State v. Wimbley ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,812
STATE OF KANSAS,
Appellee,
v.
JAMION D. WIMBLEY,
Appellant.
SYLLABUS BY THE COURT
When deciding whether error occurred because a district court judge denied a
request to modify a pattern instruction, an appellate court does not view the requested
language in isolation. Rather, the appellate court considers the jury instructions as a
whole and decides whether, even without language requested by a party, the instructions
properly and fairly stated the applicable law or whether it is reasonable to conclude the
instructions could have misled the jury or do not address a defense.
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed August 20, 2021.
Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause and was on the
briefs for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
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
LUCKERT, C.J.: This case requires us to answer whether a district court judge errs
by not adding requested and legally correct language to a pattern jury instruction. Jamion
Wimbley argues a judge needed to instruct the jury on his theory of defense against the
State's assertion that he aided and abetted others who shot and killed two people. He
contends the judge needed to tell the jury that a defendant's mere presence at the scene of
a crime does not itself establish guilt and that a defendant must willfully and knowingly
engage in a criminal enterprise to be guilty of aiding or abetting a crime's commission.
As he argues, his requested language accurately states the law. He ignores, however,
language in the instruction that fully explained the law to the jury. And, given that the
instructions fully informed and did not mislead the jury and they allowed Wimbley to
present his defense, we find no error.
Because Wimbley fails to establish error, we affirm his convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
Wimbley and several associates became embroiled in an altercation with rival
gang members that led to gunfire that left Brenton Oliver and Betty Ann Holloman dead
at Holloman's Wichita home. In the weeks before the shooting, conflict between the two
gangs had escalated. At one point, Wimbley joined in a fistfight that included Oliver.
On the day of the shooting, Wimbley drove a friend to Holloman's residence.
Oliver and several others were already at the residence. Wimbley and Oliver argued,
yelling at each other. As Wimbley departed, witnesses heard him say, "I got something
for your bitch ass, I'll be back."
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After Wimbley left, some of his associates arrived at the Holloman residence and
began arguing and fighting with Oliver and others. Wimbley then returned, driving a
vehicle with Brent Carter in the passenger seat and Quincy Carter in the back seat.
As Wimbley pulled up, someone began shooting from his car. Eyewitness
testimony about the next few minutes describes a confusing flurry of activity. Testimony
about the events varied, but it painted a picture of Wimbley and his passengers exiting the
vehicle and at least one of them firing a gun. The evidence about whether it was Wimbley
or one of his passengers who fired shots was inconsistent; at least one witness testified
Wimbley fired a shot before he got out of the vehicle. Some evidence suggests Wimbley
punched Oliver. When the shooting stopped, Wimbley drove away with Brent Carter and
Quincy Carter.
Holloman and Oliver were both shot. Holloman died at the scene. Oliver died a
short time later at the hospital.
After a judge allowed Wimbley to withdraw a guilty plea, the State presented
evidence to a jury on charges of two counts of felony murder, criminal discharge of a
firearm at an occupied dwelling, criminal discharge at an occupied vehicle, and one count
of being a felon in possession of a firearm. The jury found Wimbley guilty of all charges,
except for being a felon in possession of a firearm. The district court judge sentenced him
to two consecutive hard 25 life sentences and a consecutive 47-month controlling
guidelines sentence for the two criminal discharge convictions.
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Separate juries also convicted Wimbley's passengers of crimes arising from
Holloman's and Oliver's deaths. See State v. Carter, 312 Kan. 526, 477 P.3d 1004 (2020);
State v. Carter, 311 Kan. 783, 466 P.3d 1180 (2020).
ANALYSIS
Wimbley raises a single issue in his direct appeal from his jury trial and sentence.
He argues the district court judge erred by not granting his request to add language to the
pattern instruction that addresses a defendant's responsibility for the crimes of another,
PIK Crim. 4th 52.140 (2020 Supp.). He does not argue the pattern instruction misstated
the law. Rather, he argues the jury needed more direction, and the judge should have
added that direction by saying mere presence at a crime scene is not enough to prove guilt
and by setting out the necessary mental state for aiding and abetting. To explain the
mental state, Wimbley argues the jury should have been told that he must have willfully
and knowingly engaged in a criminal enterprise that led to the deaths of Oliver and
Holloman.
As a general proposition, this court has strongly recommended use of the pattern
instructions because they "'have been developed by a knowledgeable committee to bring
accuracy, clarity, and uniformity to jury instructions.'" State v. Dixon, 289 Kan. 46, 67,
209 P.3d 675 (2009) (quoting State v. Holbrook, 261 Kan. 635, 637, 932 P.2d 958[1997]); see State v. Mitchell, 269 Kan. 349, 357, 7 P.3d 1135 (2000). In other words, if a
court follows the PIK instructions, more than likely the instruction will be legally correct,
not because of any independent legal significance of the pattern instruction, but because
the committee usually writes an instruction that accurately reflects the law. That said,
district court judges may add language to a pattern instruction if the circumstances of a
particular case require doing so. State v. McDaniel, 306 Kan. 595, 616, 395 P.3d 4294
(2017); see State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004) ("Modifications or
additions should only be made if the particular facts of a case require it.").
Here, the district court judge stayed close to the pattern instruction:
"[A] person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
intentionally aids another to commit the crime.
"All participants in a crime are equally responsible without regard to the extent of
their participation. However, mere association with another person who actually commits
the crime or mere presence in the vicinity of the crime is insufficient to make a person
criminally responsible for the crime."
See PIK Crim. 4th 52.140 (2020 Supp.). The first paragraph has slight, nonsubstantive
differences from the pattern instruction. The second paragraph of the instruction is
identical to the pattern instruction and stems from this court's approval of this language in
State v. Llamas, 298 Kan. 246, 253, 311 P.3d 399 (2013). The pattern instruction
committee has bracketed this language and said its use is optional. Notes on Use, PIK
Crim. 4th 52.140.
Toward the end of Wimbley's trial, the judge presented the parties with proposed
jury instructions. Those instructions did not include this optional language. But Wimbley
asked that it be added, and the judge did so. The judge did not add other language
Wimbley wanted, however. The other language, as requested by Wimbley, would have
explained:
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"Mere association with the principals who actually commit a crime or mere
presence in the vicinity of a crime is insufficient to establish guilt as an aider and abettor.
Rather, to be guilty of aiding and abetting in the commission of a crime, a defendant must
willfully and knowingly associate with an unlawful venture and willfully participate in it
as the defendant would in something he or she wishes to bring about or to make succeed."
As Wimbley argues, this court has recognized that this language is "'well-
established'" in Llamas, 298 Kan. at 253 (quoting State v. Edwards, 291 Kan. 532, 551-
52, 243 P.3d 683 [2010]). See State v. Green, 237 Kan. 146, Syl. ¶ 4, 697 P.2d 1305(1985); State v. Schriner, 215 Kan. 86, 92, 523 P.2d 703 (1974). But the pattern
instruction committee has not added this language to the instruction, even as an option for
use in an appropriate case. See PIK Crim. 4th 52.140.
Wimbley argues the court erred by not adding this language given that it is well
established, legally accurate, factually appropriate given the evidence in the case,
supportive of his defense, and requested. To decide whether he is correct, we begin with
the familiar multi-step process appellate courts employ when analyzing jury instruction
issues. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (setting out
four steps of [1] reviewability of the issue from both jurisdiction and preservation
viewpoints, [2] factual appropriateness, [3] legal appropriateness, [4] if the district court
erred, whether the error was harmless).
At the first step, we examine if Wimbley preserved the issue, exercising an
unlimited standard of review. Plummer, 295 Kan. 156, Syl. ¶ 1. The answer to this
question dictates the test we apply in deciding whether we must reverse Wimbley's
conviction—a question that only arises if we decide the court erred. See State v. McLinn,
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307 Kan. 307, 317-18, 409 P.3d 1 (2018). The parties agree that Wimbley asked the
judge to add the language and that he thus preserved the issue.
Under another step of the jury instruction analytical framework, we must consider
the factual appropriateness of Wimbley's requested language. Plummer, 295 Kan. 156,
Syl. ¶ 1. Factual appropriateness depends on whether sufficient evidence, viewed in the
light most favorable to the requesting party, supports the instruction. State v. Williams,
303 Kan. 585, 598-99, 363 P.3d 1101 (2016).
Here, the parties do not dispute that one of the State's theories—an alternative to
the jury finding that Wimbley fired the fatal shots—rested on the jury unanimously
agreeing that Wimbley should be held responsible for the criminal acts of his passengers.
Under this theory, if Wimbley willingly participated in the criminal venture, he is
criminally responsible for the murders even if he did not fire the shots that killed
Holloman and Oliver.
K.S.A. 2020 Supp. 21-5210(a) codifies this theory of liability: "A person is
criminally responsible for a crime committed by another if such person, acting with the
mental culpability required for the commission thereof, advises, hires, counsels or
procures the other to commit the crime or intentionally aids the other in committing the
conduct constituting the crime." But mere association with a bad actor cannot establish
guilt through accomplice liability. Llamas, 298 Kan. at 253; Green, 237 Kan. at 149;
State v. Wilson & Wentworth, 221 Kan. 359, 367, 559 P.2d 374 (1977); Schriner, 215
Kan. at 92. Rather, "to be guilty of aiding and abetting a defendant must willfully and
knowingly associate himself with the unlawful venture and willfully participate in it as he
would in something he wishes to bring about or to make succeed." Schriner, 215 Kan. at
92.
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The State presented evidence showing that Wimbley drove those whom
eyewitnesses identified as the shooters to and from the scene, and that he exited the car to
join in the fighting. But Wimbley's theory of defense was that he was not a knowing
participant in a criminal venture. Rather, he was a victim of circumstance who gave two
friends a ride and was unaware that the events would lead to bloodshed. And some
eyewitnesses stated Wimbley did not have a firearm. Plus, the evidence offered reasons
Wimbley might have been at the scene for purposes other than to fight. An instruction
about mere presence and explaining the mental culpability necessary for liability under an
aiding and abetting theory was thus factually appropriate.
Another step in the instruction review framework requires us to consider whether
Wimbley's requested accomplice liability language was legally appropriate. Plummer,
295 Kan. 156, Syl. ¶ 1. To be legally appropriate, the instruction must fairly and
accurately state the applicable law. State v. Broxton, 311 Kan. 357, 361, 461 P.3d 54(2020); Plummer, 295 Kan. at 161. We exercise unlimited review in deciding the legal
appropriateness of language in an instruction. See State v. Johnson, 304 Kan. 924, 931-
32, 376 P.3d 70 (2016).
Here, before Wimbley's trial, we had approved the language as legally appropriate.
E.g., Llamas, 298 Kan. at 253; Edwards, 291 Kan. at 551-52.
This, however, does not answer whether a district court judge errs by not including
all legally and factually appropriate language requested by a criminal defendant.
Wimbley argues the judge must do so. For support he points to State v. McCullough, 293
Kan. 970, 974, 270 P.3d 1142 (2012), and its statement that "a defendant is entitled to
instructions on the law applicable to his or her defense theory if there is sufficient
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evidence for a rational factfinder to find for the defendant on that theory." While this
proposition is well settled, it does not mean a defendant is entitled to every permissible
instruction touching on the defense's theory. We recently made this point in State v. Liles,
313 Kan. 772, 780-81, ___ P.3d ___ (No. 121,459 filed July 16, 2021).
In Liles, a cooperating witness received benefits, leading the defendant to request
an instruction that would have advised caution when weighing the testimony of an
informant who will receive a benefit for testifying. The instruction, while not a pattern
instruction, accurately reflected the law. Even so, we held the district court judge did not
err by denying the defendant's request to give the instruction. 313 Kan. at 781. We did so
despite language in Plummer, 295 Kan. at 162, that offered some support for an argument
that a judge must give a requested permissible instruction that is supported by the
evidence. Plummer said: "'If an instruction is legally appropriate and factually supported,
a district court errs in refusing to grant a party's request to give the instruction.'" Liles,
313 Kan. at 780 (quoting Plummer, 295 Kan. at 162). We distinguished Plummer because
it involved a lesser included offense issue, and K.S.A. 2020 Supp. 22-3414(3) requires
judges to give lesser included offense instructions if some evidence would reasonably
justify a conviction of the lesser included crime. 313 Kan. at 780; see Plummer, 295 Kan.
at 158, 160-61. As a result, "the instructions as a whole necessarily would not accurately
state the law because they would not comply with the statutory command." Liles, 313
Kan. at 780. But we noted no statute directed the court to give the cautionary instruction
about an informant's (or a cooperating witness') testimony. 313 Kan. at 780.
We noted that viewing a "requested modification in isolation also is inconsistent
with both the scope of this court's review and the law surrounding the instruction." Liles,
313 Kan. at 780. Under that scope of review, appellate courts consider whether, even
without language requested by a party, the instructions as a whole "'"properly and fairly
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state the applicable law or whether it is reasonable to conclude that they could have
misled the jury."'" 313 Kan. at 780 (quoting In re Quillen, 312 Kan. 841, 849, 481 P.3d
791 [2021]); see, e.g., State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004); see also
State v. Todd, 299 Kan. 263, 271, 323 P.3d 829 (2014) ("'[A] failure to provide the jury
with the cautionary accomplice witness instruction . . . is not error . . . when the jury is
cautioned about the weight to be accorded testimonial evidence in other instructions.'");
State v. Walker, 252 Kan. 279, 295, 845 P.2d 1 (1993) ("Jury instructions are to be
considered together and read as a whole without isolating any one instruction."). When
read together, the instructions in Liles properly stated the law and did not mislead the
jury. 313 Kan at 780-81.
The same analysis applies in this case. We have long held that it is not error for a
district court judge to decline to include language about knowingly and intentionally
joining in a criminal enterprise. This is because "juries are presumed to intuit from the
word 'intentionally' in the pattern[] instruction that proof of mere association or presence
would be insufficient to convict." Edwards, 291 Kan. at 552; State v. Davis, 283 Kan.
569, 582-83, 158 P.3d 317 (2006); State v. Hunter, 241 Kan. 629, 639, 704 P.2d 559(1987); see PIK Crim. 4th 52.140 ("A person is criminally responsible for a crime
committed by another if the person, either before or during its commission, and with the
mental culpability required to commit the crime intentionally aids the other person to
commit the crime." [Emphasis added.]).
Even so, as Wimbley points out, in other cases in which a defendant requested
language informing the jury that mere association with bad actors or presence at a crime
scene is not enough and a defendant must intentionally join in the criminal enterprise, we
have acknowledged that such a statement "is the law in this State [and] precisely fit the
defense theory and perhaps the better practice would have been to modify the pattern[]
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instruction accordingly." Edwards, 291 Kan. at 552. In Llamas, citing Edwards, we again
said that use of the language would be a better practice. And we encouraged district court
judges to use the language. 298 Kan. at 261.
Despite that recognition and encouragement, we noted that "[f]ailing to do so may
not constitute error if, as in this case, the instructions properly and fairly state the law as
applied to the facts of the case." Llamas, 298 Kan. at 261-62. That conclusion was under
facts like those in this case.
A jury convicted Samuel D. Llamas of felony murder and discharging a firearm
into an occupied vehicle under an aiding and abetting theory. Llamas had gone with
another man to confront the victim about a drug money debt; during the encounter, the
other man shot and killed the victim. Llamas requested the same language as that
requested by Wimbley, but the district court declined to expand on the then-existing PIK
instruction, which was substantively the same as the first paragraph of the instruction
given in Wimbley's trial. 298 Kan. at 258 (quoting PIK Crim. 3d 54.05). We held that it
was not error to give the pattern instruction, without elaboration, because "the instruction
as given was consistent with and did not foreclose [Llamas'] defense." 298 Kan. at 261.
And there was "no indication the failure to add the mere association or presence language
led to a misunderstanding by the jury." 298 Kan. at 261. Given those circumstances, we
held the district court judge did not err when he denied the request for the added
language. 298 Kan. at 261.
More recently, in State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014), we again held
that the court's failure to include "mere association" language was not error even though
we encouraged use of the language. But we added that "the better practice is to add the
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requested language in cases such as this, and failure to do so may imperil convictions in
future similar cases." 299 Kan. at 185-86.
Despite this warning, in the seven years since Hilt, we still have not encountered
circumstances that imperil a conviction. During that time, we have decided at least four
more appeals in which we held a district court judge did not commit reversible error even
though the judge used the first sentence of the pattern instruction only. PIK Crim. 4th
52.140 ("A person is criminally responsible for a crime committed by another if the
person, either before or during its commission, and with the mental culpability required
to commit the crime intentionally aids the other person to commit the crime."). See, e.g.,
Carter, 311 Kan. at 792-93; State v. Potts, 304 Kan. 687, 703-04, 374 P.3d 639 (2016);
State v. Williams, 299 Kan. 1039, 1046-47, 329 P.3d 420 (2014); State v. Littlejohn, 298
Kan. 632, 650, 316 P.3d 136 (2014).
In Potts, 304 Kan. 687, we considered a nearly identical instructional challenge to
that made by Wimbley, although Deaarion Potts did not request the language at trial.
Even without a request, the district court included "mere association" language in the jury
instruction but did not add language about the required mental state. On appeal, Potts
argued the district court judge should have included the statutory definition of intentional
conduct along with the aiding and abetting instruction. Under the statute in effect at the
time, K.S.A. 2012 Supp. 21-5202(h), Potts argued the judge should have instructed the
jury that "[a] person acts 'intentionally,' or 'with intent,' with respect to the nature of such
person's conduct or to a result of such person's conduct when it is such person's conscious
objective or desire to engage in the conduct or cause the result." 304 Kan. at 701. This
statutory language, although not identical to that requested by Wimbley, is substantively
similar.
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We held the instruction was legally correct and it was not error to omit the
definition of intentional conduct because "[t]he instruction as a whole clearly conveyed to
the jury that a defendant, in order to be found guilty for a crime committed by another,
must have intentionally aided in the commission of the crime." Potts, 304 Kan. at 704. It
thus "was not legally necessary for the district court to add the definition of intentional
conduct sua sponte to the instruction it gave the jury on aiding and abetting liability.
Based on the caselaw cited above, doing so would have been redundant." 304 Kan. at
704.
Wimbley fails to persuade us a different result is required in his case. The jury was
told he had to engage in intentional conduct. And it was told mere association did not
establish guilt. From this the jury could infer mere presence at a crime scene likewise did
not establish guilt. Nor did Wimbley show that the lack of the mere presence language or
a statement about what it means to act intentionally led to a jury misunderstanding of
what it had to find. The jury did send a written request for a clarification of mental
culpability and "criminall responsible [sic]." After conferring with the parties, the judge
referred the jury to Instructions 5, 7, and 11. Instruction 5 told the jury that the State must
prove that Wimbley or another discharged a firearm at a vehicle; Instruction 7 told the
jury that the State must prove that Wimbley or another discharged a firearm at an
occupied dwelling; and Instruction 11 was the aiding and abetting instruction that said he
had to act intentionally in aiding and abetting the crime. These instructions, when read as
a whole, properly and fairly stated the applicable law, including the required mental state,
and did not mislead the jury. And, as in Llamas, 298 Kan. at 261, the instruction as given
aligned with and did not foreclose Wimbley's defense.
In conclusion, when deciding whether error occurred because a district court judge
denied a request to change a pattern instruction, an appellate court does not view the
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added language in isolation. Rather, the appellate court considers all the jury instructions
as a whole and decides whether, even without language requested by a party, the
instructions properly and fairly stated the applicable law or whether it is reasonable to
conclude the instructions could have misled the jury or do not address a defense.
Applying this standard here, there was no error. Because there was no error, we need not
advance to the final step of the appellate process and evaluate whether the verdict would
have been different had the judge added Wimbley's requested language to the aiding and
abetting instruction. See Llamas, 298 Kan. at 261. We affirm Wimbley's convictions.
Affirmed.
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