State v. Munoz

Decision Date14 January 2022
Docket NumberNo. 121,770,121,770
Citation501 P.3d 912 (Table)
Parties STATE of Kansas, Appellee, v. Daniel Roman MUNOZ, Appellant.
CourtKansas Court of Appeals

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Buser, P.J., Powell and Hurst, JJ.

MEMORANDUM OPINION

Buser, J.:

Daniel Roman Munoz appeals his convictions and sentences for second-degree murder, attempted second-degree murder, criminal possession of a firearm, and theft. He raises several claims of error. Munoz contends his convictions should be reversed because the district court (1) improperly admitted hearsay statements made by the murder victim; (2) improperly admitted jail recordings of conversations Munoz had with his mother; (3) did not give a limiting instruction regarding K.S.A. 60-455 evidence; (4) did not obtain a jury trial waiver from Munoz regarding his stipulation to the charge of criminal possession of a firearm; and (5) made cumulative errors warranting a new trial.

Regarding sentencing, Munoz asserts the district court erred by (1) considering his prior conviction for criminal threat at sentencing; (2) failing to consider his financial resources when imposing Board of Indigents' Defense Services (BIDS) attorney fees; and (3) violating his constitutional rights by considering his prior convictions at sentencing without first presenting them to a jury.

After a thorough review of the issues presented, we affirm the convictions for second-degree murder, attempted second-degree murder, and theft; reverse and remand the conviction for criminal possession of a firearm; vacate the sentences imposed, and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On June 9, 2018, at about 8 a.m., Topeka Police Department officers responded to a 911 call regarding a shooting at a residence in Topeka. Upon arrival, officers found Pierce Ragsdale lying in a nearby alley with gunshot wounds. After calling an ambulance, the officers spoke with Armando Munoz, who lived at the address with his wife, Marita Veasey, and son, Daniel Munoz. Armando told the officers he was asleep in his house when he was awakened by the sound of gunshots. Armando said he went to the window and saw his son, Munoz, firing a gun at two people he did not know, then chasing them down the alley while firing the gun. Sergeant Vidal Campos transported Armando to the police station, where the officer recorded Armando's statement in writing at Armando's request. When the office read the statement back to Armando, Armando stated, "Yes," that the statements he provided were true, and then he signed the written statement.

About the time of the shooting, Nikki England was driving home in the 400 block of SE Lafayette, when she observed an individual—later identified as Ramon Mathews—running out of the alley in a panic towards her car. England could see blood on Mathews' shirt and she thought he was injured by the way he was running. England and her passenger tried to get Mathews into the back seat of her car, but he ran past her.

As England reversed her car to catch up with Mathews, she observed a man run out of the alley and get inside a neutral-colored sedan. She recognized this individual as Munoz, a man she had known for several years.

England convinced Mathews to get into her car so she could take him to the hospital. On the way there, England asked Mathews several times, "Who did this to you?" At first Mathews responded that it was "my Homeboy," but later, as he was losing consciousness, he said that it was "Lonely." According to England, Lonely was the street name for Munoz. England took Mathews to the hospital, where he underwent surgery for gunshot wounds to his upper body. Mathews died about six days later.

About an hour after the shootings, Munoz returned home and was arrested. During a search incident to his arrest, officers found a set of car keys in his pocket. That afternoon a neighbor, Amber Correa, called the police to report an unfamiliar Toyota Camry parked in her neighbor's driveway with a handgun visible in the center console. According to Correa, she noticed the Camry in the driveway about 9:30 a.m. and had seen Munoz driving the Camry the day prior to the shootings before parking it in the driveway at midnight. Officers learned the vehicle had been reported stolen on the day before the shootings. The car keys seized from Munoz during his arrest unlocked the doors to the Camry.

The firearm found inside the Camry, a Smith and Wesson 9mm handgun, was seized. Forensic firearm testing by James Stevens, an examiner for the Kansas Bureau of Investigation (KBI) identified the weapon as the handgun which fired a bullet collected at the crime scene, and shell casings which were fired from the handgun which were also found in the alley where the shootings occurred.

The State originally charged Munoz with two counts of attempted first-degree murder and one count of criminal possession of a firearm. After Mathews died, the State amended the complaint to upgrade one of the attempted murder charges to first-degree murder and added a charge for the theft of the Camry. The State later obtained a grand jury indictment and substituted the indictment for the complaint.

The jury trial began on December 10, 2018. Armando testified in the State's case-in-chief at trial. According to Armando, he was in bed asleep on the morning of June 9, 2018, when he heard gunshots outside. Armando looked outside but could not see anything, so he went out to the alley where he saw "two guys laying there." Armando said he did not know what he told the police when they arrived after the incident because he was drunk and "on [his] way to a hangover." When asked if he told the officers he was drunk, Armando said, "They could see me. They know what they doing. They know their job. They can tell if a man is drunk or not."

The prosecutor presented Armando with a written statement containing his signature and the document was admitted in evidence. Armando denied telling the police he saw Munoz shooting a handgun but acknowledged signing the statement. He testified, "I must have signed it and I didn't know I signed it until now." Armando could not recall if he went to the police station or where he had signed the statement. When asked if anyone had told him to change what he saw the day the of shooting, Armando responded, "Why would they do that?" and "That's a stupid question." He denied having been asked to change his statement, and again denied having told the officers he saw his son shooting a handgun.

Sergeant Campos testified that he was the supervising officer who responded to the 911 call. According to the Sergeant, he spoke with Armando who informed him that he saw his son, Munoz, shooting at two individuals. At that time, standing a short distance away from Armando, Sergeant Campos did not smell any alcohol, nor did Armando tell him he was drunk. Armando agreed to come down to the police station to complete a written statement. At the station, Sergeant Campos videotaped the interview with Armando. This videotape was admitted in evidence. Sergeant Campos wrote out Armando's statement because Armando "just didn't want to write it. He said he couldn't write." Sergeant Campos then read the statement aloud and had Armando sign it. The statement read:

" ‘Mr. Munoz was sleeping in the back bedroom when I heard gunshots, more than five. I looked out the window and saw Daniel, my son, shooting at two people. He saw all three running down the alley. I went outside and saw one person lying in the alley, didn't see anyone after that.’ "

Munoz' mother, Marita, also testified at trial. According to Marita, she was awakened by gunshots outside her home. After hearing the gunshots, Marita took her grandchildren, who were asleep inside the home, and left for her daughter's nearby residence. When Marita returned home, the police were there. Marita testified that Armando "had a bad hangover" when she returned to the home. She testified that Armando drank beer every morning and that morning he was irritated "because he wanted a beer." Marita also testified that, after Munoz' arrest, she spoke with him at the jail. This questioning elicited an objection from defense counsel which was overruled by the district court. This evidentiary issue will be addressed in the analysis section.

At the trial, England testified about the colloquy between her and Mathews during the trip to the hospital. Defense counsel renewed his pretrial objection to the admission of this evidence, but the district court admitted it. This evidentiary issue will also be addressed in the analysis section.

Other officers testified on behalf of the State. Officer Brandon Uhlrig, one of the first officers to arrive on scene, testified that Armando approached him and, without prompting, "immediately stated that his son shot those boys." This conversation was recorded on Uhlrig's Axon body camera and admitted in evidence. Officer James Cuevas testified that he arrived at the hospital after England called 911 while transporting Mathews to the hospital. Officer Cuevas did not speak with Mathews directly but heard him tell medical personnel that he did not know what happened or who shot him.

At the conclusion of the trial, the jury found Munoz guilty of the lesser included offenses of second-degree murder and attempted second-degree murder. He was found guilty as charged of criminal possession of a firearm and theft.

Sentencing was continued so the defense could obtain a psychological evaluation of Munoz for purposes of supporting his motion for a downward durational sentencing departure. The psychological evaluation revealed a diagnosis of "Bipolar I Disorder, Manic, with Psychotic features; Antisocial Personality Disorder

, and substance use disorders involving marijuana and other substances." As discussed in the...

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