State v. Garcia

• Decision Date: 10 June 1983
• Docket Number: No. 54517,54517
• Citation: 664 P.2d 1343,233 Kan. 589
• Parties: STATE of Kansas, Appellee, v. Robert G. GARCIA, Appellant.
• Court: Kansas Supreme Court

Page 1343

664 P.2d 1343

233 Kan. 589

STATE of Kansas, Appellee, v. Robert G. GARCIA, Appellant.

No. 54517.

Supreme Court of Kansas.

June 10, 1983.

Syllabus by the Court

1. The rules relating to the admission of photographs in a criminal prosecution are stated and applied.

2. Under K.S.A. 22-3405 and the Sixth Amendment of the United States Constitution a criminal defendant has the right to be present at all times when the jury is present in the courtroom and whenever the court communicates with the jury. The defendant's statutory and constitutional rights to be present are violated only if the defendant is absent when the jury is hearing the case or where his presence is essential to a fair and just determination of a substantial issue.

3. Violation of a defendant's statutory and constitutional rights to be present is harmless error and does not require reversal where there is no reasonable possibility of prejudice from the error.

4. Expert testimony is admissible under K.S.A. 60-456 only when such testimony will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.

5. Evidence concerning an accused's behavior subsequent to the event in question is relevant to the issue of insanity at trial only where it can assist the jury in determining the accused's mental condition at the time of the event.

6. The routine gathering of background biographical information for booking purposes from an accused after he had asserted his right to remain silent or right to counsel does not constitute an interrogation within the meaning of Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

7. An appellate court will not review alleged error in the admission of evidence in the absence of timely objection made thereto, or, if objection is made, unless the specific grounds thereof are clearly stated.

8. The test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction of the lesser charge.

Stephen E. Robison, of Joseph, Robison & Anderson, Wichita, argued the cause, and Charles E. Millsap, Wichita, of the same firm, was with him on the brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Robert G. Garcia (defendant-appellant) guilty of three counts of first-degree murder (K.S.A. 21-3401) and one count of aggravated battery. (K.S.A. 21-3414.)

The evidence disclosing how the crimes were committed is essentially undisputed. The appellant spent the evening of November 16, 1981, at the home of Maria Robles at 928 North Doris, Wichita, Kansas. The appellant had occasionally dated Maria. Living with Maria at this time were her four-year-old son, Gabriel Longeria; Cecil Browning and her fifteen-year-old daughter, Aimee Uffner; and Karen Neil. The appellant wanted Maria to go out with him that night, but she declined, explaining that she and Karen had made plans for the evening.

During the evening the appellant worked on Cecil's car and then ate dinner with all the residents of the house. After dinner Aimee played the piano and everyone sang songs. Around 10:30 Cecil left the house to go out of town with her boy friend. The appellant continued to stay at the house although Karen and Maria told him they had to leave. Finally, around midnight, Maria and Karen left the house and the appellant departed in his car.

Maria and Karen returned home around 2:45 that morning. Aimee, who had been looking after Gabriel, was watching television. The three were sitting in the living room talking when the appellant knocked on the door. He was carrying a 12-gauge shotgun and told Maria "he ought to beat the shit out of her." The four of them sat in the living room for a while with the appellant holding the shotgun. At one point when Karen stood up and said she had to use the bathroom, the appellant pointed the gun at her and told her to sit down.

At Aimee's insistence the appellant unloaded the gun and briefly rested it against the wall. He then ordered everyone into the kitchen and reloaded the gun. Maria went into one of the bedrooms to check on Gabriel and refused to come to the kitchen to talk to the appellant unless he again unloaded the gun. He complied, and they talked at the kitchen table for a few minutes. Meanwhile Karen got Gabriel from his bed because he was crying. While the appellant was at the house he had two drinks. After everyone returned to the living room the appellant said he "was going to take [his] glass with him because it would leave fingerprints," and "the biggest mistake he could make would be to have any sympathy for the victims because it would leave a witness, and he would get caught."

Aimee again pleaded with the appellant to put the shotgun away. The appellant replied, "Say your prayers for me," and then said, "No, say them for yourself," and began loading the gun. Standing only a few feet away from the victims he began shooting, hitting Gabriel in the face with the first shot, Karen Neil with the second shot, and finally shooting Aimee and Maria each twice. The appellant then sarcastically said "goodbye" and left the house. Karen, who received wounds to her right hand and face, was able to get to a neighbor's house for help. Gabriel and Aimee were found dead at the scene and Maria died later at the hospital from her wounds. Karen Neil survived but lost three fingers on her right hand. She testified at trial concerning the above related circumstances surrounding the event.

The appellant was charged with three counts of first-degree murder and one count of aggravated battery to which he pled not guilty by reason of insanity. The appellant had been admitted to the Veterans Administration Hospital in Wichita in February 1981, as a result of a suicide attempt. He had a history of several previous attempts. Dr. R.L. Stegman, a clinical psychologist, and Dr. Santharam Yadati, a psychiatrist, participated in the appellant's treatment during the appellant's hospitalization and testified on his behalf at trial. Dr. Stegman testified that tests performed on the appellant indicated that he was not psychotic, that he was depressed at the time of his discharge in March 1981 but was not considered to be dangerous to others, and that he knew the difference between right and wrong and the nature and quality of his acts. Dr. Stegman continued to see the appellant on an outpatient basis until October 23, 1981. Dr. Yadati testified he did not consider the appellant to be psychotic, or a danger to others. At the time of the appellant's discharge in March 1981, Dr. Yadati diagnosed the appellant as having atypical depression and a passive/dependent personality. He also considered the appellant to be psychologically unemployable.

Another clinical psychologist, Dr. Theodore Moeller, interviewed the appellant three times following the killings and performed a variety of clinical psychological tests on him. He testified that his evaluation of the appellant showed evidence of emotional disorganization and schizophrenia, as well as a strong possibility of psychosis. From his evaluation he determined the appellant did not know the nature and quality of his actions and was unable to judge right from wrong on the night of the killings because his judgment was impaired when he was under stress.

The appellant was convicted of each charge. He raises numerous trial errors on appeal. He first contends the trial court erred in admitting into evidence six color photographs depicting the scene of the crime and various wounds suffered by the victims. The first photograph shows the living room of the house with the bodies of two of the victims visible. While some blood is apparent on the carpet, furniture and a blanket, the injuries to the victims cannot be seen. Two other photographs were also taken in the house and show the blood-covered body of Aimee Uffner, with the feet of Gabriel Longeria visible, and the mangled, blood-covered face of Gabriel Longeria. The other three photographs were taken at the hospital. One shows the blood-covered face of Karen Neil, another shows her dismembered right hand, and the third depicts a large gaping wound to Maria Robles' shoulder and the bloody side of her face.

In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. See, e.g., State v. Green, 232 Kan. 116, 118, 652 P.2d 697 (1982), and cases cited therein. Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Campbell, 210 Kan. 265, 276, 500 P.2d 21 (1972); State v. Dargatz, 228 Kan. 322, 329, 614 P.2d 430 (1980); State v. Henson, 221 Kan. 635, 647, 562 P.2d 51 (1977). Photographs depicting the extent, nature and number of wounds inflicted are generally relevant in a first-degree murder case. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978). Photographs are erroneously admitted when they are unduly repetitious, gruesome, and add nothing to the State's case. State v. Dargatz, 228 Kan. at 329, 614 P.2d 430; State v. Henson, 221 Kan. at 647, 562 P.2d 51; State v. Clark, 218 Kan. 18, 24, 542...