State v. Lopez

• Decision Date: 20 April 2001
• Docket Number: No. 84,007.,84,007.
• Citation: 22 P.3d 1040,271 Kan. 119
• Parties: STATE OF KANSAS, Appellee, v. ADRIAN ANGEL LOPEZ, Appellant.
• Court: Kansas Supreme Court

271 Kan. 119

22 P.3d 1040

STATE OF KANSAS, Appellee, v. ADRIAN ANGEL LOPEZ, Appellant.

No. 84,007.

Supreme Court of Kansas.

Opinion filed April 20, 2001.

Randall L. Hodgkinson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Robert D. Hecht, district attorney, argued the cause, and Joel W. Meinecke, assistant district attorney, Joan M. Hamilton, former district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

This is a direct appeal by the defendant, Adrian Angel Lopez, from his jury conviction of one count of premeditated first-degree murder. The trial court imposed a hard 40 sentence.

Carlos Martinez died on June 21, 1998, from injuries resulting from three gunshots to his head. The shots were fired from behind Martinez and to his right. One shot was fired within inches of Martinez' head, another within a foot, and the third from beyond a foot. The pattern of the shots being fired at varying distances is consistent with the gun staying in one place while the victim moved away from it. The coroner testified that Martinez, in all likelihood, lost consciousness instantly.

For approximately 3 years, Martinez had been the boyfriend of Kimberly Simon. Simon's 16-year-old daughter, Rachel Anguiano, had been dating Lopez, the defendant, for approximately two years. Martinez knew Lopez.

Anguiano and Lopez spent the night of June 20, 1998, together at the Super 8 Motel. They quarreled. It was a very serious quarrel, which was not resolved to Lopez' satisfaction while they were at the motel. Their clothes were in one bag, and there was a handgun in the bag. Anguiano testified that she had not seen the gun before and she did not put it in the bag.

Late Sunday morning, June 21, Anguiano telephoned her mother to get a ride home for her and Lopez. Simon telephoned Martinez, who lived with his brother in North Topeka. Martinez went to the motel by himself to pick up Anguiano and Lopez.

Martinez was driving a 2-door car. The driver's door did not close properly, and Martinez used a bungee cord on the inside to hold it closed. Lopez got into the back behind Anguiano, who was in the front passenger seat, and Martinez drove. The bag was in the back with Lopez. Anguiano testified that Lopez wanted her to go home with him and continue their discussion, but she wanted Martinez to take Lopez home and then take her to where she lived with her mother.

As they were driving, Anguiano heard gunshots in rapid succession and out of the corner of her eye saw Martinez fall out of the car. She did not know how the car door got opened. The car continued moving after Martinez fell out. Anguiano did not have time to think because it all happened so fast. She made no effort to steer or brake. After traveling quite a distance, the car ran into a building. Anguiano was not hurt, and she got out of the car.

Anguiano testified that Lopez had their bag with him when he got out of the car. He threw it in a nearby dumpster. Lopez asked her if she was going to tell the police. She did not remember answering him. They ran approximately 5 blocks to where Lopez lived. Before going into his residence, Lopez told Anguiano to wait for him by the bridge. She did not. Instead, she waited outside for a few minutes and then ran to the Ramada Inn.

From the Ramada Inn, Anguiano telephoned Simon and asked to be picked up there. Approximately 10 minutes later, her mother arrived with Anguiano's aunt. Anguiano told them Lopez had shot Martinez, and they drove to the hospital.

A family of four was driving in their car when the older brother heard gunshots and saw Martinez fall from his car. The car left the road, went through a wall bordering a parking lot, crossed the parking lot, and "slam[med] into the building." The witness estimated the speed of the driverless car at 30 to 35 m.p.h. After they turned around, the witness saw two people go to the car that had collided with the building, one of them reached in and grabbed something, then the two ran between some buildings away from the car.

Another witness was located by police from the license number supplied by the family of four. He saw Martinez fall from the car, and he saw the car strike the building. He reported that he saw a man and a woman in the back seat of the car and that the male was holding a gun and pointing it up.

Lopez did not testify at trial. The prosecutor played for the jury a videotaped statement given by the defendant to police. It is not a part of the record on appeal.

A young man named Darrik Forsythe, an admitted gang member with a criminal history, met Lopez in the Shawnee County Jail after Lopez had been taken into custody with regard to Martinez' death. Lopez talked to Forsythe through the vent. Forsythe testified: "He just told me that him and Carlos [Martinez] and his girlfriend was driving down the road and he was in the back, his girlfriend was in the front, they had broke up and he asked her to come back to the house and to smoke a joint with him and then she wouldn't answer him and he said that if she don't answer him before he gets to the end of the block, he's going to shoot Carlos in the head." Forsythe also testified that Lopez told him Anguiano "was going to die for snitching."

Lopez raises ten issues on appeal. Four of the issues deal with preliminary matters, one with the admission of evidence, three with instructions, and two with sentencing. We first consider whether the trial court abused its discretion in denying defendant's request for appointment of substitute counsel.

"Generally, the decision whether to appoint new counsel is a matter left to the trial court's discretion." State v. Cromwell, 253 Kan. 495, Syl. ¶ 3, 856 P.2d 1299 (1993). On this subject, the court also has stated:

"The lack of cooperation or communication between defendant and trial counsel does not in and of itself constitute a violation of the Sixth Amendment right to counsel. In the recent case of State v. Cromwell, 253 Kan. 495, 500, 856 P.2d 1299 (1993), the failure to appoint substitute counsel was raised on appeal, and we said: `Irreconcilable conflict between a defendant and his attorney may, under certain circumstances, require the appointment of substitute counsel in order to protect a defendant's Sixth Amendment right to effective assistance of counsel.' We concluded:

"`Although there was a substantial break in communication between defendant and his counsel, which, if not addressed, might have resulted in an irreconcilable conflict, the court restored communication between defense counsel and client, making it unnecessary to appoint substitute counsel. The defendant and his counsel took advantage of the three-week continuance to communicate with one another, and communication continued throughout all proceedings. Under these circumstances, we conclude that the trial court did not abuse its discretion in refusing to appoint substitute counsel.' 253 Kan. at 504." State v. Ferguson, 254 Kan. 62, 71, 864 P.2d 693 (1993).

In the present case, as prospective jurors were completing a pretrial questionnaire on Monday, April 26, 1999, the day trial was scheduled to begin, defendant and counsel met with the trial judge on preliminary matters. Lopez expressed insecurity "and stuff" with his appointed counsel and told the trial judge, "I'm just not ready for this trial." His chief complaint was that "[a]ll we talked about was just sentencing and taking the plea and that's it." He requested a different lawyer, saying, "I need someone to represent me like instead of someone just bringing me up to it and stuff to just take a plea for something I didn't do, that's no good. That's all he ever talked about. He didn't talk about a way out, a way in or nothing, just a plea."

Lopez' appointed counsel explained that another public defender (Wendell Betts) earlier had represented the defendant and had advised present counsel that he had "gone over the case with Mr. Lopez, had discussed the possible defenses to this case with Mr. Lopez." Present counsel then recounted his meetings and discussions with Lopez. His account contradicted defendant's assertion that a plea was their only topic of discussion. Referring to their first meeting, counsel stated that they had discussed "many, many things ... about what was going on and at that point in time when we talked about the defenses, we talked about, just about everything one could talk about for the case." Immediately after his first meeting with Lopez, counsel met with the prosecutor. Counsel reported back to Lopez that there was no possibility of reaching an agreement on a plea, which suited Lopez. On the Friday before trial was scheduled to begin on Monday, counsel, at the prodding of the trial judge, once more discussed a plea arrangement with the defendant. Counsel communicated to Lopez an offer that had been made by the prosecutor. No agreement was reached.

Counsel went on to give his account of the attorney-client communications and relationship:

"Also during that time what I was trying to do was get him prepared to testify at trial and after the two-hour conversation, I had a pretty good idea where we were at. I don't know what else he could have told me.

"As a matter of fact, the stuff that he has told me since that has just been redundant as to what he told us during that period of time. He sat down and went over the cases with me, discussed his testimony with me, and based upon that testimony I advised him of what I thought the outcome of this trial was basically going to be. ... I think ethically I had an obligation to explain exactly how I thought this trial was going to play out and I did.

"I also explained to him some of the pitfalls of some of the other trials that are faced because obviously they are all related and in an attempt to explain to

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