¶1dissenting: I join the majority opinion in all respects except on the issue of equipoise. I respectfully dissent from the majority’s conclusion that the weighing equation within the Kansas death penalty statute, K.S.A. 21-4624(e), violates the Eighth Amendment to the United States Constitution because it mandates death where mitigating circumstances and aggravating circumstances are found to be equal (equipoise). The express provisions of K.S.A. 21-4624(e) mandate the imposition of a death sentence where “the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist.” Yet, the majority changes the express language of the legislature to say that death may be mandated only where aggravating circumstances outweigh any mitigating circumstances found to exist.
¶2The majority reverses the weighing equation adopted by the legislature in K.S.A. 21-4624(e) with the idea that the intent of the legislature is to be carried out in a constitutional manner. There is no question, based on the express language of the legislature, that it intended to mandate the imposition of a death sentence where the existence of such aggravating circumstances is not outweighed by any mitigating circumstances found to exist. The precise question was brought to the attention of the legislature in testimony by the attorney general, who recommended that the statute provide for the aggravating circumstances to outweigh the mitigating circumstances before a death sentence may be imposed. The legislature rejected that suggestion of the attorney general and adopted our present statute.
¶3The majority, however, replaces the express language with its own language based upon its conclusion that this new language carries out the intent of the legislature in a constitutional manner. Because the new language mandated by the majority is contrary to the expressed intent and language adopted by the legislature in K.S.A. 21-4624(e), I believe the majority invades the province of *1125the legislature. In the face of a clearly expressed legislative intent, the majority not only strikes this clear language as unconstitutional but adopts language exactly the opposite of what the legislature stated. If the language of the statute offends the Constitution, the appropriate judicial solution, in my opinion, is to so hold and let the legislature resolve the matter consistent with the court’s opinion.
¶4More importantly, however, I respectfully dissent from the majority’s conclusion that the weighing equation contained in K.S.A. 21-4624(e) is unconstitutional. Thus, I would conclude that there is no need to change the weighing equation in that it is constitutional under the Eighth Amendment as expressed by the Kansas Legislature in accordance with Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990).
¶5The majority holds that the weighing equation contained in K.S.A. 21-4624(e) violates the United States and Kansas Constitutions because it mandates a sentence of death when the aggravating and mitigating circumstances are found to be in equipoise. K.S.A. 21-4624(e) states:
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; otherwise, the defendant shall be sentenced as provided by law.”
¶6The statute provides that the defendant “shall” be sentenced to death where the jury finds that the mitigating circumstances do not outweigh the aggravating circumstances. Theoretically, if the jury were to somehow determine that the aggravating and mitigating circumstances were equally balanced, the defendant would be sentenced to death, as the mitigators would not outweigh the aggravators. The question is whether a weighing equation which has Qie potential to produce this result is unconstitutional. It is a question of law over which appellate review is unlimited.
¶7As noted in the majority decision, this court has previously rejected the argument that this same weighing equation was unconstitutional in the context of a hard 40 sentencing decision in State *1126v. Spain, 269 Kan. 54, 4 P.3d 621 (2000). However, the majority correctly points out that our decision in Spainwas premised in part on the concept that noncapital cases are of limited precedential value in analyzing capital cases due to the greater scrutiny to which capital cases must be held. See Spain, 269 Kan. at 59-60. Thus, the result in Spainis not controlling, and the question must instead be analyzed through the specialized lens of the strictures of the United States Constitution with regard to a sentence of death.
¶8The United States Supreme Court has imposed a number of requirements on the capital sentencing process. States must limit and channel the discretion of judges and juries in order to minimize the risk of wholly arbitrary and capricious action. Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, reh. denied 429 U.S. 875 (1976). At the same time, the sentencer must be allowed to retain sufficient discretion to consider the particular circumstances of the crime and the characteristics of the defendant. See Gregg, 428 U.S. at 196-98; Woodson v. North Carolina, 428 U.S. 280, 304, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976). One way in which this may be accomplished is through a process which requires the sentencer to weigh certain aggravating and mitigating circumstances in order to determine whether a defendant should be sentenced to death. Proffitt v. Florida, 428 U.S. 242, 259-60, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976) (holding that a scheme which required the sentencer to determine whether mitigating circumstances were sufficient to outweigh aggravating circumstances adequately guided and channeled the sentencer’s discretion).
¶9While the Court has imposed numerous requirements on the guiding and channeling of the sentencer’s discretion, the actual weighing of aggravating and mitigating circumstances has been left up to the states. In Zant v. Stephens, 462 U.S. 862, 890, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983), the Court stated that “the Constitution does not require a State to adopt specific standards for instructing the jury in its consideration of aggravating and mitigating circumstances.” Similarly, in Franklin v. Lynaugh, 487 U.S. 164, 179, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988), the Court stated: “[W]e have never held that a specific method for balancing miti*1127gating and aggravating factors in a capital sentencing proceeding is constitutionally required.”
¶10The Court continued this theme in Blystone v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990), and Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990). In Blystone, the question was whether a weighing equation which made the death penalty mandatory where aggravating circumstances outweighed mitigating circumstances was constitutional. The Court ruled that it was, stating: “The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” 494 U.S. at 307. The Court noted: “Within the constitutional limits defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.” 494 U.S. at 309.
¶11In Boyde, the question was the same as that in Blystone-. whether that State’s death penalty scheme, which required death when aggravating circumstances outweighed mitigating circumstances and required life when mitigating circumstances outweighed aggravating circumstances, was constitutional. The defendant argued that the jury must have freedom to reject the death penalty even if it found that aggravating circumstances outweighed mitigating circumstances. The Court, however, stated: “[T]here is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” 494 U.S. at 377.
¶12In both Blystoneand Boyde, the Court faced a statute which mandated death when the aggravators outweighed the mitigators. This changed, however, with a third death penalty case decided in 1990, Walton v. Arizona, 497 U.S. 639. Waltoninvolved the constitutionality of the Arizona death penalty scheme. I believe Waltonis ultimately determinative of the question in this case. In order to place the Court’s decision in Waltonin context, it is necessary to detail the events which led up to the decision.
¶13The Arizona statute at issue in Waltonprovided that the sentencing judge “shall” impose the death penalty if one or more ag*1128gravating circumstances is found and the “mitigating circumstances are held insufficient to call for leniency.” The majority places great emphasis upon the difference between the language of the Arizona statute and the Kansas statute. K.S.A. 21-4624(e) provides that death is mandated where aggravating circumstances are not outweighed by mitigating circumstances. What the majority fails to note is that the Arizona Supreme Court interpreted (and still interprets) the weighing equation to mean the same as that stated by the Kansas statue: The death penalty shall be imposed where the aggravating circumstances are not outweighed by the mitigating circumstances. See State v. Ysea, 191 Ariz. 372, 375, 956 P.2d 499 (1998) (“If the judge finds one or more of the aggravating factors listed in § 13-703[F], the defendant is death eligible, and if the aggravating factors are not outweighed by mitigating factors listed in § 13-703[G], the resulting sentence is death.”); State v. Gretzler, 135 Ariz. 42, 53-55, 659 P.2d 1 (1983); see also Walton, 497 U.S. at 687 (Blackmun, J., dissenting) (“The Arizona Supreme Court repeatedly has indicated that a defendant’s mitigating evidence will be deemed ‘sufficiently substantial to call for leniency’ only if the mitigating factors ‘outweigh’ those in aggravation.”).
¶14The issues in Waltondeveloped as the result of a controversy over whether this formulation of the weighing equation violated the United States Constitution. In State v. Walton, 159 Ariz. 571, 584, 769 P.2d 1017 (1989), the defendant challenged the Arizona statutory scheme as unconstitutional, arguing, inter alia, that “it impermissibly places the burden of proof of mitigation on the defendant” and “it does not require proof beyond a reasonable doubt that the aggravating factors outweigh the mitigating ones.” The Arizona Supreme Court summarily rejected these arguments. 159 Ariz. at 584-85. However, less than 2 months earlier, the Ninth Circuit Court of Appeals had been more receptive to an attack on the Arizona statutory scheme. See Adamson v. Ricketts, 865 F.2d 1011, 1043 (1988). In Adamson, the court held the Arizona death penalty scheme unconstitutional:
“While the statute does require balancing, it nonetheless deprives the sentencer of the discretion mandated by the Constitution’s individualized sentencing requirement. This is because in situations where the mitigating and aggravating *1129circumstances are in balance, or, where the mitigating circumstances give the court reservation but still fall below die weight of the aggravating circumstances, the statute bars the court from imposing a sentence less than death. Thus, the presumption can preclude individualized sentencing as it can operate to mandate a death sentence, and we note that ‘[p]resumptions in the context of criminal proceedings have traditionally been viewed as constitutionally suspect.’ [Citation omitted].” 865 F.2d at 1043-44.
¶15The above holding is strikingly similar to the majority opinion in this case. Adamsonand Walton created a split, with the Ninth Circuit holding the Arizona death penalty scheme unconstitutional while the Arizona Supreme Court found it to be constitutional. The United States Supreme Court granted certiorari in Walton in order to resolve the conflict between Walton and Adamson. See Walton, 497 U.S. at 647.
¶16There are two parts of the Walton decision which are important to the resolution of this issue in this case: Parts III and IV. In Part III, the Court addressed Walton’s contention that the Arizona statute violated the Eighth Amendment because it imposed a burden on defendants to establish mitigating circumstances sufficiently substantial to call for leniency. The Court quickly dispensed with this argument, stating:
“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S. at 650.
¶17While instructive, Part III, standing alone, is not determinative of our issue, as it is more concerned with the burden of proving mitigating circumstances rather than the weighing of mitigating and aggravating circumstances.
¶18However, in Part IV, the Walton Court addressed the equipoise question raised by Adamson. The Court framed the issue as follows: “Walton insists that because [Arizona’s statute] provides that the court ‘shall’ impose the death penalty if one or more aggravating circumstances are found and mitigating circumstances are held insufficient to call for leniency, the statute creates an unconstitutional presumption that death is the proper sentence.” 497 U.S. at *1130651. This is the equipoise argument, viz., that a statute requiring the imposition of a death sentence is unconstitutional where the mitigating circumstances do not outweigh or are equal to the aggravating circumstances. The Court rejected this argument, stating: “Our recent decisions in [Blystone] and [Boyde] foreclose this submission” and noting again that “States are free to structure and shape consideration of mitigating evidence ‘in an effort to achieve a more rational and equitable administration of the death penalty.’ ” 497 U.S. at 651-52.
¶19Thus, the Court in Walton found that it was not unconstitutional for a statute to mandate death where aggravating circumstances are found and mitigating circumstances are insufficient to call for leniency, that is, under Arizona’s interpretation, where the aggravating circumstances are not outweighed by the mitigating circumstances. That this was the holding of the majority in Walton is clearly demonstrated by the dissent in Walton. Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, dissented, arguing:
“If the mitigating and aggravating circumstances are in equipoise, the [Arizona] statute requires that the trial judge impose capital punishment. The assertion that a sentence of death may be imposed in such a case runs directly counter to the Eighth Amendment requirement that a capital sentence must rest upon a ‘determination that death is the appropriate punishment in a specific case.’ [Citation omitted.]” 497 U.S. at 687.
¶20In my opinion, the Court’s decision in Walton settles the question of equipoise of aggravating and mitigating circumstances under the United States Constitution. Contrary to the majority, Walton makes it clear that as long as the statute does not preclude the sentencer from considering relevant mitigating evidence, the specific method of balancing the aggravating and mitigating circumstances is left up to the States. See 497 U.S. at 650-52.
¶21The Ninth Circuit Court of Appeals has recognized that Walton overruled its Adamsondecision regarding the constitutionality of the Arizona statute. See Adamson v. Lewis, 955 F.2d 614, 619 (9th Cir. 1992). The Supreme Court of Illinois, in a case handed down immediately prior to Walton, presaged the Walton reasoning in rejecting the Adamson holding and the argument that its statute *1131was unconstitutional because it mandated death unless the mitigating circumstances outweighed the aggravating circumstances. People v. Thomas, 137 Ill.2d 500, 561 N.E.2d 57 (1990). The Illinois court found: “The United States Supreme Court has apparently put this argument to rest in [Blystone, 494 U.S. 299].” 137 Ill. 2d at 542. Later, the Idaho Supreme Court, citing Walton, found that its statute which required a defendant to provide mitigating circumstances which outweighed aggravating circumstances in order to avoid death, was constitutional. State v. Hoffman, 123 Idaho 638, 646-47, 851 P.2d 934 (1993).
¶22The majority opinion on this issue echos the arguments made by Kleypas and his reliance upon the cases of State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987); People v. Young, 814 P.2d 834 (Colo. 1991); and Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993). None of these cases, in my opinion, are particularly persuasive.
¶23Biegenwaldwas decided in 1987, and is thus pre-Walton. The language of the New Jersey statute examined in Biegenwaldrequired the jury to sentence the defendant to death if it found an aggravating factor that was not outweighed by any one or more mitigating factors. The court found that “fundamental fairness” required that the defendant get the benefit of the doubt where “the explanations for his misconduct (the mitigating factors) were equally as significant as the culpable aspects of that misconduct (the aggravating factors).” 106 N.J. at 62. However, the Biegenwaldcourt did not key this “fundamental fairness” to the United States Constitution but rather to “New Jersey’s traditional concern for the rights of defendants charged with capital offenses” and its conviction that the legislature actually meant to enact legislation that requires the aggravating factors to outweigh the mitigating factors. See 106 N.J. at 58-67. The BiegenwaldCourt then proceeded to rewrite the New Jersey statute to say exactly the opposite of what the language said. However, unlike the majority opinion in this case, the New Jersey Supreme Court based its decision on significant legislative history which indicated that the legislature might have been confused at to what weighing equation it actually intended to use. Biegenwald, based on New Jersey’s notion of fun*1132damental fairness and a tortured statutory interpretation, provides little, if any, authority for a conclusion that a weighing equation which requires mitigators to outweigh aggravators violates the United States Constitution.
¶24The only two post-Walton cases providing some support for the majority are Hulseyand Young. Both cases address the precise question raised and conclude that the weighing equation mandating death where mitigating circumstances do not outweigh aggravating circumstances is unconstitutional.
¶25Hulseywas a federal district court case decided by the Eastern District of Arkansas. In Hulsey, the petitioner sought habeas corpus relief from the former Arkansas death penalty statute which had been amended at the time of trial. The court found that the Arkansas death penalty statute was unconstitutional because it mandated death if mitigating circumstances did not outweigh aggravating circumstances. 868 F. Supp. at 1103. The court was concerned the following situation would violate due process:
“If a jury found tire mitigating and aggravating circumstances in equipoise, neither one more probative than the other, or, could not fairly come to a conclusion about what balance existed between them, they would be obliged to impose the death sentence since the mitigating circumstances would not be found to outweigh the aggravating.” 868 F. Supp. at 1101.
¶26Remarkably, the court in Hulseydid not attempt to distinguish or even mention Walton, which, as noted above, addressed this precise issue in Part IV of the opinion. Instead, Hulseyrelied on the reasoning in Adamson, the case Walton abrogated in reaching its decision. The Hulseycourt stated:
“Following the logic of the Ninth Circuit, the death presumption and burden shifting claims may be collapsed into one inquiry: whether the weighing equation as drawn ‘offends federal due process by effectively mandating death.’ The Court concludes that under the Arkansas statute under which petitioner was sentenced, it does.” 868 F. Supp. at 1103.
¶27It is highly questionable, in my opinion, whether Hulsey, with its reliance on Adamson, would have survived appellate review. However, the State’s appeal in Hulseywas dismissed by the Eighth Circuit Court of Appeals because the State had failed to timely file *1133its notice of appeal. See Hulsey v. Sargent, 15 F.3d 115, 118-19 (8th Cir. 1994).
¶28In Young, the Colorado Supreme Court interpreted the Colorado death penalty statute enacted in 1988. Under pre-1988 law, the Colorado statute required that the jury find that the aggravating factors were not outweighed by the mitigating factors and then further decide that death was the appropriate penalty in order to impose a death sentence. The 1988 law ehminated this last step and mandated a death sentence where the aggravating factors were not outweighed by the mitigating factors. The Youngcourt, in declaring the death penalty statute unconstitutional, was very concerned with the ehmination of the final step, stating:
“The result of a decision that the relevant considerations for and against imposition of the death penalty in a particular case are in equipoise is that the jury cannot determine with reliability and certainty that the death sentence is appropriate under the standards applied by the legislature. A statute that requires a death penalty to be imposed in such circumstances without the necessity for further deliberations, as does section 16-ll-103(2)(b)(III), is fundamentally at odds with die requirement that the procedure produce a certain and reliable conclusion that the death penalty should be imposed. ... A death sentence imposed in such circumstances violates requirements of certainty and reliability and is arbitraiy and capricious in contravention of basic constitutional principles. [Citations omitted.]” 814 P.2d at 845.
¶29The Youngcourt distinguished Walton, contending that Walton did not consider the question of whether a death sentence could be imposed when aggravators and mitigators are in equipoise. 814 P.2d at 845 n.9. The court stated: “We do not believe that the United States Supreme Court cases can fairly be read to contain any suggestion that the death penalty can be imposed when the sentencer finds aggravating and mitigating considerations to be equally balanced.” 814 P.2d at 846. However, as noted above, Walton approved the Arizona statute which mandated the death penalty where the mitigating circumstances did not outweigh the aggravating circumstances. See 497 U.S. at 650-52.
¶30The Youngcourt misinterpreted Arizona’s sentencing scheme. In reviewing United States Supreme Court decisions, the Youngcourt stated: “The sentencer must also determine whether those mitigating factors are outweighed by the aggravating factors, *1134Boyde, 110 S. Ct. at 1196; Blystone, 110 S. Ct. at 1083, or, stated alternatively, are sufficient to call for leniency, Walton, 110 S. Ct. at 3056.” 814 P.2d at 846. Thus, the Youngcourt lumped the Arizona statute at issue in Walton with the statutes in Boydeand Blystoneas requiring the aggravating circumstances to outweigh the mitigating circumstances to impose death. A correct interpretation of the Arizona statute in Walton demonstrates that Arizona law required the mitigating circumstances to outweigh the aggravating circumstances in order to reject a death sentence. Had the Youngcourt correctly interpreted the Arizonastatute, viz, the way it was interpreted in Walton, it would have had a difficult time distinguishing Walton from the Colorado statute.
¶31In any event, the Youngcourt did not ultimately decide to base its decision on the United States Constitution. Rather, the court decided that if it was wrong in its understanding of federal precedent, it would hold that the Colorado sentencing scheme violated the Colorado Constitution and it, therefore, invalidated the scheme on state constitutional grounds. 814 P.2d at 845-46.
¶32It should be noted that the Colorado Legislature in reaction to the Youngdecision, passed a new death penalty statute which still authorizes the death penalty where aggravating circumstances are not outweighed by mitigating circumstances, although it does not mandate it. Under the Colorado scheme, after a finding that the aggravating circumstances are not outweighed by mitigating circumstances, a panel of judges then determines whether the death penalty is the appropriate punishment for that particular case. Colo. Rev. Stat. § 16-11-103. The Colorado Supreme Court has determined that this procedure satisfies the problem it identified in Young. See State v. Dunlap, 975 P.2d 723, 736 (1999). Thus, it appears that the Colorado Supreme Court’s objection to the statute at issue in Youngwas not that it authorized death where the aggravating circumstances are not outweighed by the mitigating circumstances but, instead, that it mandated death in that situation.
¶33Since Walton, there has been only one case, Hulsey, which held that a statutory scheme providing for a sentence of death where mitigating circumstances do not outweigh aggravating circumstances was barred by the United States Constitution and its value *1135is highly questionable. The language in the Youngdecision provides some support for the majority decision in this case, but the ultimate decision was based not on the United States Constitution but, rather, on the Colorado Constitution. Meanwhile, Arizona, Idaho, and Illinois have reached the opposite conclusion.
¶34Since Walton, the United States Supreme Court has reaffirmed its earlier statements regarding the abilities of the states to enact their own weighing schemes. In Harris v. Alabama, 513 U.S. 504, 130 L. Ed. 2d 1004, 115 S. Ct. 1031 (1995), the Court faced the question of whether Alabama’s death penalty statute was unconstitutional because it failed to give the trial judge any standards for accepting or rejecting the jury’s advisory verdict of life or death. The Court found no violation, reemphasizing: “We have rejected the notion that ‘a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.’ ” 513 U.S. at 512. The Court also stated:
“What purpose is served by capital punishment and how a State should implement its capital punishment scheme — to the extent that those questions involve only policy issues — are matters over which we, as judges, have no jurisdiction. Our power of judicial review legitimately extends only to determine whether the policy choices of the community, expressed through its legislative enactments, comport with the Constitution.” 513 U.S. at 510.
¶35Similarly, in Buchanan v. Angelone, 522 U.S. 269, 276, 139 L. Ed 2d 702, 118 S. Ct. 757 (1998), the Court found that the Eighth Amendment did not require the sentencing juiy to be instructed on particular mitigators or how to apply them, stating:
“In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. [Citations omitted.] However, the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence. [Citations omitted.] Our consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.
“But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence." (Emphasis added.)
¶36*1136The United States Supreme Court opinions on the subject make it clear that as long as a State’s scheme allows the sentencer to give effect to mitigating evidence, the Eighth Amendment is satisfied. In Walton, the Court upheld a statute substantially similar to K.S.A. 21-4624 as constitutional, despite the fact that it mandated death where the mitigating circumstances did not outweigh the aggravating circumstances. Arizona has followed Walton and continues to apply its statute. Illinois and Idaho have relied on Walton and Boydeto hold their statutes constitutional, notwithstanding that they also contain a Kansas-type of weighing equation which requires that aggravators are not outweighed by mitigators. The only post -Walton case which has affirmatively held that a statute violates the United States Constitution in mandating death where the mitigating circumstances do not outweigh the aggravating circumstances, Hulsey, is unpersuasive in that it does not mention Walton and instead relies on Adamson, which Walton abrogated. In Young, the Colorado Supreme Court decided the matter based on the Colorado Constitution rather than the federal one and misinterpreted the Arizona sentencing scheme in reaching that result.
¶37For all the above reasons, I would hold that Walton is dispositive of the issues raised here and that the weighing equation contained in K.S.A. 21-4624(e) does not violate the United States Constitution.
¶38Kleypas also contends that the weighing equation should be held unconstitutional under the Kansas Constitution. Based upon the majority decision, there was no need to address this argument. Based upon my dissent, there would be a need to address Kleypas’ claim. However, in doing so, I note that “[t]his court has never extended greater protection to our citizens beyond the federal guarantees.” State v. Spain, 269 Kan. 54, 59, 4 P.3d 621 (2000). As a result, I conclude that the weighing equation contained in K.S.A. 21-4624(e) does not violate the Kansas Constitution.
¶39dissenting: I concur with Justice Davis’ dissent. I have no quarrel with anything in Justice Davis’ dissent, which I *1137consider to be excellent. I would merely add the following thoughts.
¶40The American Law Institute Model Penal Code § 210.6(2) (1985) (adopting 1962 official draft) requires mitigating circumstances to outweigh aggravating circumstances. The Model Penal Code provides for a hearing either before a jury or before a judge, and the language indicates that if the sentencer finds one of the aggravating circumstances it still may not impose the death penalty unless it “further finds there are no mitigating circumstances sufficiently substantial to call for leniency.” To me, this obviously requires the defendant to come forth with evidence of mitigating circumstances sufficiently substantial to call for leniency. It simply requires mitigating circumstances to outweigh the aggravating circumstances to prevent the death penalty from being imposed.
¶41Justice Davis has thoroughly discussed the cases set forth below. I would rely on them.
¶42In Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990), the Court stated:
“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S. at 650.
¶43Kleypas attempts to distinguish Waltonon the basis that the Arizona statute does not mandate a death sentence if the sentencing court finds the aggravators and mitigators in equal balance. The Ninth Circuit Court of Appeals disagreed in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en banc) noting that “under the Arizona statute, the death sentence will be imposed unless mitigating circumstances outweigh the aggravating circumstances,” and “in situations where the mitigating and aggravating circumstances are in balance . . . the statute bars the court from imposing a sentence less than death.” 865 F.2d at 1042 n.50, 1043.
¶44In People v. Bean, 137 Ill. 2d 65, 560 N.E.2d 258 (1990), cert. denied 499 U.S. 932 (1991), the court concluded:
“The defendant does not alone have a burden of persuasion at this balancing stage, for the State is the movant, the party seeking the death penalty, and so bears the *1138primary burden of persuading the jury that, as the statute states, there are no mitigating factors sufficient to preclude the sentencer from imposing die sentence of death for which the defendant is eligible. [Citation omitted.]” 137 Ill. 2d at 139.
¶45Further,
“because this is a process of balancing intangibles, not of proving facts, it is improper to speak of defendants as having a ‘burden.’ After the State as movant has attempted to persuade the jury the death sentence should be imposed, a defendant may attempt to dissuade the jury from doing so. Whether defendant attempts to dissuade the jury,-whether he decides to take up this burden, is up to him; die law does not require him to take it up.” 137 Ill. 2d at 140.
¶46In State v. Spain, 263 Kan. 708, 725, 953 P.2d 1004 (1998), Spain was convicted and received a hard 40 sentence. His sentence was vacated and remanded. On remand, the trial court found one aggravating and one mitigating circumstance, and found them to be of equal weight. The trial court interpreted K.S.A. 1999 Supp. 21-4635(c) to require a hard 40 sentence when aggravators and mitigators were in equipoise. Spain was sentenced to a term of 40 years without parole. See State v. Spain, 269 Kan. 54, 58, 4 P.3d 621 (2000).
¶47On appeal, Spain argued that 21-4635(c) violated state and federal constitutional prohibitions against cruel and unusual punishment. He relied on death penalty cases, including Hulsey v. Sargent, 868 F. Supp. 1090 (E.D. Ark. 1993); People v. Young, 814 P.2d 834 (Colo. 1991); and State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), to support his argument. The State, as it did here, relied on Walton.
¶48This court pointed out that the court in Younginterpreted the Colorado Constitution to provide broader protection under its cruel and unusual punishment clause than that offered by the Eighth Amendment to the United States Constitution. For that reason, this court noted, Youngdistinguished Walton. 269 Kan. at 59. In discussing Walton, this court stated:
“In Walton, five justices agreed the Arizona death penalty statute did not create an unconstitutional presumption in favor of the death penalty. The statute at issue in Waltonrequired imposition of the sentence of death if any aggravating circumstances were established and there were “ ‘no mitigating circumstances sufficiently substantial’ ” to warrant leniency. [Citations omitted.] Although the language cho*1139sen by the Arizona Legislature does not include the terms ‘weigh’ or ‘outweigh,’ what the statute prescribes is a weighing process that results in imposition of the death penalty if the mitigating circumstances are not of sufficient weight to tip the balance toward leniency.
“As previously noted, the Colorado Supreme Court interpreted its own constitutional provisions to grant greater protection than the comparable United States constitutional provision. Thus, Waltonwas not controlling. In contrast, this court has never extended greater protection to our citizens beyond the federal guarantees. [Citation omitted.]” (Emphasis added.) 269 Kan. at 59.
¶49This court reaffirmed that death penalty cases are not controlling in hard 40 cases. 269 Kan. at 59. That said, this court quoted the following key passage from Walton:
“ ‘So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.’ ” 269 Kan. at 60 (citing Walton, 497 U.S. at 650).
¶50As the Fourth Circuit Court of Appeals stated, in summarizing the relevant Supreme Court philosophy:
“The procedure involved in imposing the death penalty need not be structured to favor a defendant but need only avoid creating a fundamentally unfair trial. See Barclay v. Florida, 463 U.S. 939, 103 S. Ct. 3418, 77 L. Ed. 2d 1134 (1983). The best of all procedural worlds is not guaranteed by the United States Constitution. McGautha v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). In Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), the Supreme Court emphasized that in designing a constitutional capita] punishment system, all that the state is required to provide is a meaningful basis for distinguishing between those trials resulting in a penalty of death and those in which a penalty of life imprisonment is imposed. Under Thant, this is accomplished by simply identifying aggravating circumstances and requiring that one or more of them be found.” Rook v. Rice, 783 F.2d 401, 406 (4th Cir. 1986).
¶51Waltonechoes this basic philosophy and is the seminal case in this area. While the wording of the Arizona statute in Waltonis not identical to that of the Kansas statute, the operation is the same. The United States Supreme Court’s analysis bears repeating:
“So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional *1140rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” Walton, 497 U.S. at 650.
¶52With this simple framing of the issue, it is clear that Kansas’ statute passes constitutional muster. K.S.A. 21-4624(e) requires the State to prove one or more of the aggravating circumstances beyond a reasonable doubt. There is no burden on the defendant to prove mitigating circumstances; the jury may consider anything it considers a mitigating circumstance regardless of whether it has been “proven” or not. K.S.A. 21-4624(f) requires the court to review a death sentence imposed by a jury to ensure it is supported by the evidence. The fact that a death sentence results where aggravators and mitigators are found to be in equipoise does not lessen the State’s burden to prove the existence of aggravating circumstances.
¶53Kleypas fails to explain how the Kansas scheme precludes the sentencer from considering any mitigating evidence, much less how the Kansas scheme forces the jury to disregard such evidence. Clearly the Kansas scheme allows, under K.S.A. 21-4624(e), consideration of any mitigating circumstances found to exist.
¶54Justice Scalia’s pointed concurring opinion in Waltonconcluded that guided discretion and individualized sentencing as set forth in the cases cannot be reconciled. The majority’s treatment of the Arizona weighing equation, however, suggests that in an attempt to harmonize the two objectives, the Court has fashioned a safety valve of sorts. In effect, while holding in Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), that the substance of mitigating evidence cannot be restricted beyond a determination of its relevance, the Court in subsequent cases stops short of an “anything goes” approach to the defendant’s presentation of mitigating evidence by allowing the states to fashion the procedure or method by which mitigating evidence is considered. This is evident in Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983), and Franklin v. Lynaugh, 487 U.S. 164, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988), where the Court refused to require a weighing equation, and in Blystone v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078 (1990), and Boyde v. California, *1141494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990), where the Court in summary fashion approved two states’ formulations of a weighing equation. Waltonis an extension of Blystoneand Boydein that the Court once again faced the task of evaluating a particular type of weighing equation, and it refused to delve into the mechanics of the equation, focusing instead on the more basic requirements of whether the sentencer was allowed to consider all relevant mitigating evidence.
¶55The Court’s development of Eighth Amendment jurisprudence on this issue suggests that the precise nature of any state’s weighing equation is not at issue. The weighing equation is part of the procedural makeup of the death penalty decision, and as long as it operates within a scheme which allows full consideration of relevant mitigating evidence, it is left to the broad discretion of the individual states.
¶56In Walton, the Supreme Court did more than simply approve the particular wording of the Arizona weighing equation. It confirmed what its earlier decisions suggested — that the Eighth Amendment would be applied to the substance of the death penalty decision to ensure guided discretion and individualized consideration, but that procedural aspects, the weighing equation among them, would be left to the will of state legislatures. See Tuilaepa v. California, 512 U.S. 967, 980, 129 L. Ed. 2d 750, 114 S. Ct. 2630 (1994) (reiterating that the States are not constrained to “adopt a kind of mandatory sentencing scheme requiring a jury to sentence a defendant to death if it found, for example, a certain kind or number of facts, or found more statutory aggravating factors than statutory mitigating factors”); Buchanan v. Angelone, 522 U.S. 269, 276, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998) (“Our consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to any relevant mitigating evidence. . . . But we have never gone further and held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.”); Campbell v. Blodgett, 978 F.2d 1502, 1512-13 (9th Cir. 1992).
¶57*1142The substance-procedure dichotomy thus renders unimportant the distinction, as raised by Kleypas, between the approved Arizona weighing equation and the Kansas weighing equation.
¶58The balance of Kleypas’ arguments can be characterized as general complaints about the inherent unfairness of allowing a “tie,” or aggravators and mitigators found to be in equal balance, to result in a sentence of death. Kleypas couches this “tie goes to the State” argument in terms of a presumption of death and a burden on him to prove that his life should be spared. The visceral appeal of this argument is simply not supported by the Eighth Amendment.
¶59Much of this appeal likely stems from thinking of the sentencing decision in terms of the State’s burden during the guilt phase of a trial. It is clear, however, that the guilt phase and sentencing phase are distinct and subject to different rules. In California v. Ramos, 463 U.S. 992, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983), the United States Supreme Court rejected an analogy between the two phases, noting
“the fundamental difference between the nature of the guili/innocence determination . . . and the nature of the life/death choice at the penalty phase. . . . In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar ‘central issue’ from which the jury’s attention may be diverted. Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent’s jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment.” 463 U.S. at 1007-08.
¶60If the Kansas death penalty scheme meets the Eighth Amendment requirements of guided discretion and individualized sentencing, the details of the weighing equation should not operate to defeat the balance of the death penalty law under the federal Constitution. That the Kansas weighing equation may or may not differ from that of Arizona is of little consequence; it is a matter of procedure left to the discretion of the States.