State v. Wimbley

• Decision Date: 20 August 2021
• Docket Number: No. 122,812,122,812
• Citation: 493 P.3d 951
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Jamion D. WIMBLEY, Appellant.

493 P.3d 951

STATE of Kansas, Appellee,

v.Jamion D. WIMBLEY, Appellant.

No. 122,812

Supreme Court of Kansas.

Opinion filed August 20, 2021

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause and was on the briefs for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

This case requires us to answer whether a district court judge errs by not adding requested and legally correct language to a pattern jury instruction. Jamion Wimbley argues a judge needed to instruct the jury on his theory of defense against the State's assertion that he aided and abetted others who shot and killed two people. He contends the judge needed to tell the jury that a defendant's mere presence at the scene of a crime does not itself establish guilt and that a defendant must willfully and knowingly engage in a criminal enterprise to be guilty of aiding or abetting a crime's commission. As he argues, his requested language accurately states the law. He ignores, however, language in the instruction that fully explained the law to the jury. And, given that the instructions fully informed and did not mislead the jury and they allowed Wimbley to present his defense, we find no error.

Because Wimbley fails to establish error, we affirm his convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

Wimbley and several associates became embroiled in an altercation with rival gang members that led to gunfire that left Brenton Oliver and Betty Ann Holloman dead at Holloman's Wichita home. In the weeks before the shooting, conflict between the two gangs had escalated. At one point, Wimbley joined in a fistfight that included Oliver.

On the day of the shooting, Wimbley drove a friend to Holloman's residence. Oliver and several others were already at the residence. Wimbley and Oliver argued, yelling at each other. As Wimbley departed, witnesses heard him say, "I got something for your bitch ass, I'll be back."

After Wimbley left, some of his associates arrived at the Holloman residence and began arguing and fighting with Oliver and others. Wimbley then returned, driving a vehicle with Brent Carter in the passenger seat and Quincy Carter in the back seat.

As Wimbley pulled up, someone began shooting from his car. Eyewitness testimony about the next few minutes describes a confusing flurry of activity. Testimony about the events varied, but it painted a picture of Wimbley and his passengers exiting the vehicle and at least one of them firing a gun. The evidence about whether it was Wimbley or one of his passengers who fired shots was inconsistent; at least one witness testified Wimbley fired a shot before he got out of the vehicle. Some evidence suggests Wimbley punched Oliver. When the shooting stopped, Wimbley drove away with Brent Carter and Quincy Carter.

Holloman and Oliver were both shot. Holloman died at the scene. Oliver died a short time later at the hospital.

After a judge allowed Wimbley to withdraw a guilty plea, the State presented evidence to a jury on charges of two counts of felony murder, criminal discharge of a firearm at an occupied dwelling, criminal discharge at an occupied vehicle, and one count of being a felon in possession of a firearm. The jury found Wimbley guilty of all charges, except for being a felon in possession of a firearm. The district court judge sentenced him to two consecutive hard 25 life sentences and a consecutive 47-month controlling guidelines sentence for the two criminal discharge convictions.

Separate juries also convicted Wimbley's passengers of crimes arising from Holloman's and Oliver's deaths. See State v. Carter , 312 Kan. 526, 477 P.3d 1004 (2020) ; State v. Carter , 311 Kan. 783, 466 P.3d 1180 (2020).

ANALYSIS

Wimbley raises a single issue in his direct appeal from his jury trial and sentence. He argues the district court judge erred by not granting his request to add language to the pattern instruction that addresses a defendant's responsibility for the crimes of another, PIK Crim. 4th 52.140 (2020 Supp.). He does not argue the pattern instruction misstated the law. Rather, he argues the jury needed more direction, and the judge should have added that direction by saying mere presence at a crime scene is not enough to prove guilt and by setting out the necessary mental state for aiding and abetting. To explain the mental state, Wimbley argues the jury should have been told that he must have willfully and knowingly engaged in a criminal enterprise that led to the deaths of Oliver and Holloman.

As a general proposition, this court has strongly recommended use of the pattern instructions because they " ‘have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.’ " State v. Dixon , 289 Kan. 46, 67, 209 P.3d 675 (2009) (quoting State v. Holbrook, 261 Kan. 635, 637, 932 P.2d 958 [1997] ); see State v. Mitchell , 269 Kan. 349, 357, 7 P.3d 1135 (2000). In other words, if a court follows the PIK instructions, more than likely the instruction will be legally correct, not because of any independent legal significance of the pattern instruction, but because the committee usually writes an instruction that accurately reflects the law. That said, district court judges may add language to a pattern instruction if the circumstances of a particular case require doing so. State v. McDaniel , 306 Kan. 595, 616, 395 P.3d 429 (2017) ; see State v. Hebert , 277 Kan. 61, 87, 82 P.3d 470 (2004) ("Modifications or additions should only be made if the particular facts of a case require it.").

Here, the district court judge stayed close to the pattern instruction:

"[A] person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime intentionally aids another to commit the crime.

"All participants in a crime are equally responsible without regard to the extent of their participation. However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime."

See PIK Crim. 4th 52.140 (2020 Supp.). The first paragraph has slight, nonsubstantive differences from the pattern instruction. The second paragraph of the instruction is identical to the pattern instruction and stems from this court's approval of this language in State v. Llamas , 298 Kan. 246, 253, 311 P.3d 399 (2013). The pattern instruction committee has bracketed this language and said its use is optional. Notes on Use, PIK Crim. 4th 52.140.

Toward the end of Wimbley's trial, the judge presented the parties with proposed jury instructions. Those instructions did not include this optional language. But Wimbley asked that it be added, and the judge did so. The judge did not add other language Wimbley wanted, however. The other language, as requested by Wimbley, would have explained:

"Mere association with the principals who actually commit a crime or mere presence in the vicinity of a crime is insufficient to establish guilt as an aider and abettor. Rather, to be guilty of aiding and abetting in the commission of a crime, a defendant must willfully and knowingly associate with an unlawful venture and willfully participate in it as the defendant would in something he or she wishes to bring about or to make succeed."

As Wimbley argues, this court has recognized that this language is " ‘well-established’ " in Llamas , 298 Kan. at 253, 311 P.3d 399 (quoting State v. Edwards , 291 Kan. 532, 551-52, 243 P.3d 683 [2010] ). See State v. Green , 237 Kan. 146, Syl. ¶ 4, 697 P.2d 1305 (1985) ; State v. Schriner , 215 Kan. 86, 92, 523 P.2d 703 (1974). But the pattern instruction committee has not added this language to the instruction, even as an option for use in an appropriate case. See PIK Crim. 4th 52.140.

Wimbley argues the court erred by not adding this language given that it is well established, legally accurate, factually appropriate given the evidence in the case, supportive of his defense, and requested. To decide whether he is correct, we begin with the familiar multi-step process appellate courts employ when analyzing jury instruction issues. See State v. Plummer , 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (setting out four steps of [1] reviewability of the issue from both jurisdiction and preservation viewpoints, [2] factual appropriateness, [3] legal appropriateness, [4] if the district court erred, whether the error was harmless).

At the first step, we examine if Wimbley preserved the issue, exercising an unlimited standard of review. Plummer , 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202. The answer to this question dictates the test we apply in deciding whether we must reverse Wimbley's conviction—a question that only arises if we decide the court erred. See State v. McLinn , 307 Kan. 307, 317-18, 409 P.3d 1 (2018). The parties agree that Wimbley asked the judge to add the language and that he thus preserved the issue.

Under another step of the jury instruction analytical framework, we must consider the factual appropriateness of Wimbley's requested language. Plummer , 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202. Factual appropriateness depends on whether sufficient evidence, viewed in the light most favorable to the requesting party, supports the instruction. State v. Williams , 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).

Here, the parties do not dispute that one of the State's theories—an alternative to the jury finding that Wimbley fired the fatal shots—rested on the jury unanimously agreeing that Wimbley should be held responsible for the criminal acts of his passengers. Under this theory, if Wimbley willingly participated in the criminal venture, he is criminally responsible for the murders even...