State v. Rizo
| Citation | 304 Kan. 974,377 P.3d 419 |
| Decision Date | 12 August 2016 |
| Docket Number | No. 112,824,112,824 |
| Parties | State of Kansas, Appellee, v. Javier Rizo, Appellant. |
| Court | United States State Supreme Court of Kansas |
Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Javier Rizo appeals his convictions for first-degree felony murder, three counts of aggravated battery, fleeing or attempting to elude a law enforcement officer, and battery. He argues the district court erred by: (1) failing to obtain a knowing and voluntary trial waiver from him before allowing his case to proceed as a bench trial on stipulations, and (2) denying his motion for a departure sentence. We reject both arguments, affirm the jury trial waiver and the life sentence for felony murder, and dismiss the sentence departure claim.
In the early morning hours of October 27, 2013, Rizo and his girlfriend, Danielle Martinez, had an argument at a club in the Old Town district of Wichita, Kansas. At approximately 1:15 a.m., Rizo took Martinez' minivan keys, prompting Martinez to tell Rizo he could not drive her vehicle because he was drunk. Rizo responded by grabbing Martinez around the neck and pushing her, causing security personnel to remove Rizo from the club.
At approximately 2 a.m., two uniformed police officers in the Old Town district learned of a parking lot disturbance. A witness pointed the officers to Martinez' minivan. The officers walked toward the minivan, but it exited the parking lot. Rizo was driving the minivan, and he had three passengers with him, including his brother, Tony Losey. The officers pursued the minivan in their marked patrol car. Rizo led the officers on a high speed chase within the city limits, during which he committed multiple traffic violations, including exceeding the posted speed limits, at one point accelerating to an estimated 80 to 90 miles per hour.
Rizo eventually crashed into a Suzuki automobile at an intersection. Rizo and Losey fled the collision scene. The two remaining minivan passengers and the driver and passenger of the Suzuki, Maria and Sergio Martinez, sustained injuries requiring hospitalization. Maria died at the hospital at 2:56 a.m.
The Wichita Police Department attempted to locate Rizo for several weeks following these events. According to Rizo's family, Rizo left Kansas shortly after the collision. On January 5, 2014, law enforcement found Rizo at a residence in Wichita, Kansas, and took him into custody.
Rizo was later interviewed by Detective Paul Kimble. After being read his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), Rizo explained that during the events in question, he was drunk and most of the night was a blur. When Rizo saw the police lights, he did not want to get his brother in trouble because the brother was on probation, so Rizo kept driving. He said he did not see the Suzuki coming and did not remember the crash. After the crash, he took off running and did not check on anyone's wellbeing because he was scared. He further explained that there was a warrant out for his arrest and that he had just gotten out of jail.
The State charged Rizo with second-degree murder or, in the alternative, first-degree felony murder for the death of Maria Martinez; three counts of aggravated battery for the others injured in the collision; fleeing or attempting to elude a law enforcement officer; and battery of his girlfriend. The district court granted Rizo's motion to suppress his pre-Miranda
statements and denied his motion to suppress his post-Miranda statements after a Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), hearing. At the preliminary hearing, the State presented DNA evidence placing Rizo in the driver's seat of the minivan.
When the parties could not reach a plea agreement, Rizo's counsel informed the State that Rizo wanted to waive his right to a jury trial. In exchange for Rizo waiving this right and proceeding on stipulated facts, the State agreed to dismiss another pending criminal case against Rizo for felony fleeing and eluding, Sedgwick County Case No. 13 CR 2514, which the State alleged Rizo committed a few weeks before the events leading to this case. If convicted in 13 CR 2514, Rizo's criminal history score would increase from a “D” to a “B,” which would increase the potential sentences for the guidelines offenses in this case.
Before the district court, the parties discussed their negotiations.
Rizo's counsel asserted that he would never let his client waive his right to a jury trial unless the client was receiving a deal in exchange for the stipulated facts and that, in this case, Rizo did not want to put the victim's family through a trial. After hearing from both parties, the district court had a colloquy with Rizo about his decision to waive his right to a jury trial. At one point, the district court asked the State and defense counsel if there was anything else the court needed to cover. Defense counsel informed the court, The State asked the court to clarify that the only right Rizo was waiving at that time was his right to a jury trial before 12 citizens of the community. The court then ensured that Rizo understood he was waiving his right to a jury trial and wished to proceed “either with a bench trial or a trial to me [the judge] on stipulated facts.”
Later that same day, the parties returned to the district court and presented the court with a document entitled “Agreement to Proceed to Trial on Stipulated Facts” (the stipulated facts agreement) and a document entitled “Stipulation by the Parties” (the additional stipulations). The stipulated facts agreement provided that Rizo had previously made a knowing and voluntary waiver of his jury trial right; it informed the court of Rizo's choices not to testify in his own defense and to waive confrontation of the State's witnesses and evidence; it withdrew Rizo's objection to the admission of his post-Miranda
statements; and it explained that Rizo agreed to allow the court to accept as true the facts set forth in the exhibits and stipulations agreed upon by the parties. The agreement also clarified that if Rizo was convicted of any charges, both parties were free to argue for any lawful sentence.
Pursuant to the stipulated facts agreement, the district court formally dismissed the charges in 13 CR 2514. At the State's request, the district court held an on-the-record colloquy with Rizo regarding his decision to proceed as set forth in the stipulated facts agreement. The district court confirmed with Rizo that he had signed the stipulated facts agreement and additional stipulations after having ample time to consult with his counsel and obtain answers to any questions he had. Rizo said it was his decision alone to sign both documents.
The district court found Rizo guilty as charged on each count. The district court denied Rizo's motion for new trial or judgment of acquittal, where Rizo argued insufficient evidence supported the district court's verdict.
At sentencing, the district court denied Rizo's motion for departure. The court dismissed the second-degree murder conviction and sentenced Rizo to life in prison for first-degree felony murder, 55 months for the primary count of aggravated battery, and 34 months for one of the additional counts of aggravated battery, to run consecutive to the life sentence. The court also imposed 31 months for the remaining count of aggravated battery, 7 months for fleeing or attempting to elude a law enforcement officer, and 6 months for battery to run concurrently. Therefore, Rizo's controlling sentence was life imprisonment with 89 months' imprisonment to run consecutive to the life sentence.
Rizo filed a timely appeal, over which this court has jurisdiction under K.S.A. 2015 Supp. 22–3601(b)
().
Rizo argues the district court did not obtain a knowing and voluntary trial waiver from him. He asserts that when he waived his right to a jury trial, the district court failed to fully inform him of all the rights he was waiving because, at that time, the parties had not determined whether the trial would proceed as a bench trial with evidence presented or a bench trial on stipulated facts. Before considering the merits of Rizo's claim, there is a threshold question concerning preservation.
The State argues that this court should not consider Rizo's claim for the first time on appeal. In general, issues not raised before the trial court cannot be raised for the first time on appeal. See, e.g. , State v. Shadden , 290 Kan. 803, 813, 235 P.3d 436 (2010)
. However, there are three recognized exceptions allowing an appellate court to consider a constitutional issue raised for the first time on appeal, including when consideration of the issue is necessary to serve the ends of justice or to prevent the denial of fundamental rights. State v. Anderson , 294 Kan. 450, 464–65, 276 P.3d 200 (2012)
.
Because preservation is a prudential rule, rather than a jurisdictional bar, we have discretion to apply an exception to the general rule. State v. Frye , 294 Kan. 364, 369, 277 P.3d 1091 (2012)
. In Frye, we rejected a bright-line rule that a jury trial waiver issue cannot be raised for the first time on appeal, reasoning “whether the court has advised a defendant of his or her right to a jury trial ... should be one of the last to be denied the opportunity for exceptional treatment.” 294 Kan. at 370, 277 P.3d 1091.
Frye held the...
To continue reading
Request your trial
-
State v. Arnett
...5 of the Kansas Constitution Bill of Rights and under the Sixth Amendment to the United States Constitution. State v. Rizo , 304 Kan. 974, 979-80, 377 P.3d 419 (2016). We elect to reach both questions under the second exception. ANALYSIS Our analysis first looks at the statutes which make u......
-
State v. Hirsh
...district court. "In general, issues not raised before the trial court cannot be raised for the first time on appeal." State v. Rizo , 304 Kan. 974, 978, 377 P.3d 419 (2016). There are, however, notable exceptions to this rule:"(1) [T]he newly asserted claim involves only a question of law a......
-
State v. Hillard
...Hillard did not raise this argument before the district court, so it is not properly preserved for our review. See State v. Rizo , 304 Kan. 974, 978, 377 P.3d 419 (2016) ("In general, issues not raised before the trial court cannot be raised for the first time on appeal."). Even if Hillard ......
-
State v. Chavez-Majors
...a defendant to contemporaneously object in the district court in order to preserve the issue for appeal. See State v. Rizo , 304 Kan. 974, 978–79, 377 P.3d 419 (2016) ; Frye , 294 Kan. at 368–69, 277 P.3d 1091.Because the factual record is uncontroverted in this case, the issue of whether C......