State v. Gonzalez
| Decision Date | 27 March 2020 |
| Docket Number | No. 119,492,119,492 |
| Citation | 460 P.3d 348 |
| Parties | STATE of Kansas, Appellee, v. Efrain GONZALEZ Jr., Appellant. |
| Court | Kansas Supreme Court |
Jonathan Laurans, of Kansas City, Missouri, argued the cause and was on the brief for appellant.
Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Efrain Gonzalez Jr. appeals from convictions of felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. They stem from an incident in which the passenger in a car Gonzalez was driving shot and killed a man outside a bar in Kansas City. The central question on appeal is whether sufficient evidence to prove intent to commit a robbery exists to support the convictions.
What little is known from the trial evidence is that Gonzalez pulled his car up behind the bar after eluding a police traffic stop a few minutes earlier and that the victim was shot. Nothing showed what might have been said between the victim and the car's occupants, so the State tried to prove the attempted aggravated robbery by relying on Gonzalez' text messages shortly before the killing. Arguably, the text messages and circumstances were ambiguous about whether the pair intended to rob the victim, so more was required.
We hold the evidence sufficient under our standard of review. What tied the ambiguous evidence together was the investigators' explanations about the meaning typically associated with the language in the texts, as well as a detective's testimony that one of the pair discussed pinpointing someone for a robbery. Taken together, this provided the jury a sufficient basis to infer the pair's intention to rob the victim. As for the remaining issues, we hold they do not warrant reversal, so we affirm.
At 12:29 a.m., on November 27, 2016, Officer Kenneth Garrett stopped a vehicle for suspicious behavior and a noise violation. He described the vehicle as a boxy, black, 4-door Chevy. As Garrett approached, the vehicle drove off. The officer reported this to dispatch and began a search.
Just blocks from the traffic stop, Louis Scherzer was at a bar with family and friends. The bar's surveillance footage shows him going out the back door at 12:36 a.m. Within the next three minutes, there were gunshots. Scherzer emerged mortally wounded from the alleyway and collapsed against the bar's front door. He pulled out his own gun and shot back.
Scherzer still had his keys and wallet containing cash when he died within minutes from a single gunshot wound. The bullet entered the lower-right portion of his back and exited around the left collar bone. A witness said gunfire came from an older, boxy, black car that drove away. People outside the bar flagged down Officer Garrett, who was still in the area looking for the car he had tried to stop. Garrett saw the car drive past the front of the bar but could not locate the vehicle after that.
Later that same day, police discovered outside Gonzalez' house a car matching the description of the one involved in the traffic stop and shooting. A trail of blood led inside the house, where officers found more blood and a .45 caliber handgun. Police arrested Gonzalez at the University of Kansas Medical Center, where he went for treatment of a gunshot wound to his foot.
Forensic analysis showed the gun was fired twice at the crime scene. An investigating detective testified Filiberto Espinoza, the occupant in Gonzalez' car, fired the shot that killed Scherzer, and Gonzalez shot himself in the foot.
The State's evidence tending to explain why Espinoza shot Scherzer consisted of text messages between Gonzalez and others around the time of the crime. In texts with his girlfriend from Gonzalez' phone, she asked him to come home. He told her shortly before midnight, "I got some shut [sic ] to hadle [sic ], baby." At 12:10, he told her, "I'm teammate's grip," and when she asked, "huh?," he replied "tanna [sic ] get this paper, babe."
At 12:31 a.m., about the time of the traffic stop, Gonzalez messaged "high speed" to a friend. At 12:42 a.m., after Scherzer was shot, the friend replied "were you in one RN?" Gonzalez explained "yeah, they dumped at me." When asked why, he responded "Beto dumped at them." "Beto" is Espinoza's nickname. Gonzalez told his friend to "look SC," seemingly referring to a Snapchat video he took of himself leaving the traffic stop. When the friend asked whether "they shot at you" while he was "driving off," Gonzalez said "nah, smoked dud [sic ]."
On recross-examination, defense counsel continued probing the issue with the following exchange:
At that point, the prosecutor interrupted for a bench conference, during which she argued defense counsel was "opening the door for the proffered statement." The only clue in the record about what she was referring to comes from the district court's response, "Yeah, because he's got a statement from the co-defendant that says he was—he was the one that—I mean, your client was the one that came up with the idea ... of the robbery." The court told defense counsel he would let the State "bring it in if you go this way." The prosecutor added
When the recross-examination resumed, defense counsel changed course, asking only two more questions about the timing of Gonzalez' text messages. No statements like the ones described at the bench conference were admitted at trial.
After the State rested, Gonzalez put on testimony from his mother, seeking to establish he had consumed marijuana and a Xanax that might have impaired him at the time of the crimes. Gonzalez also sought to prove his intoxication through testimony from Espinoza, but this was prevented when Espinoza invoked his Fifth Amendment privilege against self-incrimination.
In closing arguments, the State focused on the homicide. It argued the jury should convict Gonzalez of premeditated murder because the evidence showed Scherzer was "shot dead in the back without a chance to defend himself," which would not have happened if it was just a robbery gone wrong. It also asserted if the jury did not convict on that offense, it should still find him guilty of felony murder, for which it argued the jury needed only to find he was "actively participating with the goal to achieve an aggravated robbery." And in alleging Gonzalez and Espinoza were engaged in a robbery when the shooting occurred, the prosecutor pointed to Gonzalez referring to Espinoza as his "teammate," arguing this established a common goal. She also contended Gonzalez' phrase "trying to get the paper means money, robbery at that time of day."
Defense counsel claimed there was no robbery and that the "sheer reading" of the text messages was that "somebody named Tanna is gonna get some paper." He questioned the detectives' testimony that this meant the pair intended to rob someone, asking "[w]here's the evidence of that?" He asserted the facts did not show there was a robbery attempt because the victim was shot in the back. He also argued the pair did not intend to kill because only one shot was fired at Scherzer.
The jury convicted Gonzalez of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. The district court imposed a hard 25 life sentence for the felony-murder conviction and two consecutive 32-month prison terms for the conspiracy and attempted aggravated robbery convictions.
Gonzalez timely appealed directly to this court, raising seven issues we have consolidated into six and reordered: (1) whether sufficient evidence supports the convictions; (2) whether the attempt and conspiracy convictions were multiplicitous; (3) whether the district court's aiding and abetting jury instruction constituted clear error; (4) whether the district court erroneously permitted Espinoza to invoke his Fifth Amendment privilege against self-incrimination because he had already pleaded guilty and been sentenced for his participation in the crimes; (5) whether the State's peremptory strikes during jury selection constituted purposeful racial discrimination to exclude prospective Hispanic jurors; and (6) whether cumulative error requires reversal.
Jurisdiction is proper. K.S.A. 2018 Supp. 22-3601(b)(3), (4).
To support a conviction for an attempted crime, the evidence must...
To continue reading
Request your trial
-
State v. Myers
...been told of any conflict of interest. An issue not raised before the district court cannot be raised on appeal. State v. Gonzalez , 311 Kan. 281, 295, 460 P.3d 348 (2020). Myers mainly argues on appeal that the facts showed a complete breakdown of communication and that the district court ......
-
State v. Bodine
...the State to prove that the killing was reasonably foreseeable. In support of his claim, Bodine summarily cites to State v. Gonzalez , 311 Kan. 281, 293, 460 P.3d 348 (2020), and Gleason , 277 Kan. at 636-38, 88 P.3d 218.In Gonzalez , a passenger in a car driven by Gonzalez shot and killed ......
-
State v. Harris
...Kan. 72, 83, 378 P.3d 522 (2016) (one's subjective state of mind " ‘may be proved by circumstantial evidence’ "); State v. Gonzalez , 311 Kan. 281, 288, 460 P.3d 348 (2020) ("Intent is usually proven by inference arising from circumstantial evidence because direct evidence of a defendant's ......
-
State v. Brooks
... ... dual equal protection violations attendant to the State's ... race-based removal of potential jurors during the selection ... process). The Kansas Supreme Court has, of course, recognized ... and enforced those constitutional rights. See State v ... Gonzalez , 311 Kan. 281, 302-03, 460 P.3d 348 (2020) ... Here, ... Brooks' lawyer specifically invoked Batson in ... disputing the prosecutor's decision to excuse the ... African-American woman. Under Batson , the question ... then becomes whether the prosecutor ... ...
-
§ 29.04 Conspiracy: The Agreement
...13 S.W.3d 449, 453 (Tex. App.—Corpus Christi 2000).[33] State v. Soyini, 183 A.3d 42, 57-58 (Conn. App. Ct. 2018); State v. Gonzalez, 460 P.3d 348, 359 (Kan. 2020); Commonwealth v. Chambers, 188 A.3d at 410.[34] Blumenthal v. United States, 332 U.S. 539, 557-58 (1947); People v. Mass, 628 N......