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STATE v. KAISER6/7/1996
The opinion of the court was delivered by
Defendant Joshua Kaiser appeals from his convictions for first-degree felony murder, aggravated kidnapping, aggravated robbery, and unlawful use of a weapon. Defendant claims (1) insufficiency of evidence; (2) error in jury instructions; (3) juror misconduct; (4) improper certification for prosecution as an adult; and (5) double jeopardy.
Kaiser, who was 17 years old at the time, was charged with aiding and abetting Jason Schaeffer in several offenses culminating in the shooting death of Tim Riley. The facts are largely undisputed and are based primarily on defendant's statements to the police and the testimony of a witness.
Kaiser and Schaeffer were AWOL from a juvenile drug and alcohol treatment facility. During the early morning hours of March 1, 1993, Kaiser and Schaeffer left the house of a friend, T.J. Solis. In his statements to the police, Kaiser admitted that he and Schaeffer, who had an unloaded sawed-off .410 shotgun and two shells left Solis' house to steal a vehicle. Around 3 a.m. they observed
Tim Riley start his car and then return to his house. Kaiser suggested they steal the car. Because Schaeffer was concerned Riley would call the police to report the car stolen, Schaeffer decided they should wait for Riley to return and take him hostage. As they waited, Kaiser stated, he informed Schaeffer that he did not want to do it. As Kaiser started walking away, Riley came out of the house. Kaiser looked back and heard Schaeffer "cock" the gun and tell Riley that his friend had a .45 pistol. Riley was forced into the driver's seat. As Kaiser continued to walk away, the car pulled up and Schaeffer told him to get into the front seat of the car. Schaeffer forced Riley into the trunk of the car, and Riley asked them to take care of the car.
Solis became aware they had returned to his house when Kaiser threw snowballs against a window. Solis went outside. Kaiser was sitting in the passenger seat of a car, and Schaeffer was in the driver's seat. A shotgun that a friend had left at Solis' house several days earlier was on the back seat. Schaeffer told Solis they had "jacked" a guy. Solis understood that to mean a carjacking. Schaeffer informed Solis that the owner of the car was in the trunk. Because Solis was skeptical, Schaeffer said toward the back of the car, "Are you all right back there, sir?" Solis was surprised by a voice responding from the trunk, "Yeah, I'm all right." Schaeffer told Solis to get into the car, but Solis declined. Schaeffer drove away with Kaiser in the passenger seat and Riley in the trunk.
Five minutes after Schaeffer and Kaiser departed, Solis called the police and spoke to an officer. Solis told the officer that a person was in the trunk of a car. He gave the officer the make of the car and the license number. He informed the officer that Schaeffer and Kaiser would return to his house to pick up clothes that they had left at his house.
After leaving Solis' house, Schaeffer and Kaiser drove to the country. Schaeffer suggested to Kaiser that they kill Riley. Kaiser said he told Schaeffer he was not killing anyone and requested Schaeffer to drop him off and allow him to walk home. Kaiser said he later told Schaeffer not to kill Riley or he would get the hard 40, but Schaeffer ignored him. Schaeffer stopped the car, let Riley out of the trunk, and told Riley to stand near a fence post with his
back to him. Kaiser said he remained in the car with the window open, smoking a cigarette. Schaeffer asked Riley how the ride was, and Riley replied that it was a little bumpy. Schaeffer then shot Riley in the back of the head. After the shoot
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