Opinion
No. 104,612.
2012-08-31
STATE of Kansas, Appellee, v. Giovanni J. GONZALEZ, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., HILL, J., and MICHAEL E. WARD, District Judge, assigned.
MEMORANDUM OPINION
WARD, J.
Giovanni J. Gonzalez appeals his conviction for the second-degree murder of Arturo Moreno. He first argues that the State failed to present sufficient evidence in support of his conviction for second-degree murder. He next argues that his case presents several alternative means issues and the State failed to present sufficient evidence on one or more of the alternative means. Third, he claims that the district court erred in failing to instruct the jury on voluntary manslaughter. Fourth and finally, he argues that his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were violated when the trial court sentenced him to the aggravated sentence in the grid box without putting the aggravating factors before a jury.
There is sufficient evidence to support Gonzalez' conviction; there is no alternative means error; the trial court did not err in denying his request for a voluntary manslaughter instruction; and there is no Apprendi violation. Accordingly, Gonzalez' conviction for second-degree murder and the sentence imposed are both affirmed.
Factual and Procedural Background
On March 17, 2009, Moreno was at his apartment in Wichita with his girlfriend Aurora Tinoco, her infant child, her sister Pamela Tinoco, and Pamela's friend Lisa Chavez. While there, Pamela received a call from her boyfriend Rogelio Soto asking whether he and his friends Luis Navarrette–Pacheco and Gonzalez could come over to Moreno's apartment. Pamela asked Moreno if it would be alright, and he agreed. Soto, Navarrette–Pacheco, and Gonzalez arrived at the apartment at about 5 p.m. They initially stayed outside the apartment, drinking beer, dancing, and listening to music. Everyone appeared to be getting along.
While outside, Pamela took pictures of her friends. Several of the pictures showed Soto and Navarrette–Pacheco flashing gang signs. Soto was a member of a gang known as the “Lopers,” a subset of the “SUR 13” gang. Gonzalez was a self-admitted member of the SUR 13s and had demonstrated his affiliation with that gang. Testimony is mixed about whether Gonzalez had actually been initiated into the SUR 13s prior to March 17, 2009. Soto and Pamela knew that Moreno used to hang out with a rival gang known as the “Vato Loco Boys” or “VLBs.” Moreno had associated with the VLBs for about 10 years. There was a longstanding rivalry between the VLBs and the SUR 13s, which took an ugly turn in 1998 when VLB gang members killed 8–year–old Tony Galvin, a.k.a. Little Tony, in a drive-by shooting intended for members of the SUR 13 gang. Police promptly arrested the men who killed Little Tony. Despite that fact, Little Tony's murder continued to resonate with the SUR 13s.
The gathering at Moreno's apartment eventually moved inside at about 8:30 p.m. At approximately 9 p.m. the Tinoco sisters and Chavez left for the evening. Even though Soto, Gonzalez, and Navarrette–Pacheco had just met Moreno, they remained with him drinking beer. Aurora was apprehensive about leaving her boyfriend Moreno in the company of these three.
At about the same time that the Tinoco sisters were leaving, Gonzalez and Navarrette–Pacheco left to pick up Angel Castro, who was an associate of the SUR 13s. When Gonzalez, Navarrette–Pacheco, and Castro arrived at Moreno's apartment, Soto instructed Castro not to touch anything. Soto, Gonzalez, and Navarrette–Pacheco appeared to arrange themselves in a triangle around Moreno.
At approximately 9:30 p.m. Moreno called his friend Bryan Duran. Castro, Soto, Navarrette–Pacheco, and Gonzalez were all present and overheard the conversation. The accounts of this phone conversation are somewhat conflicting. Moreno reportedly inquired of Duran about the identity of those involved in the killing of Little Tony. Duran told him that the people responsible for Little Tony's murder had been arrested and incarcerated long ago. One version of the conversation is that Moreno told Duran he was involved in Little Tony's death. Another account is that he told Duran he was in Texas at the time of the murder. Toward the end of the conversation, Moreno began to cry and told Duran that he loved him. Duran could hear voices in the background and was concerned for Moreno. He offered to come over to Moreno's apartment, but Moreno declined his invitation.
The mood in the room soured after Moreno hung up with Duran. Soto stood up and pulled out a knife. Castro believed something bad was about to happen, and he made his way out the door and down the stairs. As he descended the stairs he heard Moreno say, “Why?”
While in the backyard of Moreno's apartment, Castro urinated and stood there for a little while. He then returned to the apartment where he saw Moreno's body on the floor, covered with blood. Castro, Gonzalez, Soto, and Navarrette–Pacheco gathered the items they had touched or which they believed might be used as evidence and placed them in a black trash bag. Castro asked the group, “Why did you guys do this?” Soto replied, “Because of Little Tony.”
Upon leaving the apartment, the black trash bag was placed in Gonzalez' truck. Castro, who had not been drinking, drove the three others in Gonzalez' truck to a site in the south part of Wichita. During the ride they inspected their shoes for blood. Upon arriving at the river, the group disposed of the trash bag and other items from the scene of the crime. When Gonzalez returned to his parents' home, he did not speak to his mother or girlfriend. Instead he went straight to the basement and took a shower. His girlfriend, who lived with him, was scared because she did not know what had happened to him.
Later that evening David Moreno arrived at the apartment he shared with his brother Moreno and discovered his brother's body. He reported the death to the police. Underwater divers from the Wichita Fire Department subsequently recovered chess pieces on the river bank, a DVD player, and a black trash bag containing a beer can and other items. They also recovered a paper bag containing a folding knife.
Police searched Gonzalez' home the next morning and found what appeared to be blood on his tennis shoes. At trial, a DNA analyst testified that the blood, which was consistent with Moreno's, had been absorbed into the tongue and interior part of the shoes. That same day, police officers brought the Tinoco sisters in for questioning. Aurora described Soto as a SUR 13 gang member and indicated that Gonzalez was wearing a jersey with the number 13 on it, denoting his affiliation with SUR 13. She told the detective that Gonzalez and his friends “think they're so gangster.” Gonzalez and his girlfriend were also brought in for questioning. Gonzalez made no incriminating statements.
An autopsy revealed that Moreno had been stabbed or slashed 79 times. The medical examiner, Dr. Dele Adeagbo, testified that the wounds on the front and back of Moreno's body could have been caused by more than one person. He was “very suspicious” of this possibility, but he could not say with certainty whether more than one person had inflicted the injuries. Tool mark examiner Gary Miller examined one of the wounds on Moreno's body, as well as the various knives and other instruments collected by investigators. He determined that the wound could not have been caused by the black folding knife collected from Gonzalez' bedroom or the black steak knife taken from Gonzalez' truck. But he could not exclude the folding knife found in the river or the multi-use tool found in Gonzalez' truck as having caused this injury.
The State charged Gonzalez, Soto, and Navarrette–Pacheco with premeditated first-degree murder. Castro pled guilty to aiding a felon and agreed to testify about Moreno's murder. The district court granted the State's motion to prosecute Gonzalez as an adult and tried him separately from the other defendants. A jury found Gonzalez guilty of the lesser included offense of second-degree murder. The trial judge sentenced him to 165 months in prison, the aggravated sentence for second-degree murder. He filed a timely appeal.
Sufficiency of the Evidence to Support Second–Degree Murder
Standard of review.
“When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.” State v. Raskie, 293 Kan. 906, Syl. ¶ 6, 269 P.3d 1268 (2012).
Analysis of the evidence.
K.S.A. 21–3402(a) defines second-degree murder as the intentional killing of a human being. The aiding and abetting statute, K.S.A. 21–3205(1), provides that a person is “criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” Our Supreme Court has said that a “person may be convicted under the theory of aiding and abetting a crime if the person, either before or during its commission, aids or abets another to commit a crime with the intent to promote or assist in its commission.” (Emphasis added.) State v. DePriest, 258 Kan. 596, 602, 907 P.2d 868 (1995).
Because the jury convicted Gonzalez of second-degree murder rather than first-degree murder, he argues that it is logically impossible for him to have aided and abetted Moreno's murder before it occurred due to his lack of premeditation. He then argues that the State failed to also present sufficient evidence that he assisted Soto, or Soto and Navarrette–Pacheco, during the commission of Moreno's murder. Both arguments fail.
Gonzalez confuses the concept of premeditation, to have thought the matter over beforehand, with the concept of aiding and abetting. Premeditation is a state of mind, distinct from the concept of assisting with a crime before its commission. The latter is simply a function of the point in time at which one participates in the crime. The fact that Gonzalez was not convicted here of premeditated first-degree murder says nothing about whether he aided and abetted in this crime before its actual commission.
With regard to Gonzalez' activities during the commission of Moreno's murder, Kansas courts have repeatedly held that circumstantial evidence may be used to convict a defendant of even the gravest offense. See State v. Penn, 271 Kan. 561, 564, 23 P .3d 889 (2001). And eyewitness testimony is not necessary to convict a defendant of even first-degree murder. State v. Juiliano, 268 Kan. 89, 97, 991 P.2d 408 (1999) (Even though there were no witnesses who saw the defendant kill [the victim], there was sufficient circumstantial evidence that the defendant committed the murder.); State v. McKibben, 239 Kan. 574, 585, 722 P.2d 518 (1986) (Circumstantial evidence introduced at trial was sufficient to support the defendant's conviction of second-degree murder.).
While it may be true that the State's evidence in this case pointed to Soto as the primary actor, the principal if you will, there was sufficient circumstantial evidence presented at trial to demonstrate that Gonzalez aided and abetted Moreno's killing during its commission, if not before. Gonzalez concedes in this appeal that he was at Moreno's apartment during the murder and that he tried to conceal the crime after the fact.
As the State observes, the jury could reasonably infer Gonzalez' guilt, in part because of his failure to distance himself from or stop the attack on Moreno. See State v. Scott, 250 Kan. 350, 363, 827 P.2d 733 (1992). The cumulative impact of the circumstantial evidence upon which the State based its case was more than slight. See McKibben, 239 Kan. at 586 (“The probative value of each bit of circumstantial evidence permitting its individual inference was for the jury to determine, and the accumulation of these inferences supports the jury's finding of guilt beyond a reasonable doubt. There was no stacking of inference upon inference to establish guilt.”). And finally, as the evidence shows, Gonzalez' role in Moreno's murder went far beyond mere presence. Viewed in a light most favorable to the State, the jury had sufficient evidence upon which to convict Gonzalez for aiding and abetting the second-degree murder of Moreno.
Alternative Means
Gonzalez argues that there are two alternative means issues present in this case, namely: (1) the six alternative means by which one can aid and abet in the commission of a crime; and (2) the alternative means of acting as a principal versus an aider and abettor. He asserts that the State failed to present sufficient evidence at trial to support his conviction under one or more alternative means.
Most current discussions of alternative means law in Kansas begin with State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). There, our Supreme Court cited with approval State v. Kitchen, 110 Wash.2d 403, 756 P.2d 105 (1988), in which that court said the following:
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]” 110 Wash.2d at 410.
In the years following Timley, most Kansas decisions involving alternative means followed the Timley substantial evidence approach. See, for example, State v. Morton, 277 Kan. 575, Syl. ¶ 2, 86 P.3d 535 (2004); State v. Hoge, 276 Kan. 801, Syl. ¶ 9, 80 P.3d 52 (2003). However, in State v. Dixon, 279 Kan. 563, 604–06, 112 P.3d 883 (2005), the Supreme Court took a different approach, holding that a conviction is sustainable in an alternative means case as long as strong evidence was presented in support of at least one means of the crime, and the lack of evidence as to the alternative means was considered harmless error.
In State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010), the Supreme Court resolved the conflict between Timley and Dixon, reaffirming the Timley substantial evidence rule and disapproving the Dixon harmless error approach in alternative means cases. The court said: “We are now persuaded that the Timley alternative means rule is the only choice to ensure a criminal defendant's statutory entitlement to jury unanimity.” 290 Kan. at 206.
Alternative means law is still evolving in Kansas. Up to this point, Kansas juries have generally not been required by trial judges to unanimously determine the means by which a crime was committed. Timley and Wright do not compel that procedure. It has been left to the Kansas appellate courts to conduct a sufficiency of the evidence inquiry in alternative means cases. If the reviewing court finds that the evidence at trial was sufficient as to each alternative means, the conviction stands. But if the evidence is lacking as to one means or another, the outcome is reversal on that charge.
It remains unsettled in Kansas whether reversal for an alternative means error bars retrial on the alternative means for which sufficient evidence was presented at trial. See State v. Schreiner, 46 Kan.App.2d 778, 782, 264 P.3d 1033 (2011) (stating that a guilty verdict fails due to insufficient evidence on one means even though there may be overwhelming evidence supporting the other means, and the appellate court must enter a judgment of acquittal), petition for review filed December 5, 2011; State v. Perkins, 46 Kan.App.2d 121, 128–32, 257 P.3d 1283 (2011) (conviction under K.S.A. 8–262 reversed and acquittal ordered due to lack of proof that defendant's license was cancelled or revoked, even though State presented sufficient proof that license was suspended), rev. granted December 19, 2011, argued April 11, 2012. But see State v. Shaw, 47 Kan.App.2d ––––, Syl. ¶ 5, 281 P.3d 576 (No. 106,015, filed July 20, 2012) (reversal and retrial on the alternative means for which the appellate court found sufficient evidence; double jeopardy bars retrial on the other alternative means).
Standards of review.
The alternative means analysis in this case centers on the aiding and abetting statute, K.S.A. 21–3205(1). Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). An appellate court first looks at the language of the statute, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, the appellate court will not read into the statute something not readily found in the statute. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).
As a general rule, criminal statutes must be strictly construed in favor of the accused. And any reasonable doubt as to the meaning of the statute is decided in favor of the accused. But this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to achieve legislative design and intent. State v. Trautloff, 289 Kan. 793, 796–97, 217 P.3d 15 (2009).
To the extent that alternative means issues involve jury unanimity, an appellate court likewise has unlimited review. State v. Stevens, 285 Kan. 307, Syl. ¶ 1, 172 P.3d 570 (2007). And because alternative means questions are ultimately resolved on the sufficiency of the evidence, that standard of review is whether, after considering all of the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt on each of the alternative means presented. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011); State v. Becker, 290 Kan. 842, 855, 235 P.3d 424 (2010).
Six means of aiding and abetting'?
The jury in this case received instruction on the law of aiding and abetting. Jury Instruction No. 9 reads as follows:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with the intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Gonzalez argues that this instruction presents six alternative means by which one can aid and abet in the commission of a crime, namely by aiding, abetting, advising, hiring, counseling, or procuring another to commit the crime. And he contends that the State presented insufficient evidence as to several of these means.
The argument that K.S.A. 21–3205(1) presents alternative means was previously rejected by this court in State v. Johnson, 46 Kan.App.2d 870, Syl. ¶ 9, 265 P.3d 585 (2011). There, the defendant was convicted of aggravated battery. The standard aiding and abetting instruction was given at trial. The defendant argued that the State failed to present sufficient evidence to support each of the purported alternative means listed in the aiding and abetting statute. The Johnson court looked closely at the aiding and abetting statute's string of terms and concluded that although there are minor differences between the terms, they “do not entail materially different or distinct ways of committing a particular crime.” 46 Kan.App.2d at 885. Rather, they are merely synonyms used to define the same prohibited conduct. The Johnson court thus concluded that the aiding and abetting statute, K.S.A. 21–3205(1), did not present an alternative means issue. 46 Kan.App.2d at 884–86.
In an opinion filed the following month by a different panel of this court, the same conclusion was reached. See State v. Boyd, 46 Kan.App.2d 945, Syl. ¶ 4, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; cross-petition for review filed February 6, 2012. The court held that “[a]iding and abetting ... are umbrella words broadly covering the additional terms in K.S.A. 21–3205(1), which are simply more specific forms of facilitating or promoting criminal activity.” Boyd, 46 Kan.App.2d at 952.
The string of terms found at K.S.A. 21–3205(1) do not present alternative means of committing a crime. Rather, they are slightly different words each describing one ultimate mean—assisting in or furthering the commission of a crime.
Principal versus Aider and Abettor.
Beyond his argument that the aiding and abetting statute presents six alternative means, Gonzalez makes the more fundamental argument that aiding and abetting is itself an alternative means of committing a crime distinct from participating in a crime as the principal.
A different panel of this court has adopted that view. The Boyd court likened the different ways in which crimes may be committed within the same statute (alternative means) to aiding and abetting, describing that concept as “markedly different ways of facing criminal liability for participating in specific wrongful conduct.” 46 Kan.App.2d at 952–53. It gave examples of the different ways in which persons can engage in criminal activity as principals and as aiders and abettors, and it concluded that the “gulf in conduct resulting in criminal liability sufficiently establishes aiding and abetting—the promotion of or assistance in carrying out a specific crime—as an alternative means to liability as the principal.” 46 Kan.App.2d at 953.
Aiding and abetting is not an alternative means of committing a crime. K.S.A. 21–3205(1) does not fit within the currently recognized definition or view of alternative means. And the century or more of Kansas law regarding aiding and abetting does not support a requirement that juries or appellate courts determine whether defendants acted as principals or as aiders and abettors.
The foundation of the alternative means rule, the requirement of jury unanimity as to the means by which a crime was committed, comes from our Supreme Court's interpretation of the Kansas criminal verdict statute, K.S.A. 22–3421. See Wright, 290 Kan. at 201. Verdict unanimity in criminal cases is not based in either the Kansas or the United States Constitutions. Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 277 (2005). Our courts have stressed that point of law several times recently. See State v. Voyles, 284 Kan. 239, 250–51, 160 P.3d 794 (2007) (“[T]he right to a unanimous jury verdict in a Kansas court is not a federal constitutional right or a state constitutional right, but rather a statutory one.”); Schreiner, 46 Kan.App.2d at 791 (“First, jury unanimity in criminal cases is a statutory right rather than a fundamental constitutional right.”).
Because jury unanimity is not a fundamental constitutional right, the appellate courts may extend alternative means protection into the arena of aiding and abetting only by interpreting K.S.A. 21–3205(1) as establishing alternative means of committing a crime. This statute reads as follows:
“A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
Our court has noted that K.S.A. 21–3205(1) does not itself define or establish a crime. Rather, it is a statute which “explains the circumstances under which a person may be criminally responsible for a crime committed by another person.” Johnson, 46 Kan.App.2d at 885. In other words, it prescribes a theory of criminal liability. Similarly, the United States Tenth Circuit Court of Appeals interpreted the federal aiding and abetting statute, 18 U.S.C. § 2 (1994), as not establishing an independent crime, but rather as abolishing the common-law distinction between principals and accessories to crime. United States v. Scroger, 98 F.3d 1256, 1262 (10th Cir.1996).
Our court has said: “Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense.” (Emphasis added.) Schreiner, 46 Kan.App.2d at 781. The means of a crime are its elements. Because K.S.A. 21–3205(1) does not define a crime, it contains no elements. Fundamentally and logically then, a statute that defines no crime and has no elements cannot establish alternative means of committing a crime.
The Boyd court acknowledges that aiding and abetting is not a distinct means of committing one particular crime, but it refers to aiding and abetting as a “means common to all” substantive crimes. That court goes on to discuss the danger recognized in Wright regarding lack of jury unanimity, finds the potential of this danger in aiding and abetting cases, and concludes that aiding and abetting must be recognized as an alternative means so as to avoid this danger. 46 Kan.App.2d at 953–54.
While Wrights, discussion of the danger posed by lack of jury unanimity is understood, one must not lose sight of what an alternative means case really is. Alternative means cases are those “where a single offense may be committed in more than one way.” Timley, 255 Kan. 286, Syl. ¶ 1. The fact that more than one person participates in a crime does not mean that the crime was committed in more than one way. Alternative means do not arise simply from participation in a crime by multiple defendants and the giving of the aiding and abetting instruction at trial. Rather, alternative means arise from the serial list of terms found within our substantive criminal statutes, from the way in which crimes are charged by the State, and from the wording used by trial courts in the elements instructions to the jury. Nothing is learned about the means by which a crime was committed by attempting to discern among the several defendants who was the principal and who was the aider and abettor.
Furthermore, the long history of Kansas law on this subject does not support the conclusion that aiding and abetting is an alternative means of committing a crime. Early on our Supreme Court stated: “The one acting, the one present, aiding and abetting, and the one absent, counseling, aiding and abetting, are declared to be equally and alike guilty.” State v. Cassady, 12 Kan. 550, 556, 1874 WL 666 (1874). That decision interpreted the aiding and abetting statute in effect at that time which read: “Any person who counsels, aids, or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were a principal.” G.S. 1868, ch 82, sec. 115, p. 839 (Code Crim. Proc. § 115). See Cassaday, 12 Kan. at 555–56.
In the century or more since Cassady, the basic precepts of aiding and abetting law in Kansas have remained constant. The statute has not significantly changed, and our Supreme Court continues to interpret the aiding and abetting statute in much the same way the court did over a century ago. See State v. Griffin, 279 Kan. 634, Syl. ¶ 10, 112 P.3d 862 (2005) (“All participants in a crime are equally guilty of that crime and any other reasonably foreseeable crime committed in carrying out the intended crime.”); State v. Scott, 250 Kan. 350, Syl. ¶ 7, 827 P.2d 733 (1992) (“A person who, either before or during the commission of a crime, intentionally aids, abets, advises, or counsels another to commit a crime with intent to promote or to assist in its commission is criminally responsible for the crime committed regardless of the extent of the person's participation, if any, in the actual commission of the crime.”); State v. Payton, 229 Kan. 106, Syl. ¶ 1, 622 P.2d 651 (1981) (“All participants in a crime are equally guilty without regard to the extent of their participation.”).
Because all participants in a crime are equally guilty without regard to the extent of their participation, prosecutors have generally not bothered to distinguish between principals and aiders and abettors in charging codefendant cases. The defendant may be charged as the principal or as the aider and abettor. State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009) (“A person who aids and abets in committing the crime may be charged as a principal or as an aider and abettor.”); State v. Maxwell, 234 Kan. 393, Syl. ¶ 6, 672 P.2d 590 (1983) (“It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids, or abets in the commission of an offense may be charged, tried and convicted in the same manner as though he were a principal.”).
And although Kansas juries are typically instructed as to the law of aiding and abetting in codefendant cases, juries have not been asked to distinguish between a person's guilt as an aider and abettor as opposed to guilt as the principal. That distinction has not mattered to the guilt of the defendant. In discussing the enactment in 1969 of K.S.A. 21–3205, the Kansas Judicial Council Advisory Committee on Criminal Law commented:
“This is intended to supersede K.S.A. 21–105, relating to principals in the second degree and accessories before the fact. There seems to be no reason to speak in terms of principals in the first and second degrees and accessories before the fact where all are liable to the same extent.” 10 Vernon's Kansas Stat. Annot., Crim.Code § 21–3205, Adv. Comm. Comment, p. 183 (1971).
All that has historically mattered is that the State proves each element of the crime and the defendant on trial played a willing role in the commission or furtherance of the crime as either the principal or as the aider and abettor. To be guilty under the theory of aiding and abetting, a defendant “must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.” State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P.2d 703 (1974).
Before the analytical structure of alternative means is extended into the realm of aiding and abetting, K.S.A. 21–3205(1) must be interpreted as compelling such a result. For over a century, our courts have not construed the aiding and abetting statute or its predecessor statutes to require verdict discernment between principals and aiders and abettors. The committee that drafted the current version of the aiding and abetting statute for enactment in 1969 saw no reason to discern between principals and accessories to crime, as both were treated and punished the same. Timley and Wright do not support or compel any different interpretation of the statute at the present time.
Voluntary Manslaughter Instruction
Standard of review.
A trial court must give a lesser included offense instruction when there is some evidence that would reasonably justify conviction for the lesser offense. If lesser included offense instructions are requested by the defendant, they must be given if the lesser crime is established by the evidence, even if that evidence is weak or inconclusive. Such an instruction is not required, however, if the jury could not reasonably convict the defendant of the offense based on the evidence presented. State v. Drennan, 278 Kan. 704, Syl. ¶ 4, 101 P.3d 1218 (2004). When a defendant requests but does not receive a lesser included offense instruction, the evidence must be viewed in a light most favorable to the defendant. State v. Houston, 289 Kan. 252, 274, 213 P.3d 728 (2009).
Discussion.
Gonzalez' attorney requested a jury instruction on voluntary manslaughter as a lesser included offense of premeditated first-degree murder. The court denied his request, finding insufficient evidence in the record to support a jury verdict for that crime.
Voluntary manslaughter is the intentional killing of a human being committed (a) upon a sudden quarrel or in the heat of passion or (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force. K.S.A. 21–3403. Gonzalez based his request for a voluntary manslaughter instruction on his assertion that the killing of Moreno occurred in the “heat of passion.” On appeal, he argues that the heat of passion arises from the evidence of: Moreno's affiliation with a rival gang; Moreno's phone conversation with Duran in which Moreno may or may not have admitted a role in Galvin's death; Soto pulled his knife immediately after this phone conversation; and Soto's later statement to Castro that the murder of Moreno “just happened.” Notably, Gonzalez does not claim he should have received a voluntary manslaughter instruction based upon a sudden quarrel or upon an unreasonable but honest belief of justification.
Heat of passion is defined by our Supreme Court as ‘ “ “any intense or vehement emotional excitement which was spontaneously provoked from circumstances. Such emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.’ “ “ Furthermore, to be entitled to a voluntary manslaughter instruction based on heat of passion, the defendant's ‘ “ “emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting severe provocation.’ “ “ State v. Hill, 290 Kan. 339, 356, 228 P.3d 1027 (2010). Legally sufficient provocation is that which is calculated to deprive a reasonable person of self-control and to cause the defendant to act out of passion rather than reason. State v. Vasquez, 287 Kan. 40, 55–56, 194 P.3d 563 (2008). Whether provocation is legally sufficient is an objective, not a subjective, determination. Hill, 290 Kan. at 356.
Gonzalez argues that a voluntary manslaughter instruction is appropriate where “the motive for that killing was discovering that the victim had been involved in the murder of the defendant's friend or family member.” He cites State v. Mann, 274 Kan. 670, 56 P.3d 212 (2002), in support of that proposition. Mann is not persuasive on this issue. The court there discussed but did not reach the merits of that issue because there was no evidence the defendant knew that the victim was involved in the murder of his friend's sister. See Mann, 274 Kan. at 690. Furthermore, even assuming that Moreno was somehow involved in the death of “Little Tony” 11 years earlier and that Soto, Gonzalez, or Navarrette–Pacheco previously knew or just found that out, those facts do not constitute the sort of immediate provocation necessary to trigger heat of passion.
This case was not about a sudden act of violence provoked by something that Arturo Moreno said or did on March 17, 2009. He did not use any foul or provocative language toward the defendants or act in any hostile manner toward them. He did nothing that day sufficient to cause an ordinary and reasonable person to lose control of his or her actions and reason, or such that would cause an ordinary person to act on impulse without reflection. See State v. Brown, 285 Kan. 261, 301–302, 173 P.3d 612 (2007). In fact, the evidence supports the conclusion that Moreno was trying to avoid conflict and maintain good relations with all present at his apartment that day. Both Aurora Tinoco and Pamela Tinoco testified that everyone was having a good time during the several hours before they left Moreno's apartment.
While there may have been bad blood between the VLBs and the SUR 13s, there is no evidence of any personal animosity between Moreno and his assailants, including Gonzalez. In State v. McClanahan, 254 Kan. 104, 115, 865 P.2d 1021 (1993), the Supreme Court held that a voluntary manslaughter instruction was not warranted where there was no evidence of prior bad blood between the defendant and the victim or evidence of any prior argument between them. See also Brown, 285 Kan. at 302 (no evidence of personal animosity between victim and defendant).
The defendants invited themselves over to Moreno's apartment the night of his murder. Moreno did not go looking for trouble with any of them. To the contrary, these defendants interjected themselves into the situation that evening. These facts do not belie a heat of passion circumstance. See State v. Hayes, 270 Kan. 535, 542, 17 P.3d 317 (2001).
Immediacy is an underpinning of voluntary manslaughter. The passage of 11 years since Little Tony's murder would clearly constitute a sufficient cooling-off period and would undercut Gonzalez' claim of objectively adequate provocation. See State v. Follin, 263 Kan. 28, 38, 947 P.2d 8 (1997) (“With the passing of time after provocation, passion cools and gives way to reason and mastery over one's passion. An act of violence separated from the provocation by sufficient cooling time is the product of malice and cold calculation rather than the heat of passion.”).
Viewing the evidence in this case in the light most favorable to the defendant, it simply would not have supported conviction for the lesser included offense of voluntary manslaughter. Accordingly, the failure of the trial judge to give such instruction was not error.
The Apprendi Issue
As his final argument, Gonzalez asserts that because the trial judge imposed the aggravated sentence within the applicable sentencing guidelines grid box, he was entitled to have the jury involved in that determination. He cites both Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), for the proposition that the jury must find aggravating factors before a trial court may impose an aggravated sentence upon a defendant.
Standard of review.
Interpretation of the Kansas Sentencing Guidelines Act is a question of law over which the appellate court's scope of review is unlimited. State v. Perez–Moran, 276 Kan. 830, 833, 80 P.3d 361 (2003). No objection is necessary when an issue presents a question of law and the appellate court is asked to consider the application of Apprendi. See State v. Anthony, 273 Kan. 726, 727–28, 45 P.3d 852 (2002).
Discussion.
Gonzalez acknowledges that the Kansas Supreme Court has resolved this issue in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008). He is thus preserving it for federal review. There is no merit in this issue.
The conviction of Gonzalez for second-degree murder is affirmed, as is the sentence imposed by the trial court.
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HILL, J., concurring.
I agree that we should affirm the conviction of Giovanni J. Gonzalez for second-degree murder. In my view, there is sufficient evidence to find him guilty both as an aider and abettor as well as a principal. There is no alternative means issue in this regard. I agree with Judge Ward's opinion in all other respects.
We have been instructed that alternative means questions are ultimately resolved on the sufficiency of the evidence. See State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). Viewed in a light most favorable to the State, as required by State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011), the jury had sufficient evidence upon which to convict Gonzalez for aiding and abetting the second-degree murder of Moreno as well as committing the murder himself. A quick review of the record yields the following facts.
Gonzalez concedes he was at Arturo Moreno's apartment during the murder and then tried to conceal the crime. Other key, incriminating evidence is largely uncontested. Gonzalez had a gang affiliation and friendship with Rogelio Soto that a factfinder could conclude would have influenced him to participate in Moreno's murder. When Angel Castro arrived at Moreno's apartment, Soto told him not to touch anything. Gonzalez, Soto, and Luis Navarrette–Pacheco then positioned themselves at Moreno's apartment in a manner that made it difficult for Moreno to escape. Moreno, likely fearing the three would attack or kill him, spoke with Bryan Duran over the telephone and repeatedly asked him to confirm that he, Moreno, was not responsible for Little Tony's (Tony Galvin) murder. After the conversation, Castro, who saw Soto with a knife, left Moreno's apartment fearing something bad was about to happen. As Castro walked down the stairs, he heard Moreno ask, “Why?” Upon Castro's return to the apartment, Moreno's bloody body was lying on the floor, and the three others were removing potentially incriminating evidence they later dumped in the river. When Gonzalez returned home, he went straight to the basement and took a shower, worrying his girlfriend because she did not know what happened to him. Police found blood on Gonzalez' shoes that was a likely DNA match with Moreno. And finally, the medical examiner testified he was “very suspicious” the stab wounds may have been caused by more than one person.
A rational factfinder could conclude from this evidence that Gonzalez inflicted a share of those stab wounds himself and, when he was concealing the evidence, it was in an attempt to conceal evidence of his own guilt as well. Viewed in the light most favorable to the prosecution, Gonzalez helped confine the victim and participated in his murder.
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GREENE, C.J., dissenting.
I must respectfully dissent because I believe and have held that facing liability for a crime as an aider and abettor creates an alternative means to committing the same offense as a principal. See State v. Boyd, 46 Kan.App.2d 945, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; cross-petition for review filed February 6, 2012. Without belaboring this separate opinion, I agree with and adopt the rationale expressed in the Boyd opinion. 46 Kan.App.2d at 952–54. For this reason alone, I would reverse Giovanni J. Gonzalez' conviction and remand for a new trial on the charge of aiding and abetting second-degree murder. See State v. Shaw, 47 Kan.App.2d ––––, Syl. ¶ 5, 281 P.3d 576 (No. 106,015, filed July 20, 2012).