Opinion
No. 107,750.
2013-09-27
STATE of Kansas, Appellee, v. Paul Steven HERNANDEZ, Appellant.
Appeal from Finney District Court; Wendel W. Wurst, Judge. Lydia Krebs, of Capital Appellate Defender Office, for appellant. Linda J. Lobmeyer, assistant county attorney, John P. Wheeler, Jr ., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Wendel W. Wurst, Judge.
Lydia Krebs, of Capital Appellate Defender Office, for appellant. Linda J. Lobmeyer, assistant county attorney, John P. Wheeler, Jr ., county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
ATCHESON, J.
Defendant Paul Steven Hernandez appeals the verdicts of a Finney County jury convicting him of aggravated robbery and intimidation of a victim because he says two purported errors in the instructions deprived him of a fair trial. He also says the district court judge improperly considered his past convictions in determining an appropriate sentence under the guidelines. We find no error and affirm.
During the noon hour on June 28, 2011, Henry Bosquez, Jr., the robbery victim, stopped at a convenience store in Garden City to buy a snack. When Bosquez entered the store, only the clerk and another customer, who he later identified as Hernandez, were inside. Bosquez bought a soft drink and some donuts and headed back to his van in the parking lot. As Bosquez opened the door to the van and leaned inside to set down his drink, someone came up behind him, put an arm around his neck, grabbed his arm, and demanded all of his money. The robber then asked if Bosquez recognized him. Bosquez looked at the man and realized he was the customer who had been in the store. Bosquez told the robber he did not know him. The robber grabbed Bosquez' wallet and ordered Bosquez to get in the van and drive off. The robber warned Bosquez not to tell anyone about the holdup. Bosquez watched the robber walk back into the convenience store.
Bosquez drove to a nearby liquor store and called the police. The police, however, were unable to intercept the robber. A detective with the Garden City Police Department contacted the owner of the convenience store to review security video recordings. After looking at the video showing the store's interior, the owner told the detective the suspect was a regular customer. Another police officer who watched the video identified the customer as Hernandez. The next day, the detective assembled a photo array of eight individuals, including Hernandez, for Bosquez to look at. Bosquez identified Hernandez from the photo array as the robber.
Hernandez was arrested and went to trial on the charges of aggravated robbery, a felony violation of K.S.A. 21–3427, and intimidation of a victim for telling Bosquez not to report the robbery, a misdemeanor violation of K.S.A. 21–3832.
At the trial, in early January 2012, Bosquez identified Hernandez as the robber. On cross-examination, Bosquez testified that the robber was not wearing sunglasses. He conceded, however, the security video shows that the robber had a pair of sunglasses pushed up high on his forehead rather than down over his eyes. The store owner identified Hernandez in the security video as a regular customer and identified him in the courtroom as the person shown in the video. In the defense case, Hernandez' daughter and granddaughter testified they were with him the day of the robbery. They said all three of them were at the convenience store around the time of the robbery. Hernandez' relatives said they did not see him commit any crime. But they conceded they were in a vehicle parked to the side of the convenience store and did not have a view of the specific location where the robbery happened. Hernandez' daughter testified that the person shown in the video was wearing a shirt unlike any Hernandez owned. Hernandez did not testify in his own defense.
The jury convicted Hernandez of both charges. The district court later sentenced Hernandez to a controlling prison term of 233 months on the aggravated robbery, a standard guideline punishment given his extensive criminal history. The district court imposed a concurrent jail term of 180 days on the misdemeanor. Hernandez has filed a timely appeal.
For his first issue on appeal, Hernandez contends the district court erred in using PIK Crim.3d 52.02, an outdated version of the burden-of-proof, reasonable-doubt jury instruction. We do not tarry over this point. Hernandez bases his argument on dicta in an unpublished decision from a panel of this court that he augments with references to authority from other states and a detailed linguistic analysis of the instruction's phrasing. See Miller v. State, No. 103,915, 2012 WL 401601, at *5–7 (Kan.App.2012) (unpublished decision), rev. granted 296 Kan. –––– (March 4, 2013). After the parties submitted their appellate briefs in this case, the Kansas Supreme Court addressed this exact issue and held the version of PIK Crim.3d 52.02 used in this case to be “legally appropriate” and, therefore, not erroneous, although now PIK Crim. 4th 51.010 (amended 2012) is the preferred jury instruction. See State v. Herbel, 296 Kan. 1101, 1122–24, 299 P.3d 292 (2013). In light of Herbel, Hernandez' point is without merit.
Hernandez next argues that the district court erred in failing to give the jury an instruction on how to evaluate eyewitness identification, such as PIK Crim.3d 52.20 or PIK Crim. 4th 51.110 (amended 2012). The PIK instruction contains a list of factors that may bear on the reliability of an eyewitness identifying the defendant as the person committing the crime. The factors include considerations such as: physical conditions like the lighting and the duration of the observation; if the witness had reason to be nervous or emotionally upset, as, for example, by being threatened with a weapon; whether the witness had seen the defendant on other occasions; and whether the witness had previously identified someone other than the defendant as the perpetrator. The instruction no longer includes the degree of certainty the witness may express about the identification. See State v. Mitchell, 294 Kan. 469, 480–81, 275 P.3d 905 (2012) (noting conflicting scientific studies on whether an eyewitness' stated certainty about an identification correlates to its accuracy); State v. Anderson, 294 Kan. 450, 458, 276 P.3d 200 (same), cert. denied133 S.Ct. 529 (2012).
Here, Hernandez' lawyer did not request a jury instruction on evaluating eyewitness identification, so we review the district court's failure to give the instruction for clear error. See K.S.A. 22–3414(3); State v. Haberlein, 296 Kan. 195, 203–04, 290 P.3d 640 (2012). For purposes of resolving the issue, we assume the district court should have given an eyewitness instruction had it been requested. See PIK Crim.3d 52.20, Notes on Use (“instruction should be given whenever the trial judge believes there is any serious question about the reliability of eyewitness identification testimony”); PIK Crim. 4th 51.110, Notes on Use (same) and Comments. Circumstances favoring giving the instruction include Bosquez' testimony that he had never seen Hernandez before the incident and his error about the sunglasses.
The Kansas Supreme Court has recently reassessed the standard for determining if claimed defects in jury instructions are clearly erroneous. See State v. Mireles, 297 Kan. 339, Syl. ¶¶ 5–7, 301 P.3d 677 (2013); State v. Trujillo, 296 Kan. 625, 630–31, 294 P.3d 281 (2013); State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012). In Williams, the court phrased the test as “whether [the appellate court] is firmly convinced that the jury would have reached a different verdict had the instructional error not occurred.” 295 Kan. 506, Syl. ¶ 5. That is the standard we apply.
We are not prepared to say an instruction modeled on PIK Crim.3d 52.20 or PIK Crim. 4th 51.110 would have made any appreciable difference in this case, and, given the rigorous measure for clear error, we are satisfied the jury would have reached the same result even if it had been included among the instructions. The instruction tends to highlight common—sense considerations for evaluating eyewitness testimony—the witness' opportunity to see what happened and his or her state of mind at the time.
Here, nothing indicates Bosquez had any impairment that would have interfered with his ability to observe the events or to process and recall them. The robbery took place during daylight hours. And Bosquez was literally face-to-face with the robber. Indeed, the robber told Bosquez to take a look at him and to indicate if they knew each other. The jurors also had the opportunity to view the security video from the convenience store and to compare those images to Hernandez during the trial. In closing argument, both the prosecutor and Hernandez' lawyer invited the jurors to consider that comparison in arriving at a verdict.
In short, the general circumstances portrayed at trial suggest Bosquez viewed the robber under conditions favoring a reliable identification. So the instruction would not have added a great deal to the jury's collective assessment of the evidence. We, therefore, are quite unconvinced the jury would have come to a different result had the district court given an eyewitness identification instruction.
For his final point on appeal as to the trial, Hernandez argues that the cumulative effect of the alleged errors in the jury instructions deprived him of a fair trial. But, at best, he has actually pointed to only one possible error—the omission of the instruction on eyewitness identification. Cumulative error cannot be predicated on a single error. State v. Bridges, 297 Kan. ––––, Syl. ¶ 20, No. 101,222, 2013 WL 4039431 (2013).
As to sentencing, Hernandez contends the district court improperly considered his criminal history in imposing sentence. He argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. He relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U .S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. He also acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court's recent reaffirmation of Ivory. State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012).
Affirmed.