State v. Soto

• Decision Date: 15 May 2015
• Docket Number: 109,374.
• Citation: State v. Soto, 301 Kan. 969, 349 P.3d 1256 (Kan. 2015)
• Parties: STATE of Kansas, Appellee, v. Domingo Alfredo SOTO, Appellant.
• Court: Kansas Supreme Court

301 Kan. 969

349 P.3d 1256

STATE of Kansas, Appellee

v.Domingo Alfredo SOTO, Appellant.

109,374.

Supreme Court of Kansas.

May 15, 2015.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Barry K. Disney, assistant county attorney, argued the cause, and Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

Opinion

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

Domingo Soto appeals his jury trial convictions for aiding and abetting first-degree premeditated murder, possession of cocaine with intent to distribute, possession of methamphetamine with intent to distribute, and possession of marijuana. He argues the district court erred in denying his motion for new trial based on the State's failure to disclose the principal defendant would be available to testify and failing to give a lesser included intentional second-degree murder jury instruction. Finding no reversible error, we affirm.

Factual and Procedural Background

The Killing of Steven Freel

During the late morning hours of December 7, 2011, the corpse of Steven Freel was discovered on the edge of a dirt road in rural Riley County, Kansas. The cause of death was a gunshot wound to his chest, and it appeared the body had been there overnight. On the same day, Michael Blake Layne was established as a suspect in the fatal shooting.

In 2011, 19–year–old Layne worked for 41–year–old Domingo Soto at an equestrian center located in Riley County. Layne called Soto “Boss,” and Soto was also known as “El Diablo.” Soto lived in a trailer on the grounds and served as a caretaker for the property. Soto was also involved with distributing illegal drugs, specifically methamphetamine and marijuana. Soto would front marijuana to Layne who would later pay him back.

Freel and his girlfriend Nicole Langdon regularly purchased marijuana from Layne. In August 2011, Layne presumably committed a robbery with a gun he borrowed from Freel. In the ensuing investigation, Riley County Detective Ryan Runyan spoke with Layne and Freel about the armed robbery. Significantly, Detective Runyan informed Layne he knew Freel had provided him a gun for the robbery.

Subsequently in October or November 2011, Layne met Reyna Youdath, a college student who shared his interest in drugs. Layne introduced her to Soto, who would provide her with marijuana and methamphetamine at his house whenever she asked. On December 5, 2011, Layne asked Youdath to help him rob a girl who owed Soto from a previous drug transaction.

Around 3 a.m. on December 6, 2011, Layne, armed with a rifle, Youdath, and another individual robbed Nicole Autrey at her residence. They took a tattoo gun case, laptops, a black lock case, a cell phone, keys, an amplifier, and an Xbox. They returned to Layne's house. In the morning, Layne texted Soto: “Can I come out? I got shit for you. Very important shit.” Later that morning, Youdath and Layne's girlfriend, Harley Boyden, dropped Layne off at Soto's house and Layne gave him Autrey's stolen items. Youdath went back to her dorm, but she expected Layne to pick her up around 1 or 2 that afternoon to smoke methamphetamine.

In the early afternoon, Layne called Soto to tell him he wanted to kill Freel. Layne wanted to bring Freel over to Soto's residence to kill him with a .45 caliber pistol that Soto kept at his residence. At 2:56 p.m., Layne texted Soto: “I need him under boss please.” Soto texted back: “W C EL. DiABlO.” At about 3:06 p.m., Layne texted Soto back: “Let me do it boss.” Thirty seconds later, Soto again responded: “W C EL. DiABlO.”

Around the same time, Freel and his girlfriend Langdon drove to Layne's residence. Freel went inside to speak with Layne, and Langdon stayed in her car. Langdon thought Freel was just going inside to purchase marijuana. Layne's girlfriend, Boyden, testified that Freel seemed high on methamphetamine and kept begging Layne to help him find a gun because the police were after him. Freel came out to the car to ask Langdon for money to buy a gun. She refused, they argued about it, and ultimately they drove back to their own apartment.

Freel took a suitcase out of the trunk and started walking toward his own apartment when Layne pulled up behind their car. Freel leaned into Layne's passenger window, talked to him for a while, and then got in Layne's car. They pulled up next to Langdon who was still in her car. Freel told her he loved her, he would be right back, and everything was going to be okay. At 3:24 p.m., Youdath sent Layne a text saying she was waiting on him at her dorm.

Layne and Freel arrived at Soto's residence. Freel started talking, and Soto punched him in the face because Freel had “no idea what he's saying.” Soto gave Layne the .45 pistol and told Layne “he didn't want this to happen on his property, and he didn't want to know anything about it.” Layne and Freel left in Layne's vehicle.

At 3:46 p.m., Freel called Langdon and sounded irritated. He told her Layne and he were on their way back and asked if she could pick him up from Layne's house. She heard Layne in the background telling Freel to tell Langdon to “kiss his ass.” Freel asked Layne if Langdon could pick him up from where they were out in the country. Layne refused, so Freel once again said he loved her, they needed to go to Layne's, and they were on their way. That was the last time Langdon talked to Freel.

Sometime after 4 p.m., Layne arrived to pick up Youdath at her dorm. Youdath could tell something was wrong with him, and he told her that he “messed up real bad.” He told her to reach under the seat. She complied and pulled out a black handgun. Youdath asked why he had the gun, and Layne told her that the guy he used to rob houses with “had his name in his mouth” and “he took care of it.” Youdath asked for more details and Layne explained he took Freel to Soto's house where Soto punched him in the face and gave Layne a gun. Then Layne drove Freel to a dirt road, told him to get out, and shot him.

When Layne and Youdath arrived at Layne's residence, Langdon was parked out front in her car. Layne told her he dropped Freel off at his house or at Walmart. Later Layne drove Youdath and two of his friends out to see the body to prove that he had actually killed Freel. The time was around 5:30 p.m. Layne took Freel's backpack and put it in the car, and one of his friends took Freel's wallet.

Sometime around 9 p.m., Soto picked up Ashley Wright and drove her back to his trailer. Wright testified that Soto told her that “some stuff was going on, that he gave [Layne] his baby, and he was gonna shoot somebody.” She knew Soto often referred to his gun as his “baby.” Wright said she did not think Layne would do that, and Soto replied that he could tell if his gun had been fired.

After they arrived at the trailer, Layne called Soto and said he was on his way and was bringing the baby back. About 15 to 30 minutes later, Layne arrived and handed the gun to Soto. Soto did not touch the gun with his bare hands but used a bandana. Soto checked to see if it had been shot and then nodded his head yes to Wright. Soto asked Layne how he felt, and Layne replied that he felt numb. Soto patted him on the back and told him it would get better. Layne told Soto that he took Freel on the road, shot him, and left him there because “the guy had his name in his mouth.”

The next morning, Freel's body was found on a dirt road in rural Riley County, Kansas, about 3.7 miles driving distance from Soto's residence. He was lying on his back with his arms stretched out. No evidence of a struggle was discovered. Likewise, nothing indicated the body had been moved or dragged from a vehicle. Underneath the body was a cell phone which showed the last dialed call was to Langdon at 3:46 p.m. on December 6.

Detective Runyan was assigned to investigate Freel's death. The first action by Runyan, who had previously spoken with Layne and Freel concerning an armed robbery in August 2011, was to find Layne. Officers located Layne; his girlfriend, Boyden; and Youdath. After interviewing Youdath, officers executed a search warrant of Soto's home. Soto was brought to the Riley County Police Department and was interviewed by Detective Runyan. Soto admitted that Layne had repeatedly asked if he could kill Freel, that he punched Freel when Layne brought him to Soto's residence, and that he gave Layne a .45 caliber pistol. However, he did not believe Layne had the guts to actually kill him.

Detective Runyan interviewed Layne on three occasions between December 7th and December 9th. During those interviews he told nine to eleven different versions of how the murder took place; however, none of them contradicted Soto's statements about what had happened.

A search of Layne's vehicle uncovered Freel's suitcase and jacket. A search of Layne's residence revealed a fired .45 caliber Winchester shell casing in the trash. A search of Soto's residence revealed eight identical unfired Winchester shell casings in Soto's bedroom. Under Soto's bed officers found a backpack which had a nylon holster with a loaded .45 caliber magazine. Additionally, officers found some of the items reported stolen from Autrey's residence; namely two computers, a case of compact disks, the tattoo kit, and the safe. No firearms were located in Soto's residence. Marijuana, cocaine, and methamphetamine were also recovered from Soto's residence.

The Trial of Domingo Soto

Layne and Soto were charged, along with other related crimes, with the first-degree premeditated murder of Freel. Layne was charged as the principal for shooting Freel, and Soto was charged as the aider and abettor for providing a handgun with knowledge that Layne intended to use it to kill Freel. The trials were separate, and Soto was tried first.

Prior to trial, the State moved to admit certain statements made by Layne as declarations against interest, an exception to the inadmissibility of hearsay under ...