State v. Larraco, No. 90,018.

• Decision Date: 16 July 2004
• Docket Number: No. 90,018.
• Citation: 32 Kan.App.2d 996,93 P.3d 725
• Parties: STATE OF KANSAS, Appellee, v. GONZALO LARRACO, Appellant.
• Court: Kansas Court of Appeals

32 Kan.App.2d 996

93 P.3d 725

STATE OF KANSAS, Appellee, v. GONZALO LARRACO, Appellant.

No. 90,018.

Court of Appeals of Kansas.

Opinion filed July 16, 2004.

Heather Cessna, assistant appellate defender, for appellant.

Julie A. Funk, assistant county attorney, Edmond Brancart, county attorney, and Phill Kline, attorney general, for appellee.

Before RULON, C.J., PIERRON and HILL, JJ.

HILL, J.

Gonzalo Larraco was tried and convicted of several felonies by a judge. A defendant has a fundamental right to a jury trial granted by constitution and by statute. In order to waive this right, a defendant must first be advised by the court of the right to a jury trial and then must personally waive this right, either in writing or in open court for the record. Because defense counsel here simply talked to the judge's secretary on the telephone and none of the requirements for properly waiving a jury trial were followed, we must reverse Larraco's convictions and order a new trial.

Furthermore, the trial court admitted the preliminary hearing testimony of a witness that the State permitted to be deported, without first holding an evidentiary hearing to examine whether the State had made reasonable efforts to assure the presence of the alien witness at trial. We deem that admission an abuse of discretion.

FACTUAL SUMMARY

Dodge City police officers investigated a fight after receiving a call placed by Delfino Dela Rosa-Moreno on January 1, 2002. The officers went to a local motel where they found Gonzalo Larraco with a swollen and scratched face. Larraco told officers he had been in a fight with "Hector," who was later identified as Rosa-Moreno. Police found a gun inside Larraco's motel room. Larraco was later charged with two counts of battery and one count each of aggravated burglary, aggravated assault, criminal threat, and criminal damage to property.

After the trial judge found that Rosa-Moreno was unavailable as a trial witness because of his deportation on August 7, 2002, his preliminary hearing testimony was admitted into evidence against Larraco. We will briefly review the testimony of Rosa-Moreno, Jake Gallegos, and Larraco that was presented at trial.

The preliminary hearing testimony of Rosa-Moreno admitted at trial indicated that he recognized Larraco as a thief who had stolen property from Gallegos' house. Rosa-Moreno became angry when he saw Larraco at Gallegos' house on January 1, 2002, and began to argue and fight with Larraco. Larraco threatened to get a gun and shoot Rosa-Moreno. Rosa-Moreno testified that Larraco did not return to Gallegos' house. However, Rosa-Moreno stated that he was approached by Larraco while traveling to a convenience store later that day. Larraco pointed a gun at him, saying, "I'm gonna shoot you." Rosa-Moreno told Larraco to drop the gun and to fight. Larraco responded, "No, you're gonna die." Rosa-Moreno then reported the incident to police.

Gallegos explained at trial that the house where he resided had been robbed several days before Larraco stopped by on January 1. When Rosa-Moreno recognized a personal item which had been stolen in the possession of Larraco, Rosa-Moreno and Larraco began to fight, and Gallegos broke up the fight. Gallegos said Larraco returned later that day to the house with a steel pipe, looking for Rosa-Moreno; however, Rosa-Moreno was not there. Larraco was wielding a gun when he returned the second time. Gallegos locked the front door, but Larraco kicked in the door and entered the house. Gallegos then sprayed Larraco with pepper spray. As Larraco was retreating, Gallegos threw a vacuum cleaner at Larraco's head. In the meantime, Rosa-Moreno returned to the house. Larraco stood outside the front of the house pointing the gun at Rosa-Moreno and Gallegos alternatively. After approximately 15 minutes, Larraco left.

Larraco testified in his own behalf that he had previously lived about 2 to 3 months at the house where the incident occurred with Gallegos and Rosa-Moreno. He had moved out of the residence and into a motel the day before the fight. Larraco stated the fight broke out when he went to the residence to buy drugs. Larraco explained that Gallegos and Rosa-Moreno beat him due to a dispute over the price of drugs and because the two men believed he had stolen drugs from them the day before. He denied that he had returned later to the house with either an iron bar or a gun and also stated that he did not go to the convenience store and point a gun at Rosa-Moreno. Larraco testified that the gun recovered by the police did not belong to him.

At the close of the bench trial, the judge stated that he did not find Larraco's testimony credible and noted the differences in testimony given by Gallegos and Rosa-Moreno. Based on this evidence, the judge found Larraco guilty of aggravated burglary, aggravated assault (with a firearm), criminal threat, and criminal damage to property. Larraco was acquitted of two counts of battery. He was sentenced to a prison term of 114 months based upon a criminal history score of B. Larraco timely appealed.

RIGHT TO JURY TRIAL NOT WAIVED

There is no more fundamental right in the United States than the right to a jury trial. A criminal defendant has both a constitutional and a statutory right to a jury trial. See U.S. Const. Amend. VI; Kan. Const. Bill of Rights §§ 5, 10; K.S.A. 22-3403(1). Moreover, "[t]he law favors trial by jury, and the right should be carefully guarded against infringements. [Citation omitted.]") Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 516, 497 P.2d 110 (1972).

Furthermore, K.S.A. 22-3403(1) provides that all trials of felony cases shall be by jury unless the defendant and prosecuting attorney, with the consent of the court, submit the trial of a felony to the court. Although a defendant may waive this right, for the waiver to be effective "the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record." State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 (1975). "Whether this test is satisfied in any given case will depend on the particular facts and circumstances of that case, but a waiver of the right to a jury trial will not be presumed from a silent record. [Citations omitted.]" 216 Kan. at 589.

Larraco argues that there is no written or oral record that he knowingly and voluntarily waived his right to a jury trial. Indeed, no written waiver of Larraco's right to a jury trial is included in the record on appeal. The only transcripts provided of proceedings before the district court are of Larraco's arraignment, the preliminary hearing testimony of Rosa-Moreno, Larraco's bench trial, and sentencing.

We review briefly what was said to Larraco about the trial and a jury. When addressing Larraco at the arraignment, the trial judge did tell Larraco that if he chose to enter a not guilty plea on all of the charges, he would "be entitled to a jury trial. At that jury trial, the State would be required to prove these charges beyond a reasonable doubt before you could be convicted." The trial judge explained the sentences Larraco could be facing:

"INTERPRETER: Could I explain to him that this is only if he's convicted? "THE COURT: I will explain that to him. These sentences could only be imposed if you are convicted. It would not be imposed if you plead not guilty, at least, not today. The State would have to prove the charges before these sentences could be imposed. If the jury trial resulted in a not guilty finding by the jury if the jury found you not guilty, you would have no sentences. "INTERPRETER: I have a letter where they accuse me. They are telling the truth that they were taking me in because they were trying to get the other guy for drugs. "THE COURT: Well, that is a matter to present at trial. It doesn't really have any bearing today. "INTERPRETER: That's the letter that they were giving me that I was accused with, the Complaint. "THE COURT: If you believe you have evidence to present, you would present it at trial. And, you should show that letter to your attorney if you have it. I believe, if you are unable to enter a plea of not guilty, I will enter one for you. "INTERPRETER: He said, `I can't do it, because it's not true.' "THE COURT: Well, I'm going to enter a plea of not guilty on all six charges in the Complaint, and direct that this case be scheduled for pretrial and trial. "INTERPRETER: He said that he wants them to present their proof, their evidence. And, I told him that they would during the trial. "THE COURT: That is the purpose of a trial, to require the State to prove these charges. If they can not (sic) prove them, you would be found not guilty at the trial. So, that is what we will do. The trial will be set within 90 days unless there is a waiver." (Emphasis added.)

The trial judge spoke to Larraco only about a "jury trial" or a "trial." The difference between a bench trial and jury trial was not explained to Larraco. Based on the record provided, Larraco did not waive his right to a jury trial either by written stipulation or orally on the record.

Following submission of the appellant's brief, the State, in a vain attempt to bolster its argument, added to the record an affidavit submitted by Larraco's trial counsel, Linda L. Eckelman, made on October 30, 2003. In her affidavit, Eckelman maintained that she discussed the right to a jury trial several times with the defendant and that when contacted by the trial judge's secretary to set a trial date, she informed the secretary that it would be a bench trial.

While an attorney may make representations to the court which bind the client, defense counsel can only waive the rights of clients as long as those rights are not inherently personal, fundamental rights. See State v. Rambo, 10 Kan. App. 2d 418, 423, 699 P.2d 542, rev. denied 237 Kan. 888 (1985). In Crease v. State, 252...