State v. Gutierrez-Fuentes
| Decision Date | 29 April 2022 |
| Docket Number | 339,120 |
| Parties | State of Kansas, Appellee, v. Geldy Gutierrez-Fuentes, Appellant. |
| Court | United States State Supreme Court of Kansas |
State of Kansas, Appellee,
v.
Geldy Gutierrez-Fuentes, Appellant.
No. 120, 339
Supreme Court of Kansas
April 29, 2022
SYLLABUS BY THE COURT
1. The general rule is that an issue not asserted before the trial court cannot be raised for the first time on appeal, though there are three recognized exceptions if, in its discretion, the appellate court believes the exception is justified under the facts of a particular case. One of these exceptions is when consideration of the theory is necessary to prevent the denial of fundamental rights. The right to a speedy trial is a fundamental right.
2. Before invoking one of the limited exceptions, an appellate court must also determine whether the unpreserved issue is amenable to resolution on appeal. Even if a discretionary exception would support a decision to review a new claim, an appellate court has no obligation to do so.
3. Aggravated burglary under K.S.A. 2020 Supp. 21-5807(b)(1) prohibits a person from entering, without authority, any dwelling in which there is a human being, with the intent to commit a felony, theft, or sexually motivated crime therein.
4. Regarding authority to enter in an aggravated burglary prosecution, a close question may arise when the State does not present direct evidence about the defendant's and the victim's property interests in the residence where an aggravated burglary occurs. But circumstantial evidence can sufficiently support a finding that someone lacks authority to enter a residence.
5. The hearsay exception in K.S.A. 2020 Supp. 60-460(a) allows admission of a statement previously made by a person who is present at the hearing and available for cross-examination.
6. When an out-of-court interpreter is utilized, there is more than one statement for separate consideration under K.S.A. 2020 Supp. 60-460(a): first, the out-of-court foreign language statement, in that foreign language; and second, the out-of-court English language interpretation of the out-of-court foreign language statement. Because language is complex, a one-to-one correspondence between words or concepts in different languages is not always possible. Each statement, as uttered, must be separately considered for admissibility. The English interpretation does not serve as a conduit for admissibility of the foreign language statement.
Review of the judgment of the Court of Appeals in 59 Kan.App.2d 70, 477 P.3d 1041 (2020).
Appeal from Sedgwick District Court; Deborah Hernandez Mitchell, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
OPINION
WILSON, J.
Geldy Gutierrez-Fuentes petitioned this court for review of three issues after the Court of Appeals affirmed his convictions for aggravated battery, aggravated burglary, and criminal threat. He argues (1) that his constitutional right to a speedy trial was violated, (2) that there was insufficient evidence to support his aggravated burglary conviction, and (3) that the district court erred by admitting out-of-court statements of an interpreter over defense hearsay objections. We affirm his convictions.
FACTS AND PROCEDURAL HISTORY
Gutierrez-Fuentes moved in with the victim, D.S., in late June 2016. After an argument in early October 2016 which resulted in Gutierrez-Fuentes grabbing D.S. by the throat and shoving her, D.S. told Gutierrez-Fuentes she did not want to be with him anymore and he needed to move out of the apartment. In compliance, Gutierrez-Fuentes
gathered some of his belongings, but when D.S. asked him to return the key to the apartment, he claimed he had lost it.
A few days after the split, D.S. was in the apartment behind a door locked with a deadbolt. The deadbolt could not be unlocked from the outside. Because Gutierrez-Fuentes had not returned the key, D.S. took extra precautions to secure her apartment and placed a chair behind the door. That day, Gutierrez-Fuentes returned to the apartment, knocked on the window, and asked D.S. to talk with him. She refused and did not give him permission to enter the apartment. In response, Gutierrez-Fuentes broke through the front door, went into the apartment, grabbed D.S., and started hitting her. Gutierrez-Fuentes told D.S. that if she was not going to be with him, he would kill her. D.S. blacked out. When she regained consciousness, she found help in the apartment upstairs, where one of her neighbors called 911.
Officer Dane Myers responded to the assault call. He found D.S. covered in blood and being consoled by a neighbor. He was not able to speak directly with D.S. at that time because of a language barrier. Officer Myers concluded the apartment door had been forced open, because wood chips were lying on the ground and the deadbolt was still in a locked position.
An ambulance took D.S. to the hospital, where a staff interpreter facilitated a conversation between D.S. and Officer Myers. At trial, Officer Myers gave testimony outlining this conversation with D.S.
D.S. was examined by forensic nurse Tracy Hess. Through the services of a staff interpreter, D.S. gave information to Hess. At trial, Hess gave testimony outlining this conversation with D.S.
Officer Rick Peña, who speaks both English and Spanish and therefore needed no interpreter, communicated directly with D.S. at the hospital and testified at trial about this conversation with D.S. The information Peña provided was consistent with the trial testimony given by D.S., Myers, and Hess.
Gutierrez-Fuentes, like D.S., does not speak English. He tried to turn himself in at the police station on October 5, 2016-the same day as the attack-but he was turned away. Charges were filed against him on October 31, 2016. Gutierrez-Fuentes was arrested on February 3, 2017, and tried on August 20, 2018.
The jury convicted Gutierrez-Fuentes on two separate counts of aggravated battery, one count of aggravated burglary, and one count of criminal threat. He was sentenced to a controlling 82 months in prison. He timely appealed.
Before the Court of Appeals panel, Gutierrez-Fuentes argued that his constitutional right to a speedy trial had been violated, there was insufficient evidence for his aggravated burglary conviction, the district court had allowed inadmissible hearsay evidence, and the district court erred when it instructed the jury on the elements of aggravated battery. The panel affirmed the district court, and Gutierrez-Fuentes seeks review of only the first three issues.
ANALYSIS
CONSTITUTIONAL SPEEDY TRIAL
Gutierrez-Fuentes first argues that his constitutional right to a speedy trial was violated because he was held in jail for 18 months before being brought to trial. He argues that the panel's analysis of the issue was deficient and that a full review and application of the constitutional speedy trial test would show his rights have been violated and his convictions need to be reversed.
Preservation
A defendant has both a statutory and constitutional right to a speedy trial. While clearly related, they are two separate rights with different tests and different burdens. See K.S.A. 2020 Supp. 22-3402 (setting forth the number of days after arraignment by which trial must begin to avoid dismissal of charges); State v. Owens, 310 Kan. 865, 869, 451 P.3d 467 (2019) (outlining the constitutional balancing test of the Barker factors adopted by this court). In this appeal, Gutierrez-Fuentes asserts that he made a timely objection- before his case was concluded in the district court-that his constitutional right to a speedy trial was violated, and thus he preserved this issue for appellate review. Accordingly, our first task is to determine whether Gutierrez-Fuentes actually preserved a claim that his constitutional right to speedy trial was violated.
The answer is not easy to ascertain. The record shows that neither Gutierrez-Fuentes nor any of his attorneys specifically objected to the court that his constitutional right to a speedy trial had been violated. Nor was a motion to dismiss filed on the basis
that the defendant's constitutional right to a speedy trial had been violated. Again, this highlights the difference between a defendant's statutory right and constitutional right to a speedy trial. The State has the burden of meeting the statutory speedy trial time requirement, and the defendant does not have to assert the right. State v. Dreher, 239 Kan. 259, 260, 717 P.2d 1053 (1986). However, in terms of a defendant's constitutional speedy trial right, neither the United States nor the Kansas Constitutions impose specific time requirements for bringing a criminal defendant to trial, which is why courts utilize the constitutional balancing test of the Barker factors. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). An effective review of the constitutional right often requires consideration in context of both trial delay and any prejudice to the defendant that may have resulted from that delay. Such an analysis of the constitutional requirements is more complex than simply counting days. A defendant benefits from ensuring the facts supporting the Barker factors are considered by the district court. Otherwise, those facts will not be included in the appellate court's contextual analysis, because appellate courts do not make findings of fact. In other words, the defendant also carries a burden to establish the Barker factors. State v. Queen, 313 Kan. 12, 16, 482 P.3d 1117 (2021) ("[Defendant] has not argued . . . that he could meet his burden to establish any of [the Barker] factors".). So, we look further. If evidence was presented by the defense from which the court made fact-findings relevant to the alleged violation of...
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