IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,469
STATE OF KANSAS,
Appellee,
v.
JORGE SANCHEZ GONZALEZ,
Appellant.
SYLLABUS BY THE COURT
1. When the admission or exclusion of evidence is raised at trial, an appellate court first considers whether the evidence is relevant. Relevant evidence is evidence having any tendency in reason to prove any material fact. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.
2. The admission of hearsay evidence is controlled by statute and requires the interpretation of a statute. This court reviews the interpretation of a statute as a question of law, using a de novo standard.
3. Subject to exclusionary rules, an appellate court's standard of review regarding a trial court's admission of evidence is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable.
4. K.S.A. 60-464 requires authentication of a writing before it may be received in evidence. K.S.A. 60-465 governs the authentication of copies of original records. Authenticity as a condition precedent to admissibility is not required if the office in which the record is kept is within the United States and (1) the writing is attested to as a correct copy of the record by a person purporting to be an officer having legal custody of the record, and (2) is authenticated by seal of the office having custody or, if that office has no seal, by a public officer having a seal and having official duties in the district or political subdivision in which the records are kept who certifies under seal that such officer has custody.
5. The contents of an official record are generally admissible as an exception to the hearsay rule. However the writing must meet the requirements of authentication as set forth in K.S.A. 60-465.
6. Experts' opinions based upon hearsay evidence are inadmissible in trial proceedings.
7. Testimony of an expert witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness. K.S.A. 60-456(b).
8. K.S.A. 60-455 allows prior crimes and civil wrongs evidence when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The trial court must first determine whether the evidence is admissible under 60-455. In making this determination, the trial court must consider whether the evidence is relevant to prove one of the material facts set forth in the statute. Before making its final determination of admissibility, assuming all other requisites for admissibility have been met, the trial court must weigh the potential prejudice resulting from admitting the evidence in relation to its probative value. If the evidence is admitted, the trial court must instruct the jury on how the evidence may be used.
9. Errors regarding the admissibility of evidence are evaluated to determine whether the admission of the evidence: (1) was inconsistent with substantial justice; (2) affected the substantial rights of defendant; or (3) had any likelihood of changing the results at trial.
10. In reviewing a district court's decision regarding suppression of a defendant's confession, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard. The court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Substantial competent evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.
11. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.
12. Factors to be considered in determining whether a confession is voluntary include: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; and (5) the fairness of the officers in conducting the investigation.
13. In a criminal action, the district court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence. When considering the district court's refusal to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant's own testimony.
14. The provisions of K.S.A. 21-3211 limit the use of force against an aggressor to those circumstances when and to the extent it reasonably appears the defendant believes that such conduct is necessary to defend himself, herself, or another against the aggressor's imminent use of unlawful force. Thus, before a defendant is entitled to a self-defense instruction, relevant evidence must establish that (1) the defendant honestly and sincerely believed it was necessary to kill in self-defense, and (2) a reasonable person would have perceived the necessity of self-defense.
15. The Kansas Sentencing Guidelines Act builds criminal history into the calculation of a presumptive sentence, rather than using criminal history as an enhancement. The determination of a felony sentence is based on two factors: The current crime of conviction and the offender's prior criminal history. The use of a defendant's prior criminal convictions as one factor to establish a presumptive sentence does not violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
16. This court looks at the totality of the circumstances to determine whether cumulative errors have substantially prejudiced a defendant and denied his or her right to a fair trial. However, if the evidence is overwhelmingly against the defendant, no prejudicial error may be found based on the cumulative effect rule.
Appeal from Seward district court; T. KEITH WILSON, judge. Opinion filed October 27, 2006. Affirmed.
Virginia A. Girard-Brady, assistant appellate defender, argued the cause and was on the brief for appellant.
Don L. Scott, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Jorge Sanchez Gonzalez was convicted by a jury of one count of premeditated first-degree murder in violation of K.S.A. 21-3401(a), one count of attempted first-degree murder in violation of K.S.A. 21-3301 and K.S.A. 21-3401(a), and one count of discharging a firearm at an occupied vehicle in violation of K.S.A. 2005 Supp. 21-4219, for crimes committed in August 1997. In his appeal pursuant to K.S.A. 22-3601(b)(1), he raises six errors.
More specifically, the defendant contends we must reverse his convictions based upon the trial court's (1) exclusion of Dr. Huddleston's expert opinion based upon defendant's California medical records, (2) admission of his unredacted videotaped interview, (3) admission of his confession, (4) failure to instruct on his theory of self-defense, (5) consideration of his prior conviction for sentencing purposes without a jury determination of the conviction, and (6) cumulative error.
FACTS
On Sunday, August 17, 1997, at approximately 11:14 p.m., Liberal, Kansas, police officer Randy D. Schafer was on routine patrol when he noticed a tan Lincoln, with its headlights off, either parked or moving very slowly in an alley behind a Motel 9. Suspicious because of recent burglaries in the area, Officer Schafer pulled his patrol car onto a dirt road perpendicular to the alley, between the Motel 9 and a Love's Country Store. The Lincoln was moving from behind the Motel 9 at "about two or three miles per hour."
As the Lincoln pulled directly in front of the patrol car's headlights, Officer Schafer saw a Hispanic male, on foot, approach the Lincoln from behind. Upon reaching the Lincoln's rear bumper, the Hispanic male fired approximately four shots with a handgun into the Lincoln which then accelerated down the alley. Officer Schafer lost sight of the fleeing shooter, but followed the Lincoln as it sped down the alley and across a street, crashing into the side of a building. The Lincoln's passenger, Nick Heathman, ran toward Officer Schafer's patrol car; he was bleeding from the mouth, missing some teeth, and spit out a bullet. The driver, Juan Carlos Lozoya, was unconscious in the Lincoln and bleeding from the chest; he later died from his injuries.
Heathman testified that he and Lozoya were driving around that night waiting for Heathman's mother to finish work. As they twice drove by Love's Country Store, Heathman and Lozoya noticed two males standing in front, gesturing at them; Heathman believed these gestures were gang signs. Heathman recognized one of the men as "Silent" and identified "Silent" as defendant Jorge Sanchez Gonzalez.
Lozoya turned into the alley behind Love's and turned off his headlights. At the preliminary hearing, Heathman testified that Lozoya turned the lights off to surprise the men, intending to start a fight. At trial, Heathman denied knowing what Lozoya's intentions were. They both noticed Officer Schafer and turned the headlights back on. Suddenly, Lozoya yelled, "Look out!" Heathman noticed a man pointing a gun at them, who immediately began to shoot. Lozoya fell onto Heathman and the car accelerated. Heathman unsuccessfully tried to apply the brakes from the passenger side. Heathman's injuries included 300 to 500 stitches, the loss of a sinus cavity, the loss of six teeth, numerous surgeries, and back problems.
Officer Shannon M. Davis and Sergeant Daniel Yorio were among officers called to the scene. They located a .38 Smith and Wesson handgun with a silver barrel and wood grips on the front porch of a house approximately 75 feet from the scene of the shooting. At Lozoya's autopsy, Captain Charles Maddox recovered a bullet from Lozoya's body. Testing by Kansas Bureau of Investigation (KBI) forensic science laboratory personnel revealed that the bullet was fired from the gun found on the front porch.
Police investigators also found a number of items of clothing in the vicinity of the crime scene, which included a bandanna, a glove, a sweatshirt, and a pair of pants. Crime scene technicians found a cigarette butt in the pocket of the pants. The KBI forensic science laboratory later matched DNA found on the cigarette butt to that of defendant.
Jose Soto testified that defendant had lived with him and his family during 1997. Soto related a conversation that defendant had with him on Tuesday, August 19, 2 days after the shooting. Defendant told Soto that he had gone to Liberal looking for Max Romero, whom defendant blamed for a drive-by shooting at the Soto house some months earlier. While he did not find Romero, he bragged about shooting "two guys" in the alley behind Love's store with a .38 special, as he believed they were rival gang members. He fled, discarding an outer layer of clothing as he ran. On cross-examination, Soto stated that defendant had previously stolen a cell phone from Lozoya at knifepoint, and that Lozoya had threatened to come back with a gun. He also stated that defendant had said that Lozoya had reached down shortly before the shooting, and that defendant said he "didn't know if they had something."
Defendant was arrested for the shooting, but was released after 2 months for lack of evidence. Approximately 2 years later, on November 9, 1999, defendant was arrested by officers of the Anaheim, California, Police Department for robbery. Anaheim Police Department Detective Ty Hagenson conducted a videotaped interview with defendant shortly after this arrest.
After being read his Miranda rights, defendant indicated a willingness to speak. During the course of this interview, defendant indicated that he had been convicted of murder in Kansas, sentenced to 25 years to life, but had been released after 4 months due to a mistake. When asked about details of the shooting, defendant described shooting into a yellow Lincoln in an alley behind a convenience store, killing "Carlos." He said that a police officer witnessed the shooting and he described the gun used in the shooting as a chrome Smith and Wesson .38 revolver with wood grips. He also said that he left the gun about a block from the scene of the shooting and described how he escaped by discarding an outer layer of clothing as he fled the scene. Based on this information, defendant was arrested by Kansas authorities.
After the defendant was charged by complaint, the State and defendant's attorney filed a joint motion to determine defendant's competency; the trial court ordered that defendant undergo an examination at the Larned State Security Hospital. The report received from that examination determined that defendant was competent to stand trial. At the first competency hearing, defense requested that he be granted an opportunity to secure a second opinion, which the trial court granted.
The second evaluation was conducted by Dr. Carolyn Huddleston, clinical psychologist, in June 2002. Dr. Huddleston concluded that defendant was incompetent to stand trial. She acknowledged, however, that in the absence of defendant's prison medical records from California, she would have found defendant competent. On objection from the State, the trial court ruled that the California records were inadmissable hearsay and could not be relied upon to form the basis of Dr. Huddleston's opinion. The trial court concluded that defendant was competent to stand trial.
Prior to trial, defense counsel filed a motion in limine asking that his videotaped interview with California officers be partially redacted to exclude prior crimes and civil wrongs. Defense counsel also filed a motion to suppress the videotape on the grounds that the interview was involuntarily given. Both motions were denied by the trial court. The trial court did give a limiting instruction to the jury, advising the jury that it should not consider evidence of crimes other than the one charged in determining defendant's guilt.
At trial, defendant requested a self-defense instruction. The trial court found that there was no evidence to support such a theory, but it did give an instruction on the lesser included offense of voluntary manslaughter, based on an "unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person."
Upon conviction, the Defendant was sentenced to life in prison with the possibility of parole after 25 years for first-degree premeditated murder; to a standard sentence of 776 months for attempted first-degree murder, to be served consecutive to the murder sentence; and to 12 months for discharge of a firearm, to be served concurrent with his other sentences. His motions for a judgment of acquittal and for a new trial were denied. The appeal and defendant's assignment of errors follow.
(1) Exclusion of Dr. Huddleston's Expert Opinion Based Upon Defendant's California Medical Records
Defendant contends that it was error for the trial court to exclude Dr. Carolyn Huddleston's opinion that defendant was incompetent to stand trial. Dr. Huddleston easily qualified as an expert witness with approximately 20 years' experience as a licensed clinical psychologist in conducting competency evaluations. On a hearsay objection by the State, the trial court ruled that Dr. Huddleston's opinion that defendant was incompetent to stand trial was not admissible because it was based upon California medical records of defendant which had not been offered or admitted into evidence. Moreover, the trial court determined that the opinions expressed in the California records were by medical personnel not present for defendant's hearing on competency. The trial court admitted the California records as an appellate exhibit but ruled that such records constituted inadmissible hearsay based upon West v. Martin, 11 Kan. App. 2d 55, 60-61, 713 P.2d 957, rev. denied 239 Kan. 695 (1986), which held that "[e]xpert testimony founded upon hearsay is inadmissible and contrary to K.S.A. 60-456(b)."
Prior to issuing its final ruling, the trial court requested that the parties file briefs regarding their respective positions on the admissibility of the California medical records. Both parties responded and presented the same arguments on appeal as reflected in their appellate briefs. As the trial court's exclusion of the expert testimony was based on its determination that the records were not authenticated and were inadmissible hearsay, we apply the following standards of review.
"When the admission or exclusion of evidence is raised at trial, an appellate court first considers whether the evidence is relevant. [Citation omitted.] Relevant evidence is 'evidence having any tendency in reason to prove any material fact.' [Citation omitted.] 'Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.' [Citation omitted.]" State v. Ross, 280 Kan. 878, 881, 127 P.3d 249 (2006).
Relevant to this case, the admission of hearsay evidence (i.e., California records) "is controlled by statute and requires the interpretation of a statute. This court reviews the interpretation of a statute as a question of law, using a de novo standard. [Citation omitted.]" State v. Franklin, 280 Kan. 337, 341, 121 P.3d 447 (2005).
Subject to exclusionary rules, an appellate court's standard of review regarding a trial court's admission of evidence is abuse of discretion. "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. [Citation omitted.]" State v. Patton, 280 Kan. 146, 156, 120 P.3d 760 (2005); see also State v. Corbett, 281 Kan. 294, 130 P.3d 1179 (2006) (admissibility of expert witness' testimony is determined by the trial court in its exercise of discretion).
Before considering the defendant's contention, some background evidence is helpful in framing the issue we must resolve. In January 2002, the State and defendant's attorney filed a joint motion to determine competency, on the basis of which the trial court ordered a mental evaluation. The first competency hearing was held on May 14, 2002. Just prior to the first witness being called, the defense asked for a continuance in order to obtain a second expert's opinion on defendant's competence to stand trial, citing strange behaviors on defendant's part, as well as defendant's inability or unwillingness to assist with his own defense. The trial judge granted the continuance but had the State call the witnesses it would have called had the defense presented a report suggesting defendant's incompetence.
The State's primary witness was Dr. Robert Huerter, a psychologist at Larned State Security Hospital who had performed over 100 competency evaluations; he was qualified as an expert without objection. Dr. Huerter's initial evaluation concluded that defendant was aware of the "nature and purpose of the legal proceedings" which were about to be brought against him, and that "he has given clinical staff no reason to think that he is experiencing hallucinatory phenomena, delusional beliefs, acute emotional distress, or mental retardation which would interfere with his ability to cooperate with his preparing a legal defense with an attorney."
Dr. Huerter testified that while defendant was uncooperative and sometimes vulgar,
"[i]t was obvious that [the defendant] was not experiencing deteriorated functioning. He was able to brush his teeth; he was not talking to himself. He was not seemingly in emotional distress in the sense that he was trying to harm himself. He was not trying to hit himself. He was not asking for assistance from nursing staff, or when he wanted assistance from nursing staff he was able to ask for it."
Dr. Huerter was unable to effectively interview defendant at any time during defendant's stay at Larned, but testified that he found no evidence of any mental illness or defect at any time. He further testified that defendant was "very much aware" that he was in serious legal trouble, but was unable to say exactly how much trouble defendant believed himself to be in.
On cross-examination, Dr. Huerter acknowledged that he made no inquiry into any psychological problems defendant may have had in the California court system. He further stated that, based on his observations in the courtroom at the time of the hearing, he did not believe that defendant was suffering from a major mental illness that would prevent him from assisting in his defense.
The second competency hearing took place on September 11, 2002. The defense called Dr. Carolyn Huddleston, who was certified without objection as an expert. Dr. Huddleston testified that she had attempted to conduct a psychological evaluation of defendant in person, but had found him uncooperative. As a result, she based her evaluation largely on written records from the California penal system and, to a lesser extent, on the videotaped interview with Anaheim police, on the Larned evaluation, and on conversations with defendant's attorneys and jailers.
According to Dr. Huddleston, defendant's jailers reported certain bizarre behaviors on defendant's part. However, Dr. Huddleston testified that these observations "did not make me find [defendant] incompetent until I had read the California records. Without the California records I would not have found him incompetent even knowing these things about what he was doing." (Emphasis added.)
When defense counsel's questions began to focus on what the California records reflected, the State objected on the grounds that the records had not been admitted into evidence and on the basis that the recorded writings constituted hearsay opinions of other experts not present for defendant's hearing. Defendant made no attempt to qualify the records for admission into evidence under one of the exceptions to the hearsay rule, K.S.A. 60-460. Nor did defendant ever offer the California records into evidence.
The trial court sustained the State's objections on hearsay grounds. Moreover, the trial court noted that the California records were not accompanied by an affidavit of the custodian and were not properly authenticated.
The California records cover a time period from May 2, 2000, through November 21, 2001, and were admitted by the trial court as an appellate exhibit (Exhibit A, consisting of some 33 pages). Highly summarized, the records include mental health screening reports generated from recorded observations of defendant with conclusions by clinical psychologists, medical doctors including psychiatrists, and nurses; hourly progress notes regarding inpatient treatment of defendant together with inpatient medication administration; mental health consultations; interdisciplinary treatment team conclusions; and discharge diagnosis. The records contain detailed medical information, including numerous recorded fights defendant was involved in while incarcerated, statements indicating defendant was involved with heavy marijuana and crystal meth use on a daily basis before his incarceration, a Diagnostic and Statistical Manual–IV diagnosis made by clinical psychologist Dr. Carmen E. Reed, assessments by Bruch Bogost, M.D., reports and diagnosis of clinical psychologist Dr. Joseph K. Jankovitz, mental health placement report with Global Assessment of Functioning Scale scores signed by psychiatrist Dr. O. Kamson, a complete psychiatric evaluation and discharge summary for inpatient admission on February 6, 2001, and a discharge summary on February 20, 2001, with a discharge diagnosis of psychotic disorder, schizophrenia, chronic paranoid type, noncompliance with antipsychotic medications, and personality disorder prepared by staff psychiatrist Dr. E. Morong on April 30, 2001, and observations and assessment by Senior Psychologist Harry Tayler, Ph.D., together with detailed medical observations by other medical staff personnel.
On request, Dr. Huddleston's written report was admitted into evidence, but the trial court indicated that, given how much of the report was impermissibly based on the California records, he would mark the sections he would consider "admissible and relevant in making [his] decision."
After a recess, the defense offered a certified letter from Sandra Lara, who is the legal custodian for health records in the California Department of Corrections. Defense counsel used the letter to renew his objection to the exclusion of the California records. The letter, on Department of Corrections stationary, was signed by Sandra E. Lara, certifying that she was "the legal custodian of Health Records for inmates committed to CALIFORNIA DEPARTMENT OF CORRECTIONS (CDC), California State Prison-Los Angeles County," in which facility defendant was incarcerated, and that "the enclosed Health Record documents for inmate/patient GEORGE G. SANCHEZ" were "true copies from the original Unit Health Record" maintained in her custody. The trial court admitted the letter as an appellate exhibit and noted that it was not sworn to, or accompanied by an affidavit, but was simply "certified."
Dr. Robert Huerter was recalled to the stand and testified that he had reviewed the California records, as well as listened to Dr. Huddleston's testimony, and that nothing had altered his initial opinion that defendant was competent to testify. However, on cross-examination, Dr. Huerter testified that he did not have an opinion as to whether defendant presently understood his legal predicament "to any specific degree"; nor could he say, to any specific degree, whether defendant was able to cooperate with his defense team.
At the end of the hearing, the trial judge, citing West v. Martin, 11 Kan. App. 2d at 60-61 ("Expert testimony founded upon hearsay is inadmissible and contrary to K.S.A. 60-456[b]."), indicated that he was inclined to disallow Dr. Huddleston's testimony insofar as it was based on inadmissible hearsay. However, he requested that both parties file briefs in support of their respective positions. Both parties responded, and their appellate briefs reflect the written and oral arguments made to the trial court.
In reaching a final ruling, the trial court first noted that a defendant is presumed competent, and that the defense bears the burden of proving by a preponderance of the evidence that he or she is incompetent. The trial court noted that the source of the State's objection to the California records was K.S.A. 60-456(b), which provides that expert testimony "is limited to such opinions as the Judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness." The trial court determined that Dr. Huddleston's opinion that defendant was incompetent was based on hearsay and inadmissible, comparing Dr. Huddleston's opinion based upon the California records to the situation considered in In re Watson, 5 Kan. App. 2d 277, 615 P.2d 801 (1980):
"Defendant [Jorge Sanchez Gonzalez], as was true in Watson, made no attempt to place the California records into evidence, there was no effort made to show an exception to the hearsay rule and the Defendant did not attempt to qualify the reports as business records. Further, as was true in Watson, the records . . . are hearsay and any expert opinion based on these records is inadmissible."
Based on the evidence admitted at the competency hearing, the trial court concluded that defendant did not meet his burden of establishing he was incompetent to stand trial.
As can readily be observed by considering the above background information, the exclusion of Dr. Huddleston's opinion based on the California records is critical in this case. If properly excluded by the trial court, defendant's claim the trial court should have admitted Dr. Huddleston's testimony based upon the California records fails. If, on the other hand, the trial court erred, we must reverse the defendant's convictions and remand for another competency hearing. An examination of the two bases upon which the court excluded Dr. Huddleston's opinion demonstrate that no error occurred and that the trial court properly excluded Dr. Huddleston's opinion based upon the California records.
Authentication
While defendant never offered the California records into evidence, it is clear that the trial court determined that such records were not properly authenticated and therefore inadmissible. In this respect, the trial court was correct.
K.S.A. 60-464 requires authentication of a writing before it may be received in evidence. The California records upon which Dr. Huddleston's opinion was largely based were not original records but purportedly were copies of original records. Defendant offered no extrinsic evidence of authenticity. He attempted to authenticate the copies of the California records only by means of the letter from Sandra Lara. K.S.A. 60-465 governs the authentication of copies of official records. As relevant, 60-465 provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required if the office in which the record is kept is within the United States and (1) the writing is attested to as a correct copy of the record by a person purporting to be an officer having legal custody of the record, and (2) is "authenticated by seal of the office having custody or, if that office has no seal, by a public officer having a seal and having official duties in the district or political subdivision in which the records are kept who certifies under seal that such officer has custody." While the letter from Lara is not in the form of an a