BY THE COURT
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.
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.
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.
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.
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.
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.
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.
reject Hilt's arguments and affirm.
and Procedural Background
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).
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.
other evidence at the resentencing trial demands mention
because of its bearing on this appeal.
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.
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
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.
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.
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.
Hilt testified, the defense rested. The State called no
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
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?"
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
"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