               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 99,988

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                    SCOTT D. CHEEVER,
                                        Appellant.


                              SYLLABUS BY THE COURT


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


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


3.
        Appellate issues and arguments supporting them must be advanced initially in a
brief. A motion is an inappropriate vehicle to raise or argue an appellate issue for the first
time.




                                              1
4.
       The Eighth Amendment to the United States Constitution does not require the
district court to instruct a capital jury that mitigating circumstances need not be proved
beyond a reasonable doubt.


5.
       K.S.A. 21-4624(e) provides greater protection to a death-eligible defendant than
required by the federal Constitution. In Kansas, a capital jury must be instructed that
mitigating circumstances need not be proved beyond a reasonable doubt. Under the facts
of this case and the applicable standard of review, the district court's failure to instruct the
jury about the burden of proof on mitigators was not clearly erroneous.


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


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


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


9.
       Because the Kansas Constitution's framework limits the judicial power to actual
cases and controversies, Kansas courts do not have the power to give advisory opinions.
                                               2
10.
       To meet the case-or-controversy requirement, a party must have standing; the
issue cannot be moot; the issue must be ripe; and the issue cannot present a political
question.


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


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


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


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


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


                                               3
16.
       K.S.A. 22-3410(2)(i) provides that a prospective juror may be challenged for
cause when his or her state of mind with reference to the case or parties prevents the juror
from acting impartially and without prejudice to the substantial rights of any party.


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


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


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


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


21.
       Prospective jurors cannot be discriminated against on the basis of their religious
belief or lack of belief, but they can be excluded from jury service when their belief or
nonbelief makes it impossible for them to act impartially under the rule of law.
                                               4
22.
       The Eighth Amendment of the United States Constitution prohibits giving the jury
misleading information that minimizes its role in the death penalty process.


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


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


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


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




                                               5
27.
       Harmless error analysis applies to error in omitting an element of a defendant's
age from jury instructions.


28.
       Under K.S.A. 21-4624(c), any evidence relevant to the question of sentence that
the court deems to have probative value may be received, regardless of its admissibility
under the rules of evidence, provided that the defendant is accorded a fair opportunity to
rebut any hearsay statements.


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


30.
       When considering a claim that cumulative error infected the penalty-phase
proceeding, this court must consider whether it is able to find that the total cumulative
effect of the errors, viewed in the light of the record as a whole, had little, if any,
likelihood of changing the jury's ultimate conclusion regarding the weight of the
aggravating and mitigating circumstances. The degree of certainty by which this court
must be persuaded turns on whether any of the errors infringe upon a right guaranteed by
the United States Constitution. The overwhelming nature of the evidence is a factor to be
considered, although its impact is limited. The question before this court is not what
                                               6
effect the cumulative error generally might be expected to have upon a reasonable jury
but, rather, what effect it had upon the actual sentencing determination in the case on
review.

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


        Appeal from Greenwood District Court; MICHAEL E. WARD, judge. Opinion on remand filed
July 22, 2016. Affirmed.


        Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause, and Reid T. Nelson,
of the same office, was with her on the briefs for appellant.


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


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


The opinion of the court was delivered by


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

                                                      7
          In our decision, we had held that defendant Scott D. Cheever did not waive his
privilege against self-incrimination under the Fifth Amendment to the United States
Constitution by presenting a voluntary intoxication defense to the capital murder charges
against him. 295 Kan. at 251. The United States Supreme Court disagreed and held that
the rebuttal testimony presented by the State in the form of the expert opinion of Dr.
Michael Welner was admissible. Kansas v. Cheever, 571 U.S. ___, 134 S. Ct. 596, 602,
187 L. Ed. 2d 519 (2013). As the Court noted, because we had ruled that Welner should
not have been allowed to testify at all, we did not consider whether the testimony he gave
exceeded the scope of rebuttal allowed by the Fifth Amendment or by Kansas evidentiary
rules; and the Court did not address the issue. 134 S. Ct. at 603.


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


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


          Appellate proceedings in this case followed Cheever's conviction of one count of
capital murder for the killing of Greenwood County Sheriff Matthew Samuels and four
counts of attempted capital murder for firing at other law enforcement officers. Direct
appeal to this court was automatic because the jury had sentenced Cheever to death on
the capital offense. See K.S.A. 21-4627(a).
                                                 8
                                       GUILT PHASE


Proper Rebuttal Testimony

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


       First, and significantly, our measure of the appropriate scope of rebuttal in this
case must take into account not just the testimony presented by Cheever's expert on the
topic of his methamphetamine intoxication, but also Cheever's own testimony concerning
his past use of the drug and the events leading to and constituting the crimes. Much of
Welner's testimony concerning details of the crimes, and Cheever's actions constituting
them, was responsive to Cheever's own testimony. Having taken the stand, Cheever
opened himself to rebuttal testimony just as he opened himself to cross-examination
concerning both the substance of his testimony and his credibility as a witness. Cheever,
134 S. Ct. at 601.


       That said, we also observe that Welner's use of the first-person narrative to recount
the crimes from Cheever's point of view in order to demonstrate Welner's conclusions
about Cheever's mental abilities during the crimes was susceptible to an interpretation by

                                              9
the jury that would have been beyond the scope of appropriate testimony by Welner.
Welner could have described Cheever's actions in the third person and then stated his
own conclusions about what those actions indicated about Cheever's mental processes.
We conclude that was the information he intended to relay. But by describing Cheever's
actions and thoughts as though Cheever himself were relating them, he implied that he
knew what Cheever was actually thinking as the events unfolded, a fact for which there
was inadequate supporting evidence. While we are confident the jury was not misled by
Welner's form of communication, that may not be so under a different set of facts and
circumstances, and we discourage the use of first-person narrative form in future cases.


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


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


Felony-Murder Instruction


       In response to Cheever's argument that the trial court should have instructed the
jury that felony murder was a lesser included offense of capital murder, we held in our
earlier decision in this case that felony murder was a lesser included offense of capital
murder and that such instruction must be given when the evidence warrants it. Cheever,
295 Kan. at 259. Following that decision, the Kansas Legislature adopted an amendment
to K.S.A. 2012 Supp. 21-5402 by which it declared that felony murder was not a lesser
included offense of capital murder. K.S.A. 2013 Supp. 21-5402(d). In State v. Gleason,
                                             10
299 Kan. 1127, 1160-61, 329 P.3d 1102 (2014), rev'd and remanded sub nom. Kansas v.
Carr, 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016), we held the retroactive
application of the amendment to cases pending at the time of its adoption did not offend
due process or violate the prohibition against ex post facto laws of the United States
Constitution. See also State v. Carr, 300 Kan. 1, Syl. ¶ 31, 331 P.3d 544 (2014), rev'd
and remanded 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016) (ruling in Gleason
eliminates any need to address argument that a lesser included offense instruction for
felony murder was supported by the evidence admitted at trial); State v. Carr, 300 Kan.
340, Syl. ¶ 32, 329 P.3d 1195 (2014) (same), rev'd and remanded 577 U.S. ___, 136 S.
Ct. 633, 193 L. Ed. 2d 535 (2016). The reasoning of the Gleason and Carr cases applies
with equal force and effect to this case and requires us to conclude that Cheever was not
entitled to a felony-murder lesser included offense instruction. The trial judge did not err
when he did not give one.


                                      PENALTY PHASE


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


Mitigating Circumstances Instructions

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



                                             11
       In his original brief filed with this court in 2010, Cheever argued that the
mitigating circumstances instructions used in his case "prevented the jury from properly
considering and giving effect to mitigating circumstances, in violation of [his] rights
under the Eighth and Fourteenth Amendments to the United States Constitution."
Cheever asserted that the instructions failed to inform the jury that mitigating
circumstances need not be proven beyond a reasonable doubt, and thus there existed a
reasonable likelihood that a juror may have failed to consider mitigating circumstances as
part of the sentencing decision. Throughout his argument, Cheever relied on the Eighth
and Fourteenth Amendments to the United States Constitution and United States
Supreme Court caselaw interpreting those amendments. He cited State v. Kleypas,
272 Kan. 894, 40 P.3d 139 (2001), cert denied 537 U.S. 834 (2002), and State v. Scott,
286 Kan. 54, 183 P.3d 801 (2008), only as cases that are "[c]onsistent with [United States
Supreme Court] decisions" interpreting the Eighth and Fourteenth Amendments.


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


       In 2014, we decided the same issue Cheever raised in his original brief in three
other cases. In each case, we concluded that the failure of the district court to instruct the
jury that mitigating circumstances need not be proven beyond a reasonable doubt
required vacating each appellant's death sentence under the Eighth Amendment.
Carr, 300 Kan. at 369-70; Carr, 300 Kan. at 303; Gleason, 299 Kan. at 1197. After the
State filed a petition for writ of certiorari in each case and those petitions were granted,
we—with the consent of both Cheever and the State—stayed the proceedings in this case
                                              12
pending disposition of the three cases by the United States Supreme Court. That
resolution came in January 2016 when the Court issued Kansas v. Carr, 577 U.S. __,
136 S. Ct. 633, 642-44, 193 L. Ed. 2d 535 (2016), and vacated this court's judgment with
respect to the need for a burden-of-proof instruction on mitigating circumstances under
the Eighth Amendment. In February 2016, we lifted the stay in this case.


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


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


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


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


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

                                                     13
       Turning to the propriety of raising a new issue in a motion, we look first to our
Rules of Appellate Practice.


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


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


       The rules governing appellate motions and briefs operate together when a party
wishes to raise a new issue not contained in the original appellate brief. See State v.
Molina, 299 Kan. 651, 664, 325 P.3d 1142 (2014) (granting defendant's motion to file
supplemental brief raising new issue); see also State v. Tague, 296 Kan. 993, 1011, 298
P.3d 273 (2013) (motion to file supplemental brief submitted after oral argument not
timely); cf. Gleason, 299 Kan. at 1156 (granting State's motion to file supplemental brief
addressing legislative amendments).


       We have held that appellate counsel must set forth all arguments within a brief.
Ferguson v. State, 276 Kan. 428, 449-50, 78 P.3d 40 (2003) (citing Rule 6.02 and
Rule 6.03). By extension, all issues must also be contained within the briefs. See State v.
                                             14
Nece, 303 Kan. 888, 897, 367 P.3d 1260 (2016) (argument not briefed deemed waived
and abandoned); State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (issue not
briefed by appellant deemed waived and abandoned); State v. Greever, 286 Kan. 124,
131-32, 183 P.3d 788 (2008) (recognizing exception; "if the issue is raised on remand, it
is preserved on further appeal"); cf. State v. Littlejohn, 298 Kan. 632, Syl. ¶ 8, 316 P.3d
136 (2014) (appellate courts will not consider new issues raised for first time in Rule
6.09[b] letter). But see State v. Ford, 302 Kan. 455, 463, 353 P.3d 1143 (2015) (court
may correct illegal sentence at any time; subject matter jurisdiction may be raised at any
time).


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


         This decision does not, however, end our consideration of the merits of the issue
Cheever attempts to raise for the first time in his motion. Because this is a death penalty
case, K.S.A. 2015 Supp. 21-6619 applies. Under K.S.A. 2015 Supp. 21-6619(a), any case
in which a defendant is convicted and sentenced to death is "subject to automatic review
by and appeal to the supreme court of Kansas in the manner provided by the applicable
statutes and rules of the supreme court governing appellate procedure." In addition,
K.S.A. 2015 Supp. 21-6619(b) states that we "shall consider the question of sentence as
well as any errors asserted in the review and appeal and shall be authorized to notice
unassigned errors appearing of record if the ends of justice would be served thereby."
(Emphasis added.) And this court is "authorized to enter such orders as are necessary to
effect a proper and complete disposition of the review and appeal." K.S.A. 2015 Supp.
21-6619(d). We have recognized this statutory authorization not only to identify error,
but also to lay to rest whether error occurred at all. See Carr, 300 Kan. at 44-49 (under
authority of K.S.A. 2013 Supp. 21-6619[b] analyzing "unassigned potential errors" and
                                              15
concluding no error occurred). In addition, Cheever's failure to comply with our rules is
not an absolute procedural bar to our reaching the issue because doing so serves the "ends
of justice." Cf. State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007) (appellate court
has power to address unraised issues in exceptional circumstances, where consideration
of issue necessary to serve ends of justice or prevent denial of fundamental rights). Under
the unique circumstances of this case and in the interest of judicial economy, we elect to
reach the issue raised in Cheever's motion.


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


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




                                              16
        "As an initial matter, the defendants' argument rests on the assumption that it
would be unconstitutional to require the defense to prove mitigating circumstances
beyond a reasonable doubt. Assuming without deciding that that is the case, the record
belies the defendants' contention that the instructions caused jurors to apply that standard
of proof. The defendants focus upon the following instruction: 'The State has the burden
to prove beyond a reasonable doubt that there are one or more aggravating circumstances
and that they are not outweighed by any mitigating circumstances found to exist.'
[Citation omitted.] The juxtaposition of aggravating and mitigating circumstances, so
goes the argument, caused the jury to speculate that mitigating circumstances must also
be proved beyond a reasonable doubt. [Citation omitted.] It seems to us quite the
opposite. The instruction makes clear that both the existence of aggravating
circumstances and the conclusion that they outweigh mitigating circumstances must be
proved beyond a reasonable doubt; mitigating circumstances themselves, on the other
hand, must merely be 'found to exist.' That same description, mitigating circumstances
'found to exist,' is contained in three other instructions, App. to Pet. for Cert. in No.
14-452, at 133 (Instrs. 7, 9, and 10) (emphasis added)—unsurprisingly, since it recites the
Kansas statute, see Kan. Stat. Ann. § 21-4624(e) (1995). 'Found to exist' certainly does
not suggest proof beyond a reasonable doubt. The instructions as a whole distinguish
clearly between aggravating and mitigating circumstances: 'The State has the burden to
prove beyond a reasonable doubt that there are one or more aggravating circumstances
. . . ,' and the jury must decide unanimously that the State met that burden. App. to Pet.
for Cert. in No. 14-452, at 133 (Instrs. 8 and 10) (emphasis added). 'Mitigating
circumstances,' on the other hand, 'do not need to be found by all members of the jury' to
'be considered by an individual juror in arriving at his or her sentencing decision.' Id., at
131 (Instr. 7). Not once do the instructions say that defense counsel bears the burden of
proving the facts constituting a mitigating circumstance beyond a reasonable doubt—nor
would that make much sense, since one of the mitigating circumstances is (curiously)
'mercy,' which simply is not a factual determination.


        "We reject the Kansas Supreme Court's decision that jurors were 'left to speculate
as to the correct burden of proof for mitigating circumstances.' [Citation omitted.] For the
reasons we have described, no juror would reasonably have speculated that mitigating
circumstances must be proved by any particular standard, let alone beyond a reasonable

                                              17
       doubt. The reality is that jurors do not 'pars[e] instructions for subtle shades of meaning
       in the same way that lawyers might.' [Citation omitted.] The instructions repeatedly told
       the jurors to consider any mitigating factor, meaning any aspect of the defendants'
       background or the circumstances of their offense. Jurors would not have misunderstood
       these instructions to prevent their consideration of constitutionally relevant evidence."
       Kansas v. Carr, 136 S. Ct. at 643-44.


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


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


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


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

                                                    18
       deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and
       impose a sentence of life without the possibility of parole and shall commit the defendant
       to the custody of the secretary of corrections."


       In Gleason, we explained:


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


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


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



                                                    19
       On the way to resolving the issue, the Kleypas court identified two components
that should be included in any instruction addressing mitigating circumstances:


       "[A]ny instruction dealing with the consideration of mitigating circumstances should
       state (1) they need to be proved only to the satisfaction of the individual juror in the
       juror's sentencing decision and not beyond a reasonable doubt and (2) mitigating
       circumstances do not need to be found by all members of the jury in order to be
       considered in an individual juror's sentencing decision." (Emphasis added.) Kleypas,
       272 Kan. at 1078.


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


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


                                                    20
       Recognizing that it had addressed the same issue in Kleypas, the Scott court noted
that Kleypas recommended the two components that should be included in any mitigating
circumstances instruction. Scott, 286 Kan. at 106-07. The Scott court then distinguished
Kleypas on the basis that the unanimity language included in the instruction in Kleypas
and approved by the court had not been included in Scott. It explained:


               "In addition to the instructions we have emphasized, we have considered all of
       the other instructions given by the trial court in an effort to decide whether jurors could
       have reasonably been misled to believe unanimity was required as to mitigating
       circumstances. Read together, the instructions repeatedly emphasize the need for
       unanimity as to any aggravating circumstances found to exist. Conversely, the trial
       court's instructions do not inform the jury as to a contrary standard for determining
       mitigating circumstances. The jury is left to speculate as to the correct standard. Under
       these circumstances, we conclude there is a substantial probability reasonable jurors
       could have believed unanimity was required to find mitigating circumstances. We hold
       failure of the trial court to provide the jury with a proper standard for determining
       mitigating circumstances constitutes reversible error. See Mills v. Maryland, 486 U.S.
       367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988) (holding a death sentence should be
       vacated where there was a substantial probability reasonable jurors may have thought
       they could only consider those mitigating circumstances unanimously found to exist).
       Accordingly, we must reverse the death sentence and remand to the district court for a
       new capital sentencing hearing." State v. Scott, 286 Kan. 54, 107, 183 P.3d 801 (2008).


       In Gleason, the defense challenge to the mitigating circumstances jury instructions
shifted focus from juror unanimity to burden of proof. The defendant argued that the
district court erred when it failed to instruct the jury that mitigating circumstances need
not be proven beyond a reasonable doubt. Further, the error required reversal because
"the instructions as a whole exacerbated the error and there is a reasonable likelihood the
jurors were precluded from considering relevant mitigating evidence in violation of the



                                                    21
Eighth and Fourteenth Amendments to the United States Constitution." State v. Gleason,
299 Kan. 1127, 1191, 329 P.3d 1102 (2014).


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


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


       "[T]he United States Supreme Court has explained that its Eighth Amendment
       jurisprudence on capital sentencing should not be interpreted as creating any
       constitutional requirements as to how or whether a capital jury should be instructed on
       the burden of proof for mitigating circumstances. [Citation omitted.] . . . 'So long as a
       State's method of allocating the burdens of proof does not lessen the State's burden to
       prove . . . aggravating circumstances, a defendant's constitutional rights are not violated
       by placing on him the burden of proving mitigating circumstances sufficiently substantial
       to call for leniency.'" Gleason, 299 Kan. at 1195 (quoting Walton v. Arizona, 497 U.S.
       639, 650, 110 S. Ct. 3047, 111 L. Ed. 2d 511 [1990], overruled on other grounds by Ring
       v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 [2002]).


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



                                                    22
      "[T]he capital sentencing statute at issue in Walton explicitly required defendants to
      prove mitigating circumstances by a 'preponderance of the evidence' standard. 497 U.S.
      at 651. Kansas' capital sentencing statute differs distinctly from the statute at issue in
      Walton, and that distinction is critical to our analysis here. Namely, while K.S.A.
      21-4624 requires the State to prove aggravating circumstances beyond a reasonable
      doubt, the statute is silent as to any burden of proof for mitigating circumstances. K.S.A.
      21-4624(e); see also Marsh, 548 U.S. at 173 (contrasting Kansas' statute, which places no
      evidentiary burden on capital defendants, with Arizona's statute, which requires capital
      defendants to prove mitigating circumstances by a preponderance of the evidence).


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


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


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


              "Because K.S.A. 21-4624 expressly burdens the State with proving the existence
      of aggravating circumstances beyond a reasonable doubt but places no evidentiary burden
      regarding the existence of mitigating circumstances on the defendant beyond the burden

                                                    23
       of production, we reiterate our holding in Kleypas and Scott that capital juries in Kansas
       must be informed that mitigating circumstances need not be proven beyond a reasonable
       doubt. Because the instruction given in this case failed to do so, it was erroneous."
       Gleason, 299 Kan. at 1196-97.


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


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

                                                    24
respect to the burden of proof to establish mitigating circumstances. This greater
protection is a matter of state law outside the purview of the United States Supreme
Court.


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


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


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


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


                                                       25
whether the giving or failing to give a jury instruction is clearly erroneous. See Robinson,
303 Kan. at 282.


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


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


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


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


       As noted above, K.S.A. 21-4624(e) provides greater protection to a death-eligible
defendant than that required by the federal Constitution. By necessary implication, it
evidences the legislature's intent that a capital penalty phase jury be instructed that
mitigating circumstances need to be proved only to the satisfaction of the individual juror
in the juror's sentencing decision and not beyond a reasonable doubt. Thus the instruction
for which Cheever argues on appeal was legally appropriate.


       Moreover, because mitigating circumstances must be determined by each juror
individually and because mercy itself may be considered a mitigating factor, the
challenged instruction also was factually appropriate in the sentencing phase of this
                                                    26
capital proceeding. See State v. Carr, 300 Kan. 1, 307, 331 P.3d 544 (2014) (recognizing
mercy as mitigating factor).


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


       Because the challenged instruction was legally and factually appropriate, the
district court's failure to instruct the jury that mitigating circumstances need not be
proven beyond a reasonable doubt was error under state law. We thus proceed to the next
analytical step and determine whether the error was clear and reversible. Cheever bears
the burden to firmly convince this court that the jury would have returned a different
verdict had the instructional error not occurred. This is a high standard—higher than the
"reasonable likelihood" standard he advanced in his original brief and continues to
advance in his motion. See State v. Breeden, 297 Kan. 567, 581, 304 P.3d 660 (2013)
(failure to object to instruction raises persuasive bar complaining party must hurdle on
appeal); Williams, 295 Kan. at 518 (burden to firmly convince appellate court that the
jury would have reached a different verdict had error not occurred "high hurdle").
                                              27
       Cheever contends that he presented substantial mitigation evidence during his
penalty-phase proceeding. In his motion, Cheever recounts the mitigation evidence that
he put forth, which included evidence of his drug use and drug addiction, his assertion
that his judgment was impaired on the day of the crime due to drug use, his upbringing in
an environment with pervasive drug use, the sabotage of his potential to lead a drug- and
crime-free lifestyle by his parents, his conversion to Christianity, and his genuine
remorse. Much of this evidence was boiled down into a nonexclusive list of nine
mitigating circumstances that the district court provided the jury as part of the
instructions.


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


       We have independently reviewed the complete record on appeal, including the
penalty-phase proceedings in full. Cheever's effort to downplay his culpability for the
murder of Samuels by relying on his drug use and upbringing, in the face of the State's
proof beyond a reasonable doubt that he knowingly or purposely created a great risk of
death to more than one person and committed the murder in order to avoid or prevent a
lawful arrest or prosecution, findings that support a heightened degree of culpability, do
not firmly convince us that a jury would have returned a different verdict had the
instructional error not occurred. Likewise, Cheever's mitigating evidence of his potential
for rehabilitation was fully countered by the jury's unanimous finding beyond a
                                             28
reasonable doubt that he had a previous felony conviction in which he inflicted great
bodily harm. On this evidence, there is no clear error requiring this court to vacate
Cheever's death sentence.


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


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


       Cheever did not raise this issue before the district court, but we have previously
noted that does not preclude our review. State v. Cheever, 295 Kan. 229, 241, 284 P.3d
1007 (2012) (K.S.A. 21-4627[b] imposes a mandatory exception in death penalty appeals
to the various statutes and rules barring consideration of unpreserved issues). Under
K.S.A. 2015 Supp. 21-6619(b), we would be required to review the issue were there not
another problem with Cheever's argument that does preclude our review. It is undisputed
that Samuels was engaged in the performance of his duties as a law enforcement officer
at the time he was killed. Thus there is a question as to whether Cheever has standing to
                                              29
challenge the constitutionality of K.S.A. 21-3439(a)(5) on the ground that it does not
require the victim to have been engaged in the performance of his or her duties at the
time of the murder.


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

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



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



       The standing requirement is based on the rule that courts do not decide cases based
on purely hypothetical scenarios. See Hall v. Dillon Companies, Inc., 286 Kan. 777,
784-85, 189 P.3d 508 (2008) (a court does not decide hypothetical cases; it "must apply
the law to the case before it"); State ex rel. Morrison, 285 Kan. at 897. It is undisputed
that the constitutional defect Cheever alleges concerning K.S.A. 21-3439(a)(5) does not
apply to him. Consequently, any consideration of the issue in the context of this case
would necessarily be hypothetical.

                                                    30
       Cheever does not have standing to raise a challenge to the constitutionality of
K.S.A. 21-3439(a)(5) on the ground asserted in this appeal. His lack of standing
forecloses our review.


Challenges for Cause


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


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

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


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


               "Witt held that 'the proper standard for determining when a prospective juror may
       be excluded for cause because of his or her views on capital punishment . . . is whether

                                                   31
       the juror's views would "prevent or substantially impair the performance of his duties as a
       juror in accordance with his instructions and his oath."' [Citation omitted.]" Morgan, 504
       U.S. at 728.


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


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


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


       In Carr, we explained:


               "On appeal, the question before us is not whether we would have agreed with a
       district judge's decision on a strike for cause prompted by a panel member's opinion on
       the death penalty but whether the district judge's decision is fairly supported by the
       record. Witt, 469 U.S. at 434; see Darden v. Wainwright, 477 U.S. 168, 176, 106 S. Ct.
       2464, 91 L. Ed. 2d 144 (1986) (appellate courts must examine context surrounding
       prospective juror's exclusion, qualification). If the record contains conflicting or

                                                    32
         ambiguous information, the United States Supreme Court has expressed its belief that
         deference is owed to 'the trial court, aided as it undoubtedly was by its assessment of [the
         prospective juror's] demeanor.' Witt, 469 U.S. at 434." Carr, 300 Kan. at 114.


         Venire Member J.S.W.


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


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


         The trial judge observed that the question was "whether or not [J.S.W.] can fairly
and objectively consider both options of a death sentence and life in prison without the
possibility of parole, and whether or not her leaning would substantially interfere with her
ability to do that evaluation process" and concluded that her views would not interfere

                                                     33
with her ability to engage in the weighing process as instructed. There is ample record
support for the trial judge's conclusion and we find nothing to indicate an abuse of
discretion.


       Venire Member T.D.


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


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


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


                                             34
murder but would automatically choose a life sentence. The trial judge granted the State's
challenge for cause.


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


       But Cheever, in an apparent attempt to avoid the Sixth Amendment jurisprudence,
argues that the Eighth Amendment prohibits the removal of T.D. from the panel. The
Eighth Amendment requires that the jury not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a sentence of less
than death. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978);
Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).
Cheever's argument that the Eighth Amendment entitles him to select jurors who, because
of their own religious beliefs, will view mitigating evidence from a certain point of view,
namely, one that eschews the death penalty, is based on a premise that a juror's religious
viewpoint is, in itself, a mitigating factor. It is a novel argument, but Cheever provides no
authority to support it and our research has uncovered none. Moreover, it seems difficult
to justify with the precedent of the United States Supreme Court that focuses on the
ability of a juror to impartially consider the death penalty while allowing the states "'to
structure and shape consideration of mitigating evidence "in an effort to achieve a more
                                              35
rational and equitable administration of the death penalty."'" Johnson v. Texas, 509 U.S.
350, 362, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993); cf. People v. Taylor, 48 Cal. 4th
574, 603, 108 Cal. Rptr. 3d 87, 229 P.3d 12 (2010) (defendant's Eighth Amendment
challenge to death qualification of jury was lacking in merit, where the challenge was in
essence a restatement of his claims under other constitutional provisions); People v.
Johnson, 3 Cal. 4th 1183, 1213, 14 Cal. Rptr. 2d 702, 842 P.2d 1 (1992) (same).


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


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


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


               "No person shall be excluded from service as a grand or petit juror in the district
       courts of Kansas on account of race, color, religion, sex, national origin, or economic
       status. Every juror, grand and petit, shall be a citizen of the state, resident of the county
       and possess the qualifications of an elector as now, or in the future established."


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

                                                     36
       As noted above, K.S.A. 22-3410(2)(i) provides that a prospective juror may be
challenged for cause as unqualified to serve when he or she is partial or biased. In State v.
Carr, 300 Kan. 1, 124, 331 P.3d 544 (2014), we recognized the tension created by the
interaction of the two statutes "when the reason a prospective juror can never participate
in imposition of the death penalty, compelling removal of that person for cause, has a
basis in a religious code."


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


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


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

                                                    37
Orientation Remarks


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


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


       "[W]e . . . read Caldwell as 'relevant only to certain types of comment—those that
       mislead the jury as to its role in the sentencing process in a way that allows the jury to
       feel less responsible than it should for the sentencing decision.' Darden v. Wainwright,
       477 U.S. 168, 184, n. 15[, 106 S. Ct. 2464, 91 L. Ed. 2d 144] (1986). Thus, '[t]o establish
       a Caldwell violation, a defendant necessarily must show that the remarks to the jury
       improperly described the role assigned to the jury by local law.' [Citations omitted.]"
       Romano v. Oklahoma, 512 U.S. 1, 9, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994).

                                                    38
       Here the trial judge's remarks did not concern the role of the jury. They were an
accurate statement of the fact that one reason court reporters record trial proceedings is to
provide a record for appellate review. Consequently, we conclude there was no
constitutional error presented by the judge's remarks. See State v. Braxton, 352 N.C. 158,
175-76, 531 S.E.2d 428 (2000) (trial court's statement before jury selection that
transcription of the case would allow Supreme Court review, trial court's passing
references to appellate review during voir dire did not dilute responsibility of jury, did
not invalidate the death sentence, did not violate the Eighth Amendment; statements did
not imply Supreme Court would correct any errors the jury might make).


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


       That said, our cases have held that judicial comments that are not instructions to
the jury are reviewed under judicial misconduct standards. Both parties pointed to this
standard of review in their briefs. "In cases alleging judicial misconduct, this court's
standard of review is unlimited. The question is whether [the defendant]'s substantial
                                               39
rights to a fair trial were prejudiced by the court's statements. [The defendant] bears the
burden of showing his substantial rights were prejudiced." State v. Kirkpatrick, 286 Kan.
329, 348, 184 P.3d 247 (2008), abrogated on other grounds by State v. Sampson,
297 Kan. 288, 301 P.3d 276 (2013). In making the determination, we must look to the
particular facts and circumstances of the case.


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


Age at Time of Crime


       "Capital defendants, no less than noncapital defendants, . . . are entitled to a jury
determination of any fact on which the legislature conditions an increase in their
maximum punishment." Ring v. Arizona, 536 U.S. 584, 589, 122 S. Ct. 2428, 153 L. Ed.
2d 556 (2002). In our previous decision, we held that because K.S.A. 21-4622 and K.S.A.
21-4624(b) condition the capital sentencing hearing on the defendant being 18 years of
age at the time of the commission of the capital murder, "the fact the defendant was at
least 18 years old at the time of the crime is a fact necessary to subject the defendant to
the death penalty and therefore within the scope of Sixth Amendment protection."
Cheever, 295 Kan. at 264-65. We also noted that Roper v. Simmons, 543 U.S. 551, 578,
125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), categorically prohibits the imposition of the
                                              40
death penalty on individuals who were under 18 at the time they committed a capital
offense. Cheever, 295 Kan. at 264. But, because we were reversing on other grounds, we
did not assess the effect of the trial court's failure to have the jury make a finding beyond
a reasonable doubt of Cheever's age at the time of the crime. 295 Kan. at 265 ("[W]e need
not decide whether the failure to instruct the jury to find the defendant's age was harmless
under the facts of this case.") (citing State v. Colston, 290 Kan. 952, 975, 235 P.3d 1234
[2010], and State v. Reyna, 290 Kan. 666, Syl. ¶ 10, 234 P.3d 761 [2010] [harmless error
analysis applies to error in omitting element of defendant's age where age was
uncontested and supported by overwhelming evidence]). We need to make that
determination now.


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


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


                                             41
testified that the man who attacked him appeared to be 19 to 20 years old. The date of
that offense was May 24, 2000.


       Cheever's own testimony during the guilt phase of trial, which was corroborated
by Mullins' testimony, as well as Cheever's own arguments and the evidence and
testimony of other witnesses during the penalty phase, clearly established that he was 23
years old at the time of the offense. Because the record did not contain evidence that
could rationally lead a jury to find that Cheever was under the age of 18 at the time of the
offense, any error in failing to have the jury find his age was harmless. See Reyna,
290 Kan. at 681 ("[T]his court will apply the harmless error analysis to the omission of an
element from the instructions to the jury when a review of the evidence leads to the
conclusion beyond a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict would have been the
same absent the error.").


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


       Cheever also raises an objection to the relaxed evidentiary standard of K.S.A.
21-4624(c). Under that provision, any evidence relevant to the question of sentence
which the court deems to have probative value may be received regardless of its
admissibility under the rules of evidence, provided that the defendant is accorded a fair
opportunity to rebut any hearsay statements. We did not address his arguments under the
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in our prior
decision; however, his Sixth Amendment argument based on Ring was rejected in State v.
Scott, 286 Kan. 54, 99-101, 183 P.3d 801 (2008), and his Eighth Amendment argument
based on the need for "heightened reliability" in death penalty proceedings was rejected
in Kleypas, 272 Kan. at 1036-43. He has given us no additional authority or any other
reason to reconsider those rulings, and we decline to do so. Moreover, he points to no
                                             42
specific evidence presented in his penalty hearing that fell below the standards he
advocates.


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


Prosecutorial Misconduct


       In our prior decision we found that one remark made in closing by the prosecutor
"crossed the line between comment on the weight of the evidence as it relates to specific
mitigating circumstances and argument to the jury that it could not consider a mitigating
circumstance as a matter of law." Cheever, 295 Kan. at 272-73 ("'[Y]ou've already
decided methamphetamine did not play a role in the capital murder of Matt Samuels. And
you should reject it now.'"). In Kleypas, this court recognized the "subtle differences"
between applying the constitutional harmless error test to prosecutorial misconduct
during the guilt phase proceeding and during the penalty-phase proceeding. 272 Kan. at
1084. This court explained:


       "[T]he standard of review and the ultimate question that must be answered with regard to
       whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is

                                                   43
       whether the court is able to find beyond a reasonable doubt that the prosecutorial
       misconduct, viewed in the light of the record as a whole, had little, if any, likelihood of
       changing the jury's ultimate conclusion regarding the weight of the aggravating and
       mitigating circumstances. In this determination, the overwhelming nature of the evidence
       is a factor to be considered, although its impact is limited. Also, in making the
       determination as to whether an error was harmless, it is important to recognize that the
       question for the reviewing court is not what effect the constitutional error might generally
       be expected to have upon a reasonable jury but, rather, what effect it had upon the actual
       verdict in the case at hand. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 124
       L. Ed. 2d 182 (1993). 'The inquiry, in other words, is not whether, in a trial that occurred
       without the error, a [verdict for death] would surely have been rendered, but whether the
       [death verdict] actually rendered in this trial was surely unattributable to the error.' 508
       U.S. at 279." Kleypas, 272 Kan. at 1087-88.


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


Cumulative Error


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


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


                                                     44
               "Cumulative trial errors, when considered collectively, may be so great as to
       require reversal of the defendant's conviction. The test is whether the totality of
       circumstances substantially prejudiced the defendant and denied him a fair trial. No
       prejudicial error may be found upon this cumulative effect rule, however, if the evidence
       is overwhelming against the defendant." 281 Kan. at 29.


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


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


       "[T]he standard of review and the ultimate question that must be answered with regard to
       whether prosecutorial misconduct in the penalty phase of a capital trial was harmless is
       whether the court is able to find beyond a reasonable doubt that the prosecutorial
       misconduct, viewed in the light of the record as a whole, had little, if any, likelihood of

                                                    45
      changing the jury's ultimate conclusion regarding the weight of the aggravating and
      mitigating circumstances. In this determination, the overwhelming nature of the evidence
      is a factor to be considered, although its impact is limited. Also, in making the
      determination as to whether an error was harmless, it is important to recognize that the
      question for the reviewing court is not what effect the constitutional error might generally
      be expected to have upon a reasonable jury but, rather, what effect it had upon the actual
      verdict in the case at hand. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 124
      L. Ed. 2d 182 (1993). 'The inquiry, in other words, is not whether, in a trial that occurred
      without the error, a [verdict for death] would surely have been rendered, but whether the
      [death verdict] actually rendered in this trial was surely unattributable to the error.'
      508 U.S. at 279." Kleypas, 272 Kan. at 1087-88.


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


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


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




                                                    46
       We hold that when considering a claim that cumulative error infected the
penalty-phase proceeding, our test is whether we are able to find that the total cumulative
effect of the errors, viewed in the light of the record as a whole, had little, if any,
likelihood of changing the jury's ultimate conclusion regarding the weight of the
aggravating and mitigating circumstances. See Kleypas, 272 Kan. at 1087. The degree of
certainty by which we must be persuaded turns on whether any of the errors infringe
upon a right guaranteed by the United States Constitution. See State v. Ward, 292 Kan.
541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The
overwhelming nature of the evidence is a factor to be considered, but its impact is
limited. As with the prosecutorial-misconduct analysis, the question before this court is
not what effect the error might generally be expected to have upon a reasonable jury but,
rather, what effect it had upon the actual sentencing determination in the case on review.
See Kleypas, 272 Kan. at 1088.


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


       We note that Cheever contends certain guilt-phase testimony was erroneous, and
he includes this asserted guilt-phase error for our consideration with respect to the
cumulative effect of error on the sentencing determination. We have concluded the
testimony was not erroneous; thus we do not consider it in our cumulative-error analysis.
                                               47
Nevertheless, we agree with Cheever that certain guilt-phase errors, although they do not
individually or collectively require reversal of the conviction, could be of such a nature
that they impact the sentencing determination when the same jury decides both guilt and
sentence.


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


       We have no difficulty concluding beyond a reasonable doubt that, collectively,
these errors had little, if any, effect on the jury's ultimate conclusion regarding the weight
of the aggravating and mitigating circumstances. The four errors during the penalty phase
were isolated, and no one error compounded any negligible prejudicial effect arising out
of any of the other three errors.


       First, the district court's remark about appellate review was too far removed from
the sentencing deliberations to have factored into them. Second, in light of Cheever's
                                              48
asserted mitigating factor that he was 23 years old at the time of the crime, there was
little, if any, prejudice to the jury's weighing process arising from the district court's
failure to instruct the jury that it had to find Cheever was at least 18 years old at the time
of the crime.


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


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


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


                                         CONCLUSION


       The issues raised in Cheever's original brief which we have not revisited here were
decided against him in State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012). Thus, no
                                               49
issue raised by Cheever warrants reversal. Accordingly, we affirm Cheever's convictions
and sentences for capital murder of a law enforcement officer and for four counts of
attempted capital murder of a law enforcement officer. His convictions for the
manufacture of methamphetamine and for criminal possession of a firearm were affirmed
in our previous decision. Consequently, Cheever's sentences for those charges also stand.


       Affirmed.


       MICHAEL J. MALONE, Senior Judge, assigned.1


                                            ***


       JOHNSON, J., dissenting: I disagree with the majority's decision to uphold the
death penalty in this case. I recently stated my belief that the death penalty violates the
prohibition against cruel or unusual punishment in § 9 of the Kansas Constitution Bill of
Rights. State v. Robinson, 303 Kan. 11, 357, 363 P.3d 875 (2015) (Johnson, J.,
dissenting). Accordingly, only a brief mention of another aspect of the majority opinion
with which I take exception is warranted here.


       I agree with the majority that the district court erred when it failed to comply with
the state-law rule on instructing death-penalty juries about mitigating circumstances. That




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 99,988
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court created by the appointment of Justice Nancy Moritz to the United States 10th
Circuit Court of Appeals.



                                              50
rule was first clearly enunciated for trial judges in this court's first modern-era death
penalty case, State v. Kleypas, 272 Kan. 894, 1078, 40 P.3d 139 (2001). The part of that
rule applicable here provides "that capital juries in Kansas must be informed that
mitigating circumstances need not be proven beyond a reasonable doubt." (Emphasis
added.) State v. Gleason, 299 Kan. 1127, 1196-97, 329 P.3d 1102 (2014), rev'd and
remanded sub nom. Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535
(2016). As the dissent in Kansas v. Carr, 577 U.S. ___, 136 S. Ct. 633, 650, 193 L. Ed.
2d 535 (2016) (Sotomayor, J., dissenting), recognized, our reversal in Gleason rested in
part "on some lower courts' failure to give instructions reflecting the Kansas Supreme
Court's 'repeated recognition of the required content'" of the mitigating circumstances
jury instruction. A trial court's refusal to adhere to oft-repeated directions on how to
instruct a jury constitutes error in any circumstance but most especially in a death penalty
case.


        In my view, the majority goes astray when it assumes the role of a death-penalty
jury, "independently review[ing] the complete record on appeal, including the penalty-
phase proceedings in full," and then using that review to reweigh the aggravating factors
against the mitigating circumstances. Slip op. at 28. For instance, the majority makes its
own jury-like finding that "Cheever's mitigating evidence of his potential for
rehabilitation was fully countered by the jury's unanimous finding beyond a reasonable
doubt that he had a previous felony conviction in which he inflicted great bodily harm."
Slip op. at 28-29. Maybe the jury would have believed that weighting declaration by the
majority if the jury had been told that Cheever's potential for rehabilitation did not have
to be proved beyond a reasonable doubt. Then, again, maybe not. In other words,
Cheever's death sentence is not the product of an informed decision by a jury of his peers.
Rather, a majority of this court is responsible for the death sentence in this case.




                                              51
       Moreover, I do not believe that the clearly erroneous provision of K.S.A. 22-
3414(3) provides an excuse for the majority to don the mantle of super-juror here. That
provision states that "[n]o party may assign as error the giving or failure to give an
instruction," unless that party properly objects in the trial court. (Emphasis added.)
K.S.A. 22-3414(3). This, however, is a death penalty case, governed by a special set of
statutes. One of those provisions says that this court "shall be authorized to notice
unassigned errors appearing of record if the ends of justice would be served thereby."
(Emphasis added.) K.S.A. 2015 Supp. 21-6619(b). At best, it seems counterintuitive to
saddle the defendant with a clearly erroneous burden of proof, when the court could
conduct a sua sponte review of the issue as an unassigned error, with or without an
objection to the trial court. In short, the instruction error warrants a new sentencing
proceeding.




                                             52
