State v. Briseno

• Decision Date: 13 June 2014
• Docket Number: No. 107,351.,107,351.
• Citation: 326 P.3d 1074,299 Kan. 877
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Patricio BRISENO, Appellant.

299 Kan. 877

326 P.3d 1074

STATE of Kansas, Appellee,

v.Patricio BRISENO, Appellant.

No. 107,351.

Supreme Court of Kansas.

June 13, 2014.

Syllabus by the Court

1. 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, 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. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.

2. When presented with a claim that the failure to give an unrequested jury instruction was clearly erroneous, the appellate court first determines whether the failure to give the instruction was erroneous.

3. If the district court has committed error in its jury instructions, that failure will be clearly erroneous, and thus reversible, if the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.

4. Determining whether a jury instruction or failure to give an instruction is clearly erroneous requires an appellate court to review de novo the entire record.

5. Absent a request for a limiting instruction concerning gang evidence and absent any objection for the failure to give such a limiting instruction, a trial court is not obligated to give such an instruction.

6. Under the facts of this case, the district court did not err by failing to give an unrequested limiting instruction regarding evidence of the defendant's gang affiliation.

7. District courts should not instruct jurors that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness identification testimony.

8. If an eyewitness jury instruction erroneously informs the jury it can consider the degree of certainty with which a witness identifies a suspect, a court determining if the certainty factor affected a jury's verdict should begin with two inquiries: (1) Was the identification crucial to the State's case? and (2) Was there an opinion of certainty stated? If the answer to both questions is “yes,” an appellate court must consider the impact of the instruction in light of the entire record.

9. In analyzing the impact of including an erroneous degree-of-certainty factor in an eyewitness identification jury instruction, an appellate court must consider whether other procedural safeguards mitigated the error. These safeguards include, but are not limited to, the defendant's constitutional right to confront the witnesses against him or her, the defendant's constitutional right to effective assistance of counsel who can expose the flaws in the eyewitness' testimony during cross-examination and focus the jury's attention on the fallibility of such testimony during opening and closing arguments, eyewitness-specific jury instructions that warn the jury to use care in appraising eyewitness identification evidence, and the constitutional requirement that the State prove every element of the crime beyond a reasonable doubt.

10. In light of the entire record in this case, the jury's verdict would not have been different if the erroneous degree-of-certainty factor in the eyewitness identification instruction had not been used.

11. One error cannot support the application of the cumulative error doctrine. Under the facts of this case, the district court's single error does not constitute reversible cumulative error.

Matthew J. Edge, of Kansas Appellate Defender Office, was on the brief for appellant.

Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by NUSS, C.J.:

Patricio Briseno appeals his convictions on one count of first-degree premeditated murder and three counts of attempted first-degree murder arising out of a drive-by shooting. The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court commit reversible error by failing to give an unrequested limiting jury instruction regarding evidence of Briseno's gang membership? No.

2. Did the district court commit reversible error by instructing the jury it could consider the degree of certainty with which eyewitnesses identified Briseno? No.

3. Did the district court commit sufficient errors to deprive Briseno of a fair trial? No.

Accordingly, we affirm Briseno's convictions.

Facts and Procedural Background

Four teenage boys, Ricardo Zamora, Edgar Gracia, Francisco Hernandez, and David Linares, were gathered in front of Hernandez' house in Kansas City, Kansas. At approximately 3:10 p.m., a black SUV approached the house, and one of its occupants started shooting. The boys tried to run, but several bullets struck 13–year–old Zamora, mortally wounding him. A bullet also hit Gracia, but he recovered from his wound. Hernandez and Linares escaped without physical harm.

The wounded Gracia told police at the scene he was a member of the F–13 gang and the decedent Zamora was affiliated with it. Gracia also said F–13 was feuding with a rival street gang named SPV.

Police eventually located and interviewed Hernandez and Linares. Hernandez told detectives he also was a member of F–13. He said that as the black SUV approached the boys, decedent Zamora yelled “SPV” and a vehicle occupant started shooting. According to Hernandez, he did not know who was in the SUV or who was responsible for the gunshots.

Linares gave a substantially similar account. He initially told detectives he did not know who was in the SUV. But he eventually said Briseno and a man known as “Droopy” were occupants. According to Linares, the driver was Briseno. Detectives later identified Droopy as Briseno's codefendant Juan Lopez.

Police then contacted Briseno at a Briseno family residence. Briseno or one of his family members told the officers he had a black SUV parked in a neighbor's garage across the street. The neighbor allowed police in the garage, where they found an SUV matching the description of the one involved in the shooting.

The State charged both Briseno and Lopez with one count of first-degree premeditated murder (Zamora) and three counts of attempted first-degree murder (Gracia, Hernandez, and Linares). The two defendants were tried together.

The State filed a motion to admit evidence showing Briseno belonged to the SPV gang, which the court granted. Multiple witnesses then testified Briseno was indeed such a member. Briseno did not request a limiting instruction informing the jury the gang evidence was admitted only for a specific purpose, and the court did not give one on its own.

Several eyewitnesses also identified Briseno as the driver of the black SUV. Patrick Fischer testified that he was delivering mail in the neighborhood on the day of the shooting. As he was preparing to cross the street two houses away from Hernandez' house, he noticed a black SUV approaching from his right. Fischer looked directly at the driver to determine whether he had time to cross in front and observed the driver was a young, Hispanic male with facial hair. Fischer also observed the SUV had four occupants.

As Fischer crossed the street in front of the SUV, he noticed the group of boys to his left in front of Hernandez' house, although he erroneously testified the group contained three boys and a girl. Once the SUV passed behind him, Fischer heard gunshots from behind and to his left. He ducked behind a cinderblock wall and counted approximately seven gunshots before he looked up and saw a gun sticking out of the SUV's rear passenger window.

Fischer told police at the scene he did not recognize the SUV's occupants. Several days later he looked at a photo lineup, and with 70% assurance he identified Briseno as the driver. But when Fischer later testified at the preliminary hearing, he failed to identify Briseno in the courtroom. He eventually identified Briseno at trial, however. After counsel for the State and Briseno both inquired about his degree of certainty in making the identification, Fischer responded he was “sure” and “confident” that Briseno was the driver. But Fischer could not identify the shooter.

Jacqueline Segura also identified Briseno in her testimony. According to Segura, she was sitting in traffic at a stop sign approximately a half block from where the shooting occurred when she saw a black SUV speed through the intersection from the opposite direction. She believed the SUV had three or four occupants, but she was unsure because of its tinted windows.

Segura testified that the driver was a young, Hispanic male. She then specifically identified Briseno as the driver. Segura was able to identify Briseno because she had seen him driving the same SUV around the neighborhood on previous occasions.

In addition to observers Fischer and Segura, at trial F–13 member Hernandez also testified to identify Briseno as the SUV driver and to acknowledge Linares as a gang member. Finally, while Linares was unavailable to testify, the State presented evidence through a detective that in a prior interview Linares had also identified Briseno as the driver. The district court ultimately instructed the jury that it could consider the degree of certainty with which the eyewitnesses identified Briseno as the driver.

The jury convicted Briseno, but acquitted Lopez, of one count of first-degree premeditated murder and three counts of attempted first-degree murder. The court sentenced Briseno to a hard 25 life sentence for first-degree premeditated murder and concurrent sentences of 155 months for each of the other counts. Jurisdiction over Briseno's appeal...