State v. Hilt

• Decision Date: 18 April 2014
• Docket Number: No. 105,057.,105,057.
• Citation: 299 Kan. 176,322 P.3d 367
• Parties: STATE of Kansas, Appellee, v. Dustin B. HILT, Appellant.
• Court: Kansas Supreme Court

299 Kan. 176

322 P.3d 367

STATE of Kansas, Appellee,

v.Dustin B. HILT, Appellant.

No. 105,057.

Supreme Court of Kansas.

April 18, 2014.

Syllabus by the Court

1. 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.

2. A district judge does not abuse his or her discretion when dismissing a juror who fails to heed the judge's admonition by injecting outside information into jury deliberations. Such juror misconduct constitutes reasonable cause sufficient to dismiss the juror.

3. A district judge's decision to seat an alternate juror who, despite her physical proximity to spectators during the jury's initial deliberations, says she has neither discussed the case nor overheard spectators' discussions of the case is not error.

4. Evidence of a murder weapon is always material in a homicide prosecution. Whether evidence of a particular weapon is probative on the material issue of a murder weapon depends on the presence and quality of evidence on that particular weapon's connection or lack of connection to the crime charged and/or the defendant.

5. In order to preserve an appellate issue on admission of evidence on relevance grounds, a criminal defendant must lodge a contemporaneous relevance objection to the evidence at trial. See K.S.A. 60–404.

6. A district judge need not give a jury instruction on the defense of voluntary intoxication when evidence is limited to the defendant's consumption of alcohol; evidence of impairment so significant that the defendant could not have formed the intent necessary to commit the charged crime also is necessary.

7. A jury instruction on voluntary manslaughter under K.S.A. 21–3403 (a) is not factually appropriate unless there is some evidence that an intentional homicide was committed upon a sudden quarrel or in the heat of passion.

8. On the facts of this case, there was no error in admission of two gruesome autopsy photographs that depicted the homicide victim's wounds and were used by the pathologist in explaining the cause and manner of death. The photographs were not unduly prejudicial or cumulative of other admitted autopsy photographs.

9. A prosecutor may use analogies, similes, allusions, and other rhetorical devices in an attempt to bring order to the facts presented at trial, place them in a meaningful context, and construct the whole of a case. Within sensible limits set by similarity and dissimilarity to the facts of a case, a prosecutor's appropriate rhetorical devices may include film allusions and comparisons or be otherwise theatrical.

10. The cumulative error doctrine is inapplicable without two or more trial errors that are not individually reversible.

11. Under K.S.A. 21–4721(c)(1), a Kansas appellate court is without jurisdiction to review a presumptive sentence, including one at the high range in the applicable grid box under the Kansas Sentencing Guidelines Act.

12. The hard 50 life sentence imposed in this case is unconstitutional under Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the sentencing judge, rather than the jury, found the existence of four aggravating factors, and did so on a preponderance-of-the-evidence rather than a beyond-a-reasonable-doubt standard.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Stephen M. Howe, district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by BEIER, J.:

Defendant Dustin B. Hilt appeals his convictions and sentences arising out of the September 2009 murder of his ex-girlfriend. Hilt raises nine issues challenging his convictions and two challenging his sentences. Before oral argument, this court also sought supplemental briefing from the parties on additional hard 50 sentencing issues.

Today we reject Hilt's claims of reversible error and affirm his convictions. We vacate his sentence for first-degree murder and remand the case for resentencing on that crime.

Issues

• Did the district judge err by denying Hilt's request to supplement the jury's instruction on aiding and abetting?

• Did the district judge err by dismissing and replacing a juror with an alternate?

• Did the district judge err by admitting evidence of a knife and a piece of charred pipe?

• Did the district judge err by admitting testimony about a blood-spatter test?

• Did the district judge err by denying Hilt's request for a jury instruction on the defense of voluntary intoxication?

• Did the district judge err by denying Hilt's request for a jury instruction on voluntary manslaughter as a lesser included offense of first-degree murder?

• Did the district judge err by admitting two gruesome photographs of the victim's wounds?

• Did the prosecutor commit reversible misconduct during closing argument by comparing the facts of this case to a scene from the movie GoodFellas and suggesting that the defendant and others pulled the victim from her car trunk and “finished the job” of killing her?

• Did cumulative error deny Hilt's right to a fair trial?

• Did the district judge err by sentencing Hilt to the high number in the Kansas Sentencing Guidelines Act grid box for each of the aggravated kidnapping and aggravated robbery convictions?

• Was Kansas' hard 50 sentencing scheme unconstitutional under Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the judge found the existence of aggravating factors by a preponderance of the evidence rather than the jury finding their existence beyond a reasonable doubt? If so, can the hard 50 sentencing scheme as amended by the Kansas legislature in 2013 be applied to Hilt on remand without violation of the federal Constitution's prohibition on ex post facto laws?

Factual and Procedural Background

Hilt was convicted by a jury of first-degree premeditated murder, an off-grid person felony; aggravated kidnapping, a severity level 1 person felony; and aggravated robbery, a severity level 3 person felony. He received a hard 50 life sentence for the murder, based on the district judge's finding that four aggravating factors were applicable: infliction of mental anguish or physical abuse before the victim's death; torture of the victim; continuous acts of violence begun before or continuing after the killing; and especially heinous, atrocious, or cruel conduct by the defendant. Hilt also received consecutive sentences of 165 months and 61 months for the aggravated kidnapping and aggravated robbery convictions. These two sentences were at the high end of the applicable Kansas Sentencing Guidelines Act grid box range.

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. Surveillance video footage from the store showed, among other things, what Hilt was wearing. 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...