstances before a death sentence may be imposed. The legislature rejected that suggestion of the attorney general and adopted our present statute.

The majority, however, replaces the express language with its own language based upon its conclusion that this new language carries out the intent of the legislature in a constitutional manner. Because the new language mandated by the majority is contrary to the expressed intent and language adopted by the legislature in K.S.A. 21-4624(e), I believe the majority invades the province of *1125 the legislature. In the face of a clearly expressed legislative intent, the majority not only strikes this clear language as unconstitutional but adopts language exactly the opposite of what the legislature stated. If the language of the statute offends the Constitution, the appropriate judicial solution, in my opinion, is to so hold and let the legislature resolve the matter consistent with the court’s opinion.

More importantly, however, I respectfully dissent from the majority’s conclusion that the weighing equation contained in K.S.A. 21-4624(e) is unconstitutional. Thus, I would conclude that there is no need to change the weighing equation in that it is constitutional under the Eighth Amendment as expressed by the Kansas Legislature in accordance with Walton v. Arizona, 497 U.S. 639 , 111 L. Ed. 2d 511 , 110 S. Ct. 3047 (1990).

The majority holds that the weighing equation contained in K.S.A. 21-4624(e) violates the United States and Kansas Constitutions because it mandates a sentence of death when the aggravating and mitigating circumstances are found to be in equipoise. K.S.A. 21-4624(e) states:

“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 as provided by law.”

The statute provides that the defendant “shall” be sentenced to death where the jury finds that the mitigating circumstances do not outweigh the aggravating circumstances. Theoretically, if the jury were to somehow determine that the aggravating and mitigating circumstances were equally balanced, the defendant would be sentenced to death, as the mitigators would not outweigh the aggravators. The question is whether a weighing equation which has Qie potential to produce this result is unconstitutional. It is a question of law over which appellate review is unlimited.

As noted in the majority decision, this court has previously rejected the argument that this same weighing equation was unconstitutional in the context of a hard 40 sentencing decision in State *1126 v. Spain, 269 Kan. 54 , 4 P.3d 621 (2000). However, the majority correctly points out that our decision in Spain was premised in part on the concept that noncapital cases are of limited precedential value in analyzing capital cases due to the greater scrutiny to which capital cases must be held. See Spain, 269 Kan. at 59-60 . Thus, the result in Spain is not controlling, and the question must instead be analyzed through the specialized lens of the strictures of the United States Constitution with regard to a sentence of death.

The United States Supreme Court has imposed a number of requirements on the capital sentencing process. States must limit and channel the discretion of judges and juries in order to minimize the risk of wholly arbitrary and capricious action. Gregg v. Georgia, 428 U.S. 153 , 49 L. Ed. 2d 859 , 96 S. Ct. 2909 , reh. denied 429 U.S. 875 (1976). At the same time, the sentencer must be allowed to retain sufficient discretion to consider the particular circumstances of the crime and the characteristics of the defendant. See Gregg, 428 U.S. at 196-98 ; Woodson v. North Carolina, 428 U.S. 280, 304 , 49 L. Ed. 2d 944 , 96 S. Ct. 2978 (1976). One way in which this may be accomplished is through a process which requires the sentencer to weigh certain aggravating and mitigating circumstances in order to determine whether a defendant should be sentenced to death. Proffitt v. Florida, 428 U.S. 242, 259-60 , 49 L. Ed. 2d 913 , 96 S. Ct. 2960 (1976) (holding that a scheme which required the sentencer to determine whether mitigating circumstances were sufficient to outweigh aggravating circumstances adequately guided and channeled the sentencer’s discretion).

While the Court has imposed numerous requirements on the guiding and channeling of the sentencer’s discretion, the actual weighing of aggravating and mitigating circumstances has been left up to the states. In Zant v. Stephens, 462 U.S. 862, 890 , 77 L. Ed. 2d 235 , 103 S. Ct. 2733 (1983), the Court stated that “the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances.” Similarly, in Franklin v. Lynaugh, 487 U.S. 164, 179 , 101 L. Ed. 2d 155 , 108 S. Ct. 2320 (1988), the Court stated: “[W]e have never held that a specific method for balancing miti *1127 gating and aggravating factors in a capital sentencing proceeding is constitutionally required.”

The Court continued this theme in Blystone v. Pennsylvania, 494 U.S. 299 , 108 L. Ed. 2d 255 , 110 S. Ct. 1078 (1990), and Boyde v. California, 494 U.S. 370 , 108 L. Ed. 2d 316 , 110 S. Ct. 1190 (1990). In Blystone , the question was whether a weighing equation which made the death penalty mandatory where aggravating circumstances outweighed mitigating circumstances was constitutional. The Court ruled that it was, stating: “The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” 494 U.S. at 307. The Court noted: “Within the constitutional limits defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.” 494 U.S. at 309.

In Boyde , the question was the same as that in Blystone-. whether that State’s death penalty scheme, which required death when aggravating circumstances outweighed mitigating circumstances and required life when mitigating circumstances outweighed aggravating circumstances, was constitutional. The defendant argued that the jury must have freedom to reject the death penalty even if it found that aggravating circumstances outweighed mitigating circumstances. The Court, however, stated: “[T]here is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” 494 U.S. at 377.

In both Blystone and Boyde , the Court faced a statute which mandated death when the aggravators outweighed the mitigators. This changed, however, with a third death penalty case decided in 1990, Walton v. Arizona, 497 U.S. 639 . Walton involved the constitutionality of the Arizona death penalty scheme. I believe Walton is ultimately determinative of the question in this case. In order to place the Court’s decision in Walton in context, it is necessary to detail the events which led up to the decision.

The Arizona statute at issue in Walton provided that the sentencing judge “shall” impose the death penalty if one or more ag *1128 gravating circumstances is found and the “mitigating circumstances are held insufficient to call for leniency.” The majority places great emphasis upon the difference between the language of the Arizona statute and the Kansas statute. K.S.A. 21-4624(e) provides that death is mandated where aggravating circumstances are not outweighed by mitigating circumstances. What the majority fails to note is that the Arizona Supreme Court interpreted (and still interprets) the weighing equation to mean the same as that stated by the Kansas statue: The death penalty shall be imposed where the aggravating circumstances are not outweighed by the mitigating circumstances. See State v. Ysea, 191 Ariz. 372, 375 , 956 P.2d 499 (1998) (“If the judge finds one or more of the aggravating factors listed in § 13-703[F], the defendant is death eligible, and if the aggravating factors are not outweighed by mitigating factors listed in § 13-703[G], the resulting sentence is death.”); State v. Gretzler, 135 Ariz. 42, 53-55 , 659 P.2d 1 (1983); see also Walton, 497 U.S. at 687 (Blackmun, J., dissenting) (“The Arizona Supreme Court repeatedly has indicated that a defendant’s mitigating evidence will be deemed ‘sufficiently substantial to call for leniency’ only if the mitigating factors ‘outweigh’ those in aggravation.”).

The issues in Walton developed as the result of a controversy over whether this formulation of the weighing equation violated the United States Constitution. In State v. Walton, 159 Ariz. 571, 584 , 769 P.2d 1017 (1989), the defendant challenged the Arizona statutory scheme as unconstitutional, arguing, inter alia, that “it impermissibly places the burden of proof of mitigation on the defendant” and “it does not require proof beyond a reasonable doubt that the aggravating factors outweigh the mitigating ones.” The Arizona Supreme Court summarily rejected these arguments. 159 Ariz. at 584-85 . However, less than 2 months earlier, the Ninth Circuit Court of Appeals had been more receptive to an attack on the Arizona statutory scheme. See Adamson v. Ricketts, 865 F.2d 1011, 1043 (1988). In Adamson , the court held the Arizona death penalty scheme unconstitutional:

“While the statute does require balancing, it nonetheless deprives the sentencer of the discretion mandated by the Constitution’s individualized sentencing requirement. This is because in situations where the mitigating and aggravating *1129 circumstances are in balance, or, where the mitigating circumstances give the court reservation but still fall below die weight of the aggravating circumstances, the statute bars the court from imposing a sentence less than death. Thus, the presumption can preclude individualized sentencing as it can operate to mandate a death sentence, and we note that ‘[p]resumptions in the context of criminal proceedings have traditionally been viewed as constitutionally suspect.’ [Citation omitted].” 865 F.2d at 1043-44 .

The above holding is strikingly similar to the majority opinion in this case. Adamson and Walton created a split, with the Ninth Circuit holding the Arizona death penalty scheme unconstitutional while the Arizona Supreme Court found it to be constitutional. The United States Supreme Court granted certiorari in Walton in order to resolve the conflict between Walton and Adamson . See Walton, 497 U.S. at 647 .

There are two parts of the Walton decision which are important to the resolution of this issue in this case: Parts III and IV. In Part III, the Court addressed Walton’s contention that the Arizona statute violated the Eighth Amendment because it imposed a burden on defendants to establish mitigating circumstances sufficiently substantial to call for leniency. The Court quickly dispensed with this argument, stating:

“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S. at 650 .

While instructive, Part III, standing alone, is not determinative of our issue, as it is more concerned with the burden of proving mitigating circumstances rather than the weighing of mitigating and aggravating circumstances.

However, in Part IV, the Walton Court addressed the equipoise question raised by Adamson . The Court framed the issue as follows: “Walton insists that because [Arizona’s statute] provides that the court ‘shall’ impose the death penalty if one or more aggravating circumstances are found and mitigating circumstances are held insufficient to call for leniency, the statute creates an unconstitutional presumption that death is the proper sentence.” 497 U.S. at *1130 651 . This is the equipoise argument, viz., that a statute requiring the imposition of a death sentence is unconstitutional where the mitigating circumstances do not outweigh or are equal to the aggravating circumstances. The Court rejected this argument, stating: “Our recent decisions in [Blystone] and [Boyde] foreclose this submission” and noting again that “States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” 497 U.S. at 651-52 .

Thus, the Court in Walton found that it was not unconstitutional for a statute to mandate death where aggravating circumstances are found and mitigating circumstances are insufficient to call for leniency, that is, under Arizona’s interpretation, where the aggravating circumstances are not outweighed by the mitigating circumstances. That this was the holding of the majority in Walton is clearly demonstrated by the dissent in Walton. Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, dissented, arguing:

“If the mitigating and aggravating circumstances are in equipoise, the [Arizona] statute requires that the trial judge impose capital punishment. The assertion that a sentence of death may be imposed in such a case runs directly counter to the Eighth Amendment requirement that a capital sentence must rest upon a ‘determination that death is the appropriate punishment in a specific case.’ [Citation omitted.]” 497 U.S. at 687 .

In my opinion, the Court’s decision in Walton settles the question of equipoise of aggravating and mitigating circumstances under the United States Constitution. Contrary to the majority, Walton makes it clear that as long as the statute does not preclude the sentencer from considering relevant mitigating evidence, the specific method of balancing the aggravating and mitigating circumstances is left up to the States. See 497 U.S. at 650-52 .

The Ninth Circuit Court of Appeals has recognized that Walton overruled its Adamson decision regarding the constitutionality of the Arizona statute. See Adamson v. Lewis, 955 F.2d 614, 619 (9th Cir. 1992). The Supreme Court of Illinois, in a case handed down immediately prior to Walton, presaged the Walton reasoning in rejecting the Adamson holding and the argument that its statute *1131 was unconstitutional because it mandated death unless the mitigating circumstances outweighed the aggravating circumstances. People v. Thomas, 137 Ill.2d 500 , 561 N.E.2d 57 (1990). The Illinois court found: “The United States Supreme Court has apparently put this argument to rest in [Blystone, 494 U.S. 299 ].” 137 Ill. 2d at 542 . Later, the Idaho Supreme Court, citing Walton, found that its statute which required a defendant to provide mitigating circumstances which outweighed aggravating circumstances in order to avoid death, was constitutional. State v. Hoffman, 123 Idaho 638, 646-47 , 851 P.2d 934 (1993).

The majority opinion on this issue echos the arguments made by Kleypas and his reliance upon the cases of State v. Biegenwald, 106 N.J. 13 , 524 A.2d 130 (1987); People v. Young, 814 P.2d 834 (Colo. 1991); and Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993). None of these cases, in my opinion, are particularly persuasive.

Biegenwald was decided in 1987, and is thus pre-Walton. The language of the New Jersey statute examined in Biegenwald required the jury to sentence the defendant to death if it found an aggravating factor that was not outweighed by any one or more mitigating factors. The court found that “fundamental fairness” required that the defendant get the benefit of the doubt where “the explanations for his misconduct (the mitigating factors) were equally as significant as the culpable aspects of that misconduct (the aggravating factors).” 106 N.J. at 62 . However, the Biegenwald court did not key this “fundamental fairness” to the United States Constitution but rather to “New Jersey’s traditional concern for the rights of defendants charged with capital offenses” and its conviction that the legislature actually meant to enact legislation that requires the aggravating factors to outweigh the mitigating factors. See 106 N.J. at 58-67 . The Biegenwald Court then proceeded to rewrite the New Jersey statute to say exactly the opposite of what the language said. However, unlike the majority opinion in this case, the New Jersey Supreme Court based its decision on significant legislative history which indicated that the legislature might have been confused at to what weighing equation it actually intended to use. Biegenwald , based on New Jersey’s notion of fun *1132 damental fairness and a tortured statutory interpretation, provides little, if any, authority for a conclusion that a weighing equation which requires mitigators to outweigh aggravators violates the United States Constitution.

The only two post-Walton cases providing some support for the majority are Hulsey and Young . Both cases address the precise question raised and conclude that the weighing equation mandating death where mitigating circumstances do not outweigh aggravating circumstances is unconstitutional.

Hulsey was a federal district court case decided by the Eastern District of Arkansas. In Hulsey , the petitioner sought habeas corpus relief from the former Arkansas death penalty statute which had been amended at the time of trial. The court found that the Arkansas death penalty statute was unconstitutional because it mandated death if mitigating circumstances did not outweigh aggravating circumstances. 868 F. Supp. at 1103 . The court was concerned the following situation would violate due process:

“If a jury found tire mitigating and aggravating circumstances in equipoise, neither one more probative than the other, or, could not fairly come to a conclusion about what balance existed between them, they would be obliged to impose the death sentence since the mitigating circumstances would not be found to outweigh the aggravating.” 868 F. Supp. at 1101 .

Remarkably, the court in Hulsey did not attempt to distinguish or even mention Walton, which, as noted above, addressed this precise issue in Part IV of the opinion. Instead, Hulsey relied on the reasoning in Adamson, the case Walton abrogated in reaching its decision. The Hulsey court stated:

“Following the logic of the Ninth Circuit, the death presumption and burden shifting claims may be collapsed into one inquiry: whether the weighing equation as drawn ‘offends federal due process by effectively mandating death.’ The Court concludes that under the Arkansas statute under which petitioner was sentenced, it does.” 868 F. Supp. at 1103 .

It is highly questionable, in my opinion, whether Hulsey , with its reliance on Adamson, would have survived appellate review. However, the State’s appeal in Hulsey was dismissed by the Eighth Circuit Court of Appeals because the State had failed to timely file *1133 its notice of appeal. See Hulsey v. Sargent, 15 F.3d 115, 118-19 (8th Cir. 1994).

In Young , the Colorado Supreme Court interpreted the Colorado death penalty statute enacted in 1988. Under pre-1988 law, the Colorado statute required that the jury find that the aggravating factors were not outweighed by the mitigating factors and then further decide that death was the appropriate penalty in order to impose a death sentence. The 1988 law ehminated this last step and mandated a death sentence where the aggravating factors were not outweighed by the mitigating factors. The Young court, in declaring the death penalty statute unconstitutional, was very concerned with the ehmination of the final step, stating:

“The result of a decision that the relevant considerations for and against imposition of the death penalty in a particular case are in equipoise is that the jury cannot determine with reliability and certainty that the death sentence is appropriate under the standards applied by the legislature. A statute that requires a death penalty to be imposed in such circumstances without the necessity for further deliberations, as does section 16-ll-103(2)(b)(III), is fundamentally at odds with die requirement that the procedure produce a certain and reliable conclusion that the death penalty should be imposed. ... A death sentence imposed in such circumstances violates requirements of certainty and reliability and is arbitraiy and capricious in contravention of basic constitutional principles. [Citations omitted.]” 814 P.2d at 845 .

The Young court distinguished Walton, contending that Walton did not consider the question of whether a death sentence could be imposed when aggravators and mitigators are in equipoise. 814 P.2d at 845 n.9. The court stated: “We do not believe that the United States Supreme Court cases can fairly be read to contain any suggestion that the death penalty can be imposed when the sentencer finds aggravating and mitigating considerations to be equally balanced.” 814 P.2d at 846 . However, as noted above, Walton approved the Arizona statute which mandated the death penalty where the mitigating circumstances did not outweigh the aggravating circumstances. See 497 U.S. at 650-52 .

The Young court misinterpreted Arizona’s sentencing scheme. In reviewing United States Supreme Court decisions, the Young court stated: “The sentencer must also determine whether those mitigating factors are outweighed by the aggravating factors, *1134 Boyde, 110 S. Ct. at 1196 ; Blystone, 110 S. Ct. at 1083 , or, stated alternatively, are sufficient to call for leniency, Walton, 110 S. Ct. at 3056 .” 814 P.2d at 846 . Thus, the Young court lumped the Arizona statute at issue in Walton with the statutes in Boyde and Blystone as requiring the aggravating circumstances to outweigh the mitigating circumstances to impose death. A correct interpretation of the Arizona statute in Walton demonstrates that Arizona law required the mitigating circumstances to outweigh the aggravating circumstances in order to reject a death sentence. Had the Young court correctly interpreted the Arizona statute, viz, the way it was interpreted in Walton, it would have had a difficult time distinguishing Walton from the Colorado statute.

In any event, the Young court did not ultimately decide to base its decision on the United States Constitution. Rather, the court decided that if it was wrong in its understanding of federal precedent, it would hold that the Colorado sentencing scheme violated the Colorado Constitution and it, therefore, invalidated the scheme on state constitutional grounds. 814 P.2d at 845-46 .

It should be noted that the Colorado Legislature in reaction to the Young decision, passed a new death penalty statute which still authorizes the death penalty where aggravating circumstances are not outweighed by mitigating circumstances, although it does not mandate it. Under the Colorado scheme, after a finding that the aggravating circumstances are not outweighed by mitigating circumstances, a panel of judges then determines whether the death penalty is the appropriate punishment for that particular case. Colo. Rev. Stat. § 16-11-103 . The Colorado Supreme Court has determined that this procedure satisfies the problem it identified in Young . See State v. Dunlap, 975 P.2d 723, 736 (1999). Thus, it appears that the Colorado Supreme Court’s objection to the statute at issue in Young was not that it authorized death where the aggravating circumstances are not outweighed by the mitigating circumstances but, instead, that it mandated death in that situation.

Since Walton, there has been only one case, Hulsey, which held that a statutory scheme providing for a sentence of death where mitigating circumstances do not outweigh aggravating circumstances was barred by the United States Constitution and its value *1135 is highly questionable. The language in the Young decision provides some support for the majority decision in this case, but the ultimate decision was based not on the United States Constitution but, rather, on the Colorado Constitution. Meanwhile, Arizona, Idaho, and Illinois have reached the opposite conclusion.

Since Walton, the United States Supreme Court has reaffirmed its earlier statements regarding the abilities of the states to enact their own weighing schemes. In Harris v. Alabama, 513 U.S. 504 , 130 L. Ed. 2d 1004 , 115 S. Ct. 1031 (1995), the Court faced the question of whether Alabama’s death penalty statute was unconstitutional because it failed to give the trial judge any standards for accepting or rejecting the jury’s advisory verdict of life or death. The Court found no violation, reemphasizing: “We have rejected the notion that ‘a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.’ ” 513 U.S. at 512 . The Court also stated:

“What purpose is served by capital punishment and how a State should implement its capital punishment scheme — to the extent that those questions involve only policy issues — are matters over which we, as judges, have no jurisdiction. Our power of judicial review legitimately extends only to determine whether the policy choices of the community, expressed through its legislative enactments, comport with the Constitution.” 513 U.S. at 510 .

Similarly, in Buchanan v. Angelone, 522 U.S. 269, 276 , 139 L. Ed 2d 702, 118 S. Ct. 757 (1998), the Court found that the Eighth Amendment did not require the sentencing juiy to be instructed on particular mitigators or how to apply them, stating:

“In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. [Citations omitted.] However, the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. [Citations omitted.] Our consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.

“But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence." (Emphasis added.)

*1136 The United States Supreme Court opinions on the subject make it clear that as long as a State’s scheme allows the sentencer to give effect to mitigating evidence, the Eighth Amendment is satisfied. In Walton, the Court upheld a statute substantially similar to K.S.A. 21-4624 as constitutional, despite the fact that it mandated death where the mitigating circumstances did not outweigh the aggravating circumstances. Arizona has followed Walton and continues to apply its statute. Illinois and Idaho have relied on Walton and Boyde to hold their statutes constitutional, notwithstanding that they also contain a Kansas-type of weighing equation which requires that aggravators are not outweighed by mitigators. The only post -Walton case which has affirmatively held that a statute violates the United States Constitution in mandating death where the mitigating circumstances do not outweigh the aggravating circumstances, Hulsey, is unpersuasive in that it does not mention Walton and instead relies on Adamson, which Walton abrogated. In Young , the Colorado Supreme Court decided the matter based on the Colorado Constitution rather than the federal one and misinterpreted the Arizona sentencing scheme in reaching that result.

For all the above reasons, I would hold that Walton is dispositive of the issues raised here and that the weighing equation contained in K.S.A. 21-4624(e) does not violate the United States Constitution.

Kleypas also contends that the weighing equation should be held unconstitutional under the Kansas Constitution. Based upon the majority decision, there was no need to address this argument. Based upon my dissent, there would be a need to address Kleypas’ claim. However, in doing so, I note that “[t]his court has never extended greater protection to our citizens beyond the federal guarantees.” State v. Spain, 269 Kan. 54, 59 , 4 P.3d 621 (2000). As a result, I conclude that the weighing equation contained in K.S.A. 21-4624(e) does not violate the Kansas Constitution.

McFarland, C.J., joins in the foregoing dissent.