Opinion
No. 105,987.
2012-10-19
STATE of Kansas, Appellee, v. Juan Fraire GARCIA, Appellant.
Appeal from Seward District Court; Kim R. Schroeder, Judge. David W. West, of Liberal, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Kim R. Schroeder, Judge.
David W. West, of Liberal, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM.
Juan Fraire Garcia appeals his convictions on three counts of attempted intentional second-degree murder, two counts of aggravated assault, and one count of criminal discharge of a firearm at an occupied building. Garcia argues his attempted intentional second-degree murder convictions should be reversed due to insufficient evidence and his case should be remanded for a hearing on whether his trial counsel was ineffective. We affirm.
On June 7, 2008, Samantha Otero was working at a convenience store located in Liberal, Kansas. At around 8:30 p.m., a group consisting of one man and some women entered the store. The man “glared at [Otero] in a hateful way” as he walked in. After the group sat at the back table, the man said, “Fuck Trigger,” and, “Fuck Brian,” angrily before looking at Otero and saying, “Fuck Brian, ‘cause Looney said so.” Brian “Trigger” Bustamante was Otero's boyfriend. She had driven his car, a black Cadillac, to work that day; it had been parked in front of the store since 2 p.m.
After the group left the store, Otero saw the man standing beside the Cadillac, looking at it. After a couple of minutes, he got into the passenger side of a car driven by one of the women. As the car exited the parking lot, Otero went outside to check for damage to the Cadillac. While she was examining the Cadillac, she heard three gunshots. She ran towards the store because she thought she was going to be shot. As she neared the door, she noticed Ruben Perez and Dakeitha West running close behind her. All three made it inside the store. Lacrisha Delgado, who was working with Otero at the store, called the police. Later, Otero picked Garcia out of a photo lineup as the shooter. Teresa and Armondo Gomez were also at the store that night—Teresa stayed in the car, while Armando went inside. Teresa heard something but did not know what was happening. Armando, on the other hand, was about to walk out of the store when he heard gunfire and saw a man shooting from a car travelling north on Western.
The State charged Garcia with the attempted premeditated first-degree murders of Otero, Perez, and West; the aggravated assault of Delgado, Armando, and Teresa; and criminal discharge of a firearm at an occupied building. At the conclusion of the State's case, the district court granted Garcia a directed verdict on the charge of aggravated assault against Teresa. At the close of evidence, the court amended the murder charges to attempted intentional second-degree murder. The jury found Garcia guilty on these two counts and all of the others. The court sentenced him to a controlling term of 122 months' imprisonment. Garcia timely appeals.
Garcia argues that the evidence was insufficient to support his attempted intentional second-degree murder convictions because the State failed to present evidence that he acted with intent to kill Otero, Perez, and West.
In addition to Otero, whose testimony was recounted earlier, Armando testified that he drove to the store that night to buy lottery tickets. He was at the cash register when a man and group of women left the store. Armando was just about to walk out the door when he heard gunfire. He looked outside and saw a car travelling northbound on Western with a “guy sticking out a hand with a gun and shooting towards the store.” He specifically saw the arm pointing towards the store and the Cadillac and “flashing out of the window.” In the statement he gave to police that night, he described the car as a blue Dodge Neon.
Delgado testified that she was working with Otero at the store that night. She noticed that a man and four women had arrived in a blue Dodge Neon. She heard a male voice say, “Fuck Trigger ‘cause Looney said so.” She saw the group standing beside Brian's Cadillac. Otero had told her to keep an eye on the Cadillac because “she knew [something] was up.” Delgado saw the man standing on the passenger side of the Neon but did not see whether he got into the front or back seat. She watched the Neon reverse out of its parking spot and turn north onto Western, its passenger side facing the store. At the time she saw an arm sticking out of the Neon's passenger side, Otero was outside inspecting the Cadillac, The man's “elbow was out of the window” and he had “a silver object in [his] hand.” Then Delgado heard a gunshot and dropped to the ground behind the counter. Otero came back inside with two male customers, Perez and West.
Perez testified that he walked to the store that night to buy a cigarillo. As he passed a blue car in the parking lot, he had a confrontation with a man sitting in the front passenger seat. The man was “talking shit” to him, shouting, “South side, south side,” which signified gang affiliation. Perez, a rival gang member, responded by saying, “Fuck that shit,” and throwing some hand signs to disrespect him. Then Perez saw the man “messing with the door panel” and put “something out of his window.” When Perez reached the cars parked in front of the store, he heard three gunshots, ducked, and entered the store with another male customer. Perez assumed the shots had come from the car because he had disrespected the male passenger.
West testified that he was at the store that night. When he was in the parking lot, he saw a car with five occupants drive past him. He noticed the car because he was greeted by Samantha Ward, one of the women riding in the back seat. Then he heard a gunshot and ran towards a parked black Cadillac. Otero, Perez, and another woman were outside with him and “everybody was just all tripping ... trying to figure out just what was going on.” After leaving the store, West realized he had been shot in the foot. His shoe with a bullet hole and a photograph of his wounded foot were admitted into evidence.
Pamela Fernandez testified that she was at the store that night too. Her sister-in-law, Elizabeth Calderon, and two friends, Elsa Aguirre and Ward, had picked her up at her house in a blue Dodge Neon. They ended up at the store after picking up Garcia at his house. They parked next to a black Cadillac, which Garcia said was “Trigger's car.” While they were inside the store, Garcia looked at Otero and said, “I don't like Trigger.” He also said, “Fuck Trigger,” multiple times. After they exited the store, Garcia got into the front passenger seat. As they were leaving the parking lot, Ward said, “Hi,” to West, and Garcia “got mad” after saying, “South side, south side,” to Perez. After they turned north onto Western, Fernandez saw Garcia holding a gray gun. All of the women shouted, “No, no, no,” but Garcia pointed the gun out of his window in the direction of the store and fired it several times.
Liberal Police Officer Sheldon Pipkin testified that he copied the store's surveillance video onto a flash drive. The video, which shows a man wearing a St. Louis Rams jersey enter the store, was admitted into evidence and played for the jury. Officer Joshua Olson testified that he found two paint scratches on the exterior of the store directly above the parked Cadillac. Photographs of the scratches were admitted into evidence. Officer Olson thought the scratches were made by bullets because the store owner told him that the store had just been painted. Corporal Jared Ratzlaff testified that he found a Winchester .380 caliber shell casing on Western, a couple of feet south of 15th Street. Both the shell casing and a photograph of it were admitted into evidence. Corporal Ratzlaff also found a St. Louis Rams jersey at the residence where Garcia was arrested. The jersey was admitted into evidence. Officer Bethany Keeting testified that Aguirre, Calderon, Fernandez, and Ward, all of whom she interviewed after the shooting, “believed that the shots were aimed at West and Perez.”
When sufficiency of the evidence is challenged in a criminal case, the appellate court must consider all the evidence viewed, in the light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Because it is the jury's function to weigh the evidence and determine the credibility of witnesses, we will not reweigh the evidence. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires the State to prove, beyond a reasonable doubt, every element necessary to constitute the crime charged. State v. Gould, 271 Kan. 394, 411, 23 P.3d 801 (2001). A conviction of even the gravest offense may be sustained based on circumstantial evidence. State v. Becker, 290 Kan. 842, 852, 235 P.3d 424 (2010). “ ‘Intent is difficult, if not impossible, to show by definite and substantive proof. Thus, it is agreed that criminal intent may be shown by proof of the acts and conduct of the accused, and inferences reasonably drawn therefrom.’ “ State v. Woods, 222 Kan. 179, 185, 563 P.2d 1061 (1977) (quoting State v. Lassley, 218 Kan. 758, 762–63, 545 P.2d 383 [1976] ).
“Murder in the second degree is the killing of a human being committed: (a) Intentionally.” K.S.A. 21–3402(a). “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” (Emphasis added.) K.S.A. 21–3301(a). Garcia concedes that the State presented sufficient evidence that he committed overt acts and failed to perpetrate any murders. Therefore, we must determine whether the State presented sufficient evidence that Garcia intended to commit three second-degree murders.
Considering all the evidence in the light most favorable to the prosecution, a rational factfinder could have found Garcia guilty beyond a reasonable doubt. Otero testified that Garcia gave her hateful looks and used offensive language to disparage her boyfriend, whose Cadillac she had driven to work and parked in front of the store. Perez testified that he disrespected Garcia's gang by flashing a rival gang sign. Fernandez testified that Garcia knew the Cadillac belonged to Otero's boyfriend and got angry after his clash with Perez. This evidence revealed Garcia's potential motives for the shooting. See State v. Engelhard, 280 Kan. 113, 128, 119 P.3d 1148 (2005) (evidence of motive is an attempt to explain why a defendant did what was done); State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000) (evidence of gang affiliation is relevant to establish motive for a shooting).
Moreover, Delgado testified that Garcia pointed a gun out of the window of the car in which he was riding. Armando testified that Garcia fired in the direction of the store, Otero testified that she was standing beside the Cadillac when she heard the shots, and Officer Keeting testified that the women who had been riding in the car with Garcia thought he was aiming at Perez and West. The State established the trajectory of the shots with photographs of the store's freshly painted exterior, which showed two scratches above where the Cadillac had been parked. See State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 (1977) (inference of intent to kill may be drawn from evidence that shots were fired in direction of path victim used to flee defendant's property; trajectory established by bullets recovered from neighboring house).
Finally, West testified that he was shot in the foot. The State corroborated his injury by introducing into evidence his shoe with a bullet hole and a photograph of his wounded foot. See State v. Carter, No. 101,895, 2010 WL 5490726, at *1, 6 (Kan.App.2010) (unpublished opinion) (inference of intent to kill may be drawn from evidence that defendant pointed gun directly at officers, fired five or six shots, and hit one officer in the foot).
The jury, as the trier of fact, was best situated to weigh the evidence and assess the credibility of the witnesses. The jury found Garcia guilty of three attempted intentional second-degree murders. It is not our duty to disturb the verdict if there is evidence to support it. The jury could have reasonably inferred that Garcia intended to kill based on his conduct—admitting that he did not like Bustamante, making a threatening statement about Bustamante to Otero, shouting a gang slogan to Perez, becoming angry when Perez threw a rival gang sign at him, holding a gun out of a car window, and firing three shots towards the store, one of which hit West in the foot.
Therefore, we hold there was sufficient evidence to convict Garcia of three counts of attempted intentional second-degree murder.
Garcia also argues that his case should be remanded to the district court for a hearing on whether he received ineffective assistance of trial counsel. He claims that his trial counsel, Grover Bryan, provided ineffective assistance by failing to (1) adequately prepare for trial, (2) submit a pretrial motion to suppress evidence, (3) give an opening statement, (4) call any witnesses, (5) object to leading, speculative, and hearsay testimony, (6) preserve an issue for appeal, and (7) accept the judge's offer to poll the jury.
More than 1 month before trial, Garcia's public defender, Razmi Tahirkheli, filed an oral motion for replacement counsel. Tahirkheli told the district court that Garcia wanted Bryan to be his attorney. Apparently Bryan had represented Garcia's family in the past, and Garcia was concerned about Tahirkheli's caseload and availability. Bryan told the court that the 4–day trial setting would not be affected by the attorney change because his schedule was “real light” that week and he had time to meet with Garcia the week before trial. After Garcia voiced his request for replacement counsel, the court appointed Bryan to the case.
Bryan appeared at the pretrial hearing and informed the district court that he had no motions that needed to be addressed. But at the start of trial, he stated that he was “going into it fairly cold” and explained that, because he was absent, from the pretrial hearing, he “may make motions if the evidence calls for [them].” During trial, Bryan objected to the introduction of the football jersey on Fourth Amendment grounds. Despite the untimeliness of his motion, the court held a hearing outside the presence of the jury. After hearing testimony on the issues of consent and plain view, the court admitted the jersey into evidence.
Bryan reserved his opening statement until the close of the State's evidence. Ultimately, he waived his right to give an opening statement and decided to rest without putting on any evidence.
The State elicited the following testimony from its witnesses without any objections from Bryan:
“[The State:] Do you recall telling officers that you saw this guy bring up something with both hands to the window and point it out the window?
“[Perez:] Mm–Mm (affirmatively).
....
“Q. All right. Tell us when you saw that, and what it was you told the officers?
“A. No, I just seen him messing with the door panel, or whatever. And, he got something out of his window. And, I didn't really pay nothing to it. (shrugs shoulders). I don't know. That's when I heard the shot.
“Q. So, you heard the shot after you saw this person fumbling with the door panel; correct?
“A. Mm–Mm (affirmatively).
“Q. And, after this person put something out the window?
“A. Mm–Mm (affirmatively).
“Q. Is that a yes?
“A. Yes.”
“[The State:] Okay. And, the gun, where was it pointed when Garcia was firing the gun?
“[Fernandez:] Towards the store, or towards those guys. I don't know where he was trying to shoot at, but ...
“Q. Okay. Well, where was his arm?
“A. Out the window facing the store.”
“[The State:] Did you find any bullet holes in any of the vehicles in front?
“[Olson:] No.
“Q. What about anything on the building?
“A. There was a couple paint scratches that could possibly have been bullet holes....
“Q.... Why do you think those marks were made by a bullet?
“A. Well, when I talked to the store owner, Kenny Sizemore, he said that it had just been freshly painted. Those were the only two markings on the front of the building.”
“[The State:] And, the gun was pointed back toward where West and Perez were, according to all four [women who were in the car]?
“[Keeting:] That's correct. All four of them believed that the shots were aimed at West and Perez,”
At the close of the State's evidence, Bryan moved for a directed verdict on the attempted first-degree murder charges. The district court agreed that the State had not presented any evidence of premeditation and decided to instruct the jury on attempted second-degree murder instead.
During its closing argument, the State arguably misstated the law on intentional second-degree murder by saying, “[T]here doesn't have to be an intent in [Garcia's] mind to kill those people.” Bryan attempted to correct this misstatement by saying, “[The State] says he doesn't have to intentionally kill. He just has to try to kill someone. But, he's got to have it in his mind that he wants to kill that person.” The district court sustained the State's objection, ruling that Bryan misstated the law. Rather than preserving the issue for appeal, Bryan continued his closing by saying, “A crime of Second Degree Murder shows the Defendant intentionally killed Samantha Otero. So, he would have to intend to commit murder.... [Y]ou have [to] determine whether or not you think this man wanted to kill that woman.” In rebuttal, the State said that “[t]he law is you judge what he intended to do by the physical acts that occurred.”
After the guilty verdicts were published, Bryan declined the district court's offer to poll the jury.
Bryan filed a timely notice of appeal in January 2009. The Appellate Defender Office (ADO) was not appointed to handle Garcia's direct appeal until November 2010. After obtaining three briefing extensions, the ADO filed a motion to withdraw due to a conflict of interest—Perez was a former client. This court granted the motion, stayed briefing, and remanded the case for appointment of new appellate counsel. On October 28, 2011, the district court appointed current counsel, David West. West obtained two briefing extensions because he did not receive the transcripts until mid-December 2011 and did not have enough time to review the “exorbitant amount of information.” Neither the ADO nor West filed a motion for remand with this court.
Whether to remand a case pursuant to Van Cleave lies within the sound discretion of the appellate court. State v. Van Cleave, 239 Kan. 117, 120, 716 P.2d 580 (1986).
As a general rule, a claim of ineffective assistance of counsel will not be considered for the first time on appeal. Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009). This is because the district court, which observed counsel's performance and is aware of the trial strategy employed, is in a much better position to consider counsel's competence and should be the first to rule on the issue. Van Cleave, 239 Kan, at 119–20.
When an appellant raises an ineffective assistance of counsel claim for the first time on direct appeal, we have three options: (1) decline to rule on the merits of the claim until the appellant has first filed a K.S.A. 60–1507 motion in district court; (2) rule on the merits on the “extremely rare” occasion that there is a sufficient record; or (3) remand the case for a Van Cleave hearing, either upon the appellant's motion or a sua sponte order, “so that facts relevant to determination of the legal issue may be developed and an evidentiary record established.” See Rowland, 289 Kan. at 1084–85;Van Cleave, 239 Kan. at 119–21. The Kansas Supreme Court recently explained what an appellant must do to obtain a Van Cleave remand:
“In Van Cleave, we set guidelines for an appellate court to follow in exercising its discretion when deciding whether to remand a case for an evidentiary hearing. See 239 Kan. at 119–21. In that case, we noted an appellant's counsel must do more than simply read the cold record of the proceedings before the district court and then argue that he or she would have handled the case differently. We held that counsel must attempt to determine the circumstances under which trial counsel did—or did not—proceed as the appellate counsel believes preferable and conduct at least some investigation into the claimed ineffectiveness. We then noted: ‘Except in the most unusual cases, [for an appellate counsel] to assert a claim of ineffective assistance of counsel without an independent inquiry and investigation apart from reading the record is questionable to say the least.’ 239 Kan. at 120–21.” State v. Levy, 292 Kan. 379, 389, 253 P.3d 341 (2011).
Garcia's ineffective assistance of counsel claim falls quickly to the Van Cleave guidelines. The record and briefing do not reflect that appellate counsel conducted any investigation of the claim. There is no indication that any of the relevant parties—Garcia, Bryan, or the prosecutor—have been interviewed or even contacted regarding Bryan's alleged ineffectiveness. Rather, the merits of the claim are based upon nothing more than appellate counsel's reading of the record and allegation that things could have been done differently. Because Garcia has failed to meet the minimal requirements established in Van Cleave, his case is ineligible for remand. He is, however, entitled to pursue a remedy under K.S.A. 60–1507.
Therefore, we do not remand Garcia's case for a Van Cleave hearing.
Affirmed.