State v. Clay, 329 P.3d 484

Background

On Jan. 2, 2010, a group was at Mayorga’s apartment; someone knocked saying “Jason,” Reynoza opened the door and was shot and later died. Rios-Patron later identified Aaron K. Clay as the shooter.
Rios-Patron initially identified Reuban Richardson (allegedly after pressure), then later identified Clay from a different photo set and in court; officers offered differing accounts of those identifications.
Witnesses (Tate, Martinez, West) testified Clay participated in a plan to rob occupants, brought a gun, knocked at the door, changed clothes afterward, and later helped burn a Jeep; other witnesses corroborated Clay’s post-shooting statements.
The jury convicted Clay of felony murder, attempted aggravated robbery, and criminal possession of a firearm. Sentencing proceedings produced inconsistent oral and written entries (oral: 25 years-to-life; journal: 20 years-to-life and $1,000 BIDS reimbursement).
On appeal Clay raised instructional errors (lesser-included and eyewitness-ID language), argued prejudice from jurors seeing him in custody and a witness saying they knew him from prison, challenged the trial court’s written answers to jury questions, and asserted three sentencing errors.

Issues

Issue	Clay's Argument	State's Argument	Held
Failure to give lesser-included instructions for unintentional 2nd-degree murder/involuntary manslaughter as to felony murder	Court should have sua sponte instructed on lesser included offenses	2012 statutory change and later amendments affect applicability; not entitled to those instructions	No error: 2013 legislative amendment (applied retroactively in Todd) means felony murder has no lesser included offenses, so Clay not entitled to those instructions
Eyewitness-ID instruction included "degree of certainty" factor	Inclusion was error (Mitchell) and prejudicial because ID was crucial and no physical evidence tied Clay to the crime	Either invited error or harmless because other safeguards and circumstantial evidence exist	Instructional language was error but not reversible: identification was crucial and witness expressed certainty, but cross-examination and strong circumstantial case mitigated prejudice
Jury saw defendant with deputies and witness said they knew Clay from prison; motion for mistrial/new trial	These exposures prejudiced jury; required mistrial or new trial	Sikorski’s prison remark was isolated; juror questioning was declined by defense; no clear evidence jurors saw restraints; trial court offered curative instruction	No abuse of discretion: isolated prison reference and brief sightings did not create such prejudice as to require mistrial or new trial
Court answered jury questions in writing (not orally in open court)	Violation of defendant’s right to be present, impartial judge, and public trial; written answers were unconstitutional/statutory error	Procedure was used with parties’ participation; Clay was present during drafting; no objection and no evidence of improper communication	Violation of right to be present was found but harmless: content not disputed, Clay participated in drafting and lodged no objection, so no reversible error
Sentencing errors (oral vs. journal inconsistencies; lifetime parole vs. postrelease supervision; BIDS reimbursement inquiry)	Sentence illegal/inconsistent and court failed to inquire about ability to pay BIDS	State concedes errors and cites controlling statutes and precedent	Sentence vacated in part and remanded: correct parole eligibility is 20 years; lifetime parole (not lifetime PRS); court must inquire on record about ability to repay BIDS before ordering reimbursement

Key Cases Cited

State v. Mitchell, 294 Kan. 469 (disapproving "degree of certainty" eyewitness-ID language)
State v. Dobbs, 297 Kan. 1225 (framework for when degree-of-certainty language is prejudicial and role of safeguards)
State v. Todd, 299 Kan. 263 (legislature’s 2013 amendment making felony murder have no lesser included offenses applies retroactively)
State v. Berry, 292 Kan. 493 (prior rule requiring lesser-included instructions for felony murder)
State v. Wells, 297 Kan. 741 (holding 2012 legislative amendment to felony murder could not be retroactively applied before Todd clarified matter)
State v. Bailey, 292 Kan. 449 (invited-error doctrine when defendant submits the objected-to instruction)
State v. Rinck, 256 Kan. 848 (isolated prison remark by witness did not warrant mistrial where curative instruction offered)
State v. King, 297 Kan. 955 (answering jury in writing can be harmless depending on procedure and presence issues)
State v. Bowen, 299 Kan. 339 (discussing answering jury in writing and harmless-error analysis)
State v. Ross, 295 Kan. 1126 (felony-murder parole eligibility and related sentencing authority)
State v. Robinson, 281 Kan. 538 (district court must inquire on record about defendant's ability to repay BIDS)