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May 25, 1990.


The opinion of the court was delivered by

Darrell Stallings appeals from jury convictions of two counts of second-degree murder, K.S.A. 21-3402, and two counts of aggravated battery, K.S.A. 21-3414. Stallings was sentenced to concurrent terms of 15 years to life on each count of second-degree murder and concurrent terms of 5 to 20 years on each count of aggravated battery. The murder sentences run consecutive to the aggravated battery sentences.

Darrell Stallings sold drugs for his nephew Damon Huff. On the morning of January 14, 1988, Stallings received a phone call from Michael Mills, who wanted to talk with Huff about a prior drug deal. Previously, Huff had loaned drugs to Mills and held Mills' automobile as security for the loan. Stallings, Huff, and Jessie Jones drove to the residence of Donna Barrett, Mills' girlfriend, to force Mills to hand over title to the automobile.

  Stallings and Huff entered the house without Jones and found Frank Morris and Julia Dawn there with Mills and Barrett. Morris testified that Stallings opened the door for a third man carrying a shotgun. Morris stated he also saw guns in both Stallings' and Huffs pants. Morris, Barrett, and Mills were seated on the couch with Jones in front of Morris, Stallings standing over Mills, and Huff standing over Barrett. Morris heard a shotgun blast and several other gunshots before passing out. Morris received extensive injuries to his forearm, forehead, wrist, and eye.

  Julia Dawn testified she was in a sitting room behind a curtain when Huff sent her into the living room with the others. Dawn stated she saw Huff holding a gun before Jones came in with a shotgun. Dawn received gunshot wounds to the head.

[246 Kan. 644]


  Pursuant to a plea bargain, Damon Huff testified against Stallings. Huff stated he did not have a gun when he entered the house with Stallings and that Stallings opened the door for Jones, who carried a shotgun. Huff further testified that Stallings and Mills were arguing and that Huff pushed Mills down onto the couch and turned around. Huff heard a gunshot and turned around to see Stallings with a gun in his hand. Finally, Huff stated Stallings also shot Barrett and Morris, and Jones shot Morris with a shotgun.

  Stallings testified in his own defense. He stated Huff hit both Mills and Barrett in the head with a hammer and ordered Jones to shoot Morris. Stallings stated Huff pulled a gun out of his pants and shot both Mills and Barrett in the head with a .38 revolver. Huff then pulled Dawn out of the sitting room, threw her on the floor, and shot her in the head.

  Barrett and Mills each died from gunshot wounds to the head. Huff was arrested soon after the incident and pled guilty to second-degree murder and aggravated battery. Jones was convicted of first-degree murder and aggravated battery. State v. Jones, 246 Kan. 214, 787 P.2d 726 (1990). Stallings fled the state. On August 20, 1988, Stallings was arrested in Las Vegas, Nevada, where he gave a voluntary statement. He was charged with two counts of first-degree murder and two counts of aggravated battery. A jury convicted Stallings of second-degree murder and aggravated battery. This appeal followed.

  Stallings first contends the trial court abused its discretion when it dismissed a juror and replaced him with an alternate. After the trial and during jury deliberations, the court received a note from an individual juror which stated, "Can a person be excused from the jury if they feel they cannot pass judgment?" In a different ink the note also stated, "Is because of religious belief."

  The following private discussion ensued between the trial judge and the juror:
"The Court: Mr. Prince?
"Mr. Prince: Yes, sir.
"The Court: Why don't you tell me where we are at or what's taking place.
"Mr. Prince: Well, everybody's deciding on —
  "The Court: Don't tell me about everybody else. I'm talking about you personally.

[246 Kan. 645]


"Mr. Prince: I'm — it's been revealed to me that he's not guilty.
"The Court: Now, you say, revealed to you. The question I got is you don't feel like you can make a judgment because of religious belief. Is that correct?
"Mr. Prince: Yes, to an extent; yes.
"The Court: What religion are you?
"Mr. Prince: Baptist.
"The Court: And does your personal religion make you think you shouldn't judge other people?
"Mr. Prince: Yes.
"The Court: Do you remember the attorneys asking you on Monday morning if there is anyone who because of religious or conscience or other reasons couldn't pass judgment on somebody else?
"Mr. Prince: Yes, I remember them saying that.
"The Court: Any reason you didn't answer or say anything at that time?
"Mr. Prince: Because I hadn't heard all the facts or the evidence, witnesses.
"The Court: But now because of the facts and witnesses, you don't think your religion will let you pass judgment?
"Mr. Prince: No, sir; I don't.
"The Court: You don't believe you can discuss this with the other jurors and make a verdict just on the evidence in the case, setting aside your religious beliefs?
"Mr. Prince: No, sir, I don't believe I could go along. I think they are wrong.
"The Court: I'm talking about — take aside religion.
"Mr. Prince: You mean forgetting my religion and my belief and going through —
"The Court: Let me restate that. I don't want you to forget your religion or your belief in God, but what I am — if I hear you correctly, you are telling me because of your religious beliefs you don't think you can work as a juror on this case.
"Mr. Prince: No, sir.
"The Court: Okay.
"Mr. Prince: I don't think I can. As far as what I have already learned about it, I don't think I can.
"The Court: You don't think you can?
"Mr. Prince: No. I'm sorry that I didn't find out before now.
"The Court: Well, I can understand that. You've got two buttons. One says
`Jesus Christ Lives'; and one says "Jesus —
"Mr. Prince: `. . . is the reason for the season.'
"The Court: ...

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