State v. Davis, 284 Kan. 728

Summary

The Kansas Supreme Court affirmed Dimitrius Keith Davis's convictions for premeditated first-degree murder, aggravated robbery, and conspiracy to commit aggravated robbery. The court rejected challenges concerning the substitution of a juror, presentation of unavailable-witness testimony, sufficiency of the conspiracy evidence, jury instructions, and cumulative error. It reversed and remanded the attorney-fee assessment because the sentencing court had not considered Davis's financial resources and the burden of payment.

Holdings

1. A criminal defendant has a constitutional right to be present during a conference between the trial judge and a juror, but reversal is required only when the violation prejudiced the defendant's right to a fair trial. The ex parte communication here was harmless because the juror's personal conflict was already known and Davis failed to show prejudice.
2. Although conducting a hearing before substituting an alternate juror would have been better practice, due process does not require reversal absent a showing of prejudice. Davis failed to establish prejudice from the absence of a hearing.
3. The district court did not abuse its discretion by permitting prosecutors to read the questions and Townsend's answers from the admissible preliminary-hearing transcript. Davis identified no additional prejudice caused by that method of presentation.
4. The evidence was sufficient to support the conspiracy-to-commit-aggravated-robbery conviction because a rational jury could infer from Davis's participation, possession of a handgun, joint search for Williams, entry with Townsend, shooting, and taking of money that Davis agreed to assist in obtaining the money by force or threat if necessary.
5. The use of the word "until" in the instruction stating that the defendant is presumed innocent "until you are convinced" of guilt was not clearly erroneous and did not require reversal.
6. The attorney-fee portion of the sentence must be reversed and remanded because the sentencing court failed to consider on the record Davis's financial resources and the nature of the burden payment would impose.

Questions Presented

1. Whether the district court violated Davis's constitutional right to be present by communicating ex parte with a juror before excusing her.
2. Whether due process required a hearing before the district court dismissed the juror and substituted an alternate.
3. Whether the State's use of a prosecutor to read an unavailable witness's preliminary-hearing answers denied Davis a fair trial.
4. Whether sufficient evidence supported Davis's conviction for conspiracy to commit aggravated robbery.
5. Whether the jury instructions on burden of proof, presumption of innocence, and reasonable doubt were clearly erroneous.
6. Whether cumulative error denied Davis a fair trial.
7. Whether the sentencing court properly assessed reimbursement of BIDS attorney fees without considering Davis's financial resources and the burden of payment.

Disposition

reversed_and_remanded