State v. Fraire

• Decision Date: 19 February 2021
• Docket Number: No. 121,378,121,378
• Citation: 481 P.3d 129
• Parties: STATE of Kansas, Appellee, v. Julio Romero FRAIRE, Appellant.
• Court: Kansas Supreme Court

481 P.3d 129

STATE of Kansas, Appellee,

v.Julio Romero FRAIRE, Appellant.

No. 121,378

Supreme Court of Kansas.

Opinion filed February 19, 2021.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Jodi E. Litfin, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

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

Julio Fraire appeals from his convictions of premeditated first-degree murder and criminal possession of a weapon by a convicted felon. He also appeals from the imposition of lifetime postrelease supervision as part of his sentence. We affirm his convictions and vacate his sentence of postrelease supervision.

FACTS

Late in the evening of July 24, 2015, a couple of small groups of people were assembled in the lower level of a parking garage outside the Hennessy nightclub in Dodge City, where a concert was taking place. A group of four men were standing together when another man with a braided ponytail, who was later identified as Ramiro Nicholas Bernal, approached them. A fistfight between Bernal and a member of the group ensued. A man, whom the prosecution would later contend was Fraire, approached the two combatants and began firing at Bernal. He fired several shots from a short distance and then, when Bernal fell to the ground, stood over him and fired additional shots.

Three women who were standing nearby observed the scene, got in their car, and drove away from the parking garage. They soon encountered a police patrol car and signaled for it to stop. They informed the police officer a shooting took place outside the Hennessy, and they then returned to the club. The officer radioed in the reported shooting and drove to the garage.

Other officers quickly responded, and, within minutes, they found the shooting victim crouched over on the ground saying he was having trouble breathing. From his driver's license, police identified him as Bernal. An ambulance took him to a nearby hospital, where he died at around 1:00 a.m. on July 25. He never identified his shooter. He had taken six shots to his body and died from the wounds. Police found six shell casings scattered around the garage, and, in the morning, the gun that fired the shots was found in a nearby street gutter.

The police interviewed the three women who had witnessed and reported the shooting. One of the women, Astoshia Budd, told them she thought she recognized the shooter and identified him as Rigoberto Diaz based on his eyes and the presence of neck tattoos. A second woman told police the shooter was "Mexican or white" and he wore some kind of cap. The third woman agreed with Budd in observing that the shooter was Hispanic and was not the same man involved in the fight with Bernal.

Surveillance cameras recorded groups of people walking to and from the parking garage. Based on the video evidence and witness statements, the group of four men was eventually identified as Joe David "J.D." Gonzalez, Miguel Aguilera, Mario Ortuno, and Julio "Locs" Fraire. Gonzalez and Aguilera identified themselves in the surveillance video.

Putting together witness statements and the surveillance evidence, the State charged Fraire with one count of premeditated first-degree murder and one count of criminal possession of a firearm by a convicted felon. Before his trial, several individuals contacted police and offered to testify against Fraire in exchange for reduction in charges and sentences. These potential witnesses were Gonzalez and Aguilera, who were also facing charges in the case, and Saul Ramirez, who became acquainted with Fraire in jail.

At Fraire's trial, Gonzalez and Aguilera testified they lied during initial police interviews, when they denied participating in the shooting or knowing who fired the shots. Aguilera testified he was the individual who got into the fistfight with Bernal. Gonzalez testified that Fraire took a gun and shot Bernal. Aguilera testified he never heard any shots and never saw Bernal get shot, but when he looked up at Fraire, he had the gun in his hand, and Fraire later told him he had shot Bernal.

Saul Ramirez testified at trial that, while he was in jail in February of 2016, Fraire told him that "he shot Sleepy." "Sleepy" was a street name for Bernal. Fraire told Ramirez that he shot Sleepy more than once. Ramirez testified that some 54 charges pending against him in Liberal were dismissed in exchange for his testimony.

The jury convicted Fraire of both premeditated first-degree murder and criminal possession of a weapon by a convicted felon. The court sentenced Fraire to a hard 50 life sentence for the murder and an additional 21 months in prison for the criminal possession of weapon conviction. He took a timely appeal to this court.

DISCUSSION

Clothes Worn by a Witness

A witness for the State testified while wearing clothing similar to clothing Fraire wore on a previous day of the trial. After the witness finished testifying, Fraire moved for a new trial, asserting that the similarity in clothing confused the jury and prejudicially undermined his argument that someone else committed the crime. The trial court denied the motion. Fraire argues his right to a fair trial was prejudiced by the apparel worn by him and the witness.

A trial court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard. This court engages in a two-step analysis of the abuse of discretion standard. First, did the trial court abuse its discretion when deciding whether there was a fundamental failure in the proceeding? If so, then did the trial court abuse its discretion when deciding whether the conduct caused prejudice that could not be cured or mitigated through admonition or jury instruction, resulting in an injustice? State v. Miller , 308 Kan. 1119, 1162, 427 P.3d 907 (2018).

Budd informed police after the shooting that she thought Diaz was the shooter. She agreed that she had told police she was "100 percent certain" that Diaz was the man she saw firing a weapon. Diaz turned himself in to the police when he heard he was wanted as a suspect. He told the police, and later testified at the trial, that he was nowhere near the scene of the shooting and he had an alibi. He was never charged in connection with the crime.

On the first day of the jury trial, Fraire appeared wearing an outfit provided by the jail. The outfit consisted of a striped shirt and blue jeans. On the fourth day of the trial, Diaz testified for the State. He was wearing the same, or a very similar, striped shirt and blue jeans. Fraire noticed the similarity in clothing and pointed it out to his attorney. The similarity in clothing was not mentioned by the parties in direct or cross-examination and was not pointed out to the jury.

Fraire's attorney moved for a mistrial. He argued to the court that the similarity in clothing could lead the jury to conclude that Diaz and Fraire looked alike and that the witness who originally identified Diaz as the shooter had simply confused their identities:

"I do have concerns, Judge, about the subliminal suggestion that it plays to the jury in the ease with which the government can then argue, well, clearly there is a reason why Astoshia Budd was mistaken that night, look how similar these people look, which is why I raised the concern and the issue."

K.S.A. 22-3423(1)(c) provides that the trial court may terminate the trial and order a mistrial at any time the court finds termination necessary because "[p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution."

When evaluating a motion for mistrial under this provision, the district court decides whether the prejudicial conduct created a fundamental failure in the proceeding. If it did, the district court next decides whether the prejudicial conduct made it impossible to continue the proceeding without denying the parties a fair trial.

Under the second step, the court considers whether the conduct caused prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice. State v. Moore , 302 Kan. 685, 693, 357 P.3d 275 (2015). Here, the trial judge made several determinations when he denied the motion for a new trial. He noted that neither attorney nor the court made any mention to the jury about the clothes being similar or identical. He next noted that he himself had not noticed the similarity in clothing and stated "[t]here was nothing in and of itself distinctive that would draw one's attention" to the clothing. Furthermore, he found no evidence suggesting the choice of outfits was intentional by the prosecution, the detention facility, or the court bailiffs.

Fraire pursues this issue on appeal. His argument runs something like this: The State sought to discredit Budd's testimony by giving the jury a reason to write her off as a witness who injected reasonable doubt into the case. How could the jury be sure of Fraire's guilt beyond a reasonable doubt when a witness said she saw someone else do it? By clothing Diaz in a way that might tend to make him look more like Fraire, the State was subliminally suggesting he looked like the defendant, which was why the witness thought she saw someone else—it was because that other individual looked so much like the defendant.

This argument is tenuous and unsupported by any evidence in the record that anyone other than Fraire himself noticed the similarity in clothing. Budd testified that she identified Diaz based on tattoos on his neck and his eyes. Her identification made no reference to his clothing, and she did not testify that Diaz and Fraire were similar in appearance. The "subliminal" prejudice against his case does not rise to the level of showing a probability that any error here affected "the outcome of the trial in light of the entire record." See State...