Appeal from Shawnee District Court; DAVID DEBENHAM, judge.
BY THE COURT
1. A juror must decide a case on evidence and controlling law, not on sympathy, emotion, or prejudice. Therefore, prosecutors are not allowed to make statements that inflame the passions or prejudices of the jurors or distract the jurors from their duty to make decisions based on the evidence and the controlling law. This means that a prosecutor has a duty to refrain from making improper, leading, inflammatory, or irrelevant statements to the jury and must guard against appeals to jurors' sympathies or prejudices.
2. A prosecutor's statement that a victim's murder meant " now there is a 9-year-old boy and a newborn boy both with no dad" is not relevant to proving premeditated first-degree murder or aggravated burglary. Rather, the statement appeals to the jurors' sympathy and, therefore, is misconduct, although under the circumstances of this case it is not reversible error.
3. A prosecutor's statements during closing arguments that the jury has the " privilege . . . to right a wrong" and " [y]ou and only you can right the wrong that the defendant has committed in taking a young man's life" are not general appeals for justice. Rather, the statements divert the jurors' attention from the evidence and appeal to sympathy for the victim and are misconduct, although under the circumstances of this case the misconduct is not reversible error.
4. A prosecutor commits misconduct by making arguments that dilute the State's burden of proof or attempt to define reasonable doubt. Under the circumstances of this case, however, the misconduct is not reversible error.
5. The trial court did not commit clear error by using an outdated version of the reasonable doubt instruction, PIK Crim. 3d 52.02 (1995 Supp.), when instructing the jury. While not the preferred instruction, it was legally appropriate.
6. Under the totality of the circumstances of this case, the three instances of prosecutorial misconduct did not cumulatively prejudice the defendant and deny the defendant a fair trial. 7. Kansas' statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as interpreted in Alleyne v. United States, 570 U.S., 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because rather than requiring a jury to find the existence of aggravating factors beyond a reasonable doubt it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence.
Meryl Carver-Allmond, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.
Jacqueline J. Spradling, chief deputy district attorney, argued the cause, and Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
LUCKERT, J. MORITZ, J., not participating. GERALD T. ELLIOTT, District Judge, assigned. JOHNSON, J., dissenting.
[300 Kan. 986] Luckert, J.
William Holt II was convicted by a jury of premeditated first-degree murder and aggravated burglary. Utilizing K.S.A. 21-4635, the sentencing judge imposed life imprisonment without the possibility of parole for 50 years for Holt's premeditated first-degree murder conviction. Now, Holt appeals his convictions and murder sentence, arguing: (1) Three comments by the prosecutor during opening and closing arguments constituted reversible misconduct; (2) the jury instruction on reasonable doubt was
clearly erroneous; (3) even if none of those alleged errors--the three separate instances of prosecutorial misconduct or the instructional error--is individually reversible error, the cumulative error doctrine requires reversal of his convictions; and (4) the sentencing judge erred in imposing a hard 50 sentence because (a) the hard 50 sentencing statute in effect at the time of Holt's sentencing is unconstitutional, and (b) there was insufficient evidence [300 Kan. 987] to support the single aggravating circumstance relied upon by the sentencing judge when imposing the hard 50 sentence.
We reject all of Holt's arguments except his contention that K.S.A. 21-4635 is unconstitutional. We, therefore, affirm his convictions, vacate his hard 50 sentence imposed under the unconstitutional statute, and remand for resentencing.
Facts and Procedural Background
This case involves the September 2010 shooting death of Mitch Vose in Topeka. At that time, Vose had recently started dating Wendy Henderson who had been in an on-again/off-again relationship with Holt over the course of several years. Back in 2008, Holt had moved out of the Topeka apartment he shared with Henderson and relocated to Ohio where he enrolled in college classes. Despite the long distance between them, the couple had continued their relationship for a time, talking on the phone every day. Also, Holt had made annual visits to Topeka, staying at a motel for 2 weeks at a time.
In July 2010, Henderson met Vose, and the two started dating. Henderson then called Holt and tried to break up with him, telling him that she was pursuing a relationship with Vose. Despite Henderson's new boyfriend, Holt came to Topeka in mid-August 2010 as previously planned. Henderson met with him to discuss the breakup, and Holt tried to talk Henderson out of ending their relationship.
Around this time, Henderson discovered that she was pregnant with Vose's child, and she mentioned this to Holt. She had not yet told Vose. Henderson testified that Holt's response was that she should not tell Vose about the pregnancy and should have an abortion. Law enforcement officers who interviewed Henderson after Vose's murder testified that Henderson told them that Holt tried to convince her to move to Ohio, where she and Holt could raise the child together. Henderson did not follow Holt's advice. Instead, she stayed in Topeka, informing Vose she was pregnant about a week before he was killed. Henderson testified that she continued to try to end the romantic relationship with Holt, speaking [300 Kan. 988] to Holt by telephone. Each time, Holt was sad and upset and tried to talk her out of breaking up with him.
During one of Henderson's telephone conversations with Holt, Vose asked if he could speak with Holt. Holt agreed, and Henderson handed the phone to Vose. Although Henderson could not hear what Holt was saying, she observed Vose's reaction and described him as being " in awe" and " shock." Later, when Henderson asked Vose about the conversation, he indicated that Holt had threatened to kill him.
Despite the breakup, Henderson remained in contact with Holt, texting him and talking on the phone. At one point, Holt mentioned that a mutual friend had told him that Vose lived on Maryland Street, which Henderson confirmed, and Holt told Henderson that if anything happened to Vose, he was not a part of it. But then at another point, Holt gave the impression that he had moved on and accepted that his romantic relationship with Henderson had come to an end. Henderson testified that Holt told her " we could be friends, but if it got too hard for him, he would . . . move on."
Just before the weekend of September 17, 2010, Henderson and Holt were talking about Henderson's weekend plans. Henderson said that she was going to be at Vose's house, watching his 8-year-old son. Holt indicated that he did not want her to go there that weekend because he wanted to play online video games with her. On the night of September 17, Henderson went to a bar with a girlfriend. She had previously texted Holt and told him that she was going out and was planning to spend the night at a friend's house. But, unbeknownst to Holt, Henderson's plans changed. She ended up sleeping at Vose's house.
In the early morning hours of September 18, 2010, just before 5 a.m., Henderson and Vose were asleep in the same bed. Vose's son was asleep in the adjacent bedroom. Henderson awoke when she heard whispering, like someone was making a " shushing sound," telling someone else to be quiet. Henderson could not see well without her glasses, and it was dark in the room. Henderson called out, " Hello?" because she thought maybe Vose's son was up, but nobody answered. Then, she saw a shadowy figure appear in the doorway of the bedroom. Henderson realized that this silhouette [300 Kan. 989] was taller than Vose's son. She could not tell who the person was, but " it was a big kind of stalky-like person," and she thought maybe it was Vose's neighbor, Joshua Jones, " who had maybe forgotten something and was just in the house." Henderson again called out, " Hello?" but got no answer.
Henderson woke up Vose and told him that she thought somebody was in the house. Vose sat up and called out something like, " [C]an I help you?" There was no answer. Henderson suggested that they turn on the light, so Vose crawled over Henderson and got out of bed to flip the light switch on the wall. Henderson grabbed her phone off the night stand and curled up in a fetal position under the covers. Vose turned on the light, and Henderson heard a " pop and then a gasp for like air--it was just like a catching of breath and then it was silent." Henderson lay still because she did not know what would happen next, but she thought Vose had been shot. She dialed 911 without ever speaking into the phone because she did not want to make a sound. Then, after Henderson heard the phone operator speaking, she hung up the phone. Not knowing whether the emergency responders could trace her call, Henderson then texted a friend, who called 911 for her. Law enforcement officers arrived shortly thereafter, swept the house for intruders and moved Henderson and Vose's son outside. Upon inspecting the house, officers discovered that a screen in an open kitchen window had been cut on three sides. A shotgun blast to Vose's chest had been fatal.
Vose's neighbor, Jones, testified that around 4 a.m. on September 18, he was sitting on his front porch diagonally across the street from Vose's house. Jones saw an unfamiliar car pull up to Vose's house and shut off its lights. Thinking this was strange, Jones started approaching by walking through his yard. When Jones got to the street, the driver turned on the headlights and pulled to the front of Jones' house to speak to him. Jones identified Holt as the driver of the car. Holt told Jones he was going to meet some friends on California Street, and Jones gave him directions.
Holt drove away, and Jones went back to his front porch. Approximately 15 minutes later, Jones saw Holt drive back down the street from the opposite direction. Then, after another 15 minutes, [300 Kan. 990] Jones saw Holt drive down the street a third time, and this time he was driving faster. Jones went inside his house to make sandwiches, and, not long after, he saw numerous police cars outside Vose's home.
Brandy Mullins was also on the porch with Jones that morning. She testified that she saw the same car pull up to Vose's house and that she went with Jones to approach the car. She was sure that the car drove by a second time and thought it drove by a third time as well. Mullins also identified Holt as the driver of the car.
Kansas law enforcement officers requested that Ohio law enforcement officers go to Holt's Ohio residence and ask about his whereabouts during the time of the shooting. Holt initially said he had been in Ohio at the time. Later, he admitted that he had driven to Topeka that night to see Henderson. Holt also admitted to being in Vose's neighborhood near the time of the shooting, but he denied shooting Vose. Law enforcement had the license tag number from the silver car that Holt was seen driving in Topeka, and it matched a car located at an Enterprise Rent-A-Car in Ohio.
Holt's friend Greg Haffner testified that Holt arrived at Haffner's Ohio residence around 5 p.m. on September 18, 2010, and told him that someone had been shot in Kansas and that the police were looking for him (Holt). Holt asked Haffner to take his
12-gauge shotgun for " a couple days," and Haffner agreed. Holt then removed his shotgun from the trunk of a silver rental car and gave it to Haffner. Holt also gave him $200. Haffner testified that he had been with Holt on September 11, 2010, when he purchased the shotgun and several rounds of ammunition at Bass Pro Shops. The weapon came with two barrels, one for hunting and one for home defense. Officers retrieved the shotgun from Haffner.
When law enforcement officers searched Holt's residence, they found a carton for a shotgun, a nylon shotgun case, a spare barrel, a box of 12-gauge shotgun shells, and a receipt from Bass Pro Shops for the purchase of the shotgun. Officers also found Holt's Enterprise Rent-A-Car agreement. Forensic testing of the rental car revealed that samples taken from the backseat contained " particles that were highly indicative of gunshot residue."
[300 Kan. 991] Haffner had saved a spent shell casing when he and Holt went to test fire the shotgun the day after Holt purchased the gun, which was 6 days before Vose's murder; he turned the shell casing over to law enforcement officers. Forensic testing on the shotgun revealed that the shell casing seized from Holt's residence matched the one submitted by Haffner. But the forensic scientist could not conclude whether Holt's shotgun was the weapon that killed Vose.
Holt was charged with premeditated first-degree murder, in violation of K.S.A. 21-3401(a), and aggravated burglary, in violation of K.S.A. 21-3716. At trial Holt's defense theory--brought out through cross-examination and argument--was that Henderson thought the intruder's silhouette matched the build of Jones, who was Holt's neighbor and had been a drug dealer who provided marijuana to Vose. At the time of the shooting, Jones had recently lost his job and his child after someone informed law enforcement of his drug dealing. The defense theory suggested that Jones killed Vose out of suspicion that he was the informant.
The jury convicted Holt as charged. Now Holt brings a timely appeal. This court has jurisdiction under K.S.A. 22-3601(b)(1) (off-grid crime; maximum sentence of life imprisonment imposed).
We first consider Holt's arguments that the prosecutor committed misconduct at three points during the trial. Holt argues that each instance justifies a reversal of his convictions.
Appellate review of allegations of prosecutorial misconduct requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Crawford, 300 Kan. 740, Syl. ¶ 2, 334 P.3d 311 (2014); State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014) (citing State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 ; State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 ).
[300 Kan. 992] 1. Opening Statement--Appeal to Sympathy
According to Holt, the prosecutor improperly appealed to the jury's sympathy at two points in the trial. One statement was made during opening remarks and the other was made during the rebuttal portion of the State's closing argument.
As Holt points out, it is well known that jurors " must decide a case on evidence and controlling law, and not on sympathy, emotion, or prejudice." State v. Jones, 298 Kan. 324, 338, 311 P.3d 1125 (2013). Therefore, " '[p]rosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.' State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006)." State v. Brown, 295 Kan. 181, 212-13, 284 P.3d 977 (2012). This means that a prosecutor has a duty to refrain from making improper, leading, inflammatory, or irrelevant statements to the jury and " must guard
against appeals to jurors' sympathies or prejudices. [Citation omitted.]" State v. Hall, 292 Kan. 841, ...