State v. Hilt, 114682

Background

Dustin Hilt was resentenced after this court vacated his original hard‑50 life sentence based on unconstitutional judge fact‑finding; a jury retried the penalty phase in June 2015.
Evidence at resentencing included blood and DNA linking Hilt to the victim and injuries to Hilt’s hands/arms; Hilt testified he was a relatively passive participant and denied inflicting wounds.
During jury deliberations one juror admitted consulting a physical high‑school yearbook and revealing that fact to other jurors; the juror initially admitted then partially recanted when questioned.
The trial judge removed that juror for violating repeated admonitions against consulting outside materials and replaced him with an alternate; deliberations restarted and the jury returned a verdict finding the murder especially heinous, atrocious, or cruel and that mitigators did not outweigh the aggravator.
Hilt appealed, arguing (1) the juror’s removal was an abuse of discretion, (2) prosecutors misstated the law in closing, and (3) the judge’s oral pronouncement of the hard‑50 sentence was defective and violated his right to be present.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Removal of juror who consulted yearbook	Juror’s yearbook lookup didn’t violate admonition (focused on internet/news/investigation) and removal was improper	Juror violated admonition and was not forthright; removal was proper	Removal not an abuse of discretion: consulting yearbook breached admonition and justified replacement with alternate
Prosecutor’s statement describing jury’s role as choosing hard‑50 vs parole after 25 years	Statement misstates jury’s limited statutory role (find aggravators and weigh mitigators)	The prosecutor’s plain‑language summary reflected mandatory effect of jury’s findings under statute	No misconduct: prosecutor’s summary of jury’s practical role was accurate under the governing statute
Prosecutor’s statement that jurors need not identify which defendant inflicted which wounds	Misleading because jury must consider Hilt’s level of participation as a mitigator	Prosecutor correctly said jurors need not parse which blows were by whom; mitigators still considered	No misconduct: comment was legally correct and did not render defendant’s mitigating evidence irrelevant
Oral pronouncement / defendant’s presence at sentencing	Judge failed to pronounce sentence in open court; journal entry cannot cure lack of pronouncement or presence	Judge explicitly stated he would follow jury’s verdict and impose the hard‑50 in Hilt’s presence	No illegal ambiguity and no violation of right to be present: judge’s in‑court statement sufficiently and unambiguously pronounced hard‑50 sentence

Key Cases Cited

Alleyne v. United States, 570 U.S. 99 (U.S. 2013) (judge fact‑finding that increases mandatory minimum is unconstitutional)
State v. Hilt, 299 Kan. 176 (Kan. 2014) (prior appeal affirming convictions but vacating judge‑based hard‑50 sentence)
State v. Stallings, 246 Kan. 642 (Kan. 1990) (replacement of juror by alternate permitted for reasonable cause)
State v. Leaper, 291 Kan. 89 (Kan. 2010) (jury misconduct includes considering matters outside evidence)
State v. Swafford, 306 Kan. 537 (Kan. 2017) (oral pronouncement controls and may cure journal entry issues if clear)
Abasolo v. State, 284 Kan. 299 (Kan. 2007) (sentence effective when orally pronounced in open court)
State v. Pribble, 304 Kan. 824 (Kan. 2016) (scope of permissible prosecutorial argument)
State v. Love, 305 Kan. 716 (Kan. 2017) (two‑step review for prosecutorial error; Chapman harmlessness standard applies)
Chapman v. California, 386 U.S. 18 (U.S. 1967) (constitutional harmless‑error standard)