State v. Deherrera

• Decision Date: 22 May 1992
• Docket Number: No. 66495,66495
• Citation: 251 Kan. 143,834 P.2d 918
• Parties: STATE of Kansas, Appellee, v. Herman R. DEHERRERA, Sr., Appellant.
• Court: Kansas Supreme Court

Page 918

834 P.2d 918

251 Kan. 143

STATE of Kansas, Appellee, v. Herman R. DEHERRERA, Sr., Appellant.

No. 66495.

Supreme Court of Kansas.

May 22, 1992.

Syllabus by the Court

1. Generally, jury instructions in a criminal case should be confined to the charges contained in the information. Instructions given in violation of this rule, however, are excused in cases where the substantial rights of the defendant have not been prejudiced.

2. In order to challenge a jury instruction on appeal, a defendant must have objected to the instruction before the jury retired to deliberate unless the instruction was clearly erroneous. An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.

3. On appeal of a criminal case, the standard in considering the sufficiency of the evidence is whether after a review of all 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.

4. It is the better practice, when the sentence exceeds the minimum, for the trial court, on the record, to make a detailed statement of the facts and factors considered by the court in imposing sentence. The trial court's failure to make such a detailed statement, however, does not necessarily demonstrate an abuse of discretion; each case must be considered on its facts. A sentence which is within the statutory limits will not be disturbed on appeal provided it is within the realm of discretion on the part of the trial court and is not a result of partiality or prejudice.

5. A trial court may not sentence a defendant to imprisonment and also require the defendant to pay restitution. Restitution may only be ordered in conjunction with probation or suspended sentence.

6. If a sentencing court chooses to set restitution, it should clearly specify in the journal entry that the amount and manner of restitution being ordered is not immediate and that the information is being provided for the benefit of the Kansas Parole Board.

Hazel Haupt, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Jeffery E. Goering, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nola Foulston, Dist. Atty., were with him on the brief for appellee.

HERD, Justice:

This is a direct appeal by Herman R. DeHerrera, Sr., from his convictions for attempted first-degree murder, K.S.A.1991 Supp. 21-3301 and K.S.A.1991 Supp. 21-3401, and communicating a terroristic threat, K.S.A. 21-3419. DeHerrera also appeals from the sentences imposed and from the trial court's denial of his motion for modification of sentence.

Bertha and Herman R. DeHerrera had been married for 14 years when she left him on June 15, 1990. The DeHerreras' marriage was violent from the beginning. In early 1990, Herman DeHerrera became violent toward their three children. DeHerrera also pulled Bertha's hair, shoved her, and hit her. On numerous occasions DeHerrera threatened to kill Bertha or put her in the hospital if she did not obey him. DeHerrera also threatened to kill her if she ever left him.

Without warning DeHerrera, Bertha packed up the children and furniture and left the family home. On June 26, 1990, Bertha obtained a temporary restraining order against DeHerrera. She left DeHerrera a letter telling him she was quitting her job at Joan's Upholstery Shop. Actually, Bertha continued working at Joan's but drove her cousin's car to the shop to conceal her presence from DeHerrera.

After Bertha left DeHerrera, DeHerrera's son from a previous marriage, Herman R. DeHerrera, Jr., (Rick) of Greeley, Colorado, came to visit him. On July 12, 1990, Rick drove his father to Joan's Upholstery Shop so DeHerrera could get a telephone number he needed. Rick waited while DeHerrera went into the shop. Bertha was at her work table talking to her boss, Joan Goodale, and a friend, Kathy Davis. Upon seeing Bertha, DeHerrera said, "You done f----- up this time, bitch." DeHerrera then came around the work table and stabbed Bertha five times. As Bertha took a protective position, she heard DeHerrera yell he was going to kill her.

As DeHerrera turned to leave, Rick entered the shop. Bertha later testified she heard DeHerrera tell his son not to touch him "or I will kill you, too." People in the shop tried to stop Bertha's bleeding. DeHerrera then reentered the shop and told them to let her die.

Doctor Jose Hyder, Bertha's physician, testified Bertha had sustained lacerations on her face, shoulder, back, and wrist. Although none of Bertha's wounds were actually life threatening, upon initial examination Dr. Hyder was very concerned that her wounds might include a penetration of the chest cavity. According to Dr. Hyder, such a chest wound could cause a collapsed lung, heart injury, or injury to the great vessels in the chest. Bertha testified she still did not have complete use of her left hand or shoulder.

Police officers were called to the scene and found DeHerrera walking outside the shop. Officer Doug Sutter noticed DeHerrera had blood on his hands and asked him where the knife was. DeHerrera told Sutter he did not have a knife. The knife was later found in Rick's car. After Officer Sutter had arrested him, DeHerrera told the officer his wife had made him mad so he stabbed her. DeHerrera repeated this statement to another police officer.

DeHerrera was charged originally with one count of attempted first-degree murder, a class B felony, or, in the alternative, aggravated battery, K.S.A. 21-3414, a class C felony; two counts of communicating terroristic threats, a class E felony; and two counts of aggravated assault, K.S.A. 21-3410, a class D felony. The State voluntarily dismissed one charge of communicating a terroristic threat; the remaining terroristic threat charge was based upon DeHerrera's statements to Kathy Davis. The aggravated assault charges were based upon DeHerrera's actions toward his son, Rick, and Joan Goodale.

At trial, Kathy testified that as DeHerrera left the shop he threatened her with the knife and told her all this was her fault. DeHerrera further told her that when he got out of jail he would kill both her and Bertha. Rick testified DeHerrera had told him he was going to kill Bertha for divorcing him. Rick further testified DeHerrera had said he was going to shoot her, and he had seen his father with a gun tucked in his belt the day of the stabbing. James Davis testified he had known DeHerrera for 12 to 13 years. James had talked previously to DeHerrera about the problems DeHerrera was having with respect to Bertha leaving him. James further testified DeHerrera had told him that if he found Bertha he was going to kill her.

DeHerrera testified on his own behalf. He admitted he had told Rick he would kill Bertha, but explained, "[W]hen you are steamed up and you hate somebody, you can't get along with, you say things you don't mean." DeHerrera also admitted to stabbing Bertha, but stated he wanted to hurt her, not kill her. He denied threatening Kathy and Rick, or that he intentionally threatened Joan. DeHerrera further denied he threatened to kill Bertha if she left him. On cross-examination, DeHerrera admitted telling his son he wanted to shoot Bertha. DeHerrera also stated he had a gun with a loaded magazine on the day he attacked Bertha.

At the close of the evidence, the jury found DeHerrera guilty of attempted first-degree murder and communicating a terroristic threat. DeHerrera moved for a new trial and for judgment of acquittal. The trial court denied these motions.

The court sentenced DeHerrera to 14 years to life for attempted first-degree murder and 1 to 2 years for terroristic threat. The trial court ordered the sentences to be served concurrently. The court also found restitution was due and owing. DeHerrera moved to modify sentence, which the trial court denied. DeHerrera appealed.

I.

DeHerrera raises the issue of whether the trial court properly instructed the jury. First, DeHerrera contends the trial court erred in the wording of the ordering instruction. The ordering instruction given stated:

"The order in which you should consider the charges is as follows:

"You should first consider whether or not defendant is guilty of Attempted Murder in the First Degree.

"If you find defendant is not guilty of this offense, you should consider whether or not defendant is guilty of Attempted Murder in the Second Degree.

"Alternatively you should consider whether or not defendant is guilty of Aggravated Battery.

"If you do not find defendant guilty of either Attempted Murder in the Second Degree or Aggravated Battery, you should then consider whether or not defendant is guilty of Attempted Voluntary Manslaughter.

"When there is no reasonable doubt defendant is guilty of an offense and there is a reasonable doubt as to which of two or more offenses a defendant is guilty, the defendant may be convicted of the lesser offense only."

DeHerrera argues this instruction caused the jury to believe aggravated battery is an alternative charge only to attempted murder in the second degree rather than an alternative charge to attempted murder in the first degree, as charged in the Complaint/Information. Thus, DeHerrera claims the instruction denied him his right to have the jury consider his theory of the evidence; that being DeHerrera intended to harm Bertha but not to kill her.

For support DeHerrera cites State v. Turbeville, 235 Kan. 993, 997, 686 P.2d 138 (1984), in which we stated: "It is generally the rule that instructions should be confined to the charges contained in the information and should not be broader or narrower than the information." This court however, went on to state: ...