State v. Holt, No. 96,744.

• Decision Date: 01 February 2008
• Docket Number: No. 96,744.
• Parties: STATE of Kansas, Appellee, v. Dustin O. HOLT, Appellant.
• Court: Kansas Supreme Court

175 P.3d 239

STATE of Kansas, Appellee, v. Dustin O. HOLT, Appellant.

No. 96,744.

Supreme Court of Kansas.

February 1, 2008.

Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lee J. Davidson, assistant attorney general, argued the cause, and Paul J. Morrison, attorney general, was with him on the brief for appellee.

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

Dustin O. Holt appeals his jury convictions of first-degree premeditated murder and conspiracy to commit murder. He also appeals his sentences, which were consecutive: life in prison without the possibility of parole for 25 years for the murder and 131 months' imprisonment for the conspiracy. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the trial court err in its jury polling when each juror was asked, "Is this the verdict of the jury?" No.

2. Did the trial court err when it refused Holt's request to add the "mere presence or association" language to the jury instruction on aiding and abetting? No.

3. Did the trial court err when it overruled Holt's objection to the giving of an aiding and abetting instruction? No.

4. Did the trial court err when it instructed the jury that Holt could be convicted as an aider and abettor, even though the State's theory was that he was the shooter? No.

5. Did the trial court err when it ordered Holt to reimburse the State Board of Indigents' Defense Services (BIDS) for attorney fees? Yes.

6. Did the trial court err when it used Holt's prior convictions to calculate his criminal history score? No.

Accordingly, we affirm the convictions and sentences, but remand to the district court for redetermination of the BIDS fee reimbursement.

FACTS

Unless otherwise noted, the following facts are taken from the testimony of Dustin Holt's paramour, Lisa Shoffner, and his friend, Landrey Casey, at Holt's jury trial. Holt did not testify.

In January 2005, Kenton and Lisa Shoffner's blended family lived south of I-70 on the border of Shawnee and Wabaunsee Counties. The property contained a two-story home and a large garage.

Kenton and Lisa each brought three children into the marriage. They had one child together, Samantha, who was killed in an accident in 1999. Following Samantha's death, Lisa began self-medicating, using methamphetamine over the next 5 years. She began carrying Kenton's revolver under the front seat of her car for protection from the drug users with whom she was interacting.

On December 31, 2004, the Shoffners invited some friends to their home to celebrate New Year's. Lisa's friend Michelle Smith, Smith's boyfriend John Berry, and Holt attended. This was the first time Lisa had met Holt. According to Lisa, she and Holt began a sexual relationship that night. For the next 10 days, Lisa spent most of her time with Holt away from home.

On January 7, 2005, Lisa received a cell phone call from her daughter Crystal. Crystal told Lisa that Kenton was angrily yelling at her about Lisa because Lisa was spending so much time away from home. Kenton's comments "pissed [Lisa] off" and after hanging up the phone, Lisa told Holt that she wanted to kill her husband.

Two days later, Lisa and Holt picked up Holt's friend Landrey Casey. This was the first time Lisa and Casey met, although they had talked to each other on the phone. According to Lisa, she told Holt and Casey that her husband had a $50,000 life insurance policy. According to Casey, Holt told him that Lisa wanted her husband "knocked off" and asked if Casey was willing to help them for part of the $50,000. Casey also testified that Lisa told him that she had some bruises from Kenton.

Lisa later took her friend Dawn Gilley to Lisa's home to do some laundry. Holt rode with them. Lisa introduced Holt to Kenton, saying Holt's name was Jim. Holt, Lisa, and Dawn returned to Topeka; Lisa and Holt then slept at Dawn's house for awhile.

Upon awakening, Lisa learned that while they were sleeping, Kenton had called Dawn and told her that he was going to call the cops because they were doing dope. He also told Dawn that she should stay away from Lisa.

Holt and Lisa met Casey later that evening. They bought methamphetamine with $30 Casey received from his girlfriend Shawna and smoked some of it before going to Shawna's house. Lisa claims that shortly after arriving, she told the others that she needed to go home to check on her kids. Casey and Holt went with her. Casey testified that as Lisa paid for a gas stop along the way, Holt pulled out the gun from under her front seat and showed it to Casey. According to Casey, Holt also told him that Kenton had been threatening to shoot Lisa.

Lisa testified that the group's plan was to park in Kenton's garage upon arrival at the Shoffner's house. Holt and Casey were to remain there while Lisa went into the house to lure Kenton outside. According to Lisa, after she parked in the garage around midnight, Holt told her to get Kenton as close as possible to the blanket that hung in the garage doorway.

Lisa went into the house and started arguing with Kenton, bringing up the prior phone call she had received from Crystal. She then said she was going to the garage to smoke dope and started walking in that direction. Kenton followed closely behind her.

According to Casey's trial testimony, as Kenton pulled back the blanket, Casey said to him, "What's up dog? What the fuck you gonna do now?" Kenton said, "No," and Casey told Holt to "bust on him." Casey claims that Holt then shot Kenton in the chest with Kenton's own revolver. Kenton fell to the ground, and Casey told Holt to shoot him again. Holt then shot Kenton in the face at pointblank range.

At trial, Lisa testified that she did not remember a lot about the shooting because she was highly medicated at the time. She said she heard two shots but did not see who was holding the gun.

Casey testified that Holt drove off in Kenton's pick-up as Casey scrambled to get in. The plan had called for Lisa to wait to call 911 until Holt and Casey got to Topeka. Instead, she panicked and called 911 as the pick-up was turning out of the driveway. Lisa lied to the dispatcher and the first law enforcement officers on the scene, claiming she did not know the assailants.

Holt and Casey were apprehended shortly thereafter. Due to the icy weather, the pickup slid off the road and got stuck in a ditch. When Shawnee County Sheriff's Deputy Hawks heard the dispatch call of the shooting on the radio, he recognized the name "Shoffner." When he encountered Holt and Casey walking along I-70 toward Topeka, he recognized them from a traffic stop a few days earlier when he had issued Lisa a warning for a tag-light violation. Deputy Hawks then notified other law enforcement officers. The murder weapon was soon found in the highway ditch nearby.

By the end of the month, the State filed a complaint charging Casey, Holt, and Lisa each with one count of first-degree murder and one count of conspiracy to commit first-degree murder. The State also charged Casey and Holt with one count of theft for the pick-up.

Casey eventually pled guilty to an amended complaint charging him with aiding a felon, conspiracy to commit aggravated battery, possession of methamphetamine, and felony theft. Although he had not been sentenced at the time of Holt's trial, he expected to be sentenced to an underlying term of 3 years, but would only have to serve probation. Casey's trial testimony against Holt was part of his plea agreement.

Lisa eventually pled guilty to felony murder. Although she had not been sentenced at the time of Holt's trial, she expected to receive a life sentence with the possibility of parole in 20 years. Lisa's trial testimony against Holt was also part of her plea agreement.

Sheriff Howser testified that during Holt's stint in the county jail pending trial, Holt contacted the jail supervisor and asked to speak with Howser. Holt was upset and told Howser, "I shot him. I'm the one that shot him." Howser grabbed a voice recorder and asked Holt to repeat himself. Once the recorder was activated, Holt said, "I pulled the trigger." Howser then clarified, "So, you say you pulled the trigger and you're the one that threw the gun down on the ground?" Holt replied, "Yup."

Based in part upon Howser's testimony and the DNA profile on the revolver grip as being consistent with Holt's, the State's theory at trial was that Holt was the shooter. In response, Holt claimed that Casey was the shooter. In support of this theory, Holt presented evidence that Casey had confessed to being the shooter. Specifically, Sheriff Howser testified that Joe Lamb, a jail supervisor, heard Casey tell another inmate that Casey was the one who had shot Kenton. During Casey's testimony, he denied having told the inmate that he was the one who pulled the trigger. KBI agent Ezell Monts testified that Holt did admit to being at the residence but not to doing the shooting.

During deliberations, the jury sent a number of notes to the court, including requests to see evidence and to see copies of testimony. The jury also sent a note informing the court: "At this time we are a hung jury on the murder charge only. Can you give us some guidance?" After the judge asked for clarification of the jury's request, the jury sent a note saying: "We are hung on all offenses in Count I. Have a verdict for Count II [conspiracy]." The judge ordered them to leave the first count unsigned.

The jury then asked: "If the jury convicts on Count I, first degree murder, does that mean Dustin Holt had to be the one that pulled the trigger?" As the judge contemplated sending the jury home for the night, he received another note that said: "Please clarify the term `intentionally killed.'" The judge directed the jury to look at the jury instructions for clarification.

Soon after, the...