State v. Gutierrez
| Decision Date | 07 December 2007 |
| Docket Number | No. 94,317.,94,317. |
| Citation | 172 P.3d 18 |
| Parties | STATE of Kansas, Appellee, v. Mardoqueo GUTIERREZ, Appellant. |
| Court | Kansas Supreme Court |
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Nicholas J. Heiman, assistant county attorney, argued the cause, and Amy L. Aranda, assistant county attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
Defendant Mardoqueo Gutierrez challenges his criminal convictions arising out of a violent encounter with his estranged wife. We granted his petition for review on two issues: the sufficiency of the evidence against him on aggravated burglary and the legal viability of the crime of attempted voluntary manslaughter.
Luz Gutierrez had obtained a protection from abuse order against defendant, her estranged husband, because of a May 23, 2004, incident in which he grabbed her by the neck and choked her until she nearly lost consciousness. Defendant also was arrested and charged with domestic battery in municipal court in Emporia.
On the afternoon of July 20, 2004, defendant appeared in the municipal court and entered into a diversion agreement in the domestic battery case. Although the agreement prohibited him from having contact with Luz, he left the municipal court and drove to her new apartment — the address of which he had obtained from a mutual friend. He parked his truck a block away so that Luz would not see him.
Luz had just arrived home from picking up her daughters when she heard a knock at her door. She was expecting a representative of a shelter to stop by, but when she answered the door, she saw defendant. He told Luz that they had to talk; the testimony is conflicting on whether he then pushed his way into the apartment or was permitted to enter when Luz stepped back from the door.
Luz told defendant she had nothing to say to him and asked him to leave. Defendant demanded that Luz drop all the charges against him. When she responded that she would not, the two argued; Luz called defendant names. In addition, defendant saw marks on Luz that he believed were evidence of her physical relationship with another person. Defendant eventually told Luz that, if she was not going to withdraw the domestic battery charge, he "might as well kill her."
Defendant grabbed Luz by the throat, threw her to the floor, and squeezed hard for 15 to 20 seconds. His testimony indicated he stopped choking Luz either because he saw her eyes flutter or because he looked up and saw their children watching. In any event, Luz lost consciousness. When she awoke, her children were crying and shaking her.
Defendant, who had fled on foot, flagged down a friend a few blocks away, and got into the friend's car. Defendant said he had killed Luz and asked the friend to call 911. The friend drove defendant back to Luz' house, where police and an ambulance had already arrived. Defendant turned himself in to police. Defendant denied any intent to kill Luz. He also eventually testified at trial that he had seen a knife sitting out on a counter in Luz' apartment, but there was no suggestion that Luz threatened him with it or otherwise made a move toward it. Luz ultimately testified that there was no knife and that she did not and could not defend herself. Police found no weapons at the scene other than a butter knife under a pile of dishes in a sink.
Defendant was charged with attempted first-degree murder; aggravated burglary based on the underlying felony of attempted first-degree murder; and violation of a restraining order. Near the close of the State's case at trial, the district judge permitted the State to amend its aggravated burglary charge to rely on an underlying intent to commit first-degree murder rather than attempted first-degree murder. Defense counsel objected but did not articulate any specific prejudice that would result from the amendment.
The defense moved for judgment of acquittal at the close of the State's case, arguing the evidence of premeditation and intent to kill was insufficient. The district judge denied this motion.
The jury was instructed on the elements of attempted first-degree premeditated murder and lesser included offenses, including Instruction No. 6 on attempted voluntary manslaughter in accord with PIK Crim.3d 55.01 and PIK Crim.3d 56.05. The instructions defined heat of passion in accord with PIK Crim.3d 56.04(e).
The first part of Instruction No. 8 on the crime of aggravated burglary was based on PIK Crim.3d 59.18 and told the jury the State must prove:
It then set out the elements of premeditated first-degree murder.
After the members of the jury began deliberations, they submitted several questions to the district judge. The first asked:
"Clarification: If we find the defendant guilty of a charge lesser than attempted murder in the first degree, does that lesser charge replace `commit murder in the first degree' in claim # 3 of Instr. Number 8."
Over a defense objection, the district court responded: The attached sheet stated that aggravated burglary was defined as
The jury later asked whether claim 3 on Instruction No. 8 would change if it found defendant guilty of attempted voluntary manslaughter. The district judge heard suggestions from counsel for both sides. Again, over a defense objection, the judge answered in the affirmative, further instructing the jury that intent to commit voluntary manslaughter would replace intent to commit first-degree murder as the underlying crime. The judge then set out the elements of voluntary manslaughter.
Defense counsel argued that this modified instruction undercut his closing argument, which had focused on lack of proof of premeditation and intent. If the jury accepted the defense argument, it should acquit on the aggravated burglary charge even if it convicted on a lesser included offense of attempted first-degree murder. The district judge granted each side 5 additional minutes of closing argument about the changes to the instructions.
Less than an hour later, the jury returned its guilty verdicts on attempted voluntary manslaughter and aggravated burglary. The district judge later rejected defendant's motions for judgment of acquittal and new trial.
The Court of Appeals affirmed defendant's convictions. On the first issue of sufficiency of the evidence to support aggravated burglary, the panel reasoned that defendant had never had authority to be in Luz' apartment. Thus absence of authority necessarily concurred with his entry into the apartment, and with his time inside it; the evidence was sufficient for a rational factfinder to decide that defendant formed an intent to kill Luz at the relevant time and that his attempt to kill arose out of a sudden quarrel or heat of passion. State v. Gutierrez, No. 94,317, 139 P.3d 787, unpublished opinion filed August 11, 2006, slip op. at 5-6.
The panel also quickly disposed of defendant's second issue challenging the legal viability of attempted voluntary manslaughter. It distinguished the case relied upon by defendant, State v. Collins, 257 Kan. 408, 893 P.2d 217 (1995), which dealt with attempted involuntary manslaughter rather than attempted voluntary manslaughter. Gutierrez, slip op. at 6-7.
When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Morton, 283 Kan. 464, 474, 153 P.3d 532 (2007) .
Aggravated burglary is defined in K.S.A. 21-3716 as "knowingly and without authority entering into or remaining within any building . . . in which there is a human being, with intent to commit a felony . . . therein." Defendant insists that any intent to commit the felony of attempted voluntary manslaughter was not concurrent with either unauthorized entry into Luz' apartment or unauthorized refusal to leave it. Rather, the heat of passion or sudden quarrel motivating defendant's throttling of Luz arose later in time.
This argument requires three logical components. Defendant first asserts that the phrases "entering into" and "remaining within" refer to legally distinct factual situations. He is at least partially correct on this specific point. See State v. Mogenson, 10 Kan.App.2d 470, 701 P.2d 1339, rev. denied 238 Kan. 878 (1985); State v. Brown, 6 Kan. App.2d 556, Syl. ¶ 4, 630 P.2d 731 (1981). The entering into element of a burglary or aggravated burglary is satisfied when the evidence shows that a defendant crossed the plane of a building's exterior wall. Remaining within refers to a defendant's presence in the building's interior after any entering into, authorized or unauthorized, has been accomplished.
Defendant is incorrect, however, on the two other components of his argument.
First, he also asserts that "entering into" and "remaining within" are...
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