State v. Garcia, 60313

• Decision Date: 28 October 1988
• Docket Number: No. 60313,60313
• Citation: 763 P.2d 585,243 Kan. 662
• Parties: STATE of Kansas, Appellee, v. Ramon A. GARCIA, Appellant.
• Court: Kansas Supreme Court

Page 585

763 P.2d 585

243 Kan. 662

STATE of Kansas, Appellee, v. Ramon A. GARCIA, Appellant.

No. 60313.

Supreme Court of Kansas.

Oct. 28, 1988.

Syllabus by the Court

1. A person is criminally responsible for a crime committed by others if that person intentionally aids and abets others in the commission of the crime.

2. A person who aids and abets in the commission of any offense may be charged either as a principal or as an aider and abettor.

3. The inclusion of the aiding and abetting language in the information further clarifies the charges made against the defendant and does not render the information defective.

4. An information must allege each essential element of the offense charged, and a conviction based upon an information which fails to do so is void.

5. An information which charges an offense in the language of the statute is sufficient; however, the exact statutory words need not be used if the meaning is clear.

6. A general verdict of guilty must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient.

7. The standard on appeal for determining the sufficiency of the evidence in a criminal case is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

8. In determining the voluntariness of a confession, it is to be viewed in light of the totality of the circumstances, including the following factors: (1) The duration and manner of interrogation; (2) the accused's ability upon request to communicate with the outside world; (3) the accused's age, intellect and background; (4) the fairness of the officers in conducting the interrogation; and (5) the accused's fluency in the English language. Following State v. Zuniga, 237 Kan. 788, Syl. p 1, 703 P.2d 805 (1985).

9. When an in-custody statement is taken in English from an accused whose primary language is not English, but who also speaks English, failure of the officers to have an interpreter in attendance pursuant to K.S.A. 75-4351(e) does not vitiate the statement if it was freely, voluntarily, knowingly, and understandingly made with full knowledge of the Miranda rights. Following State v. Zuniga, 237 Kan. 788, Syl. p 2, 703 P.2d 805 (1985).

10. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. Following State v. Zuniga, 237 Kan. 788, Syl. p 3, 703 P.2d 805 (1985).

Lucille Marino, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on the brief, for appellant.

Henry Otto III, Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

ALLEGRUCCI, Justice:

The defendant, Ramon Garcia, appeals his convictions by a jury of one count of aiding and abetting felony murder, K.S.A. 21-3401, and one count of aiding and abetting burglary, K.S.A. 21-3715. The defendant was sentenced to a controlling term of life imprisonment.

Cecil E. Bammes was found dead on his farm near Wamego, Kansas, on Sunday, May 18, 1986. A neighbor of Bammes' had heard four to five gunshots shortly after 5:45 p.m. on Friday, May 16, 1986. Bammes had been killed by two .22 caliber gunshot wounds to the head, and he was found lying face down in the yard near his pickup truck.

Both the truck and Bammes' body were within the yard of his house. The yard was fenced and enclosed and there was some evidence introduced at trial that the victim habitually kept the gate to the yard closed. A photograph taken by one of the investigating law enforcement officers who arrived on the scene on May 21, 1986, shows the driver's side door of the victim's pickup truck standing open. The officer testified that the pictures were an accurate representation of the existing scene when he first arrived. The officer also stated that he had found the yard gate open and the house door open which, he testified, was unusual for the Bammes farm. Earl Bammes, the victim's brother, checked the victim's house after the homicide and found that a .22 caliber rifle and a radio were missing.

At the defendant's trial, Joe Cueva testified that, several weeks before Bammes' death, he had spoken with the defendant at a party in Topeka. Cueva testified that the defendant had told him he wanted to "rob" a place in Wamego because he believed there was a substantial amount of money there. Defendant told Cueva that the place he wished to "rob" belonged to an elderly person for whom defendant had worked in the past. Cueva, however, declined the defendant's invitation to join him.

On the morning of Friday, May 16, 1986, Ramon Garcia, Michael Rodriguez, Victor Martinez, and two other variously identified Mexican males stopped at the Topeka residence of Lyle Cobler. Testifying at the trial, Cobler identified the two Mexican males from an FBI circular as Jesus ("Chango") Hernandez and Chayo Gonzales Garcia. Cobler testified that defendant Garcia and the four others stayed for approximately 35 to 40 minutes. They then left in defendant's white 1972 or 1973 four-door Chevrolet Impala. Cobler then went to get some cigarettes, returning 45 minutes to an hour later to discover that his home had been broken into and his .22 caliber revolver had been stolen.

The defendant was first questioned by the police on Wednesday, May 21, 1986. Kirk Thompson, a special agent of the Kansas Bureau of Investigation, testified that he interrogated the defendant on Wednesday afternoon. Thompson testified that the defendant originally told him that he had not been in the Wamego area for about a month and a half. The defendant told Thompson that he had not left the Topeka area the previous weekend and did not know anything about the incident under investigation. However, after further questioning, the defendant later acknowledged that he went for a drive in the country on Friday, along with Rodriguez, Martinez, and two Mexican males from Kansas City.

Later in the interview, defendant told Thompson that he had stopped at the Bammes farm and parked his car near the driveway. Thompson testified that defendant told him that the two Mexican males and Victor Martinez had left the car for a short time and then returned; defendant then drove all of the men back to Topeka. Defendant said that he had not heard any shots while he was at the Bammes farm. Finally, after additional questioning, defendant stated that he did hear one or two shots while parked at the Bammes farm. Defendant told Thompson that when the three men returned to the car, he saw a bulge, which he thought was a gun, in the pocket of one of the Mexican males.

Defendant was interrogated the following morning by Gerald Schmidt, an investigator for the Pottawatomie County Sheriff's Department. During the course of the interrogation, Schmidt told the defendant that he did not believe defendant's story about coincidentally stopping at the Bammes farm, and asked the defendant, "Did you go there with the intention of robbing [him], or did you go there with the intention of killing him?" Defendant replied that he did not go there to kill him but that he went there to "rob" the house.

Michael Rodriguez testified that he slept most of the time during the ride out to the Bammes farm on Friday, May 16. Rodriguez testified that the defendant told him during the trip out to the farm that they were going there to buy a goat. He testified that after they arrived at the farm, Martinez and the two Mexican males left the car. After a few minutes, Rodriguez heard one gunshot followed by two more gunshots one to two minutes later. Rodriguez asked the defendant, "Did you hear that shot?" Defendant told Rodriguez, "They probably shot that man." When the three men returned to the car, Rodriguez saw that one of the Mexican males was carrying a large, long object under a blanket.

Joe Cueva testified that he saw the defendant and the others in defendant's car at a Topeka club between 8:00 and 10:00 p.m. on the evening of May 16, 1986. Cueva approached the car and spoke for a brief time with the group. Cueva testified that, while he was talking to them, he noticed two rifles laying on the floor of the car. Cueva also saw that one of the Mexican males, whom he identified at trial from an FBI circular as Chayo Garcia, had a .22 caliber revolver tucked in his pants. Cueva testified that the revolver was the same one he had previously seen at Lyle Cobler's Topeka residence.

Alfonso Hluz testified that he saw the defendant on the afternoon of Saturday, May 17, 1986. Defendant asked Hluz if he wanted to buy a rifle. When Hluz agreed, the defendant sold him a .22 caliber rifle for $15.00. The rifle was introduced into evidence as Exhibit 19.

The information as originally filed by the State on June 26, 1986, charged the defendant as a principal; however, on August 20, 1986, an amended information was filed, adding the aiding and abetting language to each count. The trial court granted the defendant's motion for acquittal as to the aggravated robbery count, and the jury found the defendant guilty of murder in the first degree and burglary, both as an aider and abettor. The defendant was sentenced to three to ten years for burglary and life imprisonment for the murder, the sentences to run concurrently.

Defendant first argues that Count 1 of the amended information does not charge the crime of felony murder because of the inclusion of the aiding and abetting language. He correctly notes that, under Kansas law, a person who counsels, aids, or abets in the commission of a crime may be...