# State v. Marsh

> Supreme Court of Kansas · December 17, 2004 · 278 Kan. 520

URL: https://www.frixlaw.com/law-library/cases/9795508

## Case

- **Full name:** State of Kansas, Appellee, v. Michael Lee Marsh II, Appellant
- **Court:** Supreme Court of Kansas
- **Decided:** December 17, 2004
- **Citations:** 278 Kan. 520; 102 P.3d 445; 2004 Kan. LEXIS 772
- **Precedential status:** Published
- **Opinion:** Dissent by McFarland
- **Judges:** Allegrucci, Luckert, Gernon, Beier, Nuss, McFarland
- **Cited by:** 81 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Kansas v. Marsh, 548 U.S. 163 (2006).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795508

## How later opinions describe it (automated extraction)

- applying labels to the interpretive canon of construing a statute to avoid constitutional questions

## Opinion text

McFarland, C.J. and Nuss, J.
join in the foregoing dissenting opinion.
NüSS, J., dissenting: I join Justice Davis for the reasons discussed in his dissenting opinion. I write a separate dissent primarily to elaborate upon one of his reasons: the controlling authority, over the instant case’s issue of death at equipoise, of Walton v. Arizona, 497 U.S. 639 , 111 L. Ed. 2d 511 , 110 S. Ct. 3047 (1990), overruled on other grounds Ring v. Arizona, 536 U.S. 584 , 153 L. Ed. 2d 556 , 122 S. Ct. 2428 (2002).
Ever since the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 , 33 L. Ed. 2d 346 , 92 S. Ct. 2726 (1972), many state legislatures have struggled to fashion death penalty statutes which the Supreme Court will not strike as unconstitutional. Their paths have been neither smooth nor straight because the Court’s directions, and often its requirements, certainly have been less than clear and at least arguably less than consistent. Many legislatures could justifiably consider the constitutionality target in death penalty jurisprudence as a moving one. As described by one of the Supreme Court’s own members, “[f|or state lawmakers, the lesson has been that a decision of this Court is nearly worthless as a guide for the future; though we approve or seemingly even require some sentencing procedure today, we may well retroactively prohibit it tomorrow.” Walton v. Arizona, 497 U.S. at 668 . (Scalia, J., concurring).
The Supreme Court did, however, bestow constitutional passing grades on state death penalty statutes in three cases in 1990: Blystone v. Pennsylvania, 494 U.S. 299 , 108 L. Ed. 2d 255 , 110 S. Ct. 1078 (1990); Boyde v. California, 494 U.S. 370 , 108 L. Ed. 2d 316 , 110 S. Ct. 1190 (1990); and Walton . As a result, if a state legislature can fashion a death penalty statute identical to any of those which were approved in these cases, then its statute should also receive a constitutional passing grade. The Kansas death penalty statute, *565 K.S.A. 21-4624, is functionally identical- — on the issue of death at equipoise — to the Arizona death penalty statute approved in Walton . Accordingly, Walton controls. To demonstrate that Walton controls, I find it necessaiy to set forth below much of its specific language.
WALTON
There is no question that the issue of death at equipoise was squarely before the Walton Court. As Justice Davis’ dissent explains, the Supreme Court granted certiorari to resolve the conflict between the Arizona Supreme Court, which held its state death penalty statute to be constitutional, and the United States Court of Appeals for the Ninth Circuit, which held the statute to be unconstitutional “for the reasons submitted by Walton in this case, see Adamson v. Ricketts, 865 F.2d 1011 (1988) (en banc).” 497 U.S. at 647 .
Petitioner Waltons brief
To identify “the reasons submitted by Walton in this case,” one must consider his brief:
Petitioner Walton began by clearly stating his second “Question Presented” on p. 1 of his brief as follows:
“Whether Arizona’s capital sentencing statute violates the Eighth and Fourteenth Amendments by:
“a) requiring that death be imposed if the defendant fails to prove the existence of mitigating circumstances sufficiently substantial to call for leniency; and
“b) precluding the sentencer from considering mitigating circumstances unless the defendant has established their existence by a preponderance of the evidence?” (Emphasis added.)
Next, petitioner Walton articulated the effect of this italicized statutory language — as interpreted by both the Arizona Supreme Court and the Ninth Circuit — on p. 33 of his brief. In the section titled “The Statutory Presumption in Favor of Death,” he argued:
“Not only must Arizona capital defendants establish that particular mitigating circumstances exist, but they must show that these circumstances are ‘sufficiently substantial to call for leniency.’ . . . This statutory language tells an Arizona sentencing judge who finds even a single aggravating factor, that death must be imposed, unless — as the Arizona Supreme Court put it in Petitioner’s case — there *566 are ‘out-weighing mitigatingfactors.’ ” (citing State v. Walton, 159 Ariz. 571 , 769 P.2d 1017 [1989]).
At p. 33, Walton then repeated the italicized statutory language’s effect. He also clearly argued why he considered death at equipoise, which is connected to his argument regarding the statutory presumption in favor of death, to be violative of his constitutional rights:
“In Adamson v. Ricketts, [ 865 F.2d 1011 (9th Cir. 1988)], the Ninth Circuit succinctly described this system:
‘Under the statute, once any single statutory aggravating circumstance has been established, the defendant must not only establish the existence of a mitigating circumstance, but must also bear the risk of nonpersuasion that any mitigating circumstance will not outweigh the aggravating circumstance(s) . . . The relevant clause in the statute — “sufficiently substantial to call for leniency” — thus imposes a presumption of death once the court has found the existence of any single statutory aggravating circumstance.’ 865 F.2d at 1041-2 (footnotes omitted).” (Emphasis added.)
Finally, petitioner Walton again clearly presented the issue of death at equipoise on pp. 36-37 of his brief. In the section titled “The Removal of Sentencing Discretion,” he argued:
“The Arizona statute is explicitly mandatory: it provides that the sentencer ‘shall’ impose a death sentence whenever a single aggravating circumstance is found and the defendant fails to meet his statutory burdens of proof. . . .
“. . . 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 circumstances are in balance ... 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. . . . Adamson v. Rick-etts, supra, 865 F.2d at 1043 (footnotes omitted).” (Emphasis added.)
Plurality Opinion
Justice White, writing for the plurality, addressed the two sub-parts of petitioner Walton’s second “Question Presented” in Sections III and IV of the opinion. See 497 U.S. at 649-652 . In Section III, he expressly rejected Walton’s contention “that the Arizona statute violates the Eighth and Fourteenth Amendments because it imposes on defendants the burden of establishing, by a prepon *567 derance of the evidence, the existence of mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S. at 649 .
Then in Section IV of the plurality opinion, Justice White expressly rejected Walton’s other contention that
“because [Arizona statute] § 13-703(E) provides that the court ‘shall1 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 651 .
As support for rejecting Walton’s latter argument, Justice White looked to two capital cases decided by the Court only 4 months earlier:
“Our recent decisions in Blystone v. Pennsylvania, 494 U.S. 299 (1990) and Boyde v. California, 494 U.S. 370 (1990), foreclose this submission. . . . We pointed out [in Blystone] that ‘[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.’ ” 497 U.S. at 651 -52 (citing Blystone, 494 U.S. at 307 ).
Justice White then proceeded to explain why Boyde v. California in particular supported the plurality’s analysis and its rejection of Walton’s argument:
“Similarly, Boyde v. California, supra, upheld a pattern jury instruction which stated that ‘[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.’ See 494 U.S. at 374. . . . The Court specifically noted that ‘there is no . . . 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.” ’ Id., at 377 (quoting Franklin «. Lynaugh, 487 U.S. 164 (1988) (plurality opinion)). Walton’s arguments in this case are no more persuasive than those made in Blystone and Boyde.” (Emphasis added.) 497 U.S. at 652 .
Justice Scalia joined White and the other three justices of this plurality, Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy, to form a majority which held Arizona’s death penally sentencing procedures were constitutional and affirmed Walton’s death sentence which had been imposed under those procedures.
Dissenting Opinion
While Justice White did not use the word “equipoise” or expressly signal the concept, i.e., specifically referencing “situations *568 where the mitigating and aggravating circumstances are in balance,” his four dissenting colleagues certainly acknowledged that the issue of death at equipoise was directly presented to them. Justice Blackmun, writing for himself and fellow dissenters Justices Brennan, Marshall, and Stevens, not only addressed this specific issue in Section B of the dissenting opinion at 497 U.S. at 686 , but actually began his analysis with death at equipoise:
“7 also believe that the Constitution forbids the State of Arizona to place upon the capital defendant the burden of proving mitigating circumstances that are ‘sufficiently substantial to call for leniency.’ Ariz. Rev. Stat. Ann. § 13-703 (E) (1989). Once an aggravating circumstance has been established, the Arizona statute mandates that death is to be deemed the appropriate penalty unless the defendant proves otherwise. That statutory provision, in my view, establishes a ‘presumption of death’ in violation of the Eighth Amendment. [Citing, inter alia, Adamson v. Ricketts, 865 F.2d 1011 , Í041 (9th Cir. 1988).]
"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. "... If the mitigating and aggravating circumstances are in equipoise, the 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.]” (Emphasis added.) 497 U.S. at 686-87 (Blackmun, J., dissenting).
Not only did the four dissenters acknowledge that death at equipoise was directly presented to them, but more important, they also unequivocally interpreted Justice White’s plurality opinion as having disposed of the issue. Specifically, the dissenters opined that the plurality’s reliance on Blystone v. Pennsylvania and Boyde v. California was misplaced because those states’ death penalty statutes were distinguishable from Arizona’s on this very issue:
“The statutes upheld in those cases provided that the death penalty would be imposed ‘only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances.’ Blystone, 494 U.S. at 305 . In neither Boyde nor Blystone did the challenged statute require a capital sentence when aggravating and mitigatingfactors are evenly balanced. Those decisions simply do not speak to the issue posed by the Arizona statute: whether the State permissibly may place upon the capital defendant the burden *569 of demonstrating that a sentence of death is not appropriate.” (Emphasis added.) 497 U.S. at 687-88 (Blackmun, J., dissenting).
The dissenters’ very next paragraph clearly continued their analysis of the issue of death at equipoise as follows:
“The plurality does not attempt to explain why Arizona may require a capital sentence in a case where aggravating and mitigating circumstances are evenly balanced. Indeed, the plurality does not even acknowledge that this is the dis-positive question. Instead, it offers only a conclusoiy assertion: ‘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 688 (Blackmun, J., dissenting).
The dissenters not only denounced the plurality’s tacit approval of the concept that “in death, the tie goes to the State.” They also worried that the plurality’s lack of a “limiting principle” would allow states to place an even greater burden of proof upon the defendant fighting to avoid a sentence of death:
“One searches in vain for any hint of a limiting principle. May a State require that the death penalty be imposed whenever an aggravating factor is established and mitigating circumstances do not ‘substantially outweigh’ those in aggravation? May a state statute provide that a death sentence is presumptively appropriate whenever an aggravating circumstance is proved, and that the presumption can be rebutted only by a showing that mitigating circumstances are ‘extraordinarily great’? These formulations would appear to satisfy the plurality’s test; viz., that the State is required to establish an aggravating circumstance, and no mitigating evidence is excluded from the sentencer’s consideration.” (Emphasis added.) 497 U.S. at 688 (Blackmun, J., dissenting).
The dissenters also observed that the plurality’s approval of this concept in the Arizona death penalty statute “appears to rest upon an analogy between mitigating evidence in capital sentencing and affirmative defenses in noncapital cases.” 497 U.S. at 689 . The dissenters then left no doubt that they believed the plurality incorrectly permitted the tie to go to the State. They ended their analysis by “concluding] that the Constitution bars Arizona from placing upon a capital defendant the burden of proving that mitigating circumstances are ‘sufficiently substantial to call for leniency’ ” — a phrase that the dissenters admitted was interpreted by *570 the Arizona Supreme Court as requiring the defendant to prove his mitigating factors outweighed his aggravating factors. 497 U.S. at 690 .
In my view, the four dissenters were correct in their interpretation of their colleagues’ plurality opinion. The plurality conceivably required a capital defendant to prove more than his or her mitigating factors “outweighed” his or her aggravating factors; rather, e.g., that they “substantially outweighed” them. Today, however, we need not try to determine the outer reaches of the plurality opinion regarding the defendant’s burden of proof; rather, we need only acknowledge that death at equipoise is within that opinion’s constitutional boundaries.
Controlling cases cited in Walton
That said, the part of the plurality opinion which most persuades me that death at equipoise is tacitly approved is — as observed by the dissent — Justice White’s drawing an analogy between mitigating evidence and affirmative defenses. In particular, he cited two of the Supreme Court’s capital decisions which placed the burden on the defendant to prove self-defense or insanity — or else be put to death: Martin v. Ohio, 480 U.S. 228 , 94 L. Ed. 2d 267 , 107 S. Ct. 1098 (1987); and Leland v. Oregon, 343 U.S. 790 , 96 L. Ed. 1302 , 72 S. Ct. 1002 (1952). He additionally cited two non-capital murder cases: Patterson v. New York, 432 U.S. 197 , 53 L. Ed. 2d 281 , 97 S. Ct. 2319 (1977); and Rivera v. Delaware, 429 U.S. 877 , 50 L. Ed. 2d 160 , 97 S. Ct. 226 (1976), which also placed the burden on the defendant to prove an affirmative defense. As Justice White concluded:
“The basic principle of these cases controls the result in this case. 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.” (Emphasis added.) 497 U.S. at 650 .
In one of the cited cases, Leland v. Oregon, 343 U.S. 790 , the Court upheld a requirement that the defense of insanity be proved béyond a reasonable doubt by the defendant who had been sen *571 tenced to death. Next, in Rivera v. Delaware, 429 U.S. 877 , though the court dismissed the appeal for want of a substantial federal question, the case had precedential value: a defendant convicted of second-degree murder who raised an insanity defense was required to prove his mental illness or defect by a preponderance of the evidence.
One year after Rivera, the Court stated in the second-degree murder case of Patterson v. New York, 432 U.S. at 207 , that it was “unwilling to reconsider Leland and Rivera” and upheld a requirement that the affirmative defense of extreme emotional disturbance be proved by a preponderance of the evidence.
Finally, in Martin v. Ohio, 480 U.S. at 236 , the Court observed: “We have had the opportunity to depart from Leland v. Oregon, . . . but have refused to do so,” citing Rivera v. Delaware. Additionally: “These cases were important to the Patterson decision and they, along with Patterson , are authority for our decision today.” 480 U.S. at 236 . Based upon these precedents, the Martin Court upheld the Ohio practice of imposing on a capital defendant the burden of proving by a preponderance of the evidence that he or she was acting in self-defense when he or she committed a murder.
It is additionally persuasive to me that two of these four murder cases cited by Justice White in the Walton plurality, Patterson v. New York and Martin v. Ohio, were also authored by him. Moreover, Martin not only affirmed the Leland line of cases, but it also was written only 3 years before White wrote the plurality opinion in Walton. (Of the other two cases cited as authority for Martin’s holding, Leland v. Oregon predated all the members of the Walton Court, and Rivera v. Delaware had no author due to its dismissal on jurisdictional grounds.)
Accordingly, it is my opinion that Justice White knew exactly what these four cases stood for and therefore knew — perhaps better than his colleagues — exactly why these cases supported his opinion for the plurality in Walton. In short, since the Court had repeatedly approved requiring murder defendants, particularly two capital murder defendants, to prove their affirmative defenses by at least a preponderance of the evidence, it was entirely consistent *572 for the Court to require defendant Walton to prove, essentially by a preponderance of the evidence, why he should not be sentenced to death, i.e., to “prov[e] mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S. at 650 . Furthermore, the Court’s rebanee upon Leland, whose capital defendant was required to prove his affirmative defense by the even higher standard of beyond a reasonable doubt, clearly suggests the Court would approve some capital defendant sentencing burdens even greater than those placed upon petitioner Walton.
The majority in the instant case, however, — much like the majority in Kleypas whose reasoning it affirms in holding K.S.A. 21-4624(e) unconstitutional as written — does not make any attempt to address these four important United States Supreme Court precedents upon which Justice White expressly rebed. This omission is curious, since White’s heavy reliance upon these cases as the key to the Walton opinion’s holding could not have been stated any more clearly: “The basic principle of these cases controls the result in this case.” 497 U.S. at 650 . At best, the majority obbquely dismisses these four essential cases as “cases that predate Walton” which require analyzing “distinct statutory language” and as a result, “obviously, do not control.” According to Walton, however, they expressly control the outcome there and should in the instant case as well.
CASE LAW INTERPRETATIONS OF WALTON
Walton clearly controls the issue of death at equipoise contained in the Kansas death penalty statute, K.S.A. 21-4624. Additionally persuasive, as Justice Davis points out in his dissent, are the interpretations of Walton by the two entities whose conflicting interpretations of the Arizona death penalty statute had to be resolved there: the Arizona Supreme Court and the Ninth Circuit Court of Appeals.
Since Walton, the Arizona Supreme Court has repeatedly interpreted its death penalty statute to require the defendant to prove mitigating factors which outweigh the aggravating factors in order to avoid a sentence of death. “On appeal, our task is independently to ‘review the record to determine whether any mitigating circum *573 stances outweigh aggravating circumstances.’ ” (Emphasis added.) State v. Brewer, 170 Ariz. 486, 504 , 826 P.2d 783 , cert. denied 506 U.S. 872 (1992). “We make this decision [on the death penalty sentence] after searching the entire record for error, examining the evidence establishing the presence or absence of aggravating and mitigating circumstances, and determining whether the latter circumstances outweigh the former when both are present.” (Emphasis added.) Brewer, 170 Ariz. at 500 . See State v. Pandeli, 200 Ariz. 365, 374 , 26 P.3d 1136 (2001), cert. granted and judgment revd by Ring v. Arizona, 536 U.S. 584 , 153 L. Ed. 2d 556 , 122 S. Ct. 2428 (2002); State v. Hoskins, 199 Ariz. 127, 147 , 14 P.3d 997 (2000), cert. denied 534 U.S. 970 (2001); State v. Van Adams, 194 Ariz. 408, 422 , 984 P.2d 16 (1999), cert. denied 528 U.S. 1172 (2000); State v. Djerf, 191 Ariz. 583, 595 , 959 P.2d 1274 , cert. denied 525 U.S. 1024 (1998); State v. Ysea, 191 Ariz. 372, 375 , 956 P.2d 499 (1998); State v. Rienhardt, 190 Ariz. 579, 592-93 , 951 P.2d 454 (1997), cert. denied 525 U.S. 838 (1998); State v. Thornton, 187 Ariz. 325, 335 , 929 P.2d 676 (1996), cert. denied 520 U.S. 1217 (1997); State v. Gulbrandson, 184 Ariz. 46, 72 , 906 P.2d 579 (1995), cert. denied 518 U.S. 1022 (1996); State v. Greenway, 170 Ariz. 155, 170 , 823 P.2d 22 (1991); State v. Lavers, 168 Ariz. 376, 391 , 814 P.2d 333 , cert. denied 502 U.S. 926 (1991).
Moreover, after Walton, Arizona has executed capital defendants under the authority of its interpretation of that statute, with 22 executions since 1992. Three of those executions occurred after the Arizona Supreme Court affirmed the defendants’ death penally sentences (post-Walton), and the United States Supreme Court denied their petitions for writs of certiorari. See State v. Miller, 186 Ariz. 314 , 921 P.2d 1151 (1996), cert. denied 519 U.S. 1152 (1997); State v. Ross, 180 Ariz. 598 , 886 P.2d 1354 (1994), cert. denied 516 U.S. 878 (1995); State v. Brewer, 170 Ariz. 486 . One should be leery of reading too much into those denials, but one wonders: If the Supreme Court believed that Arizona was interpreting Walton in a way that violated a petitioner’s constitutional rights, would not the Court have granted at least one petition to stop one of those three executions?
*574 Additionally, the Arizona Supreme Court has interpreted Walton as rejecting the claim that its death penalty statute contained a presumption of death, an argument closely connected to the death at equipoise argument. In Gulbrandson , the defendant argued that tire Arizona statute was unconstitutional because “once the state has proven at least one aggravating circumstance, the statute places the burden on a defendant to prove sufficiently substantial mitigation to outweigh the presumption of death.” (Emphasis added.) Gulbrandson, 184 Ariz. at 72 . The Arizona Supreme Court responded: “This argument has been rejected,” citing Walton, 497 U.S. at 650 . Gulbrandson, 184 Ariz. at 72 . See State v. Salazar, 173 Ariz. 399, 411 , 844 P.2d 566 (1992), cert. denied 509 U.S. 912 (1993); State v. Brewer, 170 Ariz. at 497; State v. Greenway, 170 Ariz. at 160.
Most tellingly to me, the Ninth Circuit, which had declared the Arizona death penalty statute unconstitutional, and upon which the Walton dissent heavily relied to opine that the statute establishes a presumption of death in violation of the Eighth Amendment, also interpreted Walton as rejecting this argument. In Richmond v. Lewis, 948 F.2d 1473, 1481 (9th Cir. 1992), the defendant had argued “that the Arizona statute creates an unconstitutional presumption that death is the proper sentence.” The Ninth Circuit responded: “The Supreme Court’s recent decision in Walton v. Arizona specifically addressed and rejected” this contention. Richmond, 948 F.2d at 1481 . See Campbell v. Wood, 18 F.3d 662, 675 (9th Cir.), cert. denied 511 U.S. 1119 (1994); Adamson v. Lewis, 955 F.2d 614, 619 (9th Cir. 1992), cert. denied 505 U.S. 1213 (1992); Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir. 1990).
Furthermore, I observe that the Kansas Supreme Court also apparently interpreted Walton in this fashion in State v. Spain, 269 Kan. 54 , 4 P.3d 621 (2000) — just 1 year before State v. Kleypas, 272 Kan. 894 , 40 P.3d 139 (2001) — when it stated:
“In Walton, five justices agreed the Arizona death penalty statute did not create an unconstitutional presumption in favor of the death penalty. The statute at issue in Walton required imposition of the sentence of death if any aggravating circumstances were established and there were ‘ “no mitigating circumstances sufficiently substantial” ’ to warrant leniency. 497 U.S. at 644 (quoting Ariz. Rev. Stat. Ann. *575 § 13-703 [E] [1989]). Although the language chosen by the Arizona legislature does not include the terms weigh’ or ‘outweigh,’ what the statute prescribes is a weighing process that results in imposition of the death penalty if the mitigating circumstances are not of sufficient weight to tip the balance toward leniency.” (Emphasis added.) 269 Kan. at 59 .
I interpret our phrase “to tip the balance toward leniency” as requiring more mitigating circumstances than aggravating circumstances, Le., a tie goes to the State.
Finally, I observe, again with Justice Davis, that the Supreme Court of Idaho interpreted Walton the same way. In State v. Hoffman, 123 Idaho 638 , 851 P.2d 934 (1993), cert. denied 511 U.S. 1012 (1994), the defendant argued that part of Idaho’s death penalty statute, like Marsh argues about part of Kansas’ statute, was “unconstitutional because it requires a defendant to provide mitigating circumstances which outweigh any statutory aggravating circumstance found.” 123 Idaho at 646-47 . The challenged portion of the statute, Idaho Code § 19-2515 (c) (1987), is very similar to K.S.A. 21-4624(e). It stated:
“Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the court finds at least one (1) statutory aggravating circumstance. Where the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented outweigh the gravity of any aggravating circumstance found and make imposition of death unjust.” (Emphasis added.)
Compare K.S.A. 21-4624(e):
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in KS.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.” (Emphasis added.)
The Idaho Supreme Court quickly dispatched Mr. Hoffman’s constitutional argument because
“[t]his scheme was found to be constitutional in Walton v. Arizona, 497 U.S. 639 , 110 S. Ct. 3047 , 111 L. Ed. 2d 511 (1990). In that case, the Supreme Court held:
‘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 *576 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 , 110 S. Ct. at 3055.’
“Because the State was required to prove every element of the offense charged, including the statutory aggravating circumstances, the burden placed on Hoffman by operation of [Idaho Code] § 19-2515(c) did not violate his constitutional rights. Walton v. Arizona, supra." 123 Idaho at 647 .
For the same reasons, Marsh’s argument — that K.S.A. 21-4624(e) is facially unconstitutional because it mandates death at equipoise — should be quickly dispatched by our court.
In summaiy, outside of the Colorado Supreme Court’s decision in People v. Young, 814 P.2d 834 (Colo. 1991) (which I agree with Justice Davis misreads the Arizona sentencing scheme and relies upon the Colorado Constitution), and Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993) (which does not mention Walton but relies upon Adamson, which the Ninth Circuit admits was abrogated by Walton), I have been unable to find any other court since the Walton decision was released in 1990 that agrees with the position of the four justices in the majority in the instant case.
In conclusion, this court is bound by the United States Supreme Court’s plurality holding in Walton until such time as that Court— as warned by Justice Scalia in his concurring opinion in that case— changes its mind. And Walton mandates that the death at equipoise concept contained in our death penalty statute, K.S.A. 21-4624, is constitutional.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795508. Public record. Not legal advice.