State v. Alvarez
| Decision Date | 19 December 2014 |
| Docket Number | 110,710. |
| Citation | 340 P.3d 1235 (Table) |
| Court | Kansas Court of Appeals |
| Parties | STATE of Kansas, Appellee, v. Gilbert C. ALVAREZ, Appellant. |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
Gilbert C. Alvarez appeals his conviction for criminal possession of a firearm, which was illegal based on his previous felony conviction. He argues that the gun found on him shouldn't be considered a firearm because it had a faulty firing pin and couldn't have been fired.
But the statute defining “firearm” provides that a weapon is a firearm if it either was designed to propel a projectile or is currently able to do so. No evidence suggests that this gun was designed to have a faulty firing pin and thus be incapable of firing a shot. Accordingly, it was a firearm, and the district court correctly ruled that evidence about the operability of the gun wasn't relevant.
Alvarez points on appeal to two trial errors, but neither warrants reversal. The district court erred in not giving a culpable-mental-state instruction for criminal possession of a firearm, but the error was harmless because overwhelming evidence showed that Alvarez possessed the firearm knowingly or intentionally. The district court also erred in giving a written response to a jury question with the defendant's express waiver of his right to be present when the jury received that answer, violating Alvarez' right to be present for trial under the Sixth Amendment. But the error was also harmless because there was strong evidence against Alvarez and because he didn't challenge the content of the district court's written response. And even though the court made two errors, the cumulative effect of these errors does not warrant a new trial: The errors bore no relationship to each other, and any prejudicial effect was overcome by the strong evidence against Alvarez. We therefore affirm the district court's judgment.
Gilbert C. Alvarez had been on drugs for 5 straight days when he went to the Shot Time bar in Wichita on December 5, 2012. Alvarez later testified that he had entered the bar wearing a coat and had managed to put on someone else's coat with a gun in the pocket while inside the bar. He said that when he had stuck his hand in the coat pocket and felt the gun, it had “freaked [him] out,” and he had taken it out of his pocket to find out where it had come from. He said that because he had known he didn't bring a handgun into the bar and because his recent drug use had made him paranoid, he had asked a female patron if she was trying to kill him. He initially told the court that while he was in the bar, he had tried to figure out who the coat belonged to, but he later said that he had not realized he had the wrong coat until after he had been arrested.
Eric Stilwell, who was at the bar that night, provided a different version of events. He said that Alvarez had walked in the door holding a gun in his hand and that he had immediately approached Alvarez and had gotten him to leave. Stilwell also testified that he had consumed two beers that night, in the hour before Alvarez entered the bar.
The police arrived at the bar after someone reported a suspicious character with a weapon. Alvarez had left on foot, and they approached him about a block from the bar. They immediately noticed that he had a knife in his back pocket, and when handcuffing him, they also found a handgun in the pocket of the coat he was wearing. Because Alvarez had previously been convicted of a felony, the State charged Alvarez with criminal possession of a firearm.
Before his trial, the State filed a motion in limine seeking to prevent Alvarez' attorney from introducing expert testimony or other evidence that the handgun found in his pocket had a broken firing pin and was not operational. Alvarez' attorney objected, arguing that granting the motion would prevent Alvarez from presenting a jury-ification defense, meaning that Alvarez would not be able to ask the jury to choose not to convict him even though he was guilty as charged. She renewed the objection at trial and proffered that an expert witness could testify that the gun wasn't operational. The judge granted the motion in limine, stating that the statute defining criminal possession of a firearm did not require that the firearm be operational and that he wasn't sure jury ification was a proper defense.
At trial, the parties stipulated that Alvarez had a prior felony conviction within the preceding 10 years. Officer Chad Spaulding, a police officer with 9 years of experience and training on how to identify firearms, testified that the object the police found in Alvarez' coat pocket was a firearm designed to fire a projectile by force. In addition, some evidence that the weapon wasn't operational was inadvertently presented to the jury. The handgun was admitted into evidence for the jury to view during deliberations, and the evidence tag on the handgun noted that it had a “broken firing pin.” Also, before closing arguments, the defendant interrupted the proceedings and said in front of the jury, “Your Honor, I can't go through with it because you all withholding evidence with the jury ... [Y]ou know ... the fire pin is broken.”
During jury deliberations, the jury sent a question to the court asking for the legal definition of a firearm. The court discussed the question with counsel in chambers and then gave a summary of their discussion and explained its answer in the presence of the defendant in open court. The court sent a written answer to the jury. The answer provided the statutory definition of a firearm found at K.S.A.2013 Supp. 21–5111(m) –that a firearm is “any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.”
The jury found Alvarez guilty of criminal possession of a firearm, and the district court imposed a 19–month prison sentence. Alvarez has appealed to this court.
Alvarez argues that the district court should have denied the State's motion in limine and admitted evidence that the handgun was inoperable. He claims that without the evidence, he was denied his right to present the theory of his defense-that the handgun was not a firearm.
Defendants are entitled to present their defenses, and a defendant's fundamental right to a fair trial is violated if the district court excludes evidence that is integral to his or her theory. State v. Gaither, 283 Kan. 671, 689, 156 P.3d 602 (2007). “ ‘The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates the defendant's fundamental right to a fair trial.’ “ 283 Kan. at 689 (quoting State v. Baker, 281 Kan. 997, 1008, 135 P.3d 1098 [2006] ). But the right to present a defense is limited by the statutory rules of evidence and the caselaw interpreting those rules. 283 Kan. at 689.
A district court may grant a motion in limine when (1) the evidence in question will be inadmissible at a trial and (2) a pretrial ruling is justified as opposed to a ruling during trial. State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010). When reviewing the first factor—admissibility—an appellate court applies a multistep analysis. 290 Kan. at 817. It first considers whether the evidence is relevant—meaning it has a tendency to prove a material fact—by looking at whether it is material and probative. State v. Marks, 297 Kan. 131, 142, 298 P.3d 1102 (2013).
Before the trial court, Alvarez argued that he wanted to admit evidence that the handgun was inoperable to encourage jury ification; on appeal, he says it should have been admitted to show the handgun was not a firearm. He is arguably raising a new issue on appeal, which is generally not permitted, but because the district court based its decision to exclude the evidence in part on the fact that it considered the handgun a firearm, we will consider his argument. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).
As for jury ification, however, Alvarez has not raised that claim on appeal, and we therefore consider that issue waived and abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Even if it had not been waived, the jury saw and heard evidence showing that the gun was inoperable. The evidence tag on the handgun noted that it had a “broken firing pin,” and Alvarez said as much in open court. The jury appeared to have understood that the broken firing pin rendered the handgun inoperable because it asked the court what qualified as a firearm.
Under K.S.A.2013 Supp. 21–5111(m), a “firearm” is “any weapon designed or having the capacity to propel a projectile by force of an explosion or combustion.” Under the plain language of the statute, a weapon is a firearm in two circumstances—if it was either designed to or currently has the capacity to propel a projectile. Both parties agree that the handgun at issue here did not have the capacity to propel projectiles when Alvarez had possession of it. Alvarez argues on appeal that he should have been able to argue as a defense that the handgun was also not designed to propel projectiles because it was in such disrepair that it had essentially been redesigned.
When interpreting K.S.A.2013 Supp. 21–511 l(m), this court should first determine the legislature's intent through the statute's language, by giving words their ordinary meaning. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014) ; Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013). Only if the language is unclear should it use canons of...
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