State v. Jefferson, No. 95,049.

• Decision Date: 17 October 2008
• Docket Number: No. 95,049.
• Citation: 194 P.3d 557
• Parties: STATE of Kansas, Appellee, v. Anthony L. JEFFERSON, Appellant.
• Court: Kansas Supreme Court

194 P.3d 557

STATE of Kansas, Appellee, v. Anthony L. JEFFERSON, Appellant.

No. 95,049.

Supreme Court of Kansas.

October 17, 2008.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Keith E. Schroeder, district attorney, argued the cause, and Phill Kline, attorney

general, was with him on the brief for appellee.

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

The State petitions for our review of the Court of Appeals' reversal of defendant Anthony Jefferson's conviction of aggravated battery. We examine one issue: Whether a refusal to testify by State witness Jesse Villa made him unavailable, thus permitting admission of his preliminary hearing testimony at Jefferson's trial.

Factual and Procedural Background

Jesse Gomez awoke early on February 1, 2004, to the sound of yelling and then a gunshot. A few moments later, there was a knock at his door. Jesse Villa, Gomez' neighbor, was standing on Gomez' porch. Villa was bleeding from a wound in his ear and asked Gomez to call 911. Villa was taken to the Hutchinson Hospital.

Jessica Vigil was Villa's old girlfriend. She had begun dating Jefferson and was with him on the morning Villa appeared on Gomez' porch. According to Vigil, Jefferson was jealous of her relationship with Villa, and he decided he was going to "show [Vigil] what would happen to anybody else that [she] would be with." He dialed Villa's number, gave the phone to Vigil, and directed her to have Villa meet her in an alley by a certain church near Gomez' house.

Vigil would testify that Jefferson drove a red Ford Fiesta to the alley, hitting Vigil along the way. Jefferson also pulled out a gun and told Vigil that she was going to have to shoot Villa. Jefferson then took the gun back, thinking aloud that Vigil probably would shoot him instead. He then began beating her with the gun. When Jefferson and Vigil arrived at the meeting point, Villa initially was nowhere to be seen. As Jefferson drove down the alley, accusing Vigil of setting him up, he and Vigil saw Villa.

Jefferson directed Vigil to get out of the car and call to Villa, which she did. When Villa approached, according to Vigil, Jefferson brandished the gun and demanded Villa empty his pockets, asking if Villa knew why he was there. Villa said he did not. Jefferson then asked Vigil if Villa and she had been together; when Vigil said yes, Jefferson told Villa that was why he was there. Jefferson then grabbed Villa; they wrestled; Jefferson tried to force Villa into the car; and Villa ended up with his hands on the back of the Fiesta's hatchback, with Jefferson pointing the gun at his head.

At this point, Vigil said, she turned her head because she did not want to see Villa die. She heard a gunshot, and she jumped into the driver's seat of the car. She did not drive away because she did not know how to drive the Fiesta's stick shift. Jefferson then joined her in the car. He told her Villa was dead, got angry that she could not drive, and threatened to kill her too. After Vigil's attempt to operate the car was unsuccessful, leading to a minor accident, Jefferson switched seats with her and drove away.

After the crime had been reported, officers discovered blood and fresh tire tracks at the scene. They also found a pocketknife but no gun and no bullet. The knife had no blood on it.

Officers testified that they contacted Vigil for an interview about a week after the incident. She was very nervous, had a black eye, and had bruises and lumps on her head and face. Officers did not want to scare her away, and they did not push her to make any statements at that time. Vigil voluntarily came forward about a week later-nearly 2 weeks after the crime-and implicated Jefferson.

Villa testified at Jefferson's preliminary hearing and was subpoenaed to testify at trial. By that time, he was incarcerated; and, although he appeared, he refused to testify. After voir dire but before the jury was sworn in, the district judge appointed counsel for Villa. Villa claimed no privilege, and he maintained that he had not been threatened; he said he was not afraid to testify; he simply refused to do so. The district judge held him in contempt and sentenced him to 6 months in the Reno County jail.

The State then asserted that it could admit Villa's testimony from the preliminary hearing. In its view, the defense had an opportunity to cross-examine Villa at the preliminary hearing, which eliminated any Confrontation Clause problem, and Villa was unavailable. The defense argued that a refusal to testify does not make a witness unavailable under Kansas hearsay statutes. It also challenged the sufficiency of the earlier cross-examination opportunity because Jefferson's attorney at the time of the preliminary hearing had a conflict. The public defender who had represented Jefferson at the preliminary hearing withdrew between the hearing and trial; although he had been vaguely aware at the time of the preliminary hearing that another lawyer in his office was representing Villa in a different case, he later concluded that the representation required Jefferson to have a different lawyer.

The district judge ruled in favor of the State and admitted Villa's preliminary hearing testimony at trial. Villa's version of events was that he got a call to meet Vigil in the alley by the church. She arrived with Jefferson as he was walking away. When she called to him and he approached, Jefferson was standing outside the car with his back to Villa. Jefferson then turned around, faced Villa, and asked Villa if he knew him. Villa did not. Jefferson pulled a gun, pointed it at Villa, and ordered Villa to get his hands out of his pockets. Then, when Villa was positioned against Jefferson's car, Jefferson asked if Villa had any money or drugs and patted him down. Jefferson then hit Villa a couple of times with the gun and fired it. Villa heard Jefferson tell Vigil to get into the car and drive. The two men wrestled, and Jefferson tried to pull Villa into the car. Villa managed to get away and ran to Gomez' house. Gomez called police.

As for Vigil, in addition to testifying about her version of events, she said at trial that she had been threatened not to testify against Jefferson and that she was afraid of him. A former cellmate of Jefferson testified to Jefferson's unsuccessful effort to employ the cellmate to support an invented alibi.

The defense introduced testimony from the responding paramedic who described Villa's injuries and his initial refusal of treatment. In addition, a friend of Jefferson testified that he had driven Jefferson from Newton to Hutchinson on the night of the crime because Jefferson's car, a blue Corsica, had broken down.

Jefferson testified on his own behalf. His version of events began with Vigil calling him several times, claiming to have been beaten. According to him, she asked Jefferson what he was going to do about it and said she would set up a meeting with Villa. After Jefferson's friend drove him from Newton to Hutchinson, he met Villa in the alley, where Vigil had arranged for the two men to fight. Jefferson testified that he did not own a gun and that he brought no weapons to the meeting. Jefferson said that he asked Villa if he knew why he was there, and Villa said yes. The two then exchanged words and scuffled. Jefferson wrestled Villa to the ground. At some point, Villa dropped a knife. After Jefferson let Villa up from the ground, Villa pulled a gun from under his coat. The men wrestled again, and the gun went off. Jefferson maintained that he did not go to the meeting with the intent to kill Villa. He also maintained that, although he had punched Villa a few times during the first part of their fight, he never gained possession of the gun. After Jefferson fled on foot, he said, he later met with Vigil, saw her injuries, and told her what had happened.

On cross-examination, the prosecutor succeeded in pointing out inconsistencies between Jefferson's account of events at trial and his earlier statements to law enforcement.

During deliberations, the jury sent out the question: "Why did Jess[e] Villa not testify in person in Case No. 04 CR 203?" In response and without objection, the district judge directed the jury to refer to instructions on avoidance of inferences drawn from evidentiary rulings, on the jury's responsibility to determine the weight and credibility of testimony and to use common sense, and on the standards governing weighing of witness testimony given at another time and place. The jury ultimately convicted on aggravated battery but acquitted Jefferson of several other charges-attempted first-degree murder, attempted aggravated robbery, attempted kidnapping, and criminal possession of a firearm.

Jefferson appealed on several issues but dropped his challenge to the district judge's decision on the Confrontation Clause question. Our Court of Appeals reversed on the issue of Villa's unavailability, ruling that his mere refusal to testify did not make him "unavailable as a witness" as that phrase is used in K.S.A. 60-460 and defined in K.S.A. 60-459(g), and vacated Jefferson's conviction. State v. Jefferson, No. 95,049, 2007 WL 1041768, unpublished opinion filed April 6, 2007, slip op. at 4-6 (citing State v. Johnson-Howell, 255 Kan. 928, 940, 881 P.2d 1288 [1994]). We accepted the State's petition for review on this issue.

Standard of Review

The State invokes an abuse of discretion standard of review. Although this court has, on numerous occasions, stated that "the finding of unavailability of a witness is entirely within the court's discretion" see, e.g., State v. Ransom, 239 Kan. 594, 598, 722 P.2d 540 (1986), the situations prompting these statements have tended to involve a district judge's decision on whether a party's efforts to secure a witness' presence were adequate. See State v. Stano, 284 Kan. 126, 140-45, 159 P.3d 931 (2007) (district court did...