Opinion
No. 106,014.
2012-06-1
STATE of Kansas, Appellee, v. Brandon Demetri SANTANA, Appellant.
Appeal from Riley District Court; Paul E. Miller, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Melissa Jones, legal intern, Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Paul E. Miller, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Melissa Jones, legal intern, Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
PER CURIAM.
Following a night of drinking, Brandon Santana and two other men, who were having financial problems, decided to commit a robbery. After two failed robbery attempts, Santana robbed Dara's convenience store. Santana was convicted of two counts of attempted aggravated robbery and one count each of aggravated robbery, conspiracy to commit aggravated robbery, and aggravated assault. Santana timely appeals.
Facts
Randy McBride, Anthony Layton, and Santana had been living together in Manhattan, Kansas, for a couple of weeks. After an evening of drinking in March 2010, McBride, Layton, and Santana began discussing their financial problems. McBride testified that Santana was hurting for money because he needed to go see his fiance [sic] who lived out of state. Santana, on the other hand, told Detective Ryan Runyan that the robbery was McBride's idea because McBride told Santana he wanted to hit a lick.
The three men put on masks, bandanas, and hooded jackets, and each carried a weapon. During Santana's trial, McBride testified that as the men left their residence Santana said, Let's go to Arby's. Santana stated that at first he thought the men were just messing around and did not intend to commit any robbery. When the men arrived near Arby's, they became scared and abandoned the plan.
The men then proceeded to a Sonic Drive–In where Santana had previously worked. When they arrived, Santana exited the vehicle with his shotgun, but after a few minutes, McBride and Layton became nervous and found Santana near the back door of the restaurant. Santana had not entered the Sonic Drive–In, so the men left without cash and unknown to the employees.
Santana told Detective Runyan that although McBride was the first to say the men would not be going away empty handed, Santana agreed with the statement. The men arrived near the back of the Dara's convenience store and gas station. Santana exited the vehicle, went around to the front of Dara's, and hid behind a trashcan, though he was visible to a video camera. Still holding the shotgun, Santana quickly burst into Dara's and ordered the clerk and a customer to the ground. Santana retrieved the cash register money but failed to get into the safe. The men left, returned to their home, and divided the money, which amounted to $80 each.
Santana was charged with two counts of attempted aggravated robbery, under K.S.A. 21–3301 and K.S.A. 21–3427, a severity level 5 person felony; and one count each of aggravated robbery, under K.S.A. 21–3427, a severity level 3 person felony; conspiracy to commit aggravated robbery, under K.S.A. 21–3302 and K.S.A. 21–3427, a severity level 5 person felony; and aggravated assault, under K.S.A. 21–3410(a), a severity level 7 person felony.
Before trial, Santana filed a motion to suppress all statements he made to law enforcement. Following a hearing, the district court denied the motion to suppress, finding that the statements were voluntarily made after he had been given his Miranda warning. Following a jury trial, Santana was found guilty on all counts. The district court sentenced Santana to a controlling sentence of 59 months' imprisonment with 36 months' postrelease supervision. Santana timely appeals.
Instruction on Conspiracy to Commit Aggravated Robbery
On appeal, Santana argues that the district court's conspiracy instruction was
“erroneous because it instructed the jury that, as a matter of law, driving to the location of the crime constituted an overt act in furtherance of the agreement, thereby depriving Mr. Santana of the right to have the jury determine every fact necessary to constitute the crime of conspiracy beyond a reasonable doubt.”
Because Santana failed to object to the jury instructions, this court's standard of review is whether the instruction is clearly erroneous. See State v. Daniels, 278 Kan. 53, 57, 91 P.3d 1147,cert. denied543 U.S. 982 (2004). ‘An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ State v. Ellmaker, 289 Kan. 1132, 1139, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010).
The crime of conspiracy contains two essential elements: ‘(1) an agreement between two or more persons to commit or to assist in committing a crime and (2) an overt act in furtherance of the conspiracy committed by one or more of the conspirators.’ [Citation omitted]. State v. Moody, 35 Kan.App.2d 547, 555, 132 P.3d 985,rev. denied 282 Kan. 794 (2006). To convict under the conspiracy statute, the jury must find both elements beyond a reasonable doubt. See State v. Hill, 252 Kan. 637, 642, 847 P.2d 1267 (1993). It is the jury's function to determine whether an overt act occurred. State v. Peterman, 280 Kan. 56, 61, 118 P.3d 1267 (2005).
The jury was instructed that to establish the crime of aggravated robbery, the following claims must be proved:
1. That the defendant agreed with others, i.e. Anthony Layton and/or Randy McBride, to assist in the commission of the crime of aggravated robbery;
2. That the defendant did so agree with the intent that the crime of aggravated robbery be committed;
3. That the defendant or any party to the agreement acted in furtherance of the agreement by traveling with Anthony Layton and/or Randy McBride to the location of said crime(s); and
4. That this act occurred on or between the 18th and 19th days of March, 2010, in Riley County, Kansas.
Santana argues that this instruction effectively told the jurors that they only had to find that Mr. Santana, Layton, or McBride traveled to one of the locations of the crime, but not that, in addition, they also had to find that this action constituted an overt act.
Santana compares this case to State v. Brice, 276 Kan. 758, 768, 80 P.3d 1113 (2003), where our Supreme Court vacated a conviction on the ground that the district court's jury instruction violated the defendant's Fifth Amendment due process rights and Sixth Amendment right to a jury trial.. In Brice, the district court instructed the jury that the term Great Bodily Harm means, a ‘through and through bullet wound.’ 276 Kan. at 762. In vacating the conviction, our Supreme Court held that the instruction invade[d] the province of the jury as the factfinder and violated the defendant's right to have the jury determine his guilt or innocence. 276 Kan. at 772.
This case is distinguishable from Brice. Here, the district court did not instruct the jury that traveling to Arby's constituted an overt act. The jury was given the task to determine whether the defendant or any party to the agreement acted in furtherance of the agreement by traveling with Anthony Layton and/or Randy McBride to the location of the said crime(s). In Brice, the district court went beyond tailoring a definition to the evidence. 276 Kan. at 772.
Santana also compares this case to State v. Richardson, No. 99,296, 99,297, 2009 WL 3837626, at *6, (Kan.App.) (unpublished opinion), rev. denied 290 Kan. 1102 (2010), where the district court instructed a jury that HIV was a life-threatening communicable disease. Although this court ruled that this was a question of fact for the jury to determine, the defect in the instruction was not clearly erroneous. 2009 WL 3837626, at *8.
Santana suggests that the district court should have divided the overt act element into two separate elements:
1. That the defendant, or any party to the agreement, traveled with Anthony Layton and/or Randy McBride to the location of said crime(s);
2. That this traveling to the location of said crime(s) was an overt act committed in furtherance of the agreement.
Santana then argues that the district court further compounded the error by failing to include PIK Crim.3d 55.06. Santana suggests that this instruction would have clarified that the jury's role was to determine what constituted an overt act in furtherance of the agreement. PIK Crim.3d 55.06 defines act in furtherance as
[a]ny act knowingly committed by a member of the conspiracy in an effort to effect or accomplish an object or purpose of the conspiracy. The act itself need not be criminal in nature. It must, however, be an act which follows and tends towards the accomplishment of the object of the conspiracy. The act may be committed by a conspirator alone and it is not necessary that the other conspirator be present at the time the act is committed. Proof of only one act is sufficient.
Even though Santana provides posttrial several jury instruction suggestions, they do not change our clearly erroneous standard of review.
The State asserts that the proof of overt acts is not limited to the acts listed in the information. See State v. Taylor, 2 Kan.App.2d 532, 534, 538 P.2d 1033 (1978). There was ample evidence of acts in furtherance of the conspiracy. Santana, McBride, and Layton testified that they discussed committing the robbery, dressed in clothing to disguise themselves, were armed with weapons, and then drove to Arby's, where Santana exited the vehicle. The three men then drove to the Sonic Drive–In, where Santana approached the restaurant with a shotgun. The men then drove to Dara's convenience store.
When the men arrived at Dara's, Santana exited the vehicle with the shotgun and entered the store. Santana ordered the clerk and a customer to the floor. Santana then forced the clerk to fill a backpack with money from the register, and after an unsuccessful attempt to open the safe, Santana exited the store while continuing to threaten the clerk and customer. The jury could have considered any of these overt acts in furtherance of the conspiracy to commit aggravated robbery. Based on the totality of the evidence, there is no real possibility the jury would have returned a different verdict. See Ellmaker, 289 Kan. at 1139.
Further, even if the instruction had been erroneous, as suggested by Santana, it would not require reversal.
[A]n appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. Brice, 276 Kan. at 761.
Instructions 4 and 5 stated: An overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as a first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act. Even though instruction six, the conspiracy to commit aggravated robbery instruction, did not include the definition of overt act, the instructions, taken as a whole, fairly and properly state the law and did not mislead the jury.
Motion to Suppress
When analyzing a district court's decision denying a motion to suppress a 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.’ State v. Harris, 284 Kan. 560, 579, 162 P.3d 28 (2007). The appellate courts do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. 284 Kan. at 579.
On appeal, Santana argues that the district court erred in overruling his motion to suppress because his statements to officers were not made voluntarily. Santana further argues that this denial was not harmless because without [his] confession, the State would have had to heavily rely on the testimony of McBride and Layton, who were both receiving lenient sentences in exchange for their testimony.
During the suppression hearing, the district court concluded that the statements Santana made to Detective Runyan were voluntarily made after proper presentation of Miranda warnings. Then during trial, when defense counsel began questioning Detective Runyan about the confession, Santana objected and the district court noted the objection.
When a defendant challenges his or her statement to law enforcement officers as involuntary, the State must prove the voluntariness of the statement by a preponderance of the evidence. In determining whether the statement was the product of a free and independent will, the district court looks at the totality of the circumstances surrounding the statement. State v. Johnson, 286 Kan. 824, 836, 190 P.3d 207 (2008).
Our Supreme Court has set forth numerous factors to consider in determining whether a statement is voluntary:
‘(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. [Citation omitted.] Johnson, 286 Kan. at 836.
On appeal, Santana concedes that his mental condition, the mariner and duration of the interrogation; his ability to communicate with the outside world; his age, intellect, and background; and his proficiency with English did not impact the voluntariness of his statements. He argues, however, that [a]n analysis of the fairness of the officers in conducting the interrogation ... shows that, under the totality of the circumstances, [he] did not make his statements to Runyan voluntarily.
Thus, the only factor that Santana discusses is the fairness of the officers. Our Supreme Court has held that a ‘mere exhortation or adjuration to speak the truth, or the mere suggestion to an accused that he confess, will not exclude a confession.’ [Citation omitted]. State v. Stone, 291 Kan. 13, 24, 237 P.3d 1229 (2010). The Supreme Court has clarified this to mean, the advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent. State v. Wakefield, 267 Kan. 116, 128, 997 P.2d 941 (1999).
Here, there are no facts to illustrate that the officers were unfair. Even though the officers did not videotape the first interview because an officer failed to press the record button, Santana made no incriminating statements during that interview. Later when Detective Runyan escorted Santana out of the holding cell to fill out property reports, Santana's lip began to quiver and he stated, This wasn't my idea.
Runyan and Santana returned to the interview room. Detective Runyan confirmed that Santana still understood his Miranda rights. Santana tearfully asked Runyan whether it was the God's honest truth that McBride and Layton rolled on him. Runyan truthfully replied affirmatively, and Santana began to confess. The interview lasted less than an hour. During the interview, Detective Runyan made no promises to Santana to gain his cooperation, nor did he make threats.
Santana suggests that Runyan repeatedly told Mr. Santana that he wanted him to ‘just confess'; however, the record on appeal does not support that assertion. During the suppression hearing, Santana testified that Detective Runyan told him he could talk to his fiancee after he had completed booking or after he had confessed. Santana further stated that Runyan told him that he already had one of the guys confess and he just wanted me to confess. There were no other assertions that Runyan was unfair in the interrogation. Santana suggests that Runyan elicited an involuntary confession by repeatedly request [ing] that Santana tell him what happened. There are no facts to support the assertion the confession was not voluntary.
Santana further argues, in the alternative, that the district court failed to make sufficient findings of fact and conclusions of law to allow a meaningful appellate review. See Supreme Court Rule 165. (2012 Kan Ct. R. Annot. 246). The district court must state the controlling facts and legal principles. See State v. Carver, 32 Kan.App.2d 1070, 1078, 95 P.3d 104 (2004). Following the suppression hearing, the district court stated:
Well, I'm gonna deny your request to suppress the statements. I find that they had been given voluntarily after proper presentation of Miranda warnings. And I don't believe the defendant when he says he was threatened. And I don't think there's any other indication of coercion on the part of Detective Runyan in this case. Those statements are in.
The district court's findings are sufficient for appellate review.
Affirmed.