State v. Blevins ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,516
STATE OF KANSAS,
Appellee,
v.
JONATHAN D. BLEVINS,
Appellant.
SYLLABUS BY THE COURT
1.
A claim of judicial comment error is reviewable on appeal despite the lack of a
contemporaneous objection at trial.
2.
A district court does not err by accurately informing potential jurors that the death
penalty is not at issue in a given case in response to a potential juror's stated moral
concerns regarding the death penalty.
3.
Prosecutors are entitled to wide latitude to draw reasonable inferences from the
evidence in closing arguments. A prosecutor does not err when adequately buttressing
their inferential arguments with the factual premises necessary to support their inferences,
even in the absence of language such as "it is a reasonable inference that . . . ."
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4.
Prosecutors commit prosecutorial error by improperly describing their personal
opinion to the jury.
5.
A district court's decision not to depart from a presumptive sentence is reviewed
for abuse of discretion.
6.
For purposes of evaluating a district court's decision not to depart from a
presumptive sentence, the existence of a factor that is arguably mitigating does not
necessarily mean that such a factor is substantial and compelling.
Appeal from Jefferson District Court; GARY L. NAFZIGER, judge. Opinion filed May 7, 2021.
Affirmed.
Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause, and Caroline M.
Zuschek, of the same office, was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney
general, was with her on the brief for appellee.
The opinion of the court was delivered by
WILSON, J.: Jonathan Blevins directly appeals his conviction for premeditated
first-degree murder in the death of Taylor Sawyer, along with his "hard 50" sentence.
Blevins raises six issues for our consideration. Finding no reversible error, we affirm.
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FACTS
Underlying Facts
On March 14, 2018, Sarah Hemmerling and her daughter Ashlyn Hemmerling
contacted law enforcement to report a murder. Based on this information, police arrested
Blevins at his place of work in Lawrence, Kansas, later that morning. Along with Blevins'
cellphone, tablet, and bag, police confiscated Blevins' 9-millimeter semiautomatic
handgun, which had an extended magazine. Blevins gave multiple videorecorded
interviews to law enforcement, which we discuss in more detail below. During the third
and final interview, Blevins also produced a written statement documenting his then-final
version of events.
Armed with the Hemmerlings' information, law enforcement quickly located and
identified the body of Taylor Sawyer near Old Military Trail, a pathway close to Perry
Lake in Jefferson County, Kansas. Near Sawyer's body—which had suffered multiple
head wounds—investigators found a deformed bullet, along with a red bandanna, next to
two fresh pools of blood less than 30 feet away from the body. From the markings on the
ground, it appeared that the body had initially fallen near the two pools of blood, then
been dragged away.
An autopsy of Sawyer's body identified two gunshot wounds to his head. The first
was a "graze" wound across his forehead, which fractured his skull but did not penetrate
into his brain; the second wound was left by a bullet that entered the back left of Sawyer's
head and exited through his left temple, just in front of the ear, leaving a 4.5 cm
hemorrhagic tract through his brain. The autopsy did not identify the chronological order
of the two shots or which of the two shots killed Sawyer and did not indicate whether one
would have been fatal independently of the other.
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The Hemmerlings also informed law enforcement about a vehicle related to the
murder, which officers subsequently located. On that vehicle, officers observed fresh
blood spatter on the driver's side front bumper. The blood was determined to be
consistent with Sawyer's DNA profile. Investigators also found a spent shell casing on
the vehicle's passenger side windshield wiper.
KBI digital forensic examiner Nicole Dekat examined Blevins' phone. Data from
that phone was used to compile a timeline of messages sent and received by Blevins
between March 13 and March 15. The timeline showed significant activity leading up to
11:30 p.m. on March 13 and more activity after 1:12 a.m. on March 14 but demonstrated
a gap of activity between these two times. Dekat testified at trial that if messages sent via
a third-party app were deleted from the phone, investigators may not be able to recover
them. Dekat also opined that the absence of messages during this time frame would be
consistent with the deletion of third-party app messages from Blevins' phone.
During a search of Blevins' residence, investigators found various articles of
clothing worn by Blevins at the time of Sawyer's killing the night before, including a
bandanna, a pair of shoes, and a hoodie. The right shoe had a spot of blood on it, which
was found to be consistent with Sawyer's DNA profile. Investigators also found 9mm
ammunition and two spent 9mm shell casings—one on the entertainment center, the other
on the bedroom floor. Examination of Blevins' handgun, the fired bullet, and several
empty cartridge casings recovered during the investigation revealed that the handgun was
operable and had fired the recovered bullet and two of the recovered casings.
Also while in Blevins' residence, investigators found a receipt from a McDonald's
in Lawrence dated March 13, 2018, and bearing a timestamp of 10:35 p.m. in Blevins'
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residence. McDonald's security cameras recorded Blevins and Ashlyn together at the
restaurant for about two minutes. Sawyer did not go inside the McDonald's.
A traffic counter device near Old Military Trail recorded one vehicle arriving and
leaving, twice, during the midnight hour of March 14. This corresponded with Blevins'
statement that they had arrived, left the area and went to a gas station so that Ashlyn
could use the restroom, then returned, then left again after Sawyer was killed. It also
corresponded with Blevins' account of the timing of Sawyer's killing—between midnight
and 1 a.m. on March 14.
The First Interview
Blevins was first interviewed during the early afternoon of March 14, 2018. The
overall theme of the story Blevins presented in this interview—which he abandoned
later—was that he shot Sawyer in self-defense.
According to Blevins, Ashlyn picked him up from work around 9 p.m.; shortly
thereafter, Sarah dropped off Sawyer—Sarah's boyfriend—to hang out with them.
Blevins, Ashlyn, and Sawyer then drove around Lawrence for several hours. Blevins
noted that Sawyer appeared to be high on something. When the trio stopped at a
McDonald's in Lawrence, Ashlyn eventually expressed a desire to "ditch" Sawyer
because he was getting "really annoying." Because Ashlyn and Sawyer wanted to smoke
marijuana, Blevins suggested they go to Lake Perry—an area with which he was very
familiar—to avoid the police.
On Blevins' directions, Ashlyn drove the trio to Old Military Trail, where they all
got out. Ashlyn and Sawyer smoked marijuana. When the discussion turned to money,
Sawyer grew angry and began to rant about how Sarah owed him money. He then pulled
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out a gun, saying he would make Blevins and Ashlyn "pay." Blevins expressed confusion
as to why Sawyer grew angry at him, since Sarah—not Blevins—owed Sawyer money.
When Sawyer swung up his gun as if to shoot, Blevins drew his gun and fired in
self-defense. Claiming Sawyer was facing him, Blevins fired at least twice. Blevins
expressed uncertainty as to where his shots struck Sawyer, but he thought he hit him in
the head. Blevins denied shooting Sawyer again while he was on the ground. He admitted
that he dragged Sawyer's body out of the car's path. He denied picking up shell casings at
the scene but admitted that he picked up Sawyer's gun.
Afterward, Ashlyn suggested that they explain the incident as a drug deal gone
bad. Ashlyn then called Sarah and asked Sarah to meet up in Lawrence. They left
Ashlyn's car in Lawrence, and Sarah drove Blevins to his home in Topeka. On the way,
Ashlyn gave Sarah the "drug deal gone bad" story, while Blevins was silent.
The Second Interview
At the second interview, which took place later on the evening of March 14,
Blevins altered his story significantly. In this interview, Blevins agreed that the story he
had given in the earlier interview was not the whole truth and apologized for lying earlier.
Blevins summarized the key difference between this story and his first interview:
"Ashlyn wanted me to do it. . . . She wanted me to kill him." According to Blevins,
Ashlyn wanted Sawyer dead because she was scared that he would hurt her and her
mother in connection with their activities selling drugs. Ashlyn first communicated that
she wanted Sawyer dead when they spoke at the McDonald's. Originally, the plan was
just to "ditch" Sawyer, but Ashlyn then persisted, asking Blevins if he could "pull the
trigger" if Sawyer attacked him. Blevins responded, "Well, I'd have to, but why?"
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Claiming she was afraid of Sawyer, Ashlyn stated that she wanted Blevins to shoot
Sawyer, and when Blevins said he did not think he could, Ashlyn said that she would
have to do it. Blevins "figured it was going to get done either way because she made it
clear she was going to do it"; he assumed she would try to take his firearm to accomplish
the killing.
After leaving the McDonald's and driving for another hour or so, Blevins
suggested that they go to Lake Perry because Sawyer was becoming increasingly
paranoid, and Blevins believed it would be peaceful out there. Blevins and Ashlyn texted
back and forth once they arrived at Lake Perry. In the minutes before the shooting,
Blevins considered the idea of killing Sawyer because he did not want Ashlyn to "screw
her life up." Blevins elaborated that he knew Ashlyn was going to kill Sawyer—and that
she would have to use his gun to do it— and he "didn't want it to be her life that she was
throwing away." But Blevins also admitted that Ashlyn would not have been able to take
his gun from him if he had resisted. And while Blevins admitted that he did not have to
kill Sawyer, he claimed he was scared—scared of what Sawyer could have done to
Ashlyn and Sarah, and of what Ashlyn would do to Sawyer. Ultimately, however,
Blevins admitted that he shot Sawyer because Ashlyn asked him to.
After Blevins sent Ashlyn several text messages expressing fears about "the
body," fears about being discovered, and concerns that he could not go through with it,
Ashlyn texted Blevins, "Let's do this." Blevins was standing outside the car with Sawyer
when Ashlyn sent this final message; Ashlyn was inside the car. Blevins kept bringing his
firearm up, trying to work up the nerve to shoot Sawyer, but only fired after Ashlyn
startled him by opening the door and yelling, "Let's do this!" Blevins estimated that he
raised and lowered his firearm eight or nine times before finally pulling the trigger.
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Sawyer fell after the first shot but drew his gun and waved it around while lying
on the ground; Blevins then shot Sawyer again, after which Sawyer lay still. Blevins
estimated that maybe a minute or two elapsed between the two shots. Blevins wanted to
call an ambulance, but Ashlyn dissuaded him. Ultimately, both Ashlyn and Blevins
dragged Sawyer's body away from the place where he fell. Blevins confirmed that he
picked up one shell casing from the scene, but he could not find the second casing.
Blevins then repeated his account of Ashlyn's desire to explain Sawyer's absence
with a cover story about a drug deal gone bad, a story Ashlyn gave to Sarah on the phone.
On the way back to Topeka, Blevins said that "[e]verybody kept blaming themselves,
which I found extremely ironic, because it was all my fault."
Blevins gave inconsistent statements during this interview about the point in time
at which he knew Sawyer would die that night. Initially, he admitted that he knew, while
taking Sawyer out to Lake Perry, that Sawyer would die there, and that he knew how it
was going to happen. Later, Blevins claimed he did not know at the time he made the
suggestion to go to the lake that they would kill Sawyer; instead, he knew about 15
minutes before the killing, after they had already arrived at Old Military Trail. But he
also knew, before they left Lawrence, that Ashlyn wanted Sawyer dead.
Despite these apparent inconsistencies, Blevins assured the interviewing detective
that everything he had said in his second interview was the truth. He also apologized to a
second detective for "lying" earlier because "you didn't deserve that." Additionally, while
breaking down sobbing again, at one point, Blevins expressed that he felt "dirty" and
"like a very bad person" because "I know I can't take it back . . . I just want to."
Blevins agreed to give a written statement, at the interviewer's request. Ultimately,
however, the second interview was cut short when Blevins suffered an anxiety attack.
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The Third Interview
Blevins was interviewed a third time on March 15 over the course of several
hours, although Blevins spent a significant amount of this time writing out his statement
and then reading it aloud. This interview was depicted on two separate exhibits at trial,
both of which were admitted into evidence: one exhibit containing only the portion in
which Blevins read his statement aloud, and the other containing the full interview.
Blevins' written statement was presented at trial, along with portions of both exhibits.
Blevins confirmed that he and Ashlyn initially discussed the idea of killing Sawyer
at the McDonald's in Lawrence, and, at that point, he knew Ashlyn wanted him to kill
Sawyer. He denied that he knew they would kill Sawyer at the time he suggested the trip
to Lake Perry, however.
Blevins' emotional distress was obvious throughout much of the third interview.
Among other things, Blevins repeatedly emphasized that he kept replaying the events of
the shooting in his head and frequently rocked back and forth, cried, held his head, or
made reference to physical symptoms of distress. After reading his statement aloud,
Blevins again broke down crying, shaking, rocking, and tapping his head against the table
and verbally expressing regret over the shooting; this lasted for several minutes. At one
point, he asked the interviewing detective for a hug, which was given.
Blevins' Trial Testimony
Blevins also testified at trial. According to this account, he got off work in
Lawrence around 9 p.m. on the evening of March 13. Ashlyn picked him up from work in
her car, and together they waited for Sarah to bring Sawyer. Once Sawyer joined them,
9
the trio drove around Lawrence listening to music. To appease Sawyer, they also listened
to a police scanner, because Sawyer thought he had outstanding warrants and wanted to
avoid law enforcement.
After making a few stops, the trio went to a McDonald's in Lawrence, where
Ashlyn and Blevins got out; Sawyer, who was "paranoid" of the people inside the store,
stayed in the car. While inside and away from Sawyer, Ashlyn approached Blevins and
asked if they could "ditch" Sawyer somewhere because she and her mom "had been
getting really tired of him and really leery because of the way he had been acting."
During this conversation, Ashlyn asked if Blevins could shoot Sawyer if he attacked
them; Blevins denied that he could, which prompted Ashlyn to say, "'Well, if it needs to
come to that, I guess I will.'" Blevins "kind of dropped it at that because [he] didn't take
her seriously." Blevins later admitted that Ashlyn had previously "mentioned displeasure"
with Sawyer based on his prior violence against her and her mother.
Eventually the trio decided, on Blevins' suggestion, to go to Lake Perry because
Ashlyn and Sawyer wanted to smoke marijuana and Sawyer wanted to avoid the police.
Although Ashlyn drove, Blevins provided directions to get there during the last portion of
the trip. After they arrived, Sawyer and Blevins stayed outside awhile to look at the stars,
while Ashlyn went back to the vehicle. In order to provide a restroom for Ashlyn, the
three drove to a nearby Casey's—which was closed—then returned to Old Military Trail.
Blevins admitted that the 9mm handgun was his. He had the handgun with him at
work on March 13 and carried it with him after work. He left it in the car when he went
to look at the stars with Sawyer. Once they returned to Old Military Trail after the
excursion to Casey's, Blevins stepped out of the car to smoke, while Sawyer sat on the
car's hood. He heard his gun go off and turned around to see that Ashlyn had shot Sawyer
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in the back of the head. As he ran over, Ashlyn shot Sawyer a second time, and the gun
went off again as Blevins wrestled it away from Ashlyn.
After that, Ashlyn and Blevins "started freaking out." They attempted to collect
the shell casings from the ground. Sawyer was already "obviously dead." According to
Blevins, Ashlyn then dragged Sawyer's body away by herself. Blevins suggested that
they call an ambulance, but Ashlyn told him not to, afraid they would get in trouble for
having just killed someone.
Ashlyn called Sarah and gave her the story she and Blevins agreed on: that
Sawyer died during a drug deal that had gone badly. Back in Lawrence, Ashlyn stopped
at a gas station, where Sarah came to pick them up. Sarah then drove Blevins back to his
residence in Topeka, where he told his fiancée the same "drug deal gone bad" story.
The next morning, Sarah picked up Blevins from his Topeka residence and drove
him to work in Lawrence. He still had his gun with him. He decided he wanted to turn
himself in, but before his shift ended, the police arrived at his place of work and arrested
him.
Blevins admitted telling the police initially that he killed Sawyer in self-defense.
He acknowledged that this was not the version he had agreed on with Ashlyn. He further
acknowledged his subsequent statement taking responsibility for Sawyer's killing as part
of a plan he made with Ashlyn. He claimed he made this statement "because Ashlyn was
like family to me" and he "wanted [to] try and protect her from the mistake that she had
made." He denied the prior statement's veracity because he didn't "want to throw [his] life
away for something that somebody else has done."
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Blevins acknowledged that his trial testimony represented his fourth version of
events. He also agreed that the core difference between his trial testimony and the
previous versions he had given to police lay in the identity of the shooter. He agreed that
Ashlyn had asked him to shoot Sawyer at the McDonald's a few hours before the
shooting. He denied telling Ashlyn that he could shoot Sawyer, although he admitted
telling investigators that he had said, '"I would if I needed to, but I don't think I could.'"
Blevins also denied that he exchanged any messages with Ashlyn around the time of the
shooting.
Criminal Proceedings
The State charged Blevins with one count of premeditated first-degree murder.
The case ultimately proceeded to jury trial. At the conclusion of Blevins' case-in-chief,
the district court, with no objection, instructed the jury on first-degree premeditated
murder and on aiding and abetting, among other instructions.
In closing arguments, the prosecutor painted the version of the story Blevins gave
in his second interview—and reduced to writing in his third interview—as the true
recitation of the events surrounding Sawyer's demise. As the prosecutor's closing
arguments are at the core of one of Blevins' issues on appeal, we will address them in
more detail below.
The jury asked several questions during deliberations, including whether Blevins'
hoodie had been tested for gunshot residue, whether the gun had been tested for
fingerprints, and what Blevins did with the gun "'at each stop in Lawrence[.]'" The jury
also asked for a read back of Dekat's testimony, which was provided; the jury was
"interested in hearing about the deleted messages from the night of." Finally, the jury also
requested the "brown evidence folder" containing "all the documentary and videotape
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evidence," which was provided. The jury ultimately returned a guilty verdict on
premeditated first-degree murder.
At a subsequent sentencing hearing, the prosecutor again offered several
comments that are challenged in Blevins' fifth issue, which we will also discuss below.
The district court denied Blevins' request for a lesser sentence and instead imposed a
"hard 50" sentence. Blevins then appealed.
ANALYSIS
Blevins raises six issues for our consideration. The first four present claims of
error with the trial itself, while the final two challenge aspects of the sentencing process.
As discussed below, although we find error in several aspects of the prosecutor's closing
arguments, we find that the errors were not individually or cumulatively prejudicial to
Blevins. Finding no other errors, we affirm.
The district court did not err by telling the venire that the trial was "not a capital
punishment case."
Blevins first argues that the district court committed reversible error by informing
the jury pool, or venire, that capital punishment was not at issue in the case. Specifically,
during the jury selection phase of trial, the following exchange took place:
"[Defense counsel] MR. LAKE: Generic question. Does anybody have anything
that comes into their minds that they—that they could not be a fair and impartial juror for
these probable three, maybe four days to try this case?
"Yes, sir.
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"[Prospective juror J.W.]: Previously you said I should not go with results of
what—my question is, does Kansas as a state still have capital punishment.
"MR. LAKE: Yes, they do.
"[J.W.]: I cannot put—
"MR. LAKE: I think I should direct that to the Court.
"THE COURT: As I understand it, this is not a capital punishment case.
"[The prosecutor] MR. NEY: Correct, Your Honor.
"[J.W.]: That's what I needed to know.
"MR. LAKE: State still has it, but this is not one of them. Fair enough?
"[J.W.]: That's what I needed to know." (Emphasis added.)
Blevins claims that this response diluted the State's burden of proof. Other than
jury instructions or legal rulings, we review potentially erroneous judicial comments de
novo. State v. Boothby, 310 Kan. 619, 624, 448 P.3d 416 (2019). Such errors are
evaluated under the constitutional harmlessness test articulated in Chapman v. California,
386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967): "the party benefitting from
judicial comment error has the burden to 'prove[ ] beyond a reasonable doubt that the
error complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., prove[ ] there is no reasonable possibility that the error affected the verdict,'
as with prosecutorial error." Boothby, 310 Kan. at 625 (quoting State v. Ward, 292 Kan.
541, 569, 256 P.3d 801 [2011]).
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The State claims that Blevins failed to preserve this issue for review for a number
of reasons, including the absence of a contemporaneous objection and insufficient
briefing on judicial comment error or judicial misconduct. We reject these procedural
arguments, however, because we believe Blevins adequately briefed the issue as one of
judicial comment error, which "is reviewable on appeal despite the lack of a
contemporaneous objection at trial." Boothby, 310 Kan. at 629. Nor do we accept the
State's invitation to revisit Boothby.
Turning to the merits, Blevins points to several Kansas authorities suggesting that
the jury should not consider the penalty a defendant may be facing if convicted, but he
fails to identify any Kansas source identifying a district court's disclosure that a case was
not a capital case as error. See PIK Crim. 4th 50.080, 50.090; State v. Yardley, 267 Kan.
37, 42, 978 P.2d 886 (1999) (approving a similar jury instruction). See also State v.
Lowery, 308 Kan. 1183, 1229, 427 P.3d 865 (2018) (finding error in a district court's
failure to redact a portion of an interview so that the jury would not hear an officer's
speculation about a defendant's potential sentences). Additionally, Blevins points to
several federal sources that suggest a jury's fixation on a defendant's ostensibly "light"
sentence may make the jury more likely to convict based on punishment, rather than
evidence. See, e.g., United States v. Meredith, 824 F.2d 1418, 1429 (4th Cir. 1987).
However, we find these federal sources inapposite. In the present case, no one suggested
that Blevins would be facing a lenient sentence.
In People v. Washington, 121 Ill. App. 3d 479, 488, 459 N.E.2d 1029 (1984),
which the State cites, the court considered a district court's response to potential jurors'
concern about the death penalty. As in the present case, the district court in Washington
cut through this moral Gordian knot by disclaiming the applicability of the death penalty
altogether to the case at bar, thus alleviating the jurors' concerns and ensuring "that the
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jury was composed of individuals who would base their verdict solely on the evidence."
121 Ill. App. 3d at 489.
The Tenth Circuit considered a similar scenario in Fero v. Kerby, 39 F.3d 1462,
1481 (10th Cir. 1994). There, "[d]uring voir dire, in response to a venireman's remark, the
trial court informed the venire that the state was not seeking the death penalty." 39 F.3d
at 1481. In response to the defendant's claim that the district court's actions violated his
right to due process, the Tenth Circuit noted that "[i]t is constitutionally permissible to
question the venire during voir dire about their attitudes concerning the death penalty in a
case where the prosecution is seeking the death penalty" and that, based on the logic of
the cases that had so held, "we feel it equally acceptable for constitutional purposes that a
venire be informed by the trial judge that the state is not seeking the death penalty." 39
F.3d at 1481-82 (citing United States v. Steel, 759 F.2d 706, 710‐11 [9th Cir. 1985], and
State v. Hernandez, 115 N.M. 6, 22, 846 P.2d 312 [1993], as examples of cases where, it
was held, a district court did not err by informing a jury that the prosecution was not
seeking the death penalty).
We find the reasoning of these authorities persuasive. Instead of diluting the
State's burden of proof, as Blevins suggests, the district court's answer kept the jury
focused on the evidence, not on the potential for a punishment that at least one potential
juror found morally objectionable. Moreover, as the State notes, the district court's
answer was also factually correct—the State was not seeking the death penalty.
Considering the significant differences between the death penalty and all other forms of
punishment authorized by Kansas law, we find no error in the district court's revelation to
the jury that capital punishment was not at issue here. Likewise, the mere observation that
the death penalty is inapplicable in a particular case does not imply that the defendant's
potential sentence, if convicted, would be light. Consequently, the district court's answer
did not lower the State's burden of proof.
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The jury instruction on aiding and abetting was both legally and factually appropriate,
and thus the district court did not err in issuing this instruction.
Blevins next claims the district court committed clear error by instructing the
jury on the theory of aiding and abetting. When presented with a claim that a
district court has erred in issuing or refusing to issue a jury instruction:
"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in [Ward, 292 Kan. at 565]." State v. Plummer, 295 Kan.
156, 163, 283 P.3d 202 (2012).
"The first element of this analysis ultimately affects the last one 'in that whether a
party has preserved an issue for review will have an impact on the standard by which we
determine whether an error is reversible.'" State v. Ross, 310 Kan. 216, 223, 445 P.3d 726(2019) (quoting State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 [2015]). If, as here, a
defendant does not object to a district court's jury instructions, an appellate court
"appl[ies] the clear error standard mandated by K.S.A. 2017 Supp. 22-3414(3). Under
that standard, an appellate court assesses whether it is 'firmly convinced that the jury
would have reached a different verdict had the instruction error not occurred.' [The
defendant] has the burden to establish reversibility, and in examining whether he has met
that burden we make a de novo determination based on the entire record. [Citations
omitted.]" State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018).
17
The jury instruction given by the district court stated:
"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."
Blevins concedes that he did not object to this instruction. He also concedes that
the instruction was legally appropriate as an accurate recitation of Kansas' aiding and
abetting law. See, e.g., State v. Betancourt, 299 Kan. 131, 140, 322 P.3d 353 (2014).
Instead, Blevins argues this instruction was factually inappropriate due to
insufficient evidence.
As Blevins notes, the prosecutor's closing arguments focused on the notion that
Blevins and Ashlyn began to plan Sawyer's killing at the McDonald's in Lawrence, hours
before the shooting. Although the prosecutor's primary contention was that Blevins
actually pulled the trigger, he stated during rebuttal that Blevins would also be guilty of
murder via aiding and abetting if Ashlyn had pulled the trigger. Specifically, the
prosecutor said:
"Even if these roles were reversed, even if Jonathan Blevins today was the
emotional wreck that you saw on the video, even if he had had an anxiety attack today
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saying, 'No, this is what happened. For the fourth time, this is what happened. Ashlyn
shot him.' Even if that was the case, his participation in the crime, his contemplating the
idea of the shooting, having someone ask him to shoot Taylor Sawyer hours before, his
giving the idea of where to go in Jefferson County, his bringing the only gun that would
work out to the location with him, his—even if he had left the gun in the car, these are all
convenient facts where he put himself in the stream of inevitability to make him just as
liable even if this is the true emotional wreck Jonathan Blevins story.
"We know that's not the case. We know this was the recitation of a different
story. We know—and you can weigh the credibility of which Jonathan Blevins you
believe, the one 24 hours after the murder or the one today that changes one fact about
what happened.
"But even if that's the one, he is still liable for first-degree murder because he
aided Ashlyn Hemmerling in her plan."
Blevins argues that his trial testimony did not support the prosecutor's proposed
alternative version of events. Blevins testified that, while Ashlyn mentioned the idea of
killing Sawyer at the McDonald's, he did not believe that she was serious. Additionally,
he testified that, when Ashlyn asked if he could kill Sawyer, he responded, '"I would if I
needed to, but I don't think I could.'" Furthermore, Blevins claimed he came up with the
idea to visit Old Military Trail because Sawyer and Ashlyn wanted to smoke marijuana,
but Sawyer was too paranoid to do so in town.
However, taken in a light most favorable to the State, there is sufficient—albeit
scant and somewhat contradictory—evidence that could support a jury's finding that
Blevins aided and abetted Ashlyn in the killing. Among the different versions of events
Blevins portrayed, the jury could have found:
19
• that Ashlyn had told Blevins at the McDonalds "[s]he was going to do it either
way";
• that Blevins had a gun which he was carrying in a holster that evening;
• that Blevins knew Sawyer would have to be killed with Blevins' gun;
• that while still in Lawrence, Blevins suggested they go to Lake Perry, knowing it
as a remote destination, when he already knew Ashlyn wanted Sawyer dead;
• that Blevins "figured it was going to get done either way because she made it clear
she was going to do it" and believed that Ashlyn would try to take his firearm to
accomplish the killing;
• that Blevins texted Ashlyn in the minutes before the shooting in an attempt to
discuss his fears about the body, fears about being discovered, and concerns that
he could not go through with the shooting; and
• that Ashlyn shot Sawyer with Blevins' gun, which he would have taken out of its
holster and left in the car within her reach, despite Ashlyn's earlier remarks about
wanting Sawyer dead.
If those findings were made, the jury could have inferred Blevins' intent to provide
Ashlyn with the location and weapon to commit Sawyer's killing, even if the State's
primary theory was that Blevins himself pulled the trigger. Consequently, we conclude
that the aiding and abetting instruction was factually appropriate. The district court did
not err in issuing this instruction.
20
Although the prosecutor committed error in several aspects of closing arguments, the
errors do not require reversal either individually or cumulatively. Likewise, cumulative
error does not require reversal.
Blevins next raises several claims of prosecutorial error arising out of the
prosecutor's closing arguments previously referenced. Although we may consider the
presence or absence of a contemporaneous objection in analyzing an instance of alleged
prosecutorial error, no objection is needed to preserve the matter for review. State v.
Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017). There are two steps to our prosecutorial
error analysis:
"[T]he appellate court must decide whether the prosecutorial acts complained of fall
outside the wide latitude afforded prosecutors to conduct the State's case and attempt to
obtain a conviction in a manner that does not offend the defendant's constitutional right to
a fair trial. If error is found, the appellate court must next determine whether the error
prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we
simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman.
In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060(2016) (quoting Ward, 292 Kan. 541, Syl. ¶ 6).
This "wide latitude" extends to alleged errors made in closing arguments. State v.
Tahah, 302 Kan. 783, 787, 358 P.3d 819 (2015). In determining whether a particular
statement falls outside of the wide latitude given to prosecutors, the court considers the
context in which the statement was made, rather than analyzing the statement in isolation.
State v. Thomas, 307 Kan. 733, 744, 415 P.3d 430 (2018). In crafting closing arguments,
a prosecutor is permitted to discuss the evidence and draw "'reasonable inferences from
21
that evidence.'" Tahah, 302 Kan. at 788 (quoting State v. Crawford, 300 Kan. 740, 749,
334 P.3d 311 [2014]).
Blevins claims the prosecutor erred in several different instances and in at least
four ways: by misstating the law of aiding and abetting, by making at least four
misstatements of fact, by giving his personal opinion in two instances, and by
commenting on Blevins' credibility in two instances. We address each category of alleged
error in turn.
Misstatement of Law
Blevins first challenges the prosecutor's comments on the issue of aiding and
abetting. Blevins correctly notes that, regardless of "convenient facts," the State still
needed to prove that Blevins acted with the specific intent to bring about Sawyer's death
with premeditation.
We agree that these remarks, overall, conveyed an incorrect formulation of the
law. The prosecutor's statement, while hedged against his broader theory that Blevins was
the shooter, erroneously suggested that mere "convenient facts" would be enough to lead
to a conviction of premeditated first-degree murder for aiding and abetting. At no point
during the prosecutor's discussion of these "convenient facts" did the prosecutor
acknowledge the need for a showing of specific intent to commit murder with
premeditation; instead, the prosecutor vaguely alluded to a "stream of inevitability" that
veered dangerously close to ignoring intent altogether. This was improper.
However, we conclude that this error was harmless. Although the "stream of
inevitability" argument was ill-advised, they were not given in a vacuum. The prosecutor
prefaced these remarks with a correct recitation of the law of aiding and abetting—
22
including a recognition of the State's burden to establish that the defendant acted with
"the mental culpability required to commit the crime." Moreover, the prosecutor undercut
his own statement—which was only given in rebuttal—by repeatedly pointing out the
strength of the evidence suggesting Blevins himself was the shooter, not merely an
accomplice. As discussed earlier, the facts supporting an aiding and abetting theory
would have required the jury to embark on a narrow path of reasoning in order to arrive
at a conviction. Given the strength of the video evidence to which the State presumably
referred—particularly the numerous admissions of guilt Blevins made in the recorded
interviews and his obvious emotional state while making them—we find beyond a
reasonable doubt the jury would not have been led astray by the prosecutor's unfortunate
references to "convenient facts" and a "stream of inevitability."
Misstatements of Fact
Blevins next challenges three separate prosecutorial statements of fact. (Blevins
has since conceded that a fourth challenged statement—that Sawyer's gun was
nonfunctional—was not error.) Specifically, Blevins claims that the italicized portions of
each of the following excerpts are factually unsupported:
• "We know, for example, that he shot [Sawyer] in the back of the head first. That's
the first shot. That was the kill shot. That was the shot he made while standing
behind [Sawyer] . . . ."
• "[H]e had [the plan to kill Sawyer] in his mind when he told Ashlyn in McDonald's
that he would shoot [Sawyer] if he had to."
23
• "There's no question that there was a plan that was created, a conversation that
was had at McDonald's, about what was going to happen with [Sawyer] that
night."
We do not view the first statement as erroneous, although it was imprecise.
Blevins correctly notes that the autopsy report was silent as to which of the two shots
killed Sawyer. Additionally, the autopsy report did not identify the chronological order of
the shots. However, Blevins' own written statement admitted that he delivered his first
shot while standing behind and to the left of Sawyer, which would correspond with the
gunshot wound to the back left of Sawyer's head—which, the autopsy report noted, left a
4.5 cm hemorrhagic tract through Sawyer's brain before exiting his left temple. Blevins
also admitted to shooting Sawyer in the forehead with his second shot, which corresponds
with the graze wound mentioned in the autopsy report—a wound which fractured
Sawyer's skull but did not apparently penetrate into his brain. From context, it is clear the
prosecutor did not mean that the first shot instantly killed Sawyer; otherwise, he would
not have referenced Sawyer "writhing on the ground" at the time of the second shot.
Instead, it appears reasonable to infer that a gunshot wound that left a 4.5 cm pathway
through Sawyer's brain would have been fatal, even if the autopsy report is silent on
whether that wound would have been individually fatal. Consequently, the term "kill
shot" was not prosecutorial error.
Nor was the second statement erroneous. Although Blevins gave inconsistent
versions of his response to Ashlyn's query as to whether he could kill Sawyer, in at least
one version of events, he told Ashlyn that he would shoot Sawyer, if he had to. At trial,
for instance, Blevins both denied telling Ashlyn that he could shoot Sawyer, when she
mentioned it at McDonald's, and also admitted telling investigators that he had said, "'I
would if I needed to, but I don't think I could.'" Additionally, in at least one portion of his
second interview, Blevins described Ashlyn asking him if he could "pull the trigger" if
24
Sawyer attacked him; Blevins responded, "Well, I'd have to, but why?" Consequently,
while the prosecutor could have added the appropriate equivocations to clarify that
Blevins admitted to saying several things in response to Ashlyn's overture, his statement
was not, overall, factually unsupportable.
Finally, Blevins attacks the prosecutor's use of the phrase, "There's no question
that there was a plan that was created," by pointing out that this very issue was "central to
the trial." The State claims the disputed language—"[t]here's no question"—constitutes
argument, not assertion of fact, but goes on to argue that, even if it was an erroneous
statement of fact, it was harmless.
In State v. Timley, 311 Kan. 944, 951, 469 P.3d 54 (2020), the court recognized
the inaccuracy of the prosecutor's use of the word "exactly" to characterize a phone's
location when the evidence, in fact, did not show the phone's "exact" location. However,
a majority of the court agreed that the prosecutor appropriately buttressed the offending
language with the factual premises necessary to communicate to the jury that this word
represented the prosecutor's own inference, not a recitation of fact. Timley, 311 Kan. at
951-52. Although the majority recognized that the prosecutor was not required to say "the
unspoken, but implicit, disclaimer inherent in all . . . arguments, i.e., 'If you look at the
evidence, a reasonable inference is that . . . ," it further noted that the prosecutor only
"barely" avoided error "[b]y clearly establishing the evidentiary bases upon which their
conclusion rested." 311 Kan. at 951-52.
Here, the prosecutor's statement was followed by additional explanation:
"There's no question that there was a plan that was created, a conversation that
was had at McDonald's, about what was going to happen with [Sawyer] that night.
25
[Sawyer], who was tweaking; [Sawyer], who was not in his right mind; [Sawyer], who
had no place to go.
"They picked him up. They took him to a remote location. Jonathan Blevins
provided the location, provided the gun, and he shot him.
"Ashlyn Hemmerling provided the idea. Ashlyn Hemmerling provided the
encouragement. Ashlyn Hemmerling provided help after the fact. Ashlyn Hemmerling
pointed at Jonathan Blevins after he shot Taylor Sawyer and said, 'You're going to go to
prison,' and Ashlyn Hemmerling helped cover up the crime.
....
"As Counsel said, the scientific evidence in this case is overwhelming regarding
what happened: [Sawyer] shot execution style in the back of the head from an
indeterminate range by a 9-millimeter handgun that the defendant had on his person when
he was arrested. He literally had the defendant's [sic] blood, not on his hands, but on his
shoes. He knew this, racked with guilt, the night he was confessing, not once, but twice,
to Randy Carreno, and he knew and couldn't believe that he had entertained this idea for
two hours and seriously planned to do it for 15 minutes before he shot him in the back of
the head."
We conclude the challenged statement veered over the line of fair comment. While
the factual premises the prosecutor set forth after the comment support the inference that
a plan existed, they do not support the assertion that there was no question on this point;
indeed, mere moments later, the prosecutor noted that the evidence showed Blevins had
only "seriously planned" the crime for 15 minutes before the shooting. Thus, the
prosecutor's use of the phrase "[t]here's no question" more closely resembles his use of
"we know" elsewhere in closing arguments—a phrase that is only "acceptable when it
'does not indicate [the prosecutor's] personal opinion, but demonstrates that the evidence
was uncontroverted.'" State v. King, 308 Kan. 16, 34, 417 P.3d 1073 (2018) (quoting
26
State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 [2006]). In using the phrase "[t]here's
no question," we conclude that "the prosecutor was drawing inferences for the jury, not
stating uncontroverted evidence"—thus rendering the phrase erroneous, "even if the
inferences being drawn were reasonable." Cf. King, 308 Kan. at 34 (applying this
analysis to the phrase "we know").
However, we also view this error as harmless. Regardless of whether the plan was
hatched at McDonald's or merely an idea communicated there, the prosecutor
appropriately noted that the evidence suggested premeditated conduct beginning at least
15 minutes before the shooting. And though the prosecutor incorrectly stated there was
no question as to whether the plan originated at McDonald's, the jury had heard plenty of
testimony—and argument—about that very point. Thus, while the prosecutor essentially
overplayed his hand, we believe beyond a reasonable doubt that the verdict was not
affected by it.
Giving Personal Opinion
Blevins next points to two instances in which the prosecutor improperly disclosed
his opinion to the jury, again marked in italics:
• "So the sole question that I believe that you must answer, which I believe has a
clear answer, is not whether he intentionally killed [Sawyer]—that much is clear
from the evidence—but whether he did so with premeditation."
• "I'll reserve the balance of my time for after Counsel speaks, but I believe that,
beyond a reasonable doubt, the evidence has supported that Jonathan Blevins
intentionally killed Taylor Dean Sawyer and did so with premeditation."
27
The State concedes both statements were erroneous, in light of King, 308 Kan. at
33, and State v. Pruitt, 310 Kan. 952, 966, 453 P.3d 313 (2019). Prosecutors commit
error by giving their personal opinions to the jury. Prosecutors are not witnesses—
expert or otherwise. As the ubiquitous jury instruction advises, their statements are
not evidence. But the State argues both errors were harmless based on overwhelming
evidence and on the prosecutor's accompanying recitation of the factual basis for his
asserted beliefs. We agree.
The videos of Blevins' interviews and his accompanying handwritten statement
provide strong, at times emotionally charged, evidence of his guilt in the premeditated
killing of Sawyer. Blevins tearfully admitted his role in the murder numerous times over
the course of several hours of interviews—admissions bolstered by the fact that the
murder weapon was his, that he continued to carry the murder weapon with him after the
shooting, that he had the victim's blood on his shoe, and that he was familiar with the area
where the murder occurred—which the trio visited at his suggestion. Additionally,
although no text messages were recovered from Blevins' phone, forensic testimony
regarding the gap in the phone's activity beginning at 11:30 p.m. on the evening of the
shooting corroborated Blevins' admission that he texted Ashlyn about the shooting
beforehand, thus providing additional evidence of premeditation.
While it is impossible to determine the emphasis placed on the challenged words
from the cold record, we note that the prosecutor's errors of repeating "I believe" appear
to resemble verbal tics of the sort more commonly employed as syntax filler—the brain
shifting into neutral, so to speak—than an attempt to bolster weak evidence with a
prosecutorial testimonial. We nevertheless admonish the prosecutor to refrain from such
equivocations in the future—in a case with less overwhelming evidence, careless
28
prosecutorial reliance on such tics as a way of maintaining a sentence's cadence could
undermine our confidence in a verdict's fairness.
Comments on Credibility
Finally, Blevins points to the following instances where, he claims, the prosecutor
impermissibly commented on Blevins' credibility by telling the jury what was "true":
• "That's an important point to consider, that after he had needed medical attention,
after he had been overcome with anxiety about the weight of what he had done, he
came back after receiving medical attention, came back, requested to provide a 13-
page written statement, provided that statement, which completely corroborates
what he had said the night before. This is not something that he could have
rehearsed. This is the truth, and it was provided in verbal, written form, emotional
form, and written form [sic] the next day."
• "We know [Blevins' trial testimony was] not the case. We know this was the
recitation of a different story."
The State argues that, because Blevins himself said the statements he gave in the
second and third interview were "the truth," the prosecutor was merely commenting on
the evidence. Admittedly, Blevins not only told law enforcement that his statements
during these two interviews were the truth, he even apologized to multiple detectives for
"lying" in his first interview—even going so far as to tell one detective, "[Y]ou didn't
deserve that." However, the prosecutor did not say that Blevins said his written statement
was "the truth"—the prosecutor himself said as much. Consequently, his comment was in
error. But, as Blevins himself repeatedly attested to the truth of the statement championed
29
by the prosecutor as "the truth," we have little difficulty in further concluding that this
error was harmless.
The same analysis applies to the second challenged statement. While we consider
such bolstering to be error, the prosecutor also told the jury it could "weigh the credibility
of which Jonathan Blevins you believe, the one 24 hours after the murder or the one
today that changes one fact about what happened." Combined with the overwhelming
evidence of Blevins' guilt produced by Blevins himself, we find that this clarification
sufficiently nullified any harm that could have arisen from the prosecutor's insinuation.
Harmlessness
To recapitulate, we have determined that the prosecutor erred by misstating the
law of aiding and abetting, by misstating the facts by claiming there was "no question"
Blevins and Ashlyn hatched their plan at McDonald's, by twice inappropriately giving his
personal opinion on the facts of the case with respect to the identity of Sawyer's killer,
and by twice commenting on Blevins' credibility—a total of six individual errors.
Although we have concluded that these errors were individually harmless, their
cumulative impact must also be considered.
Blevins asserts that the combined effect of the errors undermined his defense that
Ashlyn killed Sawyer and that Blevins only confessed in an effort to spare Ashlyn from
prosecution. Indeed, we find the prosecutor's many errors troubling. However, the
prosecutor's erroneous statement of law appears unrelated to the remaining errors, as the
prosecutor overall attempted to discount the aiding and abetting theory even while
maintaining it as a possibility. Additionally, the prosecutor's erroneous statement as to the
absence of a question about the existence of a plan at the McDonald's appears irrelevant,
as the evidence also showed evidence of a plan at least 15 minutes before the shooting
30
and Blevins himself described repeatedly raising and lowering his weapon as he prepared
to shoot Sawyer from behind. Finally, the commentary on the identity of Sawyer's killer
is largely supported by the recordings of Blevins' second and third interviews—as are the
prosecutor's comments on which version was "the truth," since Blevins himself offered
the same commentary in his interviews.
Thus, ultimately, the powerful impact of the interviews, themselves, was the
greatest enemy to Blevins' version of events at trial— which was his fourth version
overall (and the third version given to authorities). The uncontroverted evidence places
Blevins at the scene of Sawyer's death; the only questions raised by his defense lay in the
identity of the shooter and in whether Blevins agreed to go along with a plan to shoot
Sawyer. On these two questions, nothing the prosecutor said or did has undermined
Blevins' credibility more than his own recorded words and demeanor.
Additionally, the jury was also given the following instruction: "Statements,
arguments, and remarks of counsel are intended to help you in understanding the
evidence and in applying the law, but they are not evidence. If any statements are made
that are not supported by evidence, they should be disregarded." Between this instruction
and the overwhelming evidence presented, we find the prosecutor's errors here to be
cumulatively harmless. See, e.g., State v. Killings, 301 Kan. 214, 239, 340 P.3d 1186(2015) (overwhelming evidence of guilt sufficient to establish harmlessness of
prosecutorial error—then "misconduct"—in closing arguments); State v. Tully, 293 Kan.
176, 206, 262 P.3d 314 (2011).
We note that Blevins has also raised a claim of cumulative error based on the two
issues discussed above and his asserted claims of prosecutorial error. As we have already
found the prosecutorial errors cumulatively harmless beyond a reasonable doubt and have
found no errors with Blevins' other claims of trial error, we need not embark upon a
31
separate cumulative error analysis here. Blevins is not entitled to a reversal on the basis
of cumulative error.
The prosecutor did not commit error at the sentencing hearing.
Next, Blevins claims the prosecutor misstated the facts on no fewer than five
different occasions during sentencing. Our standard of review of prosecutorial errors in
non-trial hearings is identical to the one set forth above. See, e.g., State v. Wilson, 309
Kan. 67, 77, 431 P.3d 841 (2018). Blevins challenges the italicized portions of the
following statements:
• "Ultimately, there was only one person that was responsible for—directly
responsible for the killing and murder of [Sawyer], and that's [Blevins]."
• "[Blevins] not only pulled the trigger, shooting [Sawyer] in the back of the head
and then shooting him again as he writhed on the ground, but he had discussed
this plan of execution with Ashlyn Hemmerling at the McDonald's and then
proceeded to discuss with her the concerns he had about getting rid of the body
. . . ."
• "The other thing that is senseless about this case is how [Blevins] could seem to be
on the path to reconciling his own mind with what he had done by telling law
enforcement . . . only later to a year later come [sic] up with a fourth story to try
to minimize his actions and even disclaim pulling the trigger at all to try to pin it
on Ashlyn Hemmerling. That is truly senseless, and it shows a man who has
approached but has failed to appropriately reconcile in his own mind . . . the fact
32
that [Sawyer] is dead because of his own act, the fact that he pulled the trigger
and shot him in the back of the head a year ago."
• "The defendant—[the] fourth [mitigating circumstance], the defendant was an
accomplice in a crime committed by another person. The defendant's participation
was relatively minor. Again, this was simply not credible. He pulled the trigger.
[Blevins] pulled the trigger. He's the one that came up with the location. He's the
one that told law enforcement that he was trying to prevent Ashlyn from throwing
away her own life. He was the direct assailant."
• "Admittedly, [Blevins] was 22, 23 at the time of the crime, a young adult man, but
he also started his felony record when he was 15 years old. He participated in the
drug culture, gun culture, since then."
The first four challenged statements all center on one theme: the identity of
Sawyer's killer. Blevins argues that this was merely the State's primary theory of the case
and, thus, the prosecutor misstated the evidence. Blevins analogizes the case to Wilson,
309 Kan. at 78, claiming that the State relied on unproven allegations. We disagree.
Unlike in Wilson, where the prosecutor's arguments were predicated largely on
allegations outside the scope of the defendant's plea, the prosecutor's first four comments
here were supported by some evidence presented at trial. Wilson, 309 Kan. at 78 ("What
the prosecutor did was ask the district court to base its decision on allegations
unsupported by evidence. When a prosecutor argues facts outside the evidence, the first
prong of the prosecutorial error test is met."). While Blevins argues that these facts were
not uncontroverted and that it cannot be known whether the jury convicted Blevins based
on an aiding and abetting theory or based on the State's primary theory that he was the
33
principal actor in Sawyer's killing, he cites nothing to demonstrate that a prosecutor errs
by repeating the State's theory of the case at sentencing, so long as that theory is
supported by sufficient evidence presented at trial—and reasonable inferences drawn
from that evidence. These comments did not extend beyond the "wide latitude" afforded
to the prosecutor to comment on the evidence.
The final statement gives us more pause. There is little evidence in the record of
Blevins' activities since he was 15 years old. On the other hand, the prosecutor's remark
appears more akin to a comment on Blevins' general interests and environment, rather
than an attempt to mislead the judge about facts not in evidence. We note that Blevins
himself disclosed to his interviewers that he had dated another daughter of Sarah
Hemmerling for roughly five years, viewed Ashlyn like a "little sister," that Ashlyn and
Sawyer smoked weed, that Sawyer was "tweaking," and that both of the guns at the
scene—including the one in Sawyer's possession—were Blevins' own. The prosecutor's
remarks can be seen as reasonable inferences drawn from these facts.
But we need not read the tea leaves of what the prosecutor meant by "drug culture"
and "gun culture" too closely, because in any event we find the comment harmless. The
sentencing judge also presided over the trial and would have been well aware of the
company—and arms—Blevins kept. The judge was also privy to the presentence
investigation report documenting any criminal history that the State could show.
Accordingly, we cannot conclude that the prosecutor's remark, even if overbroad, posed
the risk of altering the district court's sentencing decision.
34
The district court did not abuse its discretion by refusing to depart from the presumptive
"hard 50" sentence.
Finally, Blevins argues that the district court erred by refusing to depart from the
presumptive "hard 50" sentence otherwise applicable under K.S.A. 2020 Supp. 21-6623
and K.S.A. 2020 Supp. 21-6620(c). Under these statutes, the district court was required to
impose a presumptive "hard 50" sentence unless the district court found "substantial and
compelling reasons, following a review of mitigating circumstances, to impose" a lesser
sentence. We review the district court's decision not to depart from a presumed sentence
for abuse of discretion. State v. Galloway, 311 Kan. 238, 252-53, 459 P.3d 195 (2020).
Blevins sets forth four mitigating factors which, he submits, constituted substantial
and compelling reasons to depart: his relatively young age (22) at the time of the murder,
his relatively limited criminal history, evidence that Ashlyn was the "'moving force'"
behind the murder, and the support of his fiancée and children. He argues that these
factors have been previously determined to be substantial and compelling reasons to
depart and thus asserts that the district court abused its discretion in refusing to grant a
departure sentence.
Although the district court did not explain its decision at length, it briefly noted
that it found "no compelling reasons that exist or no mitigating circumstances that exist
that the Court can reasonably construe to reduce the sentence in this case." Importantly,
the existence of a factor that is arguably mitigating does not necessarily mean that such a
factor is "substantial and compelling." See, e.g., State v. McLinn, 307 Kan. 307, 348-49,
409 P.3d 1 (2018). We cannot conclude that no reasonable individual would have
declined to find Blevins' proffered mitigating factors substantial and compelling reasons
to depart from the presumptive sentence. Consequently, we affirm Blevins' sentence, as
well as his convictions.
35
CONCLUSION
Finding no reversible error, we affirm.
STEGALL, J., not participating.
36