State v. Gonzalez

• Decision Date: 09 March 2018
• Docket Number: No. 112,841,112,841
• Citation: 307 Kan. 575,412 P.3d 968
• Parties: STATE of Kansas, Appellee, v. Pablo Alberto GONZALEZ, Appellant.
• Court: Kansas Supreme Court

307 Kan. 575

412 P.3d 968

STATE of Kansas, Appellee,

v.Pablo Alberto GONZALEZ, Appellant.

No. 112,841

Supreme Court of Kansas.

Opinion filed March 9, 2018.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Randall L. Hodgkinson, of the same office, was on the brief for appellant.

Steven J. Obermeier, assistant solicitor general, argued the cause, and Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

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

An intoxicated Pablo Gonzalez shot and killed his friend, Levi Bishop, while they celebrated New Year's Eve. A jury convicted Gonzalez of unintentional second-degree murder. On appeal, Gonzalez challenges: (1) the unintentional second-degree murder statute's constitutionality; (2) the evidence's sufficiency; (3) the trial court's actions in answering a jury question; and (4) the court's failure to give a limiting instruction about certain evidence. The Court of Appeals affirmed. State v. Gonzalez , No. 112,841, 2016 WL 3202555 (Kan. App. 2016) (unpublished opinion). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are mostly undisputed, except whether Gonzalez knew his gun was loaded as events unfolded.

Gonzalez and his friends—Levi (the victim), Bailey Bishop (Levi's sister; Gonzalez' girlfriend), Jeff Swisher (Levi's step-brother), and Zachary Cashman—attended various New Year's Eve parties. At some point, the four men wanted to return to the first party and Gonzalez drove them. Cashman and Swisher passed out in the back seat.

Around 4:30 a.m. on January 1, 2014, Gonzalez drove to Andrew Schindler's house. Gonzalez and Levi got out of the car. When Gonzalez stepped out, his gun fell onto the ground. He picked it up, put it in his pocket, and walked around the car where Schindler and Levi were talking. According to Schindler, Gonzalez "was pointing [the gun] around and being stupid." Schindler testified Gonzalez pointed the gun at Schindler's head once or twice. He told Gonzalez to stop. Schindler headed into the house to get cigarettes so they would leave. Schindler saw John Syrokos walking toward Gonzalez and Levi from down the street.

Syrokos testified he left a party around 4:30 a.m. and started walking home. He saw Gonzalez pull his handgun out and chamber a round. Gonzalez called out asking Syrokos to identify himself. Feeling scared, Syrokos said his name, and, as they got closer, Gonzalez put the gun under his coat. Syrokos continued home after 10 or 15 minutes. When he got home, he called the sheriff's office to report what he saw.

Shortly thereafter, the shooting occurred only a couple of blocks from Schindler's house. Schindler testified it must have happened "[w]ithin five minutes of [them] leaving [his] house." At approximately 4:45 a.m., St. Marys Police Officer Mark Lamberson was at the police station when he saw a car pull into the parking lot and heard honking. Gonzalez approached and banged on the station door.

Lamberson described Gonzalez as intoxicated, "emotional, scared, frantic, [and] distraught." Gonzalez said he needed "help" because he had "shot [his] boy in the face." As the two approached the car, the officer noticed a gun on the ground near the driver's side. Levi was dead in the passenger seat. Swisher stood outside and Cashman was crying in the back seat. Lamberson took the gun, which had one round in the chamber. He arrested Gonzalez.

The State charged Gonzalez with intentional second-degree murder, an alternative count of unintentional second-degree murder, and one count of aggravated assault. A jury convicted him of unintentional second-degree murder and acquitted him of aggravated assault. The court imposed a 123-month prison sentence. Gonzalez timely appealed.

A Court of Appeals panel affirmed. Gonzalez , 2016 WL 3202555, at *1. Gonzalez petitioned this court for review, which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals' decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20-3018 ).

CONSTITUTIONALITY OF THE CRIME OF CONVICTION

Gonzalez claims for the first time on appeal that the statute defining unintentional second-degree murder is unconstitutionally vague. He advances three reasons. First, he claims State v. Deal , 293 Kan. 872, 269 P.3d 1282 (2012), blurred the distinction between unintentional second-degree murder and involuntary manslaughter because it held the second-degree murder statute focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death. Second, he asserts amendments to the definition of " ‘recklessly’ " in K.S.A. 2016 Supp. 21-5202(j), made unintentional second-degree murder and involuntary manslaughter the same crime. Third, he cites Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed. 2d 569 (2015), to argue the unintentional second-degree murder statute requires a jury to first make a determination of the "ordinary" reckless killing, which "creates grave uncertainty."

Additional Facts

In discussing Gonzalez' vagueness claim, it is helpful to review how the jury was instructed about two of the crimes charged. After instructing the jury on intentional second-degree murder, which is not relevant here, the trial court instructed on unintentional second-degree murder under K.S.A. 2016 Supp. 21-5403(a)(2) and involuntary manslaughter under K.S.A. 2016 Supp. 21-5405(a)(1). The relevant instructions provided as follows:

Instruction No. 11 stated:

"If you do not agree that the defendant is guilty of Murder in the Second Degree, committed Intentionally, you should then consider the lesser included offense of Murder in the Second Degree, committed Unintentionally.

"To establish this charge, each of the following claims must be proved:

"1. The defendant killed Levi William Bishop unintentionally but recklessly under circumstances that show extreme indifference to the value of human life .

"2. This act occurred on or about the 1st day of January, 2014, in Pottawatomie County, Kansas.

"A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that a result of the defendant's actions will follow. This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation." (Emphasis added.)

Instruction No. 11 further stated:

"If you do not agree that the defendant is guilty of Murder in the Second Degree, committed Unintentionally, you should then consider the lesser included offense of Involuntary Manslaughter.

"To establish this charge, each of the following claims must be proved:

"1. The defendant killed Levi William Bishop.

"2. It was done recklessly.

"3. This act occurred on or about the 1st day of January, 2014, in Pottawatomie County, Kansas.

"A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that a result of the defendant's actions will follow. This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation."

Instruction No. 7 stated:

"Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge."

Instruction No. 10 stated:

"When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only."

Standard of Review

"Determining a statute's constitutionality is a question of law subject to unlimited review. We presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Further, we must interpret a statute in a manner that renders it constitutional if there is any reasonable construction that will maintain the legislature's apparent intent. State v. Gaona , 293 Kan. 930, 957-58, 270 P.3d 1165 (2012)." State v. Soto , 299 Kan. 102, 121, 322 P.3d 334 (2014).

Because Gonzalez challenges the statute's constitutionality, he carries the burden of overcoming that presumption.

" ‘A statute must clearly violate the constitution before it may be struck down.’ [Citations omitted.] ‘This court not only has the authority, but also the duty, to construe a statute in such a manner that is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.’ [Citation omitted.]" State v. Robinson , 261 Kan. 865, 874-75, 934 P.2d 38 (1997).

Discussion

Unintentional second-degree murder is defined as: "[T]he killing of a human being committed ... unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. " (Emphasis added.) K.S.A. 2016 Supp. 21-5403(a)(2). Involuntary manslaughter is defined as: "[T]he killing of a human being committed ... [r]ecklessly." K.S.A. 2016 Supp. 21-5405(a)(1). "A person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2016 Supp. 21-5202(j).

Instruction No. 11 captures the statutory distinction by requiring the jury to find the killing was committed "under circumstances that show extreme indifference to the value of human life" to convict Gonzalez of unintentional second-degree murder. The instruction clearly did not require this finding to convict him of involuntary manslaughter. But Gonzalez contends the statutory phrase "under circumstances manifesting extreme indifference to the value of human life" is unconstitutionally vague because it fails to sufficiently distinguish for...