¶1concurring in part and dissenting in part: I respectfully dissent from the majority opinion on two issues. Specifically, I would hold: (1) The district court’s admission of Damien Thompson’s preliminary hearing testimony violated Sidney Gleason’s constitutional right to confront witnesses, and (2) the district court abused its discretion when it denied Gleason’s motion for a mistrial. These errors require reversal of Gleason’s convictions for capital murder, aggravated kidnapping, and criminal possession of a firearm, but not Gleason’s conviction for aggravated robbery.
¶2Confrontation Clause Violation
¶3The United States Supreme Court has repeatedly emphasized that “[t]here are few subjects, perhaps, upon which [the United States Supreme] Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the land of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). The right encompasses not only “testing the recollection and sifting the conscience of the witness” through cross-examination, but also compelling the witness “to stand face to face with the jury in order that they may look at [the witness], and judge by [the witness’] demeanor upon the stand and the manner in which [the witness] gives his testimony whether [the witness] is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 39 L. Ed. 409 (1895); see Barber v. Page, 390 U.S. *1200719, 725, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968) (“The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.”)'
¶4To fulfill tírese objectives and uphold the Constitution, the State must make a good-faith effort and exercise reasonable diligence to obtain in-person trial testimony of all its witnesses. If a witness is unavailable—either because he or she is physically absent, asserts a privilege, is disqualified as a witness, or refuses to testify—and the State wants a jury to hear the preliminary hearing testimony of the witness, the State must establish that in-person testimony cannot be obtained despite the State’s good-faith effort and reasonable diligence. See Hardy v. Cross, 565 U.S. __, 132 S. Ct. 490, 494, 181 L. Ed. 2d 468 (2011) (citing California v. Green, 399 U.S. 149, 189, n.22, 90 S. Ct. 1930, 26 L. Ed. 2d 489 [1970] [Harlan, J., concurring]); State v. Flournoy, 272 Kan. 784, 799-802, 36 P.3d 273 (2001); State v. Washington, 206 Kan. 336, 338, 479 P.2d 833 (1971); see also K.S.A. 60-459(g) (defining “ ‘[unavailable as a witness’ ”).
¶5In this case, the district court was not asked to and did not determine whether the State met this burden. Although the majority does not discuss the standard of review, a failure to apply the correct legal standard is error, even under the most deferential of standards. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Further, the failure resulted in reversible error because the State failed to meet its burden and the error affected the jury verdict.
¶6Early in the proceedings, the State gave away the most effective tool it had to enforce Thompson’s agreement to testify at all proceedings against Gleason when the prosecutor asked the district court to sentence Thompson immediately after Gleason’s preliminary hearing rather than asking that sentencing be delayed until Thompson fulfilled the plea agreement by testifying at Gleason’s trial. At the sentencing hearing, the State met its final obligation under the plea agreement by not asking the court to impose a hard 50 life sentence for the premeditated first-degree murder of Mile-*1201iala Martinez, the only charge against Thompson that remained after the State dismissed all other counts as agreed.
¶7The State’s voluntary rush to fulfill its obligations before it was known whether Thompson would fully perform his part of the plea agreement is analogous to consummating the sale of a car by handing the purchaser the car keys, telling him to enjoy the car, and asking him to come back in a couple of years with enough cash to pay for the car. A seller who wanted to ensure payment would hold onto the car keys until the cash was in hand. Here, the State handed Thompson the keys without full payment.
¶8Thompson, therefore, likely believed he had nothing to lose when he walked into the courtroom for Gleason’s trial approximately 2½ years later and refused to testify to anything of substance. His refusal was predictable, and when the predictable outcome became reality, the prosecutor had few tools remaining. One available tool was to have Thompson’s attorney warn Thompson of the consequences of violating the plea agreement. But the prosecutor did not attempt to use this tool. Instead, Gleason’s counsel was the one who suggested Thompson’s attorney needed to be present, and the district court agreed. Even then, the prosecutor indicated there was no need for this, stating he had talked to Thompson’s attorney the night before and Thompson’s attorney had said that his client did not want him there. Nevertheless, Thompson’s counsel was called; he travelled from Wichita to Great Bend and spoke to Thompson, warning him the State might seek to revoke the plea agreement and seek the death penalty. When Thompson still refused to testify, the State asked tire judge to order Thompson to testify and to hold him in contempt if he refused.
¶9At that point, Gleason’s defense counsel urged the court to give Thompson the opportunity to ponder his attorney’s recent warning about the potential reinstatement of the death penalty and to bring Thompson back to court the next day to allow him to purge his contempt. With the renewed possibility of a death sentence, there was a huge incentive for Thompson to change his mind and a reasonable chance he would do so. After all, according to the prosecutor, Thompson had been willing to testify the night before when his attorney had talked to him. This means that Thompson either *1202misled his attorney or changed his mind overnight. If he had changed his mind, it seems possible—even probable—he could change his mind again.
¶10Delaying the ruling on whether Thompson was an unavailable witness until the next morning would have been a minimal burden on the State, the court, and the juiy. When Gleason’s counsel asked for the delay, he pointed out that it was 3 p.m. and court would “be recessing in a couple [of] hours.”
¶11Instead of agreeing to bring Thompson back the next morning, which might have resulted in Thompson’s in-person testimony, the prosecutor insisted the trial continue without delay because the parties were “in the middle of a trial.” The prosecutor asserted, “[W]e have got to go on and we’ve got to continue with the rest of the witnesses. We can’t just wait in the wings, and that’s essentially what [defense counsel] is wanting you to do, and that’s just not necessaiy here. It’s sufficient for the record that we have established.”
¶12This position minimized the importance of the constitutional right of confrontation and evidenced the State’s complacent, rather than diligent, approach to ensuring Thompson’s in-person testimony. Given these circumstances, I would not accept, as does the majority, that the prosecutor was reasonably diligent when he merely asked the district court to order Thompson to answer questions and to hold him in contempt if he refused.
¶13The majority reasons that the prosecutor had done as much or more to obtain Thompson’s testimony as had been done in other cases, and the district court had taken the additional step of arranging for Thompson to speak to his attorney. In light of the constitutional right at stake and the penalty that Gleason faced, failing to utilize such a simple, straightforward, and low-burden step toward a fair trial is troubling. Even more troubling is the position of the State as expressed in its brief before this court in which it argued: “The situation facing the district court was no different” than that in State v. Jefferson, 287 Kan. 28, 194 P.3d 557 (2008), and State v. Terry, 202 Kan. 599, 451 P.2d 211 (1969), because “Thompson plainly and unequivocally refused to testify, even after consulting with counsel and considering the potential ramifica*1203tions.” Like the prosecutor at trial, the State appears to perceive it has only a minimal burden and need only make a record that the witness has refused to answer questions after being held in contempt, even if no opportunity has been given to purge that contempt.
¶14The majority’s holdings and the State’s arguments imply there is a checklist of actions that equate to reasonable diligence. This position is contrary to the decisions of federal courts and other state courts when applying the Confrontation Clause of the Sixth Amendment to the United States Constitution. Significantly, the Tenth Circuit Court of Appeals, in reversing this court’s holding that a physically absent witness was unavailable for Confrontation Clause purposes, held the “evaluation of reasonableness or good-faith effort ‘requires us to consider all the circumstances rather than to apply a per se rule.’ ” Cook v. McKune, 323 F.3d 825, 835 (10th Cir. 2003) (quoting Martinez v. Sullivan, 881 F.2d 921, 924 [10th Cir. 1989]). As a result, a court errs if it declares a witness unavailable simply because the State did as much or more as had been done in another situation. Rather, a court determining whether the prosecution has made a reasonable, good-faith effort to secure a witness’ testimony at trial must conduct a context- and fact-specific analysis. Brooks v. United States, 39 A.3d 873, 883 (D.C. 2012); see Cook, 323 F.3d at 835-40.
¶15To assist in evaluating whether the State has acted with reasonable diligence and made a good-faith effort to obtain a witness’ in-person trial testimony, courts have identified four factors: (1) whether the testimony is crucial to the State’s case or goes to minor, collateral, or uncontested matters; (2) the severity of the crime for which the defendant is on trial; (3) whether the witness has a special reason to favor the prosecutor, such as an immunity agreement for cooperation; and (4) whether the State made the same effort to secure the witness’ testimony as it would have made if the State did not have prior testimony of that witness available to present at trial. E.g., 323 F.3d at 835-36. An application of these factors in this case reveals the State did not make a good-faith effort or exercise reasonable diligence.
¶16*1204As to the first factor, the Tenth Circuit indicated “the more crucial tire witness, the greater the effort required to secure his attendance.” 323 F.3d at 835. Other courts have also emphasized the importance of allowing the jury to assess the credibility of a witness increases if the witness’ testimony is critical to the case, and “[i]t is axiomatic that ‘[d]emeanor is of the utmost importance in the determination of credibility of a witness.’ Gov’t of the Virgin Is. v. Aquino, 378 F.2d 540, 548 (3d Cir. 1967).” Brooks, 39 A.3d at 884. In-person testimony is tire most effective means for a jury to assess a witness’ demeanor, offering the opportunity to observe “ ‘the quality, age, education, understanding, behavior, and inclinations of the witness.’ ” United States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007) (quoting 3 William Blackstone, Commentaries 373-74 [1768]). In contrast, “[t]ranscripts of a witness’s prior testimony, even when subject to prior cross-examination, do not offer any such advantage, because ‘all persons must appear alike, when their [testimony] is reduced to writing.’ ” 498 F.3d at 950 (quoting 3 Blackstone, Commentaries 374).
¶17In this case, this first factor weighs strongly in favor of a determination that the State needed to make a significant effort because Thompson’s testimony was crucial to the State’s case. Scant other evidence implicated Gleason in the crimes related to the double homicide and kidnapping, and no other evidence established that he possessed a gun. The other evidence linking Gleason to the double homicicle and kidnapping provided no details relating to the elements of the crimes. Brittany Fulton testified Gleason had threatened that “if somebody tells the cops something, people are going to disappear.” Additionally, Great Bend Police Officer Pleather Smith saw Thompson’s car near Martinez’ home just before the shooting, a neighbor saw two men shove Martinez into the car, and Thompson’s ex-girlfriend testified Thompson and Gleason left and returned home together the night Martinez disappeared. Further, the State linked Gleason to shoes stained with Martinez’ blood.
¶18Nevertheless, only Thompson identified the shoes as Gleason’s, and his testimony (1) established Gleason’s actual participation in the double homicide and aggravated kidnapping, (2) identified *1205Gleason as the one who shot Darren Wornkey, (3) placed the .22 caliber revolver in Gleason’s hands, and (4) provided evidence of Gleason’s intent to kill Martinez by testifying Gleason walked toward Martinez with his gun pointed at her as if he was going to shoot her. If Thompson’s testimony regarding these details had not been admitted during Gleason’s trial, a jury could have determined the State had failed to meet its beyond-a-reasonable-doubt burden of proof. Consequently, the State needed to make a significant effort to obtain Thompson’s in-person testimony, and it did not.
¶19The second factor relates to the severity of the crime. Gleason was charged with the most serious crime that exists in this state, capital murder. In Cook, the Tenth Circuit Court of Appeals emphasized that “because there is a real cost to the defendant in foregoing true confrontation, the unavailability requirement must be more than a formality.” 323 F.3d at 832. Later in the opinion, the Tenth Circuit quoted McCandless v. Vaughn, 172 F.3d 255, 266 (3d Cir. 1999), to malee a point that is critical to the analysis in this case: “ In a capital case, for example, it is fair to ask more of the prosecution than in a situation involving significantly less serious consequences.’ ” Cook, 323 F.3d at 836.
¶20Yet, the State asks us to be satisfied with what had been done in Jefferson, 287 Kan. 28, an aggravated battery case, and Terry, 202 Kan. 599, a noncapital premeditated murder case. Neither case exposed tire defendant to the severe consequences of punishment by death.
¶21Likewise the third factor—whether the witness has a special reason to favor the prosecutor, such as an immunity agreement for cooperation—weighs heavily against the majority’s conclusion that the State’s efforts were reasonable. In exchange for Thompson’s testimony, the State agreed to dismiss very serious charges against Thompson, including one count of capital murder. In light of this favorable plea agreement, Gleason had a strong interest in confronting Thompson before the ultimate factfinders—the jurors. See Cook, 323 F.3d at 836 (stating that defendants have a stronger interest in confronting witnesses who are granted immunity by the State).
¶22*1206Finally, courts should evaluate whether the State made the same effort to secure the witness’ testimony as it would have made if the State did not have the witness’ preliminary hearing testimony available to present at trial. 323 F.3d at 836. In this case, the answer to this factor is clear: The prosecutor would not have been willing to give up so easily and would have been begging the district court to bring Thompson back to court the next day to see if he had changed his mind. This point distinguishes the only capital murder case relied on by the majority, Lowery v. Anderson, 225 F.3d 833, 839-40 (7th Cir. 2000), superseded by statute on other grounds Corcoran v. Buss, 551 F.3d 703 (7th Cir. 2008), cert. granted, judgment vacated, and remanded by Corcoran v. Levenhagen, 558 U.S. 1, 130 S. Ct. 8, 175 L. Ed. 2d 1 (2009).
¶23In Lowery, both the prosecutor and trial judge offered the witness numerous opportunities to purge his contempt. The appellate court cited these efforts several times in its analysis, suggesting the significance of the repeated opportunities. At one point in the opinion, the court explained that the witness had been held in contempt and then, “[t]he next day, this procedure was repeated and the same result obtained.” (Emphasis added.) Lowery, 225 F.3d at 838. Later in the opinion, after noting that the trial judge had held the witness in contempt, the Lowerycourt emphasized that “this procedure was repeated several times, outside the jury’s presence.” 225 F.3d at 839. Then, in the jury’s presence, “[h]e refused again to testify and was again held in contempt.” 225 F.3d at 839.
¶24In this case, despite the majority’s heavy reliance on Lowery, the majority does not explain why it was reasonable to deny Thompson the same opportunities as had been given the Lowerywitness. And neither the State nor the majority attempts to explain why it was reasonable for the prosecutor to object to giving the witness an opportunity to contemplate tire consequences of his refusal to testify after those consequences had just been explained to him by his attorney. The prosecutor’s only justification at trial was that they should not be left to “wait in the wings.” This superficial excuse becomes even weaker when viewed in light of what transpired.
¶25Just minutes later, it became obvious the jury proceedings would be delayed because Gleason orally moved for a mistrial and lengthy *1207arguments ensued. The juiy was dismissed for the rest of that afternoon, which was a Thursday, and all of the next day while the parties presented oral arguments and defense counsel prepared written arguments for the court’s consideration. On Monday morning, the court and counsel resumed the legal arguments based on the written materials the court received over the weekend. Approximately 3½ days after Thompson had received the advice of his attorney and had been held in contempt, the jury proceedings resumed. Thompson’s preliminary hearing testimony was read into the record, and tire State rested without “continu[ing] with the rest of the witnesses” that the State had argued could not be left waiting in the wings.
¶26Thus, by late Thursday afternoon the justification for the State’s excuse—i.e., that tire jury proceedings should not be delayed—had evaporated, if it ever existed. The jury proceedings had been delayed anyway, and questioning Thompson on Friday morning would have, at most, added a few minutes to the delay. At best, giving Thompson the opportunity to purge his contempt might have ended the delay if he had changed his mind and testified. By Friday and certainly by Monday morning, if not before, tire requirement of a good-faith effort and reasonable diligence dictated that the State take steps to bring Thompson back to court so he could be given another opportunity to purge his contempt. The record discloses that Thompson was housed in a prison located sufficiently close that he was transported to the trial tire morning he was to testily, and he could and should have been returned to court.
¶27While neither Jeffersonnor Terryrequired more than one opportunity for a witness to change his or her mind about refusing to testify, there is no indication either defendant had requested such an opportunity be offered. But such a request was made in this case, and the prosecutor’s opposition to such a simple effort to obtain Thompson’s in-person testimony reflected a lack of good faith and reduced Gleason’s confrontation right to a mere formality.
¶28Moreover, die focus should not be solely on what happened after Thompson refused to testify. As previously noted, the State’s ef*1208forts to diligently obtain Thompson’s trial testimony derailed before the trial even began because of the way in which the State handled its part of the plea agreement. I would not go so far as to say that the State had to delay sentencing until after Thompson had testified at Gleason’s trial in order for Thompson to be declared unavailable. To lay down such a rule would be contraiy to the caselaw that suggests there should be no bright-line rule enunciating steps the State must take to obtain a witness’ trial testimony before a witness can be declared unavailable. Yet, delaying sentencing of a witness who has agreed to testify at another’s trial as part of a plea agreement until after the witness testifies at trial would be a better practice, especially in a case where the other unavailability factors weigh so heavily against the State. Certainly doing so would have weighed in the State’s favor on this final factor and, conversely, the failure to do so suggests a lack of good faith in obtaining Thompson’s in-person trial testimony and a willingness to proceed by reading from the cold preliminary hearing transcript.
¶29In summary, handing the keys to Thompson, especially when combined widi the prosecutor’s attempts to rush Thompson out of the courtroom and away from any opportunity to change his mind, signals that the State approached Gleason’s constitutional right to confrontation as a mere formality. The State certainly did not make as much effort to ensure the jury heard Thompson’s in-person trial testimony as it took to ensure it had a preliminary hearing transcript that could later be used as a substitute for Thompson’s in-person trial testimony.
¶30Consequently, I would hold that the State did not make a good-faith effort or act with reasonable diligence to obtain Thompson’s in-person testimony before the jury. As a result, the district court erred in ruling that Thompson was unavailable and in admitting his preliminary hearing testimony, and these errors violated Gleason’s right of confrontation under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Jefferson, 287 Kan. at 39.
¶32The district court also erred in denying Gleason’s motion for mistrial. Gleason argued witnesses had testified to hearsay statements made by Thompson regarding the double homicide, the court had admitted the statements under K.S.A. 60-460(a) based on the assumption that Thompson would testify at trial and be available for cross-examination, and Thompson’s refusal to testify undermined the necessary foundation for applying K.S.A. 60-460(a). See K.S.A. 60-460(a) (allowing admission of hearsay statement “previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness”).
¶33The district court denied the motion, concluding Gleason had cross-examined Thompson at the preliminary hearing about the underlying facts of the homicides and, thus, about the subject matter of the hearsay statements. Obviously, this ruling depended on the appropriateness of admitting Thompson’s preliminary hearing testimony. Because the district court erred in admitting the preliminary hearing testimony, it also erred in admitting Thompson’s hearsay statements.
¶34Reversible Error
¶35These errors violated Gleason’s constitutional right of confrontation. In light of the constitutional error, tire State has the burden of satisfying the harmless error standard recognized in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Under Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24. The issue is not whether the juiy would have reached a different verdict but rather whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24.
¶36As previously noted, Thompson’s preliminary hearing testimony and hearsay statements were the only direct evidence of Gleason’s involvement in the double homicide. Even the physical evidence *1210of blood on the shoes depends on Thompson’s statements identifying the shoes as Gleason’s. Without Thompson’s testimony and hearsay statements, the State would be left with only sketchy circumstantial evidence of Gleason’s involvement in the double homicide. Thus, I dissent from the majority’s decision and would reverse Gleason’s convictions for capital murder, aggravated kidnapping, and criminal possession of a firearm and remand for a new trial at which the State would be required to present either Thompson’s in-person trial’ testimony or satisfy its burden of establishing that it had made a good-faith effort and acted with reasonable diligence but failed to secure Thompson’s testimony.
¶37I would not reverse Gleason’s conviction for aggravated robbery, however, because Fulton and Ricky Galindo provided overwhelming evidence of Gleason’s involvement in that crime. Thompson’s testimony added little, if anything, and would not have affected the jury’s verdict. Therefore, I concur with the majority’s decision to affirm Gleason’s aggravated robbery conviction.
¶38[[Image here]]
¶39dissenting: I dissent from the majority’s holding that Sidney Gleason’s sentence was imposed in violation of the Eighth Amendment to the United States Constitution because the district court failed to explicitly instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. The majority’s conclusion defies the United States Supreme Court’s established Eighth Amendment jurisprudence and lacks any persuasive analysis articulating why the circumstances in this case justify a departure from that precedent.
¶40As the majority concedes, the issue for Eighth Amendment purposes is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents tire consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). But the majority pays only passing lip service to this test before *1211concluding that Gleason suffered a reversible injury to his Eighth Amendment rights. To accomplish this, the majority engages in the following rank speculation:
“Gleason’s jury was left to speculate as to die correct burden of proof for mitigating circumstances and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable doubt. Thus, jurors may have been prevented from giving meaningful effect or a reasoned moral response to Gleason’s mitigating evidence, implicating Gleason’s right to individualized sentencing under the Eighth Amendment.” (Slip op. at 85.)
¶41There is nothing in the record to substantiate this conjecture, and the majority points us to none. The majority’s conclusion appears to be that a per se violation-of the Eighth Amendment occurs if a jury instruction correctly states that the State bears the burden of proving aggravating circumstances beyond a reasonable doubt but fails to affirmatively state that mitigation evidence need not be proved beyond a reasonable doubt. But this alone cannot justify reversal under controlling Eighth Amendment precedent. See Kansas v. Marsh, 548 U.S. 163, 173, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006); Walton v. Arizona, 497 U.S. 639, 651, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), overruled on other grounds hy Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); see also Smith v. Spisak, 558 U.S. 139, 130 S. Ct. 676, 175 L. Ed. 2d 595 (2010) (instructions and jury forms at penalty phase did not violate Eighth Amendment by requiring jury unanimity as to existence of mitigating factors; instructions and forms did not explicitly advise jury mitigating circumstances need not.be unanimously found).
¶42A fundamental defect in the majority’s analysis is its failure to distinguish between the Eighth Amendment’s constitutional requirements and the Kansas capital sentencing scheme’s statutory requirements. The majority concludes this court’s directive in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001) that juries be explicitly informed that mitigating factors need not be proved beyond a reasonable doubt somehow takes on federal constitutional dimensions because it “implicate[s] the broader Eighth Amendment principle prohibiting barriers that preclude a sentencer’s consideration of all relevant mitigating evidence.” (Slip op. at 83.) But *1212the majority acknowledges this conclusion is inconsistent with Walton, which the majority admits “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.” (Emphasis added.) (Slip op. at 83) (citing Walton, 497 U.S. at 649-51).
¶43The majority attempts to distinguish Waltonon the grounds that Kansas’ capital sentencing scheme is different from the one at issue in Walton. Notably, the difference is that the Arizona state law at issue in Waltonimposed a higher burden of proof than Kansas because in Arizona mitigating circumstances must be proved by a preponderance of the evidence. 497 U.S. at 649. The Kansas statute does not impose any burden of proof requirement, which means a capital defendant is not saddled with the burden of establishing mitigating circumstances by a preponderance of the evidence. I fail to see how this distinction is “critical”—as the majority portrays it—for Eighth Amendment purposes. State law does not define the scope of federal constitutional guarantees.
¶44Put simply, the Eighth Amendment does not compel our directive in Kleypas, 272 Kan. at 1078, that any mitigating circumstance instruction must inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt. See Marsh, 548 U.S. at 173 (holding Waltoncompelled conclusion Kansas capital sentencing scheme satisfied Eighth Amendment requirements because Kansas scheme was functionally identical to scheme found constitutional in Walton, except it provided benefit to defendants by placing no evidentiary burden on them). So a finding that Gleason’s jury instructions did not conform to the Kleypasrequirement that jurors be informed that mitigating circumstances do not need to be proved beyond a reasonable doubt is not an adequate basis for concluding Gleason’s federal Eighth Amendment rights were violated.
¶45But even if one assumes that portion of Kleypasis required by the Eighth Amendment, tire majority fails to adequately address the next Eighth Amendment inquiry required by Boydeby explaining how there is a reasonable likelihood the jury applied the instruction in a way that prevented consideration of constitutionally *1213relevant evidence. The majority simply concludes that reasonable jurors “might have believed they could not consider mitigating circumstances” or “may have been prevented from giving meaningful effect” to Gleason’s evidence. (Emphasis added.) (Slip op. at'85.)
¶46When determining whether there is a reasonable likelihood the jury applied the instruction in a way that prevented consideration of constitutionally relevant evidence, the BoydeCourt considered the language of the instruction in conjunction with what happened during the proceedings. See 494 U.S. at 383-86 (noting petitioner presented 4 days of evidence about his background and character, the jury’was instructed it must consider all evidence presented during any part of the trial, and the prosecutor “explicitly assumed,” in closing argument, drat the petitioner’s background and character should be considered by the jury but merely argued the mitigating evidence was minimal in comparison to the aggravating circumstances). In my view, the majority’s conclusion does not withstand a review of the evidence, instructions, and trial arguments.
¶47Recall first the mitigating factors alleged. Gleason claimed: (1) His capacity to appreciate the criminality of his conduct was impaired; (2) he was relatively young—24 years old at tire time of the crime; (3) the public would be adequately protected if he were given a term of imprisonment; (4) he had an accomplice who significantly participated in planning and committing the crimes; (5) his accomplice received only a life sentence with eligibility for parole in less than 23 years; (6) he lacked contact with his mother in his early years because she was in jail; (7) he and his siblings were all in jail at the time; (8) he was obedient and an excellent student when he lived with his great aunt; and (9) his family loved him.
¶48. Gleason’s mother, great aunt, brothers, and childhood pastor testified to these circumstances; and there was little, if any, dispute about the facts establishing their existence. As to this mitigating evidence, the district court instructed the jury:
“You may further consider as a mitigating circumstance any other aspect of the defendant’s character, background or record, and any other aspect of tire offense which was presented in either the guilt or penalty phase which you find may serve *1214as a basis lor imposing a sentence less than death. Each of you must consider every mitigating circumstance found to exist.”
¶49And the court went on to tell die juiy that “[t]he appropriateness of exercising mercy can itself be a mitigating factor in determining whether the State has proved beyond a reasonable doubt that the death penally should be imposed.”
¶50I see nothing in the instructions from which to conclude the jury was bewildered by them, or that there is a reasonable likelihood the jurors applied them in a way that prevented their full consideration of Gleason's mitigating factors evidence. Moreover, the parties’ closing arguments further dispel the notion diat there is a reasonable likelihood die jury would have applied the instruction in a way that prevented consideration of constitutionally relevant evidence.
¶51In its closing argument, the State repeatedly told the jury it would be each juror’s “individual choice” to decide whether mitigating factors exist based upon “any evidence” to support a particular factor. The State never suggested mitigation had to be proved beyond a reasonable doubt or even under the lower preponderance of the evidence standard. To the contraiy, the State repetitively spoke about each mitigation factor alleged by Gleason by asking, “Did you hear any evidence about that?” or, “Can you find that one to exist based on tire evidence?” In other instances, the State simply conceded a factor’s existence, such as the accomplice’s involvement with the crime and that the accomplice received a life sentence with parole eligibility in less than 23 years.
¶52Indeed, a fair review of the State’s closing argument shows little, if any, dispute by the prosecution as to the existence of the mitigating factors Gleason alleged and not a hint of argument that Gleason failed .to demonstrate any factor’s existence. Instead, the State centered its attentions on what weight those factors should be given in light of the aggravators, and there is no claim of error in that regard.
¶53In Gleason’s closing arguments, his defense counsel told the jurors:
“You’re also told in [Instruction 7] that mitigators do not have to be proven unanimously. You all have to consider them, but if you believe something is a mitigator, *1215it goes on your scale, it doesn’t matter if anyone else 'places it on theirs. Likeioise, you independently lueigh those mitigators.” (Emphasis added.)
¶54Defense counsel explained further that “[mjitigators are anything in your independent moral assessment whether it’s on this list in Instruction 7 or not.” And he later added:
“Any one of you who says no, I think that there’s mitigation, be it mercy, be it something on the list, be it something on your own that outweighs aggravation guarantees Sidney life. It’s minority rule in that regard. There’s a presumption of life.”
¶55In other words, the penalty phase closing arguments by both the State and the defense did exactly what they were supposed to do— they helped the juiy understand the evidence and apply the law. See PIK Grim. 3d 56.00-D (2001 Supp.). And they did so in a manner consistent with the United States Supreme Court’s Eighth Amendment requirements. See Smith, 558 U.S. at 148; Boyde, 494 U.S. at 380-81; Mills, 486 U.S. at 384.
¶56The instructions, evidence, and arguments of counsel all pointed the jury to do what it was supposed to do in the penalty phase— consider all of the mitigating factors supported by the evidence, as well as mercy for the defendant, and then render a decision on whether the death penalty should be imposed, i.e., whether tire State proved beyond a reasonable doubt that aggravating circumstances were not outweighed by any mitigating circumstances. There is nothing to show a reasonable likelihood that the jury applied the challenged instructions in a way that prevented consideration of constitutionally relevant evidence in this case.
¶57For these reasons, I must conclude drat the majority’s rationale for reversing the sentence fails to conform to Eighth Amendment jurisprudence. I also conclude that Gleason’s other sentencing challenges provide no basis for properly overturning the jury’s verdict in the penalty phase of his case. I would affirm the sentence.