State v. Dominguez, 328 P.3d 1094

Background

Dominguez was convicted of premeditated first-degree murder, aggravated battery, and discharge of a firearm at an occupied building after a jury trial; Jurado was a state witness with a plea arrangement; the State charged two alternative theories of first-degree murder (premeditated and felony murder); the trial court gave non-pattern instructions and a non-pattern verdict form; the court later read Jurado’s prior trial transcript and admitted Jurado’s plea; the initial trial ended in a mistrial, and the second trial resulted in a conviction with a life sentence without parole for 50 years; Dominguez appeals on four issues related to jury instructions and sentencing; the court reverses the first-degree murder conviction and vacates the hard 50 sentence, affirming other convictions; the operative facts include the bar altercation, the gun purchase and transfer, the shooting in Leyva’s garage, and the ensuing flight and non-disclosure.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by not using the pattern alternative-theory instructions and verdict form.	Dominguez	State conceded pattern instructions were appropriate; trial court’s failure was error.	Yes; reversible error for failure to instruct on alternative theories.
Whether the court erred by omitting an accomplice instruction.	Dominguez	Jurado was a codefendant; instruction not required.	Error not reversible for lack of impact given corroboration, but the court ultimately reverses on other grounds.
Whether the court erred by failing to give a voluntary intoxication instruction.	Dominguez	No factual basis for impairment; instruction not appropriate.	No error; instruction not factually appropriate.
Whether the hard 50 sentence is unconstitutional because a jury did not determine underlying facts.	Dominguez	Unknown at this stage; issue moot.	Moot; hard 50 vacated with the first-degree murder reversal.

Key Cases Cited

State v. Plummer, 295 Kan. 156 (Kan. 2012) (framework for reviewing jury instruction issues (jurisdiction, preservation, error, and reversibility))
State v. Williams, 295 Kan. 506 (Kan. 2012) (clear-error standard and preservation for instructional error (Ward/clear-error standard))
State v. Mireles, 297 Kan. 339 (Kan. 2013) (recognizes pattern first-degree murder alternative theories and related instructions)
State v. Starr, 259 Kan. 713 (Kan. 1996) (premeditated and felony murder are alternative theories, not separate offenses)
State v. Miller, 293 Kan. 46 (Kan. 2011) (reversible error when ordering of lesser offenses misdirects jury; sequential consideration issues)
State v. Cribbs, 29 Kan. App. 2d 919 (Kan. App. 2001) (reordering of deliberations affected consideration of lesser offenses (Cribbs rule))
State v. Young, 277 Kan. 588 (Kan. 2004) (felony murder not a lesser offense of premeditated murder; impact of instruction error on deliberations)
State v. Land, 14 Kan. App. 2d 515 (Kan. App. 1990) (accomplice cautionary instruction not appropriate when accomplice is sole defendant; Land limits to co-trial context)
State v. Llamas, 298 Kan. 246 (Kan. 2013) (cautionary accomplice instruction generally appropriate when accomplice is not codefendant)
State v. Tapia, 295 Kan. 978 (Kan. 2012) (warnings about testimony credibility and accomplice testimony corroboration considerations)
Simmons v. State, 282 Kan. 728 (Kan. 2006) (accomplice testimony and corroboration considerations)
Wakefield, 267 Kan. 116 (Kan. 1999) (sentencing when underlying verdicts are unclear; impact on permissible sentences)
Vontress, 266 Kan. 248 (Kan. 1998) (sentencing when multiple theories exist for conviction)
Schoonover, 281 Kan. 453 (Kan. 2006) (context for sentencing when multiple theories present)