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State v. Hilt

Supreme Court of Kansas

December 15, 2017

State of Kansas, Appellee,
Dustin Brian Hilt, Appellant.


         1. A district judge does not abuse his or her discretion by removing and replacing a hard 50 sentencing juror who consults a high school yearbook in violation of the judge's repeated admonitions.

         2. A prosecutor who summarizes jurors' role in a hard 50 sentencing proceeding as deciding whether the defendant gets the hard 50 or will be eligible for parole in 25 years does not misstate the law, when the proceeding is governed by a statute imposing a mandatory duty on the judge to sentence in accordance with the jury's verdict on mitigating circumstances not outweighing an aggravating circumstance proved by the State beyond a reasonable doubt.

         3. A prosecutor who tells jurors that they may vote in favor of a hard 50 sentence even if the State has not proved which codefendant inflicted specific blows or wounds suffered by a murder victim does not misstate the law, as long as the prosecutor's comments do not amount to telling the jury that the defendant's mitigating evidence about his passive role in the crime is wholly irrelevant.

         4. On the facts of this hard 50 sentencing case, tried under K.S.A. 2016 Supp. 21-6620(e), the district judge's statement in open court that the appropriateness of imposing the hard 50 "was the jury's decision and, therefore, I'm not going to upset the jury. I'm going to follow what the jury has entered and impose the sentence that the jury has entered" was a sufficient oral pronouncement of the defendant's sentence to reject appellate challenges alleging illegal ambiguity as to length and violation of the defendant's right to be present.

         Appeal from Johnson District Court; James Charles Droege, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the brief for appellant.

          Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, James Crux, legal intern, and Derek Schmidt, attorney general, were with him on the brief for appellee.


          BEIER, J.

         Defendant Dustin Brian Hilt challenges his sentence for first-degree premeditated murder on three grounds: the district judge's decision to remove a juror during deliberations, allegedly reversible prosecutorial error during closing argument, and an imperfect oral in-court pronouncement of the ultimate hard 50 sentence.

         We reject Hilt's arguments and affirm.

         Factual and Procedural Background

         Hilt's 2010 jury convictions of first-degree premeditated murder, aggravated kidnapping, and aggravated robbery arose out of the violent death of his former girlfriend, Keighley Alyea. In State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014), this court affirmed Hilt's convictions and his grid sentences but vacated his hard 50 life sentence because it was based on fact-finding by a judge, a predicate procedure rejected by the United States Supreme Court as unconstitutional under the Sixth Amendment. See Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

         Hilt's case was remanded to the district court for resentencing, and evidence was submitted before a jury on whether he should receive a hard 50 sentence over multiple days in June 2015. The State presented much of the same grisly evidence regarding the circumstances of Alyea's death that it had presented at Hilt's first trial. Another recitation of that evidence would serve no purpose here.

         Certain other evidence at the resentencing trial demands mention because of its bearing on this appeal.

         The State's case included testimony from several forensic experts, including evidence about bloodstains found in Alyea's car and on clothes worn by her and by Hilt and his two codefendants on the night of the murder. DNA testing showed large quantities of Alyea's blood on Hilt's clothes. Further, during police interviews in the days immediately following the murder, detectives noted that Hilt's hands and wrists were swollen and that he had cuts and abrasions on his hands and forearms. No similar injuries were found on his codefendants.

         Hilt also testified in his defense during the resentencing trial; he had not testified in the original trial. He said that he had turned 18 a few days before the murder and had no criminal record beyond a handful of traffic tickets at the time.

         Hilt claimed that there had been no plan to hurt or rob Alyea; he merely wanted a ride from her. After Alyea picked him and his friends up and allowed him to drive, one of his codefendants "just flipped out" and started hitting Alyea on the back of the head. Hilt testified he did not know what to do and "just started driving real fast trying to get away." At some point, under the codefendant's direction, Hilt stopped the car, and the codefendant put Alyea in the trunk. Hilt testified that at the time he believed Alyea was already dead.

         Again following the codefendant's instructions, Hilt drove to the rural field where Alyea's body would eventually be found. During the trip, Hilt heard Alyea screaming for help from the trunk. Hilt testified that, after arriving at the field, he thought, "Like man, I can't let this go on no further. So when we get to the field, I popped the trunk and she gets out and takes off running." Hilt said that the other codefendant chased Alyea down and began kicking her and hitting her with the pipe. According to Hilt, he tried to put his hand over Alyea's head to protect her and push the codefendant back, "but it really didn't work." After Hilt's attempt failed, the codefendant who had hit Alyea in the car repeatedly stabbed her.

         Hilt denied striking or stabbing Alyea. He said that he had lied to police when they began questioning him because he was not sure whether Alyea was dead, and he did not want to get into trouble. Continuing to blame the codefendant who launched the violence, Hilt claimed that he had not called 911 anonymously because that codefendant told him not to do so.

         After Hilt testified, the defense rested. The State called no rebuttal witnesses.

         During the State's closing argument, the prosecutor began by highlighting the jury's role in the proceeding.

"As the Judge indicated and what's been previously discussed with you, this is a sentencing phase which is somewhat unique because you didn't participate in the guilt phase of this trial.
"However, this is just merely about one thing and one thing only; whether the Defendant's actions on those days, September 30, 2009, whether those actions by him support the sentence of life in prison without the possibility of parole for fifty years. That's ultimately what you're here to do; decide whether that is the appropriate sentence, or should he get the sentence of life in prison with the possibility of parole after twenty-five years."

         The prosecutor then focused on the blood evidence establishing that Alyea's blood was on Hilt's clothes and argued that Hilt could not have been merely a passive and unwilling participant as he claimed, but must have been "an active member of the trio that went out and killed her in a brutal manner on that day." The prosecutor also highlighted the injuries to Hilt's hands and arms and the lack of similar injuries on the codefendants. After doing so, the prosecutor posed the rhetorical question: "[I]s that a standby person not doing anything, or is that the person wielding the knife or the pipe?"

         During defense counsel's closing, he painted a picture of Hilt as a passive character caught up in the murder, who did not know what to do or how to save Alyea.

"But that doesn't mean that he actively participated.
"The State has that burden.
"Simply being upset with Mr. Hilt because he was a coward that night does not allow the exchange to the idea that he affirmatively participated.
. . . .
"The State wants you to treat them all the same. The State says 'Because he's guilty and because it was bad, ...

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