State v. Hernandez

• Decision Date: 08 June 2007
• Docket Number: No. 94,295.,94,295.
• Citation: 159 P.3d 950
• Parties: STATE of Kansas, Appellee, v. Jeremy L. HERNANDEZ, Appellant.
• Court: Kansas Supreme Court

159 P.3d 950

STATE of Kansas, Appellee, v. Jeremy L. HERNANDEZ, Appellant.

No. 94,295.

Supreme Court of Kansas.

June 8, 2007.

Sarah Ellen Johnson, of Kansas Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Kristafer R. Ailslieger, assistant attorney general, 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.:

Jeremy Hernandez appeals from his conviction of first-degree murder and from the trial court's imposition of his hard 40 sentence. The defendant contends that his conviction and sentence must be reversed based upon the following claims of error: (1) prosecutorial misconduct involving comments on his right to remain silent; (2) the admission of hearsay evidence; (3) the admission of repetitious, gruesome photographs; (4) the unconstitutionality of Kansas' hard 40 sentencing scheme; and (5) the insufficiency of evidence to support his hard 40 sentence. We consider each of his claims, find no reversible error occurred, and affirm.

Facts

Tina Davidson's body was found at her residence on November 26, 1995, when police went to her home in Independence, Kansas, to investigate reports of an abandoned vehicle. The body, discovered in Davidson's kitchen, was severely slashed and mutilated; it was evident that she was dead.

The police investigation revealed a trail of blood drops from Davidson's body, through the living room, on the front door knob, out the front door, and down the front sidewalk. The police collected samples of the blood drops for analysis; the blood did not match that of the victim. A DNA profile of the unknown blood sample was entered into the national Combined Offender DNA Index System (CODIS) database. Despite the ongoing investigation, Davidson's murder remained unsolved for 8 years.

No match was found for the DNA from the blood samples until 2003. The defendant was incarcerated on an unrelated charge, and his DNA profile was subsequently entered into the CODIS database. The defendant's DNA matched the DNA in the blood drops from the trail leading out of Davidson's house. Additional testing of the defendant's DNA, which was then compared with the blood collected from Davidson's residence, yielded 23 perfect DNA matches and 11 bloodstains that were consistent with the defendant's DNA.

After the police found that the defendant's DNA matched the blood at Davidson's murder scene, the police interviewed him. According to the testimony of the officers, the defendant initially waived his Miranda rights and agreed to speak with them. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). He informed the investigators that he did not know Davidson, and he denied that he was ever at her house. The defendant then invoked his right to remain silent and the interview ended.

A jury trial was held in October 2004. Among other witnesses called by the State, the prosecution called Dr. Gregory Mears, the coroner at the original crime scene, and Dr. Jill (Gould) Cobb, the pathologist who performed the autopsy. Dr. Mears testified that Davidson had multiple slash wounds across her neck and throat that were long and "very deep." He also noted that her hands were lacerated, indicating that she bore "defense wounds" from attempting to prevent the attacker from slashing her throat. He summarized, saying, "This involved multiple lacerations. This was very violent. Patient was defending herself and the thought of dying like this causes me to shudder. This is a tremendously bad way to die." Dr. Cobb testified in detail regarding Davidson's injuries, assisted by the introduction of 26 photographs, which were admitted over the defendant's counsel's objection.

The defendant testified on his own behalf and related that on the night in question he gave Davidson a ride home because her car broke down. When they arrived at her house, she invited him in. He stated that while he and Davidson were in her kitchen, another man walked in from the living room, became angry, and began threatening both the defendant and Davidson. He testified that the man pushed him and swung at him with a knife, cutting him on his hand. The defendant explained that the man then began fighting with Davidson, and he hurried out of the house.

The defendant stated that he did not know that Davidson had been murdered until 2 weeks later. At no time between the date of the murder and the date he was charged with the murder did the defendant ever relate his version of the story to the police; in fact, the defendant's trial testimony was the first time the State heard what he claimed to have happened.

Jessica Hernandez, the defendant's wife, was called as a witness by the State. She testified that while she and the defendant were dating, he had asked her if she "knew what a lot of blood smelled like." According to her testimony, he then told her that he had been involved in a murder in Independence, and that he had "driven a friend to someone's house, and he [defendant] had sat and watched while [his friend] killed her." Jessica explained that the defendant had told her that "nothing really came up of" the murder because the police "didn't have evidence and it just couldn't be solved, like an unclosed case."

In his testimony, the defendant acknowledged that he had told Jessica about Davidson's murder and that he might have seen the person who did it. However, he stated that when he told her, Jessica acted like she did not hear him.

The jury found the defendant guilty of murder in the first degree. At sentencing, the trial court found that the murder was committed in an "especially heinous, atrocious, and cruel manner by the infliction of mental anguish or physical abuse before the victim's death and that the desecration of the victim's body before the killing indicates a particular depravity of mind." The trial court sentenced the defendant to life imprisonment with no possibility of parole for 40 years (hard 40).

(1) Prosecutorial Misconduct by Commenting on the Defendant's Right to Remain Silent

The defendant contends that the State committed reversible error by questioning him during cross-examination as to why he had not before volunteered his version of the events of the night of Davidson's death and reiterating in closing argument that he had not told anyone at any time before the trial about the other man allegedly at Davidson's house. He acknowledges that the State did not directly comment on his silence after being arrested, but claims that the prosecutor through questioning and closing argument implicitly and impermissibly referred to his postarrest, post-Miranda silence.

In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment" to the United States Constitution. Instead of claiming that the State directly violated his constitutional rights under Doyle, the defendant frames the alleged Doyle violations as instances of prosecutorial misconduct. We note that a defendant ordinarily waives a claim for a Doyle violation by not objecting at trial to a prosecutor's question or other conduct that implicates the defendant's postarrest silence. See State v. Fisher, 222 Kan. 76, 83-84, 563 P.2d 1012 (1977). However, this court does not always require an objection by defense counsel before considering an allegation of prosecutorial misconduct. See State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006). We need not discuss the potential conflict raised by these decisions in this case since trial counsel did raise an appropriate objection under Doyle, which was sustained by the trial court with directions to the prosecutor as to what questions would be permitted. Under these circumstances, we consider the defendant's claims of prosecutorial misconduct.

Standard of Review

Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. Swinney, 280 Kan. at 779, 127 P.3d 261. In the second step of this two-step analysis, the appellate court considers three factors:

"(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors, unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial)] have been met. [Citations omitted.]" 280 Kan. at 780, 127 P.3d 261.

Doyle and Postarrest Silence

The use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment. See Doyle, 426 U.S. at 619, 96 S.Ct. 2240. We adopted the Doyle holding in State v. Mims, 220 Kan. 726, Syl. ¶ 1, 556 P.2d 387 (1976). Mims was charged and convicted of felony murder based on an underlying robbery. Mims' primary defense was alibi. He testified that he was with his mother...