State v. Riojas

• Decision Date: 27 March 2009
• Docket Number: No. 98,196.,98,196.
• Citation: 204 P.3d 578
• Parties: STATE of Kansas, Appellee, v. Mark A. RIOJAS, Appellant.
• Court: Kansas Supreme Court

204 P.3d 578

STATE of Kansas, Appellee, v. Mark A. RIOJAS, Appellant.

No. 98,196.

Supreme Court of Kansas.

March 27, 2009.

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

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Stephen N. Six, attorney general, were with her on the brief for the appellee.

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

Mark A. Riojas appeals from his convictions and sentence for one count of felony murder, K.S.A. 21-3401(b), and one count of aggravated robbery, K.S.A. 21-3427. Jurisdiction lies with this court under K.S.A. 22-3601(b)(1).

Richard Quinones was working as the third shift manager at a Burger King in Wichita, Kansas, on the morning of March 11, 2006. Shortly before 1:40 a.m., he saw two men, one African-American and one Hispanic, running toward the Burger King from the parking lot of a McDonald's across the street. It appeared that the Hispanic man was chasing the African-American man. The Hispanic man then tackled the other man and took him to the ground. They struggled, and then the African-American man got up and began to run more slowly toward the Burger King. The Hispanic man pursued him and again forcefully took him to the ground.

Due to a wall that partially obstructed his vision, Quinones was unable to see what happened next. Another employee, Jose O'Campo, saw the man who was with the African-American man lean over and search through the fallen man's pockets, grab a wallet, and search through it. He saw blood on the fallen man's shirt, and told Quinones that someone needed help. After about a minute, Quinones and another employee, Uzziel Portugal, went out of the store to determine what was going on. The Hispanic man said that "nothing's going on, everything is good." The African-American man pulled himself off the ground slightly and said, "Help me; I've been stabbed." O'Campo then called 911, and Quinones spoke with the dispatch operator.

Quinones and Portugal started to walk toward the pair of men and saw that the African-American man had blood on him. The Hispanic man then told them that the African-American man needed help and they should call 911. The Hispanic man kept his left hand concealed behind his back while talking to Quinones. He then left the scene when Quinones began talking to the other man. The victim told Quinones that he had been stabbed by "the person that just walked away" and said the attacker was Mexican and was named "Mike." Quinones later identified Riojas as the man whom he saw leaving the scene.

The victim then asked Portugal to call the victim's mother. Portugal called the number that the victim provided three times and reached an answering machine each time. When the police arrived, the victim had become incoherent. His pulse had failed by the time medical support arrived. He was pronounced dead at the hospital as a result of a stab wound to the chest.

Investigators determined that the victim was named Kenny Brown and that he had been staying at the Red Carpet Inn a few blocks away from the Burger King. Police interviewed people at the Red Carpet and identified a suspect who went by the name "Mexican Mike." Later that morning, the police encountered Riojas walking on a sidewalk. Because he matched the description of Brown's assailant, police told him he had been named as someone who might know who Mexican Mike was and asked to speak to him at police headquarters.

Riojas consented to an interview. He initially told police that he met Brown at the apartment of Anthony Dailey and Brenda Sullivan. Riojas was assisting in a drug transaction and accompanied Brown to the house of a man named Miguel. Riojas waited outside, and after a while he watched Brown run out of the house with Miguel in pursuit. Riojas ran after them, but was slowed down because his feet hurt. After removing his shoes, he continued to follow the two men. He observed Miguel chase Brown towards the McDonald's, onto a street, and then back toward the Burger King, where he fell on top of Brown. Riojas ran over to assist Brown, and, when several men came out of the Burger King, Riojas asked them to call 911. Riojas stated that, while trying to help Brown, Brown asked him to call his mother and gave him his PIN for a financial services card. He asked Riojas to take his credit card from his wallet and use it to pay his drug debt to Miguel. Riojas attempted to make withdrawals at a QuikTrip and the hospital where Brown was pronounced dead.

Riojas then accompanied police to the area where Miguel's house was supposed to be, but he was unable to identify the house. They then drove to the apartment of Mike Nelson, where Riojas said he was living, but Riojas did not have a key to the apartment and Nelson was not home. They finally drove to the Red Carpet Inn to speak with Anthony Dailey and Brenda Sullivan. Dailey looked at Riojas and said he knew him but could not remember his name. Brenda Sullivan then came outside and identified Riojas as either "Mexican Mike" or "Mexican Mark." That afternoon investigators returned to Nelson's apartment, where they located a forklift safety card belonging to the victim.

On March 16, 2007, the State filed a complaint/information charging Riojas with one count of first-degree felony murder, K.S.A. 21-3401, and one count of aggravated robbery, K.S.A. 21-3427. Following a jury trial, Riojas was found guilty of both counts. The trial court sentenced Riojas to a term of life imprisonment for felony murder and a consecutive term of 233 months for aggravated robbery. He timely appeals.

Riojas first argues that the trial court erroneously admitted evidence of a prior bad act contrary to K.S.A. 60-455. Brenda Sullivan testified that Riojas visited her and her husband's hotel room and, in the course of playing with a knife, stated that he had cut people in the past. He contends on appeal that her testimony constituted impermissible evidence of prior bad conduct and propensity to attack people with knives.

When considering a challenge to the admission of evidence, the first step is to determine whether the evidence is relevant. State v. Carapezza, 286 Kan. 992, 997, 191 P.3d 256 (2008). All relevant evidence is admissible unless prohibited by statute. K.S.A. 60-407(f). Relevant evidence is any "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). Relevance is established by a material or logical connection between the asserted facts and the inference or result that they are intended to establish. Carapezza, 286 Kan. at 997, 191 P.3d 256.

After relevance is established, the second step requires the court to apply the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court's discretion, depending on the rule in question. The standard of review of the probative element of K.S.A. 60-455 evidence is abuse of discretion. Carapezza, 286 Kan. at 998, 191 P.3d 256.

Analysis under K.S.A. 60-455 requires several steps. The court must determine that the evidence is relevant to prove a material fact. The court must also determine that the material fact is in dispute. The court must further determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admitting whatever 60-455 evidence comes in. Carapezza, 286 Kan. at 998, 191 P.3d 256 (quoting State v. Reid, 286 Kan. 494, Syl. ¶ 5, 186 P.3d 713 [2008]).

Anthony Dailey testified on direct examination that Riojas had visited his hotel room earlier in the day of the murder:

"[Dailey] A. . . . [H]e brung some juice and some eggs and stuff. And I guess a little while after he left, I discovered I had a knife missing. And that's when I called Keith Dorsey and told him if he see Mike, to get my knife from him.

. . . .

"A. Uh, I believe it had a red handle on it. And one part was a knife and one part was like a razor. Two blades. Like one razor and one knife.

"Q: You called your buddy so he could tell Mexican Mike to bring it back to you.

"A. Right. Right.

"Q. Why did you think he is the one that took it?

"A. `Cause I had noticed it. And then, after he had left, I noticed it missing."

On cross-examination, it was pointed out that a number of people had been in the hotel room smoking drugs. Dailey testified that he did not see Riojas take the knife and that other people had been in and out of the room.

Early during the direct examination of Brenda Sullivan, the following exchange took place:

"Q. Could you tell the jury about your knife that was in the room and how — what it had to do with Mexican Mike.

"A. Well, it started off when — he was playing with it. We was waiting on my husband to get back, and he was playing with it, clicking it open, telling me how, uh, how he used to cut people from something to the sternum. And he was a little bit vivid, so I took it from him, `cause it was, you know, getting a little out of control. So I took it and I put it on my table. The knife is a red knife. About — I'd say about that long. It got a blade on one end and a razor on the other end." (Emphasis added.)

She then testified that she was alone in the hotel room with Riojas when the conversation about the knife took place. She proceeded to testify that Riojas later went down the hall to another room and then returned:

"A. . . . . I tell him he can't come in there like that, you know. And he was all excited. He wanted something — he wanted a weapon or something. And I was like, No, you can't have, you know — Anthony told him — I think Anthony was the one that told him, No, we don't have no weapons. And then, when he left, then I noticed that — we noticed that the knife was gone.

. . . .

"A. C...