State v. Hilt ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,682
STATE OF KANSAS,
Appellee,
v.
DUSTIN BRIAN HILT,
Appellant.
SYLLABUS BY THE COURT
1.
A district judge does not abuse his or her discretion by removing and replacing a
hard 50 sentencing juror who consults a high school yearbook in violation of the judge's
repeated admonitions.
2.
A prosecutor who summarizes jurors' role in a hard 50 sentencing proceeding as
deciding whether the defendant gets the hard 50 or will be eligible for parole in 25 years
does not misstate the law, when the proceeding is governed by a statute imposing a
mandatory duty on the judge to sentence in accordance with the jury's verdict on
mitigating circumstances not outweighing an aggravating circumstance proved by the
State beyond a reasonable doubt.
1
3.
A prosecutor who tells jurors that they may vote in favor of a hard 50 sentence
even if the State has not proved which codefendant inflicted specific blows or wounds
suffered by a murder victim does not misstate the law, as long as the prosecutor's
comments do not amount to telling the jury that the defendant's mitigating evidence about
his passive role in the crime is wholly irrelevant.
4.
On the facts of this hard 50 sentencing case, tried under K.S.A. 2016 Supp. 21-
6620(e), the district judge's statement in open court that the appropriateness of imposing
the hard 50 "was the jury's decision and, therefore, I'm not going to upset the jury. I'm
going to follow what the jury has entered and impose the sentence that the jury has
entered" was a sufficient oral pronouncement of the defendant's sentence to reject
appellate challenges alleging illegal ambiguity as to length and violation of the
defendant's right to be present.
Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed December
15, 2017. Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Kimberly
Streit Vogelsberg, of the same office, was on the brief for appellant.
Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, James Crux, legal intern, and Derek Schmidt, attorney general, were with him on the brief for
appellee.
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The opinion of the court was delivered by
BEIER, J.: Defendant Dustin Brian Hilt challenges his sentence for first-degree
premeditated murder on three grounds: the district judge's decision to remove a juror
during deliberations, allegedly reversible prosecutorial error during closing argument,
and an imperfect oral in-court pronouncement of the ultimate hard 50 sentence.
We reject Hilt's arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hilt's 2010 jury convictions of first-degree premeditated murder, aggravated
kidnapping, and aggravated robbery arose out of the violent death of his former
girlfriend, Keighley Alyea. In State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014), this court
affirmed Hilt's convictions and his grid sentences but vacated his hard 50 life sentence
because it was based on fact-finding by a judge, a predicate procedure rejected by the
United States Supreme Court as unconstitutional under the Sixth Amendment. See
Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).
Hilt's case was remanded to the district court for resentencing, and evidence was
submitted before a jury on whether he should receive a hard 50 sentence over multiple
days in June 2015. The State presented much of the same grisly evidence regarding the
circumstances of Alyea's death that it had presented at Hilt's first trial. Another recitation
of that evidence would serve no purpose here.
Certain other evidence at the resentencing trial demands mention because of its
bearing on this appeal.
3
The State's case included testimony from several forensic experts, including
evidence about bloodstains found in Alyea's car and on clothes worn by her and by Hilt
and his two codefendants on the night of the murder. DNA testing showed large
quantities of Alyea's blood on Hilt's clothes. Further, during police interviews in the days
immediately following the murder, detectives noted that Hilt's hands and wrists were
swollen and that he had cuts and abrasions on his hands and forearms. No similar injuries
were found on his codefendants.
Hilt also testified in his defense during the resentencing trial; he had not testified
in the original trial. He said that he had turned 18 a few days before the murder and had
no criminal record beyond a handful of traffic tickets at the time.
Hilt claimed that there had been no plan to hurt or rob Alyea; he merely wanted a
ride from her. After Alyea picked him and his friends up and allowed him to drive, one of
his codefendants "just flipped out" and started hitting Alyea on the back of the head. Hilt
testified he did not know what to do and "just started driving real fast trying to get away."
At some point, under the codefendant's direction, Hilt stopped the car, and the
codefendant put Alyea in the trunk. Hilt testified that at the time he believed Alyea was
already dead.
Again following the codefendant's instructions, Hilt drove to the rural field where
Alyea's body would eventually be found. During the trip, Hilt heard Alyea screaming for
help from the trunk. Hilt testified that, after arriving at the field, he thought, "Like man, I
can't let this go on no further. So when we get to the field, I popped the trunk and she gets
out and takes off running." Hilt said that the other codefendant chased Alyea down and
began kicking her and hitting her with the pipe. According to Hilt, he tried to put his hand
over Alyea's head to protect her and push the codefendant back, "but it really didn't
4
work." After Hilt's attempt failed, the codefendant who had hit Alyea in the car
repeatedly stabbed her.
Hilt denied striking or stabbing Alyea. He said that he had lied to police when they
began questioning him because he was not sure whether Alyea was dead, and he did not
want to get into trouble. Continuing to blame the codefendant who launched the violence,
Hilt claimed that he had not called 911 anonymously because that codefendant told him
not to do so.
After Hilt testified, the defense rested. The State called no rebuttal witnesses.
During the State's closing argument, the prosecutor began by highlighting the
jury's role in the proceeding.
"As the Judge indicated and what's been previously discussed with you, this is a
sentencing phase which is somewhat unique because you didn't participate in the guilt
phase of this trial.
"However, this is just merely about one thing and one thing only; whether the
Defendant's actions on those days, September 30, 2009, whether those actions by
him support the sentence of life in prison without the possibility of parole for fifty years.
That's ultimately what you're here to do; decide whether that is the appropriate sentence,
or should he get the sentence of life in prison with the possibility of parole after twenty-
five years."
The prosecutor then focused on the blood evidence establishing that Alyea's blood
was on Hilt's clothes and argued that Hilt could not have been merely a passive and
unwilling participant as he claimed, but must have been "an active member of the trio
that went out and killed her in a brutal manner on that day." The prosecutor also
highlighted the injuries to Hilt's hands and arms and the lack of similar injuries on the
5
codefendants. After doing so, the prosecutor posed the rhetorical question: "[I]s that a
standby person not doing anything, or is that the person wielding the knife or the pipe?"
During defense counsel's closing, he painted a picture of Hilt as a passive
character caught up in the murder, who did not know what to do or how to save Alyea.
"But that doesn't mean that he actively participated.
"The State has that burden.
"Simply being upset with Mr. Hilt because he was a coward that night does not
allow the exchange to the idea that he affirmatively participated.
....
"The State wants you to treat them all the same. The State says 'Because he's
guilty and because it was bad, that's enough[.']
"But that's not why we're here.
"Any part of what Ms. Alyea had to endure is tragic.
"But the job of this jury is to apply the law for this particular type of crime to
these particular circumstances and Mr. Hilt's unique circumstances."
The prosecutor began his rebuttal by noting that the State did not need to establish
which defendant struck which blow.
"During your review of the evidence, one of the things that is clear is you don't
have to determine which of the blows were inflicted by Dustin Hilt, which of them by Joe
Mattox. That is not necessary for you to still find the Defendant guilty of the Hard 50."
6
The State then told the jurors that they should look at the clothes that Hilt was wearing
that night because "they don't lie. They tell a story."
Throughout the trial, the district judge repeatedly admonished the members of the
jury that they should not consult outside sources when considering the case. After the
jury was selected, the district judge gave the jurors one such instruction, which was
exemplary of similar instructions he gave before each court recess. The admonishment
particularly focused on not using the internet to do additional research, but the judge also
told the jurors repeatedly that they would "have all the evidence that [they] need in this
case presented in this courtroom."
After deliberations began, the court received a question from the jury about
whether one of their number should be excused from service. The question read: "One of
the jurors [was] looking in a previous [] High School yearbook and saw Dustin Hilt.
Should that juror be excused?" In response, the district judge and parties requested the
name of the offending juror. After learning the name of the juror, the district judge had
the juror brought out for questioning.
The juror told the judge in the presence of the prosecutors, defense counsel, and
Hilt that during deliberations he had mentioned that he and Hilt both dropped out of the
same high school. When asked by the other jurors how he knew that, he told them that he
had seen it in an old yearbook. The juror explained to the court that he had looked only at
Hilt's picture and at no other information. When pressed as to what prompted him to look
at the yearbook, he told the court that one of the witnesses had testified that she went to
that high school, and he had originally been looking for her picture. He then admitted that
he had found her picture as well. In response to a question about whether he had accessed
7
the yearbook from his phone or other electronic device, he informed the court that he had
looked at an actual physical yearbook that was in his home.
The prosecutor confronted the juror with the judge's admonition to "don't do that
stuff and don't look outside of what the evidence is during the time of the trial." The juror
agreed that the judge had repeatedly told the jury not to do those types of things. When
asked, the juror said that he believed he could nevertheless remain fair and impartial.
The judge then sent the juror back to the deliberations room so that the judge and
the parties could discuss how to handle the situation.
After the juror left, the judge said, "Yes, he violated my order," and expressed
concern about whether the juror had been forthright when questioned. Although the juror
had initially admitted to looking up Hilt's picture, it was only after additional questioning
that he admitted he had also looked up one of the witnesses. The State agreed with the
judge's assessment that the juror had violated the admonition. Hilt's attorney sounded less
sure, saying the juror "didn't do anything to investigate this case." The judge responded
that the juror had violated the spirit, if not the letter, of the judge's admonition and that
"there's [not] one juror back there that didn't think that that was a violation of the order."
The judge then decided to bring each juror out of the deliberations room one at a time to
be questioned about the incident.
The first five jurors all recounted the same basic story: The juror had snuck into
his sister's bedroom to look through her yearbook in order to find Hilt's picture. Each of
the jurors was asked whether the juror's action would have an impact on his or her ability
to decide the case on the evidence presented at trial. Each said it would not. In addition,
one of the jurors noted that she had asked the juror whether his sister knew Hilt. The
answer was no.
8
The sixth juror questioned expressed additional concerns. She noted that the other
jurors had not reacted immediately to the juror's revelation about the yearbook. But, after
it began to sink in, the other jurors started questioning whether the juror needed to be
removed for violating the admonition. At that point, the juror backtracked and denied
having looked at the yearbook.
When the remaining five jurors were questioned, each was asked about whether
the juror had denied looking at the yearbook. Four of the five jurors confirmed that the
juror had denied it or at least backpedaled from his original admission. The fifth said he
missed much of the conversation.
After the last juror returned to the deliberations room, the district judge stated:
"No. 1, he violated the admonition. Then secondly, it sounds like he's not the most
forthright person to be sitting as the foreperson on this jury."
At that point, Hilt's counsel reiterated that he did not think the juror had done
"anything investigating the crime. . . . He didn't try and do anything that would lead him
to understand what happened that night. He wasn't looking at anything from 2009. He
wasn't looking at any background." According to defense counsel, "He just wanted to
know if he went to the same school and his sister went to the same school at the same
time with a guy that was convicted of murder." Defense counsel concluded: "From a case
standpoint, I'm not particularly troubled with what he did," but "[a]s an officer of the
Court, I understand the Court's ruling, because he lied about it." To counsel, it seemed
that "[i]f the Court simply excuses it, then what order do they need to abide by?" When
asked personally, Hilt agreed with his counsel that the juror did not need to be removed.
9
The prosecutor argued that the juror should be removed. He had violated the
admonition, which had been given many times. He acknowledged that he understood the
admonition and yet still violated it. He initially admitted that he looked at Hilt's picture,
but after more questioning admitted to looking at a witness' picture. After revealing what
he had done to fellow jurors, he then denied it when they confronted him. The prosecutor
also focused on the juror's statement that his sister did not know Hilt. The prosecutor
asked: "How do you know that unless you talk to your sister about that? . . . [B]y virtue
of his answer, that indicates there had to have been some dialogue between him and his
sister for him to know that his sister did not know Dustin Hilt."
After hearing from both sides, the district judge concluded it was "clear" that the
juror had violated the admonition and that "[i]t was misconduct." The juror also had not
been "terribly forthright" with the court when asked what happened. But the judge ruled
that the misconduct had not prejudiced the other jurors and that there was no need to call
a mistrial.
The juror was removed and replaced with an alternate, and the jury began its
deliberations anew.
The jury ultimately found that Hilt "committed the crime in an especially heinous,
atrocious or cruel manner," an aggravating circumstance, and that the aggravating
circumstance was not outweighed by any mitigating circumstances. Jurors included an
additional handwritten explanation of their finding on the verdict form.
"According to the definition of cruel, the defendant acted in a cruel manner shown by his
utter indifference to the victim's suffering and exhibited a lack of pity by forgoing
opportunities to help her during torture and several days after.
10
"We also find . . . the defendant's crime to be heinous and atrocious due to the
torture to the victim and the continuous acts of violence against her according to evidence
presented. These aggravating circumstances were not found to be outweighed by the
mitigating circumstances."
After the jury verdict, there was some discussion among the district judge and
counsel about whether an additional sentencing proceeding was necessary. Ultimately, all
agreed that none was needed because the sentencing judge did not have the discretion to
impose any sentence other than the hard 50 the jury had decided upon for the first-degree
murder conviction.
In addition to discussing how to handle the sentence for premeditated murder,
there was discussion about whether Hilt needed to be resentenced for his two grid
convictions.
"[THE STATE]: Judge, if that is your position on the other two counts, then I'm
comfortable with you imposing sentence. If you accept the jury's verdict and impose the
sentence, then I agree with you that we don't need to have a subsequent hearing.
"THE COURT: Would you want me to schedule this for sort of a status
conference for you all to kind of take a step back and come in and have a—have some
sort of an argument, or do you want me to go ahead—if you feel that way—if that's the
Court's proposed method of handling this, is to say the jury has spoken, they have
imposed the hard 50 sentence on the defendant, then the Court will impose that based
upon the jury's verdict. And that if—I would think there might be the possibility of the
defendant just in any trial having the option to file post-trial motions."
Defense counsel was unsure at that time whether posttrial motions would be
necessary, but the district judge decided to schedule a posttrial hearing just in case. The
judge then stated:
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"But my position is—and unless I'm—I'll go back and maybe I'll see something
that changes my mind, but this was the jury's decision and, therefore, I'm not going to
upset the jury. I'm going to follow what the jury has entered and impose the sentence that
the jury has entered. That would be done with the journal entry, of course, and all I was
going to do is fill out a custody slip that says that the defendant is remanded to serve his
sentence at KDOC unless you want them to stay around until we have our next hearing."
The judge then asked that both parties put the journal entry together and submit it
for the court's approval.
Hilt's counsel did file a motion for a new sentencing trial, asserting three separate
grounds, one of which was the dismissal of the juror who looked at the yearbook. During
discussion of that issue at a later hearing, defense counsel alluded to posttrial
conversations that the parties had with members of the jury.
"What we learned from listening to the other jurors was that [the juror who
looked at the yearbook] became the foreman and that [he] had a contrary opinion that the
other jurors didn't share with regard to Mr. Hilt and that the other jurors saw an
opportunity to latch on a way to get rid of a juror who didn't want to vote their way."
The prosecutor addressed the posttrial conversations defense counsel may have
had with jurors.
"And as far as Mr. Billam's comments while he was in the minority, those are not
comments that were part of the evidence. That was based on perhaps questions he asked
after the fact talking to the jury. And what was really important is during our inquiry of
the jurors, we made it clear that we didn't want to know what people's votes were, what
their opinions were, whether or not the defendant should get the Hard 50. And none of
the jurors articulated anything related to how they felt or what their position was. So the
12
Court made a decision not based on whether or not the offending juror was in the
minority as far as his opinion on the aggravators, it was more about his conduct."
In rejecting the defendant's motion for new trial, the district judge mentioned the
posttrial discussions with the jurors referenced by defense counsel.
"As it turns out later from discussion with the jurors later that he was possibly
deliberating about issues that he wasn't even asked to deliberate about with whether or
not the defendant was even guilty or not. Those were things that later were disclosed by
the jury but not while we were making the decision as to whether or not [the juror who
looked at the yearbook] should be removed for cause because of the violation of the
admonition."
The judge then summarized the status of the case at that point.
"So I think that leaves us—I have already pronounced sentence. I have already ordered
the execution of the sentence to issue. I don't know that there is anything else that I need
to do at this point."
Based on its additional research, the State acknowledged that it was proper for the court
to go ahead and execute the sentence based on the jury's verdict. At that point, the only
thing that remained was preparation of the journal entry.
The eventual journal entry, backdated to the date that the jury reached its verdict,
read as follows:
"Now on this 22nd day of June, 2015, this matter comes on for the penalty phase
of the trial pursuant to K.S.A. 21-6620(c). The State of Kansas, appears by District
Attorney Steve Howe and Assistant District Attorney Vanessa Riebli. The Defendant
appears in person and with his counsel, Jason Billam.
13
"A jury is picked and sworn and the parties present opening statements. The State
presents evidence and rests. The Defendant's motion for a directed verdict and or
dismissal is denied. The Defendant presents evidence and rests. The Jury is instructed and
the parties present closing arguments. The Jury begins deliberations. The Jury finds that
the aggravating circumstances have been proven beyond a reasonable doubt and that the
mitigating circumstances do not outweigh the aggravators. On count one of the Amended
Complaint, the Jury imposes a life sentence with a mandatory minimum term of
imprisonment of 50 years. The Court sets the matter over to July 21st, 2015, to allow the
Defendant to file any post-trial motions."
REMOVAL OF JUROR
"A district judge's decision to discharge a juror and substitute an alternate juror is
reviewed for abuse of discretion." Hilt, 299 Kan. at 186. It is the defendant's burden to
establish an abuse of discretion. 299 Kan. at 186. "'A judicial action constitutes an abuse
of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an
error of law; or (3) is based on an error of fact.'" 299 Kan. at 186 (quoting State v. Dobbs,
297 Kan. 1225, 1232, 308 P.3d 1258 [2013]).
K.S.A. 2016 Supp. 22-3412(c) governs the empaneling and use of alternate jurors
after deliberations have begun. It states in part:
"[I]f any regular juror shall be discharged from jury service in any such action prior to the
jury reaching its verdict, the court shall draw the name of an alternate juror who shall
replace the juror so discharged and be subject to the same rules and regulations as though
such juror had been selected as one of the original jurors."
It is not an abuse of discretion to replace a dismissed juror with an alternate where
"'reasonable cause' exists." 299 Kan. at 186 (quoting State v. Stallings, 246 Kan. 642, Syl.
¶ 2, 792 P.2d 1013 [1990]). Juror misconduct qualifies as reasonable cause. Hilt, 299
14
Kan. at 187-88. In addition, reasonable cause exists "when a juror becomes ill,
incapacitated, or is affected by personal problems" or if a juror is unable to perform his or
her duty. 299 Kan. at 186 (citing Stallings, 246 Kan. at 647-48; State v. Haislip, 237 Kan.
461, 468-71, 701 P.2d 909 [1985]; State v. Folkerts, 229 Kan. 608, 616, 629 P.2d 173
[1981]; State v. Minski, 252 Kan. 806, 815, 850 P.2d 809 [1993]).
In contrast, this court has held that there is
"no reasonable cause to dismiss a juror who suffered from no impairment; appeared to
hold a different view from the other jurors; believed his convictions could not be
changed; was not ill, incapacitated, or affected by personal problems; was unaffected by
the high visibility of the case; and clearly stated that if he remained on the jury he did not
believe a decision could be reached." State v. Cheek, 262 Kan. 91, Syl. ¶ 5, 936 P.2d 749
(1997).
This court also has observed that "jury misconduct occurs when, during
deliberations, a jury considers matters completely outside the evidence and issues in the
case." State v. Leaper, 291 Kan. 89, Syl. ¶ 4, 238 P.3d 266 (2010).
On appeal, Hilt argues that the district judge abused his discretion because his
decision was based on an error of fact. According to Hilt, the juror who looked at the
yearbook did not violate the judge's admonition because the admonition "focused on
prohibiting Internet research, discussion of the case, viewing of news reports, or
investigating crime scenes or evidence."
Hilt is correct that the district judge emphasized to the jurors that they should not
use the internet for research. But, when the context of the full admonishment is
considered, it is clear that the judge also conveyed that jurors should not turn to any
outside sources relating to the case and should rely only on evidence presented at trial.
15
We note further that it is apparent the rest of the jurors believed a violation had occurred;
they would not have otherwise inquired about removal. We have no hesitation in holding
that the juror who consulted the yearbook violated the judge's repeated admonitions to do
no investigation of any matter outside of the courtroom; this fact is well established in the
record; and it qualified as reasonable cause for the juror's removal.
We nevertheless pause before moving to the next issue to address Hilt's alternative
argument that a juror's failure to be "forthright" is not a proper basis for dismissal. In the
abstract, again, we agree with him. It is not the function of a trial judge to conduct a
general screening of jurors for good character and then remove those who fail to meet the
judge's personal benchmarks for honesty or other positive traits. But Hilt is mistaken here
when he treats the judge's expressed skepticism on the juror's honesty as though it formed
an independent basis for removal and replacement. Our study of the record does not
support this. The juror was not removed because of his spotty commitment to full
disclosure. He was removed because he admitted to violating the judge's admonition. His
perceived failure to be immediately and fully forthcoming about the violation cannot be
divorced analytically from the violation itself. The combination means that the judge may
have been appropriately concerned that the juror may have violated or might yet violate
the admonition in other ways. See Hilt, 299 Kan. at 187 ("judge may 'reasonably
conclude' juror who read newspaper accounts of trial 'cannot be counted on to follow
instructions in future'"; quoting People v. Daniels, 52 Cal. 3d 815, 865, 277 Cal. Rptr.
122, 802 P.2d 906 [1991]).
Having held the district judge had reasonable cause to remove and replace the
juror who consulted the high school yearbook, we see no abuse of discretion in his
decision to do so. Because we hold there was no error, we need not reach the issue of
whether any error was harmless, including the sufficiency or insufficiency of defense
16
counsel's statements after the trial about other jurors' motivations to remove an obstacle
to unanimity on the hard 50 sentence.
PROSECUTORIAL ERROR
This court applies a two-step process when reviewing allegations of prosecutorial
error. First, an appellate court must decide whether the complained-of prosecutorial act
falls outside the wide latitude afforded prosecutors to conduct the State's case in a manner
that does not offend the defendant's right to a fair trial. State v. Love, 305 Kan. 716, 728,
387 P.3d 820 (2017) (citing State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 [2016]).
Second, if there is error, an appellate court must determine whether the error prejudiced
the defendant's due process right to a fair trial. Love, 305 Kan. at 728. To make that
determination, the reviewing court applies the constitutional harmlessness inquiry from
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Love, 305
Kan. at 109. Prosecutorial error is harmless if the State proves beyond a reasonable doubt
the error will not or did not affect the trial's outcome in light of the entire record, i.e.,
when there is no reasonable possibility the error will contribute or contributed to the
verdict. 305 Kan. at 728.
"A prosecutor is given wide latitude in closing arguments, but such arguments
must remain consistent with the evidence." State v. Pribble, 304 Kan. 824, Syl. ¶ 6, 375
P.3d 966 (2016). Among other things, "[a] prosecutor may not misstate the law
applicable to the evidence presented, may not offer a personal opinion about witness
credibility, and may not shift the burden of proof to the defendant." 304 Kan. 824, Syl. ¶
6.
Hilt argues that the prosecutor misstated the law in two passages of closing
argument.
17
Hilt first takes issue with the prosecutor telling the jury it was there to determine
whether Hilt should receive a hard 50 life sentence or be eligible for parole in 25 years.
According to Hilt, under the governing statute, the jury's role is limited to finding
"whether one or more aggravating circumstances exist, and, if so, whether the
aggravating circumstances are outweighed by any mitigating factors."
The procedure for sentencing of a defendant convicted of premeditated first-
degree murder varies depending on when the crime was committed, in some cases
allowing for district judge discretion to depart from a jury's determination that a hard 50
is appropriate. See K.S.A. 2016 Supp. 21-6620(c), (d). But the statutory subsections
governing Hilt's crime make a hard 50 sentence mandatory once a jury has found beyond
a reasonable doubt that an aggravating circumstance exists and that it is not outweighed
by any applicable mitigating circumstances. See K.S.A. 2016 Supp. 21-6620(e)(1), (5)
(governing first-degree premeditated murder convictions committed after July 1, 1999,
and before September 6, 2013; once jury makes necessary findings, defendant "shall" be
sentenced to hard 50 under K.S.A. 2016 Supp. 21-6623); K.S.A. 2016 Supp. 21-6623
(defendant "shall be sentenced to imprisonment for life," "shall not be eligible for parole
prior to serving 50 years' imprisonment"; "[u]pon sentencing a defendant pursuant to this
section, the court shall commit the defendant to the custody of the secretary of
corrections").
Because the district judge had no discretion to deviate from the jury's verdict on
the hard 50 in this case, the prosecutor's statement to the jury about its role in the
proceedings did not misstate the law; it merely summarized its ultimate duty in everyday
language. We see no error in this passage of the prosecutor's closing argument.
18
Hilt also challenges the prosecutor's statement that the jury did not have to
determine which blows Hilt inflicted and which the codefendant inflicted. Because one of
the mitigating factors Hilt sought to demonstrate was his relatively passive participation
in the crime, especially as contrasted with the aggression of his codefendants, he argues,
"in order to comply with Kansas law, the jury did necessarily have to consider those
facts."
Again, although Hilt's general point is well taken, it does not help him on the
specific record before us.
It is certainly true that Hilt's jury was required to determine whether the one
aggravating circumstance alleged—that the murder was committed in an especially
heinous, atrocious, or cruel manner—existed and then to determine whether it was
outweighed by any mitigating circumstances. See K.S.A. 2016 Supp. 21-6620(e)
(necessity of finding aggravating circumstance, comparing its weight to mitigating
circumstances); K.S.A. 2016 Supp. 21-6624(f) (heinous, atrocious, or cruel manner on
exclusive list of aggravating circumstances; such behaviors may include infliction of
mental anguish, torture, and continuous acts of violence). And K.S.A. 2016 Supp. 21-
6625 provides a nonexclusive list of mitigating factors that includes limited participation
by the defendant, worded thus: "The defendant was an accomplice in the crime
committed by another person, and the defendant's participation was relatively minor."
K.S.A. 2016 Supp. 21-6625(a)(4).
But, read in context, we do not agree that the prosecutor's statement amounted to
telling the jury that Hilt's level of passive or active participation was wholly irrelevant.
The prosecutor merely told the jury that imposition of the hard 50 did not necessarily
require parsing who delivered each blow and stab wound suffered by Alyea. This was a
correct statement of the law. In addition, speaking directly to the point of Hilt's testimony
19
and argument against imposition of the hard 50, the prosecutor then immediately went on
to highlight blood evidence tending to show that Hilt had been an active participant. This
argument was appropriate and implicitly acknowledged the jury's duty to consider the
mitigating circumstance during its deliberations.
In view of all of the above discussion, we hold that the prosecutor did not exceed
the wide latitude permitted him in discussing the evidence in this case. He did not
misstate the law; there was no prosecutorial error.
PRONOUNCEMENT OF SENTENCE
Hilt characterizes his allegation that the district judge did not properly pronounce
his sentence as both a challenge to an illegal sentence and a challenge to violation of his
right to be present at sentencing.
Although Hilt has not filed a motion to correct illegal sentence, this court has
statutory authority to consider an illegal sentence for the first time on appeal. See State v.
Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) (citing K.S.A. 22-3504[1]; State v.
Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 [2015]). An illegal sentence is "'(1) a
sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to
the applicable statutory provision, either in the character or the term of authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served.'" Dickey, 301 Kan. at 1034 (quoting State v. Trotter, 296 Kan.
898, 902, 295 P.3d 1039 [2013]); see also K.S.A. 22-3504(3), as amended by L. 2017, ch.
62, § 9.
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To the extent that Hilt argues that his right to be present at a critical stage of his
trial was violated by his sentencing procedure, this court exercises de novo review. State
v. McDaniel, 306 Kan. 595, 395 P.3d 429 (2017).
On his first challenge to the pronouncement—that it resulted in an illegal
sentence—Hilt argues ambiguity on the length of his sentence. In his view, "the jury only
made factual findings to support a certain sentence" rather than creating a mandate that
the hard 50 be imposed.
We have already rejected a similar argument with respect to Hilt's argument on
prosecutorial error. In this case, given the timing of the murder and the language of the
governing statute, the district judge had no discretion to deviate from the hard 50 the jury
found to be supported. See K.S.A. 2016 Supp. 21-6620(e); K.S.A. 2016 Supp. 21-6623.
He clearly said as much: "[T]his was the jury's decision and, therefore, I'm not going to
upset the jury. I'm going to follow what the jury has entered and impose the sentence that
the jury has entered." (Emphasis added.) There was no illegal ambiguity. See State v.
Swafford, 306 Kan. 537, 541-42, 394 P.3d 1188 (2017) (no illegal ambiguity created
when judge's oral pronouncement made sentence consecutive to sentences previously
imposed under specific case number without specifying county; "describing the sentence
to which the current sentence was to run consecutive as the one 'previously imposed in
case 92-CR-1286' clearly and unambiguously communicated to the parties, their counsel,
and to this court the precise sentence that was being imposed"; journal entry stating
county as well consistent with pronouncement); see also Abasolo v. State, 284 Kan. 299,
304, 160 P.3d 471 (2007) (discrepancy between pronounced sentence, journal entry;
pronounced sentence controls).
Hilt's second challenge to the pronouncement addresses what he terms his
statutory and common law right to be present. He argues that the district judge failed to
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pronounce his sentence fully in open court, and the later journal entry could not correct
this error.
K.S.A. 2016 Supp. 22-3405 requires that a defendant in a felony case be present at
every stage of his or her trial, including the imposition of sentence, while K.S.A. 22-3424
requires that a criminal "judgment shall be rendered and sentence imposed in open court."
Our caselaw also has articulated a corollary to these rules: "'The court's judgment and
sentence in a criminal case do not derive their effectiveness from the journal entry, or
from any act of the clerk; they are effective when announced.'" State v. Phillips, 289 Kan.
28, 33, 210 P.3d 93 (2009) (quoting State v. Royse, 252 Kan. 394, 397, 845 P.2d 44
[1993]). "'The journal entry "is thus a record of the sentence imposed; but the actual
sentencing occurs when the defendant appears in open court and the judge orally states
the terms of the sentence."'" Phillips, 289 Kan. at 33 (quoting Abasolo, 284 Kan. at 303).
Announcing the sentence in the defendant's presence "protects the defendant's rights, as
'[t]he defendant is personally present [when the sentence is imposed], and thus knows
that at that moment he or she has been sentenced, fined, or placed on probation, or that
the imposition of sentence has been suspended.'" Abasolo, 284 Kan. at 308.
It is true that this particular resentencing was conducted fairly early in post-
Alleyne reality; before Alleyne was decided by the U.S. Supreme Court in the early
Summer of 2013, Kansas had not required jury fact-finding on the balance of aggravating
and mitigating circumstances before a mandatory minimum sentence such as the hard 50
could be imposed. See, e.g., State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000)
(imposition of hard 40 based on fact not found by jury does not increase defendant's
maximum sentence; no constitutional violation); State v. Harris, 293 Kan. 798, 817, 269
P.3d 820 (2012) (declining to revisit Conley). After Alleyne, in the Fall of 2013, the
Kansas Legislature modified the governing statutes to provide for jury fact-finding. See
K.S.A. 2013 Supp. 21-6620; K.S.A. 2013 Supp. 21-6624. But the amendments did not
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settle every conceivable question. For instance, here, the district judge, the prosecutor,
and counsel for Hilt had to pause at the remand trial in 2015 to discuss whether a separate
sentencing hearing was necessary, given the mandatory nature of the jury's verdict. The
judge's ultimate conclusion that no such hearing was needed and his statements in Hilt's
presence—"[T]his was the jury's decision and, therefore, I'm not going to upset the jury.
I'm going to follow what the jury has entered and impose the sentence that the jury has
entered"—constituted an adequate, if not perfect, pronouncement. At that stage of the
proceedings, Hilt could not have been unaware of exactly what the judge meant. Hilt was
sentenced to life in prison, with no eligibility for parole for 50 years. The judge "clearly
and unambiguously communicated to the parties, their counsel, and to this court the
precise sentence that was being imposed." Swafford, 306 Kan. at 542. Hilt's right to be
present at his sentencing was not violated.
CONCLUSION
We reject defendant Dustin Brian Hilt's three arguments on appeal of his hard 50
sentence. The district judge did not err in removing and replacing a juror who violated the
judge's repeated admonitions not to consult sources other than the evidence admitted at
trial to arrive at a verdict. The prosecutor did not commit error by misstating the law
governing Hilt's resentencing jury trial. And the judge's pronouncement of the hard 50
sentence did not create an illegal ambiguity in the length of Hilt's sentence or violate
Hilt's statutory right to be present at sentencing. The judgment of the district court is
affirmed.
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