fact that increases a mandatory minimum sentence must be
submitted to a jury and proved beyond a reasonable doubt.
Jurors are presumed to follow the instructions they receive
in the district court.
a defendant is charged with a homicide in the death of one
person, the facts cannot give rise to multiple counts of the
charged crime and do not support a multiple acts appellate
district court has discretion to accept or reject a no
contest plea. However, a district court should accept a no
contest plea when the requirements of K.S.A. 22-3210 are met
and the defendant does not contest the charge.
establish the excited utterance exception to the hearsay
rule, a party must show: (1) an event or condition occurred;
(2) it was startlingly sufficient to cause nervous
excitement; (3) the declarant perceived it; and (4) the
declarant made the statement while under stress of nervous
invoke the Fifth Amendment right to counsel, a suspect must
articulate the desire to have counsel present with sufficient
clarity such that a reasonable police officer in the
circumstances would understand the statement to be a request
for an attorney.
Whether a Miranda waiver was knowing, voluntary, and
intelligent is determined based on the totality of the
circumstances. In making such determination, this court
considers the following nonexclusive factors: (1) the
defendant's mental condition; (2) the manner and duration
of the interrogation; (3) the defendant's ability to
communicate with the outside world; (4) the defendant's
age, intellect, and background; (5) the fairness of the
officers in conducting the interrogation; and (6) the
defendant's proficiency in the English language. The
essence of such inquiry is to determine whether the
accused's statement was the product of free and
accused does not have a Sixth Amendment right to have counsel
present during a psychiatric evaluation.
from Johnson District Court; James Franklin Davis, judge.
Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of
Lenexa, argued the cause and was on the brief for appellant.
J. Obermeier, senior deputy district attorney, argued the
cause, and Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, were with him on the brief for
Mattox directly appeals his conviction and hard 50 sentence
for the first-degree premeditated murder, aggravated
kidnapping, and aggravated robbery of Keighley Alyea in
September 2009 in Johnson County. We affirm Mattox's
convictions; however, we vacate Mattox's hard 50 sentence
and remand for resentencing because the district court,
rather than the jury, found the existence of aggravating
factors by a preponderance of the evidence, rather than
beyond a reasonable doubt, in violation of Alleyne v.
United States, 570 U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d
and Procedural Background
recited the basic facts of Alyea's brutal murder when we
affirmed the conviction (following a separate trial) of
Mattox's codefendant and cousin Dustin Hilt.
"Johnson County detectives found the body of Hilt's
ex-girlfriend, Keighley Alyea, in a field in Cass County,
Missouri. Alyea had been stabbed dozens of times with a
knife. Her body also showed signs that she had been
asphyxiated and had suffered blunt-force trauma to her head.
"Six days before Alyea's body was discovered, she
had invited Jessika Beebe; Beebe's daughter; and
Beebe's boyfriend, Shawn Merritt, to spend the night at
her apartment. Beebe and Merritt did not feel safe staying at
Beebe's residence because they feared Beebe's
brother, James. Two days earlier, James had intentionally
rammed his vehicle into Alyea's vehicle and threatened to
'shoot [Merritt's] house up.' James was later
arrested in connection with this incident.
"Merritt was so concerned about James' threat that
he told Alyea he needed to get a gun for protection. Alyea
suggested to Merritt that he contact Hilt. That night Merritt
used Alyea's phone to send a text message to Hilt to ask
if Hilt knew where to get a gun. After a series of text
messages between Hilt and Merritt, Hilt asked for a ride.
Merritt returned the phone to Alyea, and Hilt sent two
additional messages requesting a ride. Alyea then sent a
message identifying herself and asked Hilt if he wanted to
'come kick it.' Hilt again said he needed a ride.
Shortly after 1 a.m., Alyea agreed to pick Hilt up and asked
if he was with anyone else. Hilt responded that he was with
Scott Calbeck. Before Alyea left to meet Hilt, Beebe advised
her not to go.
"About 2 a.m., Hilt; Calbeck; and Hilt's cousin, Joe
Mattox, entered a QuikTrip convenience store. . . .
Meanwhile, Alyea, who was waiting in her car outside the
convenience store, called her stepsister. Alyea accused the
stepsister of having had sex with Hilt, threatened to beat
her up, and then hung up. A heated text message exchange
between Alyea and the stepsister followed-full of threats,
name calling, and other insults. Alyea sent her last text
message at 2:50 a.m. The stepsister would later testify that
she had sent a text message to Alyea at 2:53 a.m. and
expected it to elicit an immediate response. Instead, no
response ever came.
"When Beebe woke up about 11 a.m., Alyea was not in the
apartment. Beebe tried calling Alyea multiple times. When
that was unsuccessful, she called Alyea's family and
checked at Alyea's work, the hospital, and the jail. She
did not find her.
"The Overland Park Police Department began a missing
person investigation. Sergeant Thomas Smith interviewed Hilt
and asked when Hilt last talked with Alyea. Hilt said it had
been several weeks or months. When presented with a printout
of Alyea's text message correspondence, Hilt admitted
that he had recently communicated with Alyea, but he
maintained that the two had not seen each other recently.
"The next day, police officers discovered Alyea's
car in an apartment parking lot. When they opened the trunk,
they found pooled blood and bloody clothing. During
processing of the car at the Johnson County Sheriff's
Office crime lab, a technician found a knife under bloody
clothing in the trunk. The technician also noted that the
car's taillight assemblies had been loosened from their
mounts, and the connecting tabs had been disconnected,
disabling the taillights. Both the taillight connectors and
the trunk latch had smears of blood on them. Crime scene
investigators did not initially link the knife to Alyea's
disappearance or death.
"The day after Alyea's vehicle surfaced, detectives
conducted a search at Mattox's residence. They found a
piece of charred metal pipe in a smoker grill, as well as
other charred and burned items. A can of gasoline sat next to
the smoker grill. In the basement, detectives opened a
dishwasher and discovered a black plastic trash bag full of
"The same day, Alyea's body was found. Its condition
had been damaged by decomposition and insects."
State v. Hilt, 299 Kan. 176, 179-181, 322 P.3d 367
body had been found in Cass County, Missouri, approximately 4
miles from Mattox's father's home. An autopsy
revealed a total of 20 stab wounds and several larger blunt
force trauma injuries to Alyea's head and neck. Either
the blunt force trauma causing a skull fracture or any of the
stab wounds could have caused her death. Subsequent forensic
analysis tied the DNA profiles of Mattox and Alyea to the
same bloodstained clothing.
the investigation, police interviewed Mattox. He initially
denied having any knowledge about the killing. But a few days
later, Mattox made a full confession, describing the course
of events in detail. According to Mattox's confession,
while in the QuickTrip, he, Hilt, and Scott Calbeck had
hatched a plan to rob Alyea. When Alyea and her killers left
QuickTrip, Hilt was driving, Alyea was in the front seat, and
Mattox and Calbeck were in the back seats. Soon after, Mattox
and Calbeck attacked Alyea-they beat her with their fists,
and Mattox dragged Alyea to the back seat, struck her with a
pipe, and choked her. When Alyea stopped struggling, Mattox
told Hilt to stop the car. They put Alyea in the trunk and
kept driving. Mattox proposed disposing the car and
Alyea's body in a rural area he knew.
group pulled over near Harrisonville, Missouri, when they
heard Alyea screaming for help in the trunk. They pulled
Alyea out of the trunk, and Calbeck beat her again with the
pipe. Hilt stabbed Alyea twice in the abdomen with a hunting
knife that he took from Mattox's residence. The three men
loaded Alyea's limp body back into the trunk and later
dumped it in a field.
group drove back to Overland Park, Kansas, to clean
Alyea's car and dispose of the evidence. Mattox removed
the battery from Alyea's cell phone and threw it out the
car window. The group divided up cleaning tasks-Mattox was
responsible to clean the car trunk, and Hilt planned to
discard the clothing and the knife. The group abandoned
Alyea's car in an apartment parking lot, returned to
Mattox's house, and burned Alyea's purse on a grill.
Mattox moved to suppress his confession, but the district
court denied the motion. A jury found Mattox guilty of
premeditated murder under an aiding and abetting theory, as
well as aggravated kidnapping and aggravated robbery. The
district court imposed a hard 50 sentence for first-degree
murder pursuant to K.S.A. 21-4635 (recodified at K.S.A. 2015
Supp. 21-6620) without fact-finding by the jury.
now appeals his convictions and sentence. We exercise
jurisdiction pursuant to K.S.A. 2015 Supp. 22-3601(b)(3)
(direct appeal to Supreme Court when life sentence imposed).
Mattox was sentenced in violation of the Sixth Amendment to
the United States Constitution.
first claims that his Sixth Amendment right to a jury trial
was violated when the district court imposed a hard 50
sentence without fact-finding by the jury. He argues his hard
50 sentence is unconstitutional because the sentencing judge
found the existence of aggravating factors by a preponderance
of the evidence, in violation of Alleyne, 133 S.Ct.
2151. The State concedes this point. We likewise hold that
the imposition of Mattox's hard 50 sentence violated his
Sixth Amendment right.
constitutionality of a sentencing statute is a question of
law over which this court exercises unlimited review.
Hilt, 299 Kan. at 202.
fact that, by law, increases the penalty for a crime is an
'element' that must be submitted to the jury and
found beyond a reasonable doubt." Alleyne, 133
S.Ct. at 2155. Therefore, "any fact that increases the
mandatory minimum is an 'element' that must be
submitted to the jury." 133 S.Ct. at 2155.
Hilt the district court likewise imposed a hard 50
sentence without fact-finding by the jury. We found this
sentencing scheme ran afoul of Alleyne, stating:
"Were it not for the sentencing judge's finding by a
preponderance of the evidence of four aggravating factors,
Hilt would not have faced a minimum sentence of 50 years
rather than 25 years for Alyea's murder. Because the
judge, rather than the jury, found the four aggravating
factors existed, and did so on a
preponderance-of-the-evidence rather than a
beyond-a-reasonable-doubt standard, Hilt's Sixth
Amendment right to a jury trial, as interpreted in
Alleyne, was violated." 299 Kan. at 203.
we concluded that Hilt was not one of the rare cases
where a hard 50 Alleyne error can be declared
harmless. 299 Kan. at 204-05 ("[W]e cannot say on the
record before us that (1) proof of the aggravators was so
overwhelming that their existence was certainly established,
and (2) no rational factfinder would decide beyond a
reasonable doubt that the mitigators advanced by Hilt
outweighed the State's aggravators.").
is determinative of this issue-the district court's
imposition of a hard 50 sentence violated Mattox's right
to a jury trial, and such error was not harmless. Therefore,
Mattox's hard 50 life sentence is vacated and the case is
remanded to district court for resentencing.
The jury instructions were proper.
raises several challenges to the jury instructions. He first
contends that the district court erred by refusing to modify
the aiding and abetting instruction to inform the jury that
before convicting on the State's aiding and abetting
theory, the jury was required to find that Mattox had the
same premeditation as the principal. Second, he contends that
the intent instructions were misleading and lessened the
State's burden of proof for premeditated murder. Finally,
he contends he was entitled to a multiple acts instruction.
Considering each claim in turn, we find no error.
Our review of challenges to jury instructions follows a
"'(1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and
preservation viewpoints, exercising an unlimited standard of
review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate;
(3) then, the court should determine whether there was
sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have
supported the instruction; and (4) finally, if the district
court erred, the appellate court must determine whether the
error was harmless, utilizing the test and degree of
certainty set forth in State v. Ward, 292 Kan. 541,
256 P.3d 801 (2011), cert. denied [ __U.S.__, ] 132
S.Ct. 1594 [182 L.Ed.2d 205] (2012)'. [Citation omitted.]
"'Generally, a defendant is entitled to instructions
on the law applicable to his or her defense theory if there
is sufficient evidence for a rational factfinder to find for
the defendant on that theory. [Citation omitted.] And if that
defendant requests an instruction at trial, the court must
view the evidence in the light most favorable to the
defendant. [Citations omitted.]'
"We examine 'jury instructions as a whole, without
focusing on any single instruction, in order to determine
whether they properly and fairly state the applicable law or
whether it is reasonable to conclude that they could have
misled the jury.' [Citation omitted.]"
Hilt, 299 Kan. at 184-85.
of the indictment charged Mattox with first-degree
premeditated murder. Alyea died from multiple blunt and sharp
force injuries. Mattox's defense theory was that his
intent was merely to rob the victim and that when they
initially placed her in the trunk of the vehicle, the plan
was to leave her unconscious by the side of the road.
According to Mattox's confession, after the victim
regained consciousness in the trunk and began screaming,
Calbeck beat her with a pipe and Hilt stabbed her with a
hunting knife. The State's theory of the crime was that
Mattox acted as an aider and abettor during the course of
events, which made him culpable for Calbeck's and
Hilt's actions, as well as for Alyea's death.
instruction number 10, which was based on PIK Crim. 3d 54.05
relating to aiding and abetting, said:
"A person who, either before or during its commission,
intentionally aids, abets, advises, hires, counsels, or
procures another to commit a crime with intent to promote or
assist in its commission is criminally responsible for the
crime committed regardless of the extent of the
defendant's participation, if any, in the actual
commission of the crime."
lieu of this instruction, defense counsel submitted a
proposed jury instruction that simply stated, "For
Joseph Mattox to be convicted of Count I on the theory of
aiding and abetting, the defendant must have had the same
premeditation to commit the crime as the principal."
Defense counsel generally argued that the State's
proposed instruction was going to confuse the jury and then
cited our decision in State v. Overstreet, 288 Kan.
1, 200 P.3d 427 (2009). The State responded with its own
case-State v. Engelhardt, 280 Kan. 113, 119 P.3d
1148 (2005)-which it believed cautioned courts against
modifying the aiding and abetting PIK instructions. The trial
court agreed with the State that the PIK-based instruction
appropriately defined aiding and abetting but told the
parties that they were free to argue "that point to the
jury in your closing arguments."
deliberations, the jury submitted a question asking the court
to "add clarification" to the aiding and abetting
instruction. With the jury in recess and Mattox present, the
trial judge discussed the request with the parties. The State
argued that the district court should simply direct the
jury's attention back to instruction number 10.
Mattox's counsel responded, "Judge, I agree. The
question appears to ask for a clarification on the issue of
aiding and abetting. I believe that the instructions were as
provided, and the Court-That's what the jury will need to
bringing in the members of jury, the judge informed them that
the "instructions are complete" and that
"[t]here's really no further definition or
clarification that I can present to you concerning that[, ]
[s]o you'll have to accept the instructions as I've
given them to you."
appeal, Mattox maintains that he was entitled to his version
of the aiding and abetting instruction. To that end, Mattox
contends that his proposed instruction was a correct
statement of law and that it was factually appropriate in
light of the statements he made to officers indicating that
"he only intended to participate in a robbery which
spiraled out of control."
recently addressed a similar situation arising from
Hilt's trial. There, Hilt requested a supplement to the
aiding and abetting instruction that informed jurors
"'[m]ere association with the principals who
actually commit the crime or mere presence in the vicinity of
the crime is insufficient to establish guilt as an aider or
abettor.'" Hilt, 299 Kan. at 183. The
district court denied the request and gave PIK Crim. 3d 54.05
without the supplement. On appeal, Hilt argued-as Mattox
does-that PIK Crim. 3d 54.05 left the jury with an incomplete
understanding of the law defining aiding and abetting. We
"In this case, the district judge's use of PIK Crim.
3d 54.05 on aiding and abetting-given without requested
additional language about mere association or presence being
insufficient to convict-was not reversible error. But
inclusion of the additional language is the better practice;
and, in future cases, when the additional language is
requested, the judge should modify the PIK instruction."
299 Kan. 176, Syl. ¶ 1.
cautioned that although it was not reversible error to not
provide the additional language, "the better practice is
to add the requested language in cases such as this, and
failure to do so may imperil convictions in future
similar cases." (Emphasis added.) 299 Kan. at 185-86.
Obviously, Hilt had not been decided at the time of
to Mattox's trial, however, we had decided
Overstreet, 288 Kan. 1. The State had charged
Overstreet with aggravated assault and attempted first-degree
murder, both based on an aiding and abetting theory. The
district court provided the following jury instructions based
on PIK Crim. 3d 54.05 (aiding and abetting) and PIK Crim. 3d
54.06 (responsibility for crimes of another), respectively:
"'A person who, either before or during its
commission, intentionally aids, abets or procures another to
commit a crime with the intent to promote or assist in its
commission, is criminally responsible for the crime committed
regardless of the extent of the person's participation,
if any, in the actual commission of the crime. [PIK Crim. 3d
"'A person who intentionally aids another to commit
a crime is also responsible for any other crime committed in
carrying out or attempting to carry out the intended crime,
if the other crime was reasonably foreseeable. [PIK Crim. 3d
54.06.]'" 288 Kan. at 8.
prosecutor made a series of statements during closing
arguments that Overstreet claimed-when taken in combination
with the PIK instructions-relieved the State of its burden of
proving premeditation beyond a reasonable doubt.
we observed that we had approved each of the two instructions
individually as correct statements of K.S.A. 21-3205
(providing the statutory definition of aiding and abetting).
But we also noted that Engelhardt, 280 Kan. 113,
held that it was error to provide both instructions when the
underlying crime required a showing of specific intent.
Overstreet, 288 Kan. at 10. We reasoned in
Engelhardt that a foreseeability instruction would
impermissibly relieve the State of the burden to prove a
specific intent because the concept of foreseeability
essentially converted the State's aiding and abetting
theory into an uncharged and uninstructed upon theory of
felony murder. See Engelhardt, 280 Kan. at 133;
Overstreet, 288 Kan. at 11. We "ultimately held
in Engelhardt that although it was error for the
district court to give the foreseeability instruction
contained in PIK Crim. 3d 54.06, the error was harmless in
light of the overwhelming evidence against the
defendant." Overstreet, 288 Kan. at 11 (citing
Engelhardt, 280 Kan. at 133-34).
Overstreet, we clearly elucidated this principle:
"Our decision in Engelhardt controls our
resolution in this case. As in Engelhardt,
Overstreet was charged in this case with a specific-intent
crime under an aiding and abetting theory. Therefore, the
State was required to prove beyond a reasonable doubt that he
'intend[ed] to promote or assist' in the commission
of an attempted first-degree premeditated murder. [Citations
omitted.] Engelhardt makes it clear that to be
successful on this theory, the State was required to prove
that the defendant shared in the specific intent of
premeditation and thus promoted or assisted in the commission
of the specific crime of premeditated first-degree murder.
"Despite this premeditation requirement, the district
court instructed the jury in this case that '[a] person
who intentionally aids another to commit a crime is also
responsible for any other crime committed in carrying out or
attempting to carry out the intended crime, if the other
crime was reasonably foreseeable.' This foreseeability
instruction indicated that the jury need not find that
Overstreet possessed the specific intent of premeditation if
it found that premeditated murder was a reasonably
foreseeable consequence of aggravated assault. In other
words, giving the aiding and abetting foreseeability
instruction negated the State's burden to prove an
essential element of the crime charged: premeditation. This
diminished burden is precisely the type of error disproved in
Engelhardt. [Citation omitted.] The district court
erred when it provided the foreseeability instruction in this
case." 288 Kan. at 11-12.
Mattox relies on Overstreet and Engelhardt,
his argument ignores a significant difference between those
cases and his. The trial court in those cases provided the
jury with both PIK Crim. 3d 54.05 and PIK Crim. 3d 54.06,
while only PIK Crim. 3d 54.05 was provided here. Indeed, the
crux of the reasoning in Overstreet and
Engelhardt on these issues is that the
foreseeability language in PIK Crim. 3d 54.06 confuses the
jury about the level of intent a defendant must have when it
is combined with an aiding and abetting instruction. See
Overstreet, 288 Kan. at 11-15; Engelhardt,
280 Kan. at 132-34.
have articulated this distinction before. In State v.
Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), the
defendant was convicted of first-degree premeditated murder
on an aiding and abetting theory. As here, the jury in
Betancourt was provided with PIK Crim. 3d 54.05 and
a similar first-degree murder instruction. Betancourt argued
that "these instructions were deficient because they did
not inform the jury that a defendant who is guilty on an
aiding and abetting theory of premeditated murder must share
the principal's premeditated intent." 299 Kan. at
135. We stated:
"[Betancourt]'s case differs significantly from
Overstreet and Engelhardt in that the
second part of the aiding and abetting instruction-the part
negating the intent portion-was not given here. Instead, in
this case the jury was given Instructions 7 and 8, which
explicitly required the jury to find that [Betancourt]
intended to aid and abet in a killing done with
premeditation. [Citation omitted.] Considering the entirety
of the jury instructions, we conclude that the instructions
as given accurately stated Kansas law and did not mislead or
confuse the jury." Betancourt, 299 Kan. at 136.
the premeditated first-degree murder instruction here told
jurors that the State had to prove that Mattox
"intentionally killed" the victim and that
"such killing was done with premeditation."
Instruction 12 explained as follows:
"'Premeditation' means to have thought the
matter over beforehand, in other words, to have formed the
design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept
of premeditation requires more than the instantaneous,
intentional act of taking another's life.
"'Intentionally' means conduct that is
purposeful and willful and not accidental. Intentional
includes the terms 'knowing, ' 'willful, '
'purposeful, ' and 'on purpose.'"
holding in Betancourt that this combination of
instructions accurately states Kansas law and does not
mislead or confuse the jury remains sound and squarely
applicable in the instant case. We find no error in the
aiding and abetting instructions as given.
next argues that the intent instructions-particularly the
"inference of intent" instruction-were misleading
because they blurred the line between his general and
specific intent charges, which erroneously lessened the
State's burden of proof for premeditated murder. As
Mattox correctly states, premeditated first-degree murder and
aggravated kidnapping charges are specific intent crimes, but
aggravated robbery is a general intent crime. See
Overstreet, 288 Kan. at 11 (specific intent required
for first-degree premeditated murder); State v.
Robinson, 303 Kan. 11, 254, 363 P.3d 875 (2015)
(specific intent required for aggravated kidnapping),
cert. denied 137 S.Ct. 164 (2016), disapproved
of on other grounds by State v. Cheever, 304 Kan. 866,
375 P.3d 979 (2016); State v. Edwards, 299 Kan.
1008, 1015, 327 P.3d 469 (2014) (general intent required for
did not object to the instructions as given, and therefore,
we apply a clear error analysis. See Betancourt, 299
Kan. at 135. In such an analysis, we first apply a de novo
review when determining whether the instruction was legally
appropriate. If the court finds that the instruction was
erroneous, "'the defendant must firmly convince the
appellate court that the giving of the instruction would have
made a difference in the verdict.'" State v.
Cooper, 303 Kan. 764, ...