State v. Garcia
| Decision Date | 01 April 1997 |
| Docket Number | No. 960180,960180 |
| Citation | 561 N.W.2d 599,1997 ND 60 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Barry Caesar GARCIA, Defendant and Appellant. Criminal |
| Court | North Dakota Supreme Court |
John T. Goff (argued), Cass County State's Attorney, Fargo, for plaintiff and appellee.
Warren A. Kochis (argued), Apple Valley, and Richard Henderson (appearance), of Nilles, Hansen & Davies, Ltd., Fargo, for defendant and appellant.
¶1 Barry Caesar Garcia appeals a jury verdict and a criminal judgment finding him guilty of murder and aggravated assault, and sentencing him to life imprisonment without parole. We affirm.
¶2 In a residential neighborhood in West Fargo on November 15, 1995, near 10:30 p.m., a short, young man walked up to the front passenger door of a car where Pat and Cherryl Tendeland were in the front seat, and Connie Guler, their friend, was in the backseat. From close to nine inches, the young man fired a sawed-off shotgun through the front passenger window, wounding Pat and killing Cherryl.
¶3 Police later arrested Garcia with three other young men. The State charged Garcia, then age 16, with murder, attempted robbery, aggravated assault, and a street-gang crime in juvenile court. Garcia was transferred to adult court for trial.
¶4 During the trial, after the State's case-in-chief, the trial court granted both the State's motion to dismiss the street-gang charge and Garcia's motion for acquittal of the attempted robbery charge. The jury found Garcia guilty of murder, a class AA felony, and aggravated assault, a class C felony. The trial court sentenced Garcia to life imprisonment without parole on the murder conviction, and to a concurrent five years imprisonment on the aggravated assault conviction. Garcia appealed.
¶5 During the evening of November 15, 1995, juveniles Jaime Guerrero, Juan Guerrero, Michael Charbonneau, Ray Martinez, Angel Esparza, and Garcia drove around Fargo-Moorhead in a brown, 1975, Minnesota-licensed, Ford sedan owned by Juan Guerrero's mother. The young men took along 10 to 15 red and green shotgun shells and a sawed-off shotgun owned by the Skyline Piru Bloods, a street gang whose members included Jaime Guerrero, Juan Guerrero and Martinez. While driving in a West Fargo residential area near 10 p.m., Garcia asked the driver to stop. Garcia and Charbonneau, who is much taller than Garcia, left the car. Garcia took the shotgun. Their car continued down the street and came to a stop, and Garcia and Charbonneau began walking around the neighborhood.
¶6 In the same neighborhood, Pat and Cherryl Tendeland were dropping off their friend, Connie Guler, who had accompanied them to a prayer service in Hillsboro. In the Tendeland car parked in Guler's driveway, while seated and talking, Guler saw a "taller boy ... maybe six feet or taller" and a "shorter one ... five feet or less tall" walking down the sidewalk toward them. Guler thought the shorter boy was carrying a gun, but Pat thought it was an umbrella. After the boys stood near Guler's driveway for awhile, they began walking back toward the brown Ford sedan. From their suspicious behavior, Pat decided to back up and follow the boys " 'to see where they [were] going.' "
¶7 As the Tendeland car slowly approached the Ford sedan, Guler saw the taller boy walking briskly toward the Ford and the shorter boy with the gun lagging behind. The Ford's lights were on, and it started to pull away. Cherryl read off the car's license number. Guler testified about the next thing she remembered:
I caught out of the sight of my eye something, and I turned, and this shorter boy was coming down off my berm, and he was so close, he could have opened my car door.
And the next--our eyes met, and all I remember was these cold, dark eyes. And that's all I know. I don't have a face. And it just--he just raised it.
I said, "My God, he's going to shoot," and it went off. I mean, it wasn't a matter of--it was just (indicating), like a click of the finger. It was so quick. And all I thought of then was Pat, you know, that he was the one that had gotten hurt.
And I didn't even think about Cherryl, because I thought she was going to bounce back up. I did duck.
Cherryl was shot in the forehead and shotgun pellets also struck Pat's face, knocking a lens from his glasses. Guler was not struck by the blast. Pat, who had difficulty seeing with blood running down his face and without the lost lens, decided to drive to a nearby police station.
¶8 Jaime Guerrero, who had remained in the Ford, testified he did not see the gunshot, but he heard it. Guerrero said Charbonneau and Garcia got back in the car about 20 seconds after he heard the shotgun blast. According to Guerrero, Garcia, who was still carrying the shotgun, said "they got her," and " 'next time, don't look at me.' " The boys left the area but continued driving around, eventually returning Esparza and Charbonneau to their homes. They also stopped at a Subway sandwich store, where Garcia purchased a sandwich and argued with the clerk for having to pay more for extra meat.
¶9 Guler, who is a nurse, tended to Cherryl's wounds while Pat drove toward the police station. Realizing Cherryl's wounds were much worse than she had first thought, Guler told Pat to stop at a convenience store and phone 911 for emergency assistance. Police and an ambulance crew arrived soon, and took Tendelands to a hospital. Cherryl was pronounced dead at the emergency room.
¶10 Police got descriptions of the brown Ford sedan in the area of the shooting and its Minnesota license plate number, and then surveilled the owner's residence in south Moorhead. Near 11:45 p.m., a squad car spotted the Ford, began following it, and called for help. Seven or eight squad cars assisted. Police pulled behind the Ford as it turned into the car owner's driveway.
¶11 Garcia was the only occupant who refused police orders to either remain in the car or lie on the ground and, instead, fled on foot. Police recovered a sawed-off shotgun with a warm barrel from the backseat of the car along with several red and green shotgun shells. Shortly, the police chasing after Garcia captured him in an athletic field at Moorhead State University. When arrested, Garcia possessed one green and three red shotgun shells.
¶12 A spent shotgun shell recovered at the scene of the shooting had contained size triple B steel shot that was the same size as shot recovered from Pat's wound and the Tendeland car. Shot recovered from Cherryl's body was No. 3 size shot and consistent with the shot recovered from the Tendeland car. The spent shotgun shell recovered at the scene had been fired from the sawed-off shotgun found in the brown Ford sedan.
¶13 Neither Pat nor Guler could positively identify Garcia as the person who shot into the Tendeland car. No usable fingerprints were found on the shotgun. Atomic absorption tests on Garcia, Martinez, and Jaime and Juan Guerrero showed significant levels of antimony and barium on all four individuals, thus evidencing each of them could have recently fired a gun or handled a gun that had been recently fired. The pattern on the sole of Garcia's tennis shoes corresponded with shoeprints found at the scene of the shooting.
¶14 The Tendeland shooting brought on much publicity, and the trial court allowed expanded media coverage of Garcia's jury trial. See NDAdminR 21. At the trial, the State called Jaime Guerrero as a witness. When asked his name, Guerrero replied, "I am not going to say nothing."
¶15 Away from the jury, the trial court learned Guerrero had not been granted immunity to testify, warned Guerrero he may be subject to contempt penalties, and also informed him of his Fifth Amendment rights to remain silent and to speak to a lawyer. Guerrero asked to speak with a lawyer, and the trial court appointed the same lawyer who was representing Guerrero in juvenile court to advise him. The court recessed, and Guerrero consulted his lawyer during the lunch hour.
¶16 When the trial court reconvened out of the presence of the jury, Guerrero was still consulting with his lawyer. The State's attorney explained to the court:
Mr. Guerrero has indicated some willingness to proceed and provide testimony to matters which he has already provided us information.
I'm concerned--and it's been relayed to me--that there may be some concern about the media coverage, particularly the television camera, and also the number of viewers and spectators in the audience of the courtroom.
It is--it's my request at this time that, for the testimony of Jaime Guerrero, that the Court terminate expanded media coverage, terminate the use of the television camera, terminate the feed to the television and/or radio just for that testimony, and that the Court also order that anybody other than the family of Barry Garcia or the family of Cherryl Tendeland be excused from the courtroom, to present--to present a more friendly environment, if you will, for the testimony of this child, who is only 15 years of age.
I think there are good arguments to be made for the termination of the expanded coverage for a person only 15 years of age. There is some reason to believe that he is concerned about other persons' opinions and feelings and actions if he decides to go ahead and testify.
For those reasons, we would like to ask that the media coverage be terminated for Mr. Guerrero and the courtroom be essentially cleared, except for family.
Garcia's attorney resisted the State's request, arguing there was "no compelling reason to shut things down at this point." The court recessed again until Guerrero completed consultation with his lawyer.
¶17 The trial court reconvened away from the jury with Garcia and his lawyer, Guerrero's lawyer, and the State's attorney. The State's attorney explained he had promised to dismiss with prejudice the juvenile court charges against Guerrero if he testified truthfully in Garcia's trial. Guerrero's...
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