State v. Gonzalez, 91,469.

CourtUnited States State Supreme Court of Kansas
Citation145 P.3d 18
Docket NumberNo. 91,469.,91,469.
PartiesSTATE of Kansas, Appellee, v. Jorge Sanchez GONZALEZ, Appellant.
Decision Date27 October 2006
145 P.3d 18
STATE of Kansas, Appellee,
Jorge Sanchez GONZALEZ, Appellant.
No. 91,469.
Supreme Court of Kansas.
October 27, 2006.

Page 19


Page 20


Page 21


Page 22


Page 23


Page 24

Virginia A. Girard-Brady, assistant appellate defender, argued the cause and was on the brief for appellant.

Don L. Scott, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

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

Jorge Sanchez Gonzalez was convicted by a jury of one count of premeditated first-degree murder in violation of K.S.A. 21-3401(a), one count of attempted first-degree murder in violation of K.S.A. 21-3301 and K.S.A. 21-3401(a), and one count of discharging a firearm at an occupied vehicle in violation of K.S.A.2005 Supp. 21-4219, for crimes committed in August 1997. In his appeal pursuant to K.S.A. 22-3601(b)(1), he raises six errors.

More specifically, the defendant contends we must reverse his convictions based upon the trial court's (1) exclusion of Dr. Huddleston's expert opinion based upon defendant's California medical records, (2) admission of his unredacted videotaped interview, (3) admission of his confession, (4) failure to instruct on his theory of self-defense, (5) consideration of his prior conviction for sentencing purposes without a jury determination of the conviction, and (6) cumulative error.


On Sunday, August 17, 1997, at approximately 11:14 p.m., Liberal, Kansas, police officer Randy D. Schafer was on routine patrol when he noticed a tan Lincoln, with its headlights off, either parked or moving very slowly in an alley behind a Motel 9. Suspicious because of recent burglaries in the area, Officer Schafer pulled his patrol car onto a dirt road perpendicular to the alley, between the Motel 9 and a Love's Country Store. The Lincoln was moving from behind the Motel 9 at "about two or three miles per hour."

As the Lincoln pulled directly in front of the patrol car's headlights, Officer Schafer saw a Hispanic male, on foot, approach the Lincoln from behind. Upon reaching the Lincoln's rear bumper, the Hispanic male fired approximately four shots with a handgun into the Lincoln which then accelerated

Page 25

down the alley. Officer Schafer lost sight of the fleeing shooter, but followed the Lincoln as it sped down the alley and across a street, crashing into the side of a building. The Lincoln's passenger, Nick Heathman, ran toward Officer Schafer's patrol car; he was bleeding from the mouth, missing some teeth, and spit out a bullet. The driver, Juan Carlos Lozoya, was unconscious in the Lincoln and bleeding from the chest; he later died from his injuries.

Heathman testified that he and Lozoya were driving around that night waiting for Heathman's mother to finish work. As they twice drove by Love's Country Store, Heathman and Lozoya noticed two males standing in front, gesturing at them; Heathman believed these gestures were gang signs. Heathman recognized one of the men as "Silent" and identified "Silent" as defendant Jorge Sanchez Gonzalez.

Lozoya turned into the alley behind Love's and turned off his headlights. At the preliminary hearing, Heathman testified that Lozoya turned the lights off to surprise the men, intending to start a fight. At trial, Heathman denied knowing what Lozoya's intentions were. They both noticed Officer Schafer and turned the headlights back on. Suddenly, Lozoya yelled, "Look out!" Heathman noticed a man pointing a gun at them, who immediately began to shoot. Lozoya fell onto Heathman and the car accelerated. Heathman unsuccessfully tried to apply the brakes from the passenger side. Heathman's injuries included 300 to 500 stitches, the loss of a sinus cavity, the loss of six teeth, numerous surgeries, and back problems.

Officer Shannon M. Davis and Sergeant Daniel Yorio were among officers called to the scene. They located a .38 Smith and Wesson handgun with a silver barrel and wood grips on the front porch of a house approximately 75 feet from the scene of the shooting. At Lozoya's autopsy, Captain Charles Maddox recovered a bullet from Lozoya's body. Testing by Kansas Bureau of Investigation (KBI) forensic science laboratory personnel revealed that the bullet was fired from the gun found on the front porch.

Police investigators also found a number of items of clothing in the vicinity of the crime scene, which included a bandanna, a glove, a sweatshirt, and a pair of pants. Crime scene technicians found a cigarette butt in the pocket of the pants. The KBI forensic science laboratory later matched DNA found on the cigarette butt to that of defendant.

Jose Soto testified that defendant had lived with him and his family during 1997. Soto related a conversation that defendant had with him on Tuesday, August 19, 2 days after the shooting. Defendant told Soto that he had gone to Liberal looking for Max Romero, whom defendant blamed for a drive-by shooting at the Soto house some months earlier. While he did not find Romero, he bragged about shooting "two guys" in the alley behind Love's store with a .38 special, as he believed they were rival gang members. He fled, discarding an outer layer of clothing as he ran. On cross-examination, Soto stated that defendant had previously stolen a cell phone from Lozoya at knifepoint, and that Lozoya had threatened to come back with a gun. He also stated that defendant had said that Lozoya had reached down shortly before the shooting, and that defendant said he "didn't know if they had something."

Defendant was arrested for the shooting, but was released after 2 months for lack of evidence. Approximately 2 years later, on November 9, 1999, defendant was arrested by officers of the Anaheim, California, Police Department for robbery. Anaheim Police Department Detective Ty Hagenson conducted a videotaped interview with defendant shortly after this arrest.

After being read his Miranda rights, defendant indicated a willingness to speak. During the course of this interview, defendant indicated that he had been convicted of murder in Kansas, sentenced to 25 years to life, but had been released after 4 months due to a mistake. When asked about details of the shooting, defendant described shooting into a yellow Lincoln in an alley behind a convenience store, killing "Carlos." He said that a police officer witnessed the shooting and he described the gun used in the shooting as a chrome Smith and Wesson .38 revolver with wood grips. He also said that he

Page 26

left the gun about a block from the scene of the shooting and described how he escaped by discarding an outer layer of clothing as he fled the scene. Based on this information, defendant was arrested by Kansas authorities.

After the defendant was charged by complaint, the State and defendant's attorney filed a joint motion to determine defendant's competency; the trial court ordered that defendant undergo an examination at the Larned State Security Hospital. The report received from that examination determined that defendant was competent to stand trial. At the first competency hearing, defense requested that he be granted an opportunity to secure a second opinion, which the trial court granted.

The second evaluation was conducted by Dr. Carolyn Huddleston, clinical psychologist, in June 2002. Dr. Huddleston concluded that defendant was incompetent to stand trial. She acknowledged, however, that in the absence of defendant's prison medical records from California, she would have found defendant competent. On objection from the State, the trial court ruled that the California records were inadmissable hearsay and could not be relied upon to form the basis of Dr. Huddleston's opinion. The trial court concluded that defendant was competent to stand trial.

Prior to trial, defense counsel filed a motion in limine asking that his videotaped interview with California officers be partially redacted to exclude prior crimes and civil wrongs. Defense counsel also filed a motion to suppress the videotape on the grounds that the interview was involuntarily given. Both motions were denied by the trial court. The trial court did give a limiting instruction to the jury, advising the jury that it should not consider evidence of crimes other than the one charged in determining defendant's guilt.

At trial, defendant requested a self-defense instruction. The trial court found that there was no evidence to support such a theory, but it did give an instruction on the lesser included offense of voluntary manslaughter, based on an "unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person."

Upon conviction, the Defendant was sentenced to life in prison with the possibility of parole after 25 years for first-degree premeditated murder; to a standard sentence of 776 months for attempted first-degree murder, to be served consecutive to the murder sentence; and to 12 months for discharge of a firearm, to be served concurrent with his other sentences. His motions for a judgment of acquittal and for a new trial were denied. The appeal and defendant's assignment of errors follow.

(1) Exclusion of Dr. Huddleston's Expert Opinion Based Upon Defendant's California Medical Records

Defendant contends that it was error for the trial court to exclude Dr. Carolyn Huddleston's opinion that defendant was incompetent to stand trial. Dr. Huddleston easily qualified as an expert witness with approximately 20 years' experience as a licensed clinical psychologist in conducting competency evaluations. On a hearsay objection by the State, the trial court ruled that Dr. Huddleston's opinion that defendant was incompetent to stand trial was not admissible because it was based upon California medical records of defendant which had not been offered or...

To continue reading

Request your trial
80 cases
  • State v. Scott, No. 83,801.
    • United States
    • United States State Supreme Court of Kansas
    • May 16, 2008
    ...required 183 P.3d 817 to, ask questions to clarify or may continue questioning without clarifying. State v. Gonzalez, 282 Kan. 73, 106, 145 P.3d 18 (2006). If the interrogator chooses to continue questioning without seeking clarification, he or she runs the risk of a later ruling the invoca......
  • State v. Carter, 95,335.
    • United States
    • United States State Supreme Court of Kansas
    • June 22, 2007
    ...the jury followed its instructions, see State v. Gaither, 283 Kan. 671, ___, 156 P.3d 602, 613 (2007); State v. Gonzalez, 282 Kan. 73, 99, 145 P.3d 18 (2006), meaning it arrived at a verdict of guilty on premeditated first-degree murder before it moved on to the consideration of lesser incl......
  • State v. Mccaslin, 99,628.
    • United States
    • United States State Supreme Court of Kansas
    • January 21, 2011
    ...a similar holding in State v. Brinklow, 288 Kan. 39, 54-55, 200 P.3d 1225 (2009). As we stated in State v. Gonzalez, 282 Kan. 73, 118, 145 P.3d 18 (2006):"[E]ven if the defendant cited factual circumstances sufficient to distinguish his situation from that of the defendant in Ivory (which h......
  • In re Ontiberos, 100,362.
    • United States
    • United States State Supreme Court of Kansas
    • August 17, 2012
    ...(3) allowed Dr. McCoy to consider inadmissible documents while forming her opinion in violation of State v. Gonzalez, 282 Kan. 73, 87, 145 P.3d 18 (2006); (4) allowed the State to cross-examine Ontiberos with documents that were not admitted into evidence—a use Ontiberos alleges was outside......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT