301 P.3d 677 (Kan. 2013), 104,474, State v. Mireles

Docket Nº:104,474
Citation:301 P.3d 677, 297 Kan. 339
Opinion Judge:ROSEN, J.
Party Name:STATE OF KANSAS, Appellee, v. ISRAEL G. MIRELES, Appellant
Attorney:Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause and was on the brief for appellant. Kristafer R. Ailslieger, deputy solicitor general, argued the cause and was on the brief for appellee.
Case Date:May 10, 2013
Court:Supreme Court of Kansas

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301 P.3d 677 (Kan. 2013)

297 Kan. 339




No. 104,474

Supreme Court of Kansas

May 10, 2013

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Appeal from Butler District Court; DAVID A. RICKE, judge.



1. When reviewing the admission of photographic evidence, an appellate court's first step is to determine whether the photographs are relevant. The decision to admit photographs alleged to be overly repetitious, gruesome, or inflammatory, i.e., prejudicial, is reviewed for an abuse of discretion. The party who challenges that decision bears the burden of showing such abuse. Admission of photographs that are unduly repetitious and cumulative, or that are introduced solely for a prejudicial purpose, constitutes an abuse of discretion.

2. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground.

3. Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a first-degree murder case.

4. Although they may sometimes be gruesome, autopsy photographs that assist a pathologist in explaining the cause of death are relevant and admissible. However, admitting gruesome photographs simply to inflame the minds of the members of the jury is error. The admission of unduly repetitious photographs can constitute an abuse of discretion. The key, as with prejudice, is the word unduly. The admission of photographs in a murder case has rarely been held to be an abuse of discretion.

5. K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included offense instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. Consequently, if an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.

6. To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.

7. If the reviewing court determines that the district court erred in failing to give the instruction at issue, then the court proceeds with a reversibility inquiry wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.

8. Because capital murder is the highest degree of homicide in Kansas, first-degree murder is a lesser degree of capital murder under K.S.A. 21-3107(2)(a) and is therefore a lesser included crime of capital murder. Because first-degree murder encompasses the two alternative means of premeditated murder and felony murder, felony murder is a lesser included crime of capital murder.

9. In determining whether the evidence is sufficient to support a lesser included offense instruction, the relevant inquiry is whether there is some evidence upon which a jury could have reasonably convicted the defendant of the lesser crime.

10. Felony murder is the killing of a human being committed in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436. K.S.A. 21-3401(b). To convict a defendant of felony murder, the State must prove only that the defendant committed a felony inherently dangerous to human life, which directly resulted in the homicide. Accordingly, a defendant may be convicted of felony murder even if the victim was not killed by the defendant as long as the homicide occurred as a direct result of an inherently dangerous felony.

11. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial.

12. Prosecutors must not state a personal opinion regarding the ultimate guilt or innocence of the defendant. The reason for prohibiting prosecutors from commenting on their opinion of the defendant's guilt is that such expressions of personal opinion are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.

13. Although a prosecutor must not state a personal opinion regarding the ultimate guilt or innocence of the defendant, it is permissible for a prosecutor to argue that the evidence demonstrates a defendant's guilt. It is necessary, however, for a prosecutor to say something akin to " the evidence shows defendant's guilt" in order to make a statement merely directional and not an expression of the prosecutor's personal opinion.

Debra J. Wilson, of Capital Appeals and Conflicts Office, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause and was on the brief for appellee.


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[297 Kan. 341] ROSEN, J.

Israel G. Mireles was convicted of capital murder and rape. The district court sentenced him to a life sentence without the possibility of parole for the murder conviction and imposed a consecutive 203-month prison sentence for the rape conviction. Mireles now brings this appeal in order to challenge the district court's decision to allow numerous photographs into evidence and its failure to instruct the jury on felony murder as a lesser included [297 Kan. 342] offense of capital murder. Mireles also argues that due to prosecutorial misconduct, he was denied a fair trial.


In the fall of 2007, Joe Terzui opened the Bella Casa Italian Restaurant in El Dorado, Kansas. The restaurant was located next to and shared a parking lot with the El Dorado Motel. Terzui leased the restaurant's building from the owner and operator of the motel, I.C. Patel.

Mireles had worked off and on for Terzui the previous 3 years at restaurants Terzui had opened in Vernon, Texas, and Hays, Kansas. In early October 2007, Mireles, along with his girlfriend, Victoria Martens, moved from Hays to El Dorado to help Terzui at the new restaurant. While in Hays,

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Mireles and Martens lived in a room at the motel (Room 21) that Terzui had rented for them.

A week before Thanksgiving 2007, Mireles and Martens decided to move to Texas to find new jobs. The couple's plan was for Martens to spend Thanksgiving Day in Baxter Springs, Kansas, with her family while Mireles stayed behind in El Dorado. On the Friday after Thanksgiving, Mireles planned to quit his job, collect his wages, rent a car, pack up the couple's possessions, and travel to Baxter Springs to pick up Martens. The couple would then travel to Texas to visit Mireles' grandmother and then stay with Mireles' family until they could find a place of their own.

On Thanksgiving Day, Martens' mother picked her up at the motel and took her to her grandmother's house in Baxter Springs. As planned, Mireles stayed in El Dorado for Thanksgiving Day; he did not work that day. On the afternoon of Friday, November 23, Mireles received $600 from Terzui. After receiving this money, Mireles rented a 2007 Ford Taurus from a car rental business in El Dorado and proceeded to run some errands around town. After doing so, he went to the Beijing Restaurant in El Dorado for drinks. He arrived there sometime between 7 and 8 p.m. and sat in the bar area of the restaurant.

At about this same time, E.S., an 18-year-old student at Butler County Community College, arrived at the Beijing Restaurant with Keeley McFann. Other acquaintances of E.S. and McFann arrived [297 Kan. 343] at the restaurant and soon joined them in the bar area: Brad Scott, Greg Bostwick, Misty Walton, and three of Walton's friends. They eventually all sat at a table and began socializing over drinks.

Mireles, a person no one in the group had met before, then walked over to the table from his seat at the bar and joined the group. Mireles proceeded to buy drinks for everyone at the table. Mireles paid particular attention to the females in the group, talking to them and continually buying them drinks.

While sitting at the table, Mireles told Scott about working at the Italian restaurant and about how he was going to visit his grandmother who was ill. Mireles also told Scott that he borrowed some money so he could pay for the visit and proceeded to show Scott the money he possessed. Mireles held the money so everyone at the table could see it. Later on, Mireles asked people at the table if they knew where to get drugs. He suggested to the group that they travel to Wichita to buy cocaine and then come back...

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