Opinion
No. 107,634.
2013-08-29
STATE of Kansas, Appellee, v. Miguel SANCHEZ, Appellant.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Miguel Sanchez was convicted of intentional second-degree murder for killing Hector Villegas. Sanchez appeals, claiming the district court erred in excluding certain gang-related testimony and in not giving the jury a lesser-included instruction. He also claims cumulative errors and a sentencing error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
At around 2:30 p.m. on March 24, 2010, Villegas was standing near the open garage doorway of the tire shop where he worked in Kansas City when he was shot and killed in a drive-by shooting. Others in the shop, Jeremy Yoakum, Jason Wilson, and Luis Ferguson, heard a loud pop, like a firecracker, but did not witness the shooting. Moments later Villegas ran into the shop office and told them: “They shot me.” Villegas collapsed in the office, and Wilson called 911. Villegas was taken to the hospital where he died.
That evening Officer Shawn Buck, an undercover police officer with the Kansas City, Kansas Police Department, learned about the shooting and told Michael Vivian, the investigating detective, about a video camera that had been installed in the alley behind the shop. Video from the camera showed a dark-colored Honda with several distinct characteristics—a worn roof, a hanging road guard, and damage to the right taillight. The Honda drove southbound down the alley behind the garage at 2:31 p.m. Then, at 2:32 p.m., the Honda returned and drove northbound through the alley. When it reached the open garage at the tire shop the car stopped, the reverse lights came on, and after a moment the car continued driving forward through the alley before driving out onto Kansas Avenue, the street in front of tire shop. It was in this brief interlude that the fatal shot apparently was fired.
The following day Officer Brian Whisner of the Kansas City, Kansas, Police Department was informed that the previous day there had been an incident at Wyandotte High School involving a black Honda occupied by four or five Hispanics wearing bandanas. The school security personnel obtained the vehicle's license tag number, which they gave to Whisner.
While Officer Whisner was on patrol that day he spotted the Honda and stopped it. There were three Hispanic females in the Honda—the driver, Almadelia Zavala, and two occupants in the back seat, Maria Jiminez and Ruby Ramirez. Zavala was unable to produce a driver's license or proof of insurance. When Whisner determined that neither of Zavala's passengers had a driver's license, he ordered them out of the car so it could be towed away.
At this point, the girls were laughing and appeared to be carefree. When asked if she had heard anything about a shooting at the tire shop the previous day, Zavala's “facial expression just went to nothing and she looked down and she kind of muttered I don't know nothing.” The other girls had a similar reaction. “They got this long look on their face and look towards the ground and say I don't know anything.” Officer Whisner reported the girls' reactions to the detectives investigating Villegas' death.
When the Honda was impounded, Officer Greg Burris of the Kansas City, Kansas, Police Department noted distinctive striping on the roof and peeling and faded paint. Burris also collected a gray bandana from the car. Detective Vivian concluded that this Honda was the same one that he had seen in the video of the scene of the shooting.
The detectives questioned Zavala, Jiminez, and Ramirez about the shooting. The girls said that on the day of the shooting they had been riding around in the Honda with a fourth girl, Maria Talamante. At some point, the group picked up Pablo Molina and dropped off Talamante. Molina was a friend of Miguel Sanchez. Molina and Sanchez were members of the same gang.
The girls said that while they were driving around, Molina spotted Villegas' younger brother whom he asked if he knew where Villegas was. The boy said that Villegas was at work. Molina and the girls then went to Ramirez' home.
Sanchez was at the Ramirez home, where he lived with Jovana Ramirez who was pregnant with their child. Jovana is Ruby Ramirez' sister. The girls said that Sanchez and Molina then left in the Honda, with Molina driving and Sanchez in the passenger's seat. About 30 or 40 minutes later, the pair returned to the Ramirez house and were “acting like scared, they were like sweating.” Molina and Sanchez told the girls not to move the car for a while. Sanchez changed his clothes and put the clothes he had been wearing into the washing machine. (Later at trial, Ruby Ramirez testified that Sanchez and Molina never left in the Honda. She said that Sanchez did not leave the house the whole day. She said she did not remember her contrary statement to the police the day after the murder.)
The next day Sanchez told Zavala that he shot Villegas in the chest. Zavala assumed he did it because Villegas had testified against Sanchez in a previous case.
The homicide detectives questioned Molina, who eventually told them that he and Sanchez were members of the Florencia gang. Villegas had been a member of the Florencia gang but tried to quit. Molina said that leaving the gang is against the gang's code and “you die” if you try to leave. Further, Sanchez did not like Villegas because in 2007 Villegas told a police officer that Sanchez had weapons in his home. The weapons were found and, as a consequence, Sanchez served time in a juvenile detention facility.
Molina described the events on the day of the killing. He had been driving around with the girls in the Honda when he came across Villegas' younger brother, who said that Villegas was at work. Molina called Sanchez and told him where Villegas could be found. Molina said he expected to see a fight between Villegas and Sanchez, not a murder. When the group arrived at the Ramirez home, Molina picked up Sanchez and they went looking for Villegas. Molina said he was not aware that Sanchez had a gun when they left.
As they drove toward the tire shop, Sanchez pulled out a .38 revolver. Molina was aware of the surveillance cameras at the shop, so Molina put on a hooded sweatshirt and hat and Sanchez put on a bandana to hide his face. When they got to the tire shop and spotted Villegas, Sanchez pulled out his gun and fired a single shot at Villegas. They then returned to the Ramirez home, where Sanchez changed and washed his clothes.
Molina agreed to plead guilty to intentional second-degree murder and to testify truthfully at Sanchez' trial. In return, the State recommended and the court imposed a 10–year prison sentence on Molina.
Sanchez was tried for first-degree murder. At trial, Sanchez presented one witness—his girlfriend, Jovana Ramirez. She testified that Sanchez was with her the entire day and did not leave. The jury convicted Sanchez of intentional second-degree murder, and he was sentenced to 195 months in prison.
We now have Sanchez' direct appeal. His first claim is that the trial court erred in excluding certain gang evidence.
It is fundamental to a fair trial that the accused be afforded the opportunity to present his or her theory of defense. State v. Brown, 291 Kan. 646, 658, 244 P.3d 267 (2011) (quoting State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592 [1992] ). A defendant's constitutional right to a fair trial may be violated if evidence that is an integral part of the defendant's defense theory is excluded. State v. Wells, 289 Kan. 1219, 1235, 221 P.3d 561 (2009) (citing State v. Cooperwood, 282 Kan. 572, Syl. ¶ 1, 147 P.3d 125 [2006] ). But this right “to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.” Wells, 289 Kan. at 1235 (quoting State v. Walters, 284 Kan. 1, Syl. ¶ 1, 159 P.3d 174 [2007] ).
K.S.A.2012 Supp. 60–460 defines hearsay as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” Here, the issue is whether the testimony at issue was offered to prove the truth of the matter asserted. We review the district court's evidentiary ruling on this point for any abuse of the district court's discretion. State v. Miller, 42 Kan.App.2d 12, 21–22, 208 P.3d 774 (2009), aff'd293 Kan. 535, 264 P.3d 461 (2011) (citing State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 [2007] ). A district court abuses its discretion if its ruling (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). We have unlimited review over whether the exclusion of evidence violated a defendant's constitutional right to a fair trial. See State v. White, 279 Kan. 326, 331–32, 109 P.3d 1199 (2005).
If the district court's ruling was in error, we then examine the matter using a harmless error standard. Because we find no error, a discussion of this standard is superfluous.
The first gang evidence issue relates to graffiti that was allegedly left by a rival gang at the location of Villegas' murder. Sanchez' lawyer asked Ruby Ramirez on cross-examination:
“Q. How long have you been around gangs?
“A. Since I was in the sixth grade.
“Q. So eight, nine years?
“A. Yeah.
“Q. And you're familiar with how gangs work?
“A. Yeah.
“Q. After someone's killed, is it common for the person responsible to graffiti where the person was killed?
“A. Yes.
“Q. Did you ever observe any graffiti at Unlimited Tire and Wheel?
“A. Yeah.
“Q. What was that?
“A. To—.”
At this point, the State objected on hearsay grounds, arguing that “graffiti is a statement, an out-of-court statement, goes to the truth of the matter asserted.” The State also claimed that testimony about the graffiti was improper third-party evidence.
The district court agreed and sustained the objection. Sanchez' lawyer proffered that Ruby Ramirez would have testified that the day after the shooting, SPV, a rival gang, sprayed graffiti at the tire shop. In gang culture, this is a common way to claim responsibility for a death and to send a message, according to Ramirez. On appeal, Sanchez contends that this evidence was relevant to prove that the police failed to investigate a possible lead in the case.
The parties agree that gang graffiti constitutes an out-of-court statement under our hearsay statute. The only evidence of the existence of graffiti from a rival gang was to come from Ramirez. The issue is whether the Ramirez testimony was offered to prove the truth of the matter asserted. The matter asserted is that the graffiti constituted a statement by a rival gang that “we did it.” Sanchez argues that it does not matter whether or not the statement was true; rather, once made the police should have checked it out.
But the statement is relevant only if it tends to prove an issue in the case: whether Sanchez did it. Inherent in the graffiti is the statement that “we did it, not Sanchez.” If this statement is not true, then it does not tend to prove any issue in the case and is irrelevant and was properly excluded. If SPV gang members didn't do it, the police cannot be criticized for not investigating them as murder suspects. The only way the evidence is relevant is if members of the SPV gang did it. Ramirez' testimony was predicated on the notion that the statement was true: members of the rival gang did it and the police failed to investigate them for the murder. Thus, the testimony about the gang graffiti message was offered to prove the truth of the matter asserted.
With some statements, it does not matter whether they are true or not. “Don't come through that door or you're going to get shot.” Does the recipient of this message care to test out the truth of the statement? True or not, the statement explains the risk-adverse recipient's conduct in not coming through the door. See State v. Becker, 290 Kan. 842, 848, 235 P.3d 424 (2010). But here, the point of the testimony is to criticize sloppy police work because the police did not investigate the rival gang; a criticism that bears no weight if members of the rival gang didn't do it.
The district court did not abuse its discretion in excluding this evidence as hearsay. With that, we need not address the question whether the testimony was inadmissible third-party evidence.
Next, Sanchez challenges the district court's exclusion of testimony about a gang fight that purportedly took place near the tire shop around the time that Villegas was killed. On cross-examination Sanchez' lawyer asked Detective Vivian:
“Q. Ms. Myers asked you about a guy named Luis Ferguson who we did not hear from today and she said based on what you learned from him, nothing suspicious?
“A. Correct.
“Q. You also talked to a guy we didn't hear about today named Jose Juan Campos?
“A. Correct.
“Q. Isn't it true that after you talked to him, you did learn something suspicious?
“A. The altercation down the street at the bar?
“Q. The altercation down the street?”
The State objected on hearsay grounds. Sanchez' attorney proffered that he was attempting to solicit testimony from Vivian that Jose Campos told Vivian that there had been a fight down the street from the tire shop between the Florencia gang and a rival gang some time shortly before Villegas was killed. Sanchez' attorney did not know if Campos had first-hand knowledge of the gang fight or whether he was repeating to Vivian something he had heard from someone else (double hearsay). In any event, Campos was not present to testify, and there was no evidence of there having been a gang fight other than what Campos allegedly told Vivian. The district court sustained the State's objection.
This is another instance in which Sanchez attempted to develop evidence that members of the rival gang should have been investigated as suspects in the killing. But again, the criticism of the police investigation is premised on the detective being aware of the fact that a gang fight had, in fact, occurred shortly before Villegas was killed. The fact that such a gang fight occurred was to come through Vivian's testimony about what Campos told him. As with the case of the graffiti, if there had been no gang fight, the out-of-court statement by Campos was entirely irrelevant. Campos' out-of-court statement, which was not subject to cross-examination, was offered to prove that a gang fight had occurred. The district court did not abuse its discretion in sustaining the State's hearsay objection to this testimony.
Sanchez was entitled to pursue his chosen defense to the murder charge against him, but not in disregard of the rules of evidence. Admission of the graffiti and gang fight testimony proffered by Sanchez would have violated our rules of evidence. Sanchez did not attempt to offer nonhearsay evidence to develop his theory that the police engaged in a sloppy investigation.
Next, Sanchez argues that the district court erred when it denied his request to instruct the jury on reckless second-degree murder. Sanchez was charged with first-degree murder. The district court also instructed the jury on intentional second-degree murder, in violation of K.S.A. 21–3402(a). Sanchez requested that the district court also instruct the jury on reckless second-degree murder, in violation of K.S.A. 21–3402(b). He argued that, based on the evidence at trial, the jury could reasonably infer that Sanchez meant to scare Villegas, not to kill him. The district court declined Sanchez' request.
K.S.A. 21–3402 defines second-degree murder as follows: “Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but reckless under circumstances manifesting extreme indifference to the value of human life.” Kansas law defines “intentional” and “reckless” conduct. “Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘intentional.’ “ K.S.A. 21–3201(b).
“Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘wantonness' are included within the term ‘recklessness' as used in this code.” K.S.A. 21–3201(c).
Sanchez' trial was in October 2011. In State v. Bailey, 263 Kan. 685, 691, 952 P.3d 1289 (1998), our Supreme Court held that “a defendant's actions in pointing a gun at someone and pulling the trigger are intentional rather than reckless even if the defendant did not intend to kill the victim.” The Bailey court cited its prior ruling in State v. Pierce, 260 Kan. 859, 867, 927 P.2d 929 (1996), in which it held the same. See State v. Jones, 267 Kan. 627, 984 P.2d 132 (1999).
In the recent opinion in State v. Deal, 293 Kan. 872, 269 P.3d 1282 (2012), our Supreme Court held that the distinction between intentional and reckless second-degree murder focuses on culpability, as opposed to whether the perpetrator's actions were deliberate. In Deal, what started out as a discussion turned violent when the victim tried to hit Deal with a tire iron. Deal wrestled the tire iron away from the victim and, without intending to kill, struck the victim on the head with it. The court found the evidence supported an instruction on unintentional but reckless second-degree murder in violation of K.S.A. 21–3402(b).
Our facts do not fit the Deal mold. There was no escalating confrontation between Sanchez and Villegas. Sanchez went looking for Villegas with a gun in hand. He saw Villegas standing near the garage doorway as they drove by the tire shop. Sanchez told Molina to put the car in reverse. They returned to the tire shop, where Sanchez aimed his gun at Villegas, fired once, and sent a bullet through Villegas' heart. This was no West Side Story in which a gang fight gets out of hand and a participant is killed. This was a planned drive-by execution motivated by revenge and Villegas' temerity in wanting to quit the gang. The district court correctly determined Sanchez was not entitled to an instruction on reckless second-degree murder.
Next, Sanchez argues that his conviction should be reversed because of cumulative trial errors. Because we find no trial errors to accumulate, the notion of cumulative error simply cannot apply. See State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Finally, Sanchez challenges the district court's use of his prior convictions to enhance his sentence based on the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied, 294 Kan. –––– (2012). We see no such indication. See State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012). The district court did not err in considering Sanchez' criminal history at the sentencing hearing.
Affirmed.