State v. Dominguez

• Decision Date: 23 May 2014
• Docket Number: No. 106,288.,106,288.
• Citation: 299 Kan. 567,328 P.3d 1094
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Jimmy DOMINGUEZ, Appellant.

299 Kan. 567

328 P.3d 1094

STATE of Kansas, Appellee,

v.Jimmy DOMINGUEZ, Appellant.

No. 106,288.

Supreme Court of Kansas.

May 23, 2014.

Syllabus by the Court

1. If a defendant is charged with first-degree murder under alternative theories of premeditated and felony murder, a trial court errs by failing to instruct the jury that both theories are separate types of first-degree murder and both theories must be considered before the jury arrives at a verdict regarding the charge of first-degree murder. It is strongly recommended that a trial court use the pattern instructions and verdict form specifically designed for use with alternative charges of first-degree murder—PIK Crim.3d 56.02–A (felony murder and premeditated murder are two alternative theories to prove first-degree murder); PIK Crim.3d 68.15 (verdict instruction where first-degree murder is presented in alternative theories); PIK Crim.3d 68.16 (verdict form where first-degree murder is presented in alternative theories).

2. PIK Crim.3d 52.18, which instructs a jury to consider an accomplice's testimony with caution, should not be given when the jury will be determining the guilt or innocence of the testifying accomplice. But PIK Crim.3d 52.18 should be given if the testifying accomplice is not on trial in the case being heard by the jury.

3. Voluntary intoxication is not a valid defense to a specific intent crime if there was no evidence presented to demonstrate that the defendant was so intoxicated that his or her ability to form the requisite intent was impaired.

4. As a general rule, an appellate court does not decide moot questions.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Amy L. Aranda, first assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Jimmy Dominguez appeals after a jury convicted him of premeditated first-degree murder, aggravated battery, and discharge of a firearm at an occupied building. He raises three claims of instructional error and one sentencing issue.

First, he argues clear error resulted from the trial court's failure to use the pattern jury instructions and pattern verdict form specifically designed for trials in which the State presents alternative theories of first-degree murder, i.e., premeditated and felony murder. These pattern instructions inform the jurors that they must consider both alternative theories in arriving at a verdict on the charge of first-degree murder. In contrast, the trial judge in this case did not specifically instruct the jurors that they had to consider felony murder. Instead, the instructions suggested the jurors should only consider felony murder if they had a reasonable doubt regarding whether Dominquez was guilty of premeditated murder. Consequently, we have no confidence the jury appropriately considered the alternative of felony murder, and we are firmly convinced the jury would have reached a different verdict if the instructional errors had not occurred. We, therefore, reverse Dominguez' first-degree murder conviction.

In his other issues regarding jury instructions, Dominguez objects to the trial court's failure to give an accomplice instruction and an involuntary intoxication instruction. Based on these alleged errors, Dominguez asks us to reverse all of his convictions. While we find that it was error to not give the accomplice instruction, we hold the error was harmless. As to the involuntary intoxication instruction, we conclude the trial court did not err because there was not a factual basis for the instruction. Hence, we reverse only Dominguez' first-degree murder conviction, and we affirm his convictions for aggravated battery and discharge of a firearm at an occupied building.

Dominguez' final issue—that his hard 50 sentence should be vacated—is moot because Dominguez' hard 50 sentence relates to his first-degree murder conviction, which is being reversed. Therefore, his sentence is vacated without consideration of the merits of his arguments.

Facts and Procedural Background

The events in this case occurred in the early morning hours of December 20, 2009, and culminated in the shooting death of Jose Antonio Leyva, a/k/a Samuel Torres Rosado, and the gunshot wounding of Juan Rosales, Jr. The law enforcement investigation led to the identification of Dominguez as the shooter and of Jorge Jurado as the potential instigator and an aider and abettor.

The shooting followed an altercation several hours earlier at a bar where the codefendants—Dominguez and Jurado—and the shooting victims—Leyva and Rosales—were drinking. Each of the men was in the company of others, many of whom testified at Dominguez' trial. The jury learned that Jurado was at the bar with his brother and their friend, Manuel Garcia–Velazquez, who came to the bar with Dominguez. Garcia–Velazquez testified that Jurado and Dominguez had not met before that night. Likewise, Leyva was at the bar with others, including his wife and his wife's sister, Rosa Arteaga, who was pregnant with Jurado's child. The other shooting victim, Rosales, was also at the bar with several of his family members.

The altercation began when two women started fighting. Leyva's wife and her sister, Arteaga, attempted to stop the fight, but Jurado pulled Arteaga away from the skirmish, later indicating he wanted to protect his unborn child. Leyva's wife objected to Jurado grabbing Arteaga and started calling Jurado names. Jurado then grabbed Leyva, and the two men began to argue. According to Jurado, he “just laughed” at Leyva and “didn't really say nothing to him, and [he] just told him [he] was trying to help.” Garcia–Velazquez, however, heard “disgust words” or fighting words exchanged between Jurado and Leyva, and he, along with several others, separated the two men.

Rosales watched the altercation and testified that he could tell Jurado and Leyva “wanted to fight” and would have if they had not been restrained. Rosales asked Leyva what was going on, and Leyva told him he “was having an argument” with Jurado. Rosales then noticed Dominguez standing with Jurado. Because Rosales did not know Dominguez, Rosales asked Dominguez for his name; Dominguez replied, “I'm nobody,” and turned away.

According to Jurado, a second altercation occurred when Leyva began arguing with a friend of Jurado. Jurado told his friend to calm down, gave him some money to buy drinks, and told him to leave Leyva alone. This resolution did not please Dominguez and others who were angry that Jurado “ didn't do nothing” to Leyva, who had not shown proper “respect” to Jurado. Dominguez told Jurado he should have “whipped [Leyva's] ass.” Jurado was overheard saying that “he couldn't do anything while he was there at the bar because the cops were looking for him. But ... once they left, he would take care of them and his homeboys would back him up.”

At closing time, when all the patrons started leaving the bar, Leyva's wife saw Jurado talking to Dominguez and pointing to Leyva. Then, she saw Dominguez following them into the parking area. She thought Dominguez “cussed” at her before she got into a vehicle with Leyva.

After the bar closed, several of the patrons congregated at two separate parties. One party was at Leyva's house, and the other was at Jurado's house.

Dominguez and Garcia–Velazquez went to Jurado's house, where they continued to drink. During the party, Dominguez told Jurado he wanted to buy a gun. According to Jurado, he called his uncle who had an “SKS rifle” for sale. Jurado's uncle came over and met with Dominguez outside Jurado's house. Dominguez paid for the rifle, and Jurado's uncle placed the rifle in the passenger seat of an SUV that Jurado had borrowed from Arteaga.

Garcia–Velazquez gave a different account of how the rifle got into the SUV. He testified he saw Jurado walk from the back of the house carrying a blanket and, although he could not see what was inside the blanket, it looked like it was wrapped around something. Garcia–Velazquez followed Jurado and got into the backseat of the SUV because Jurado had agreed to drive Garcia–Velazquez home. Dominguez was in the front passenger seat. Once in the SUV, Garcia–Velazquez realized the blanket was wrapped around an item that looked like the barrel of a long gun. He “didn't know what they were going to do with it [and] ... didn't expect ... that they would do something with it.”

Jurado and Garcia–Velazquez also gave different versions of what happened once they were in the SUV with Dominguez. Jurado testified that Dominguez wanted to test-fire his newly purchased rifle, so Jurado drove out to the countryside. After testing the rifle, Jurado drove his passengers back into town; but before dropping them off, Jurado wanted to pick up Arteaga, who was at Leyva's house. Jurado testified that he did not tell his passengers that they would be stopping at Leyva's; although at another point in his testimony, he stated he told Dominguez he was going to pick up Arteaga from her sister's house. For his part, Garcia–Velazquez denied leaving town to test-fire the rifle. When Garcia–Velazquez recognized that Jurado was not driving him home, Jurado merely said that “[h]e had to pass by somewhere first” without telling the others where they were going.

Jurado drove through the alley behind Leyva's house and parked the SUV behind the detached garage. As Jurado turned off the headlights, he heard music playing inside the garage. Jurado began looking for his cell phone so he could call Arteaga. Meanwhile, Dominguez jumped out of the SUV with the rifle and ran to the side of Leyva's garage. Garcia–Velazquez testified that from inside the SUV he saw a door swing open on the garage. Light filtered out of the doorway, and a person exited through it. Dominguez then fired the rifle,...