Appeal from Wabaunsee district court, GARY L. NAFSINGER, judge.
1. The right to a unanimous jury verdict is not constitutional but statutory. Similarly, the right to have a jury poll conducted is not constitutional but statutory.
2. Any party in a civil or criminal case has an absolute right to have the jury polled. This practice requires each juror to answer for himself or herself, thus creating individual responsibility and eliminating any uncertainty as to the verdict announced by the foreman. It also affords an opportunity for free expression unhampered by the fears or errors which may have attended the private proceedings.
3. The rule that a party cannot raise an issue on appeal where no contemporaneous objection was made at trial and where the trial court did not have an opportunity to rule applies to jury polling requests under K.S.A. 22-3421.
4. Under the facts of this case, consideration of the polling issue for the first time on appeal was not warranted under the "ends of justice" exception because defendant failed to show that the purported error actually harmed him.
5. While trial courts do not have to be "letter perfect" in their polling procedures and language, the better practice is to poll the jury in such a way as to ensure that each juror is answering for himself or herself, e.g., asking, "Is this your verdict?"
6. Under the facts of this case, the trial court was correct in refusing to add the "mere presence or association" language to the pattern jury instruction on aiding and abetting because that instruction, PIK Crim. 3d 54.05, clearly informs the jury that intentional acts by a defendant are necessary to sustain a conviction for aiding and abetting.
7. The aiding or abetting instruction is appropriate if, from the totality of the evidence, the jury could reasonably conclude that the defendant aided and abetted another in the commission of the crime.
8. Under the facts of this case, the State's theory that defendant was the person who killed the victim did not prevent the court from instructing that the defendant was an aider or abettor because from the totality of the evidence the jury could have reasonably concluded that he aided and abetted another in the commission of the crime.
9. Whether the trial court violated an individual's due process rights is a question of law, to which this court exercises unlimited review.
10. Where two defendants are charged with the commission of a crime and one enters a plea of guilty thereto as an aider and abettor, the State is not estopped by virtue of the earlier plea from alternatively charging the other as an aider and abettor.
11. Under K.S.A. 2006 Supp. 22-4513, the trial judge must consider on the record at the time of assessment of the State Board of Indigents' Defense Services attorney fees, the financial resources of the defendant and the nature of the burden that payment of the fees will impose. The court's failure to explicitly consider the financial resources of the defendant and the nature of the burden that payment of the attorney fees would impose is reversible error.
The opinion of the court was delivered by: Nuss, J.
Affirmed in part, reversed in part, and remanded with directions.
Dustin O. Holt appeals his jury convictions of first-degree premeditated murder and conspiracy to commit murder. He also appeals his sentences, which were consecutive: life in prison without the possibility of parole for 25 years for the murder and 131 months' imprisonment for the conspiracy. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the trial court err in its jury polling when each juror was asked, "Is this the verdict of the jury?" No.
2. Did the trial court err when it refused Holt's request to add the "mere presence or association" language to the jury instruction on aiding and abetting? No.
3. Did the trial court err when it overruled Holt's objection to the giving of an aiding and abetting instruction? No.
4. Did the trial court err when it instructed the jury that Holt could be convicted as an aider and abettor, even though the State's theory was that he was the shooter? No.
5. Did the trial court err when it ordered Holt to reimburse the State Board of Indigents' Defense Services (BIDS) for attorney fees? Yes.
6. Did the trial court err when it used Holt's prior convictions to calculate his criminal history score? No.
Accordingly, we affirm the convictions and sentences, but remand to the district court for redetermination of the BIDS fee reimbursement.
Unless otherwise noted, the following facts are taken from the testimony of Dustin Holt's paramour, Lisa Shoffner, and his friend, Landrey Casey, at Holt's jury trial. Holt did not testify.
In January 2005, Kenton and Lisa Shoffner's blended family lived south of I-70 on the border of Shawnee and Wabaunsee Counties. The property contained a two-story home and a large garage.
Kenton and Lisa each brought three children into the marriage. They had one child together, Samantha, who was killed in an accident in 1999. Following Samantha's death, Lisa began self-medicating, using methamphetamine over the next 5 years. She began carrying Kenton's revolver under the front seat of her car for protection from the drug users with whom she was interacting.
On December 31, 2004, the Shoffners invited some friends to their home to celebrate New Year's. Lisa's friend Michelle Smith, Smith's boyfriend John Berry, and Holt attended. This was the first time Lisa had met Holt. According to Lisa, she and Holt began a sexual relationship that night. For the next 10 days, Lisa spent most of her time with Holt away from home.
On January 7, 2005, Lisa received a cell phone call from her daughter Crystal. Crystal told Lisa that Kenton was angrily yelling at her about Lisa because Lisa was spending so much time away from home. Kenton's comments "pissed [Lisa] off" and after hanging up the phone, Lisa told Holt that she wanted to kill her husband.
Two days later, Lisa and Holt picked up Holt's friend Landrey Casey. This was the first time Lisa and Casey met, although they had talked to each other on the phone. According to Lisa, she told Holt and Casey that her husband had a $50,000 life insurance policy. According to Casey, Holt told him that Lisa wanted her husband "knocked off" and asked if Casey was willing to help them for part of the $50,000. Casey also testified that Lisa told him that she had some bruises from Kenton.
Lisa later took her friend Dawn Gilley to Lisa's home to do some laundry. Holt rode with them. Lisa introduced Holt to Kenton, saying Holt's name was Jim. Holt, Lisa, and Dawn returned to Topeka; Lisa and Holt then slept at Dawn's house for awhile.
Upon awakening, Lisa learned that while they were sleeping, Kenton had called Dawn and told her that he was going to call the cops because they were doing dope. He also told Dawn that she should stay away from Lisa.
Holt and Lisa met Casey later that evening. They bought methamphetamine with $30 Casey received from his girlfriend Shawna and smoked some of it before going to Shawna's house. Lisa claims that shortly after arriving, she told the others that she needed to go home to check on her kids. Casey and Holt went with her. Casey testified that as Lisa paid for a gas stop along the way, Holt pulled out the gun from under her front seat and showed it to Casey. According to Casey, Holt also told him that Kenton had been threatening to shoot Lisa.
Lisa testified that the group's plan was to park in Kenton's garage upon arrival at the Shoffner's house. Holt and Casey were to remain there while Lisa went into the house to lure Kenton outside. According to Lisa, after she parked in the garage around midnight, Holt told her to get ...