State v. Vasquez, No. 95,400.

• Citation: 194 P.3d 563
• Decision Date: 17 October 2008
• Docket Number: No. 95,400.,No. 95,401.
• Parties: STATE of Kansas, Appellee, v. Martin VASQUEZ, Appellant.
• Court: United States State Supreme Court of Kansas

194 P.3d 563

STATE of Kansas, Appellee, v. Martin VASQUEZ, Appellant.

No. 95,400.

No. 95,401.

Supreme Court of Kansas.

October 17, 2008.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant, and Martin Vasquez, appellant, was on a supplemental pro se brief.

Jared S. Maag, deputy solicitor general, argued the cause, and Paul J. Morrison, attorney general, was with him on the brief for appellee.

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

In these consolidated criminal cases, defendant Martin Vasquez was convicted of three counts of first-degree murder; one count each of aggravated robbery, aggravated burglary, and felony theft; and two counts of misdemeanor theft. He was sentenced to three consecutive hard 40 terms on the three convictions of first-degree murder. In this appeal, his counsel raises six issues for our review; Vasquez raises several additional issues in a pro se brief.

On December 12, 1998, the bodies of Vasquez' wife, Robin; Robin's father, Howard Franks; and Tom Dinkel were discovered in Robin's home in Kinsley, Kansas. Each victim had been incapacitated by blows or gunshots, then executed by means of a final gunshot. Investigators recovered 9 mm bullet casings at the scene, and 9 mm bullets were recovered from the bodies. "Robin I Love You" was written on a wall at the scene. Although Dinkel's truck had been parked in the driveway in front of Robin's house the night before, it was no longer there the morning the bodies were found.

Mike Sebes, who had employed Vasquez, discovered that his 9 mm Firestar handgun was gone when he looked for it on December 14.

Dinkel's truck was found in Juarez, Mexico, in late December 1998. Dinkel's wallet was discovered along Highway 183 south of Kinsley in February 1999. Sebes' 9 mm Firestar was found in El Paso, Texas, in late December 2002.

In Case No. 99 CR 26 — filed April 7, 1999; amended July 18, 2001; then amended again January 19, 2005 — Vasquez was charged with three counts of first-degree murder in violation of K.S.A. 21-3401; one count of aggravated robbery in violation of K.S.A. 21-3427 for taking Dinkel's keys and wallet; one count of aggravated burglary in violation of K.S.A. 21-3716 for entering into or remaining within Robin's house with the intent to commit first-degree murder; one count of felony theft in violation of K.S.A. 21-3701 for taking Dinkel's truck; and one count of misdemeanor theft in violation of K.S.A. 21-3701 for taking Sebes' gun.

A related complaint in Case No. 98 CR 102 had been filed December 18, 1998, charging Vasquez with felony burglary in violation of K.S.A. 21-3715 and misdemeanor theft in violation of K.S.A. 21-3701 for taking a .357 pistol from Ron Sebes' truck. Ron Sebes is Mike Sebes' father. Vasquez had also worked with Ron.

Vasquez was arrested in Mexico on September 3, 2003; gave statements to police; and made his first appearance before the district court on October 19, 2004.

A preliminary hearing was held in the consolidated cases on December 16, 2004. The district magistrate who presided over the hearing dismissed the felony burglary count in Case No. 98 CR 102, but he bound Vasquez over on the misdemeanor theft count in that case and on the seven counts charged in Case No. 99 CR 26.

Vasquez requested separate jury trials in the two cases, and he waived his speedy trial rights at a February 18, 2005, motion hearing. Two months later, Vasquez obtained a change of venue from Edwards County to Pawnee County.

A few days after the venue transfer, the district judge sustained the State's motion to consolidate the two cases for trial. He also addressed two defense motions in limine. On the first, the judge excluded evidence of an emergency restraining order and a related Kinsley municipal court domestic battery case filed after a July 1998 incident in which Vasquez had pushed and bitten Robin. The judge ruled that he would, however, allow evidence of Robin's statements to law enforcement about the July 1998 incident. On the second motion in limine, the judge ruled on the admissibility of certain statements by Robin to coworkers. The judge ruled that evidence of the statements would be admitted: "[B]y a preponderance of the evidence ... the defendant did procure the absence of the declarent [sic] in this case and therefore cannot benefit from said act."

At trial, the State's evidence covered the following additional information:

Vasquez and Robin were married in 1996, and their union swiftly deteriorated. Vasquez drank to excess; by mid-1998, Robin was seeking a divorce.

Vasquez worked for Mike and Ron Sebes in their Kinsley farming operation during the summer of 1998. In mid-October, Vasquez left Kansas for several months to harvest crops on his own land in Mexico. While in Mexico, Vasquez contacted Robin, who told him she did not want him to return.

Vasquez nevertheless returned to Kinsley in the first week of December 1998. Robin had moved his belongings to the home of Vasquez' sister, Maria, who lived across the street from Robin; and Vasquez stayed at Maria's after his return from Mexico.

Robin had begun seeing Dinkel, and Vasquez became aware of this fact. According to Vasquez' friend, Nathan Bartley, Vasquez was upset by his wife's relationship with Dinkel and "wanted to kick Dinkel's ass."

Around December 5, 1998, Vasquez attempted to borrow a gun from Bartley for the stated purpose of going hunting, although Bartley had never known Vasquez to hunt. Vasquez asked Bartley to take him to the store for ammunition. When Bartley was unable to do so, Vasquez went to the store with his sister and purchased 9 mm bullets.

On December 11, 1998, Robin told Police Officer Curtis William Starks that Vasquez was back in Kinsley. When Starks asked Robin if she was frightened, she said that she was not afraid of Vasquez unless he had been drinking. She said there had been a shotgun in her house, which she had taken to Dinkel. Dinkel had locked the shotgun in a safe in his shop so that it was not in her house while Vasquez was in town. Robin also told Starks that she had sought a restraining order against Vasquez and would file a petition for a protection from abuse (PFA) order on the following Monday.

Later in the afternoon on December 11, Starks was called to Dinkel's shop, where Dinkel and Robin gave him a handwritten letter from defendant that had been left on the doorstep. The letter said that Vasquez did not want to "beat anyone" and that he wished Dinkel would stay away so that Vasquez and Robin could work out their problems. Dinkel and Robin also gave Starks the shotgun and a Smith & Wesson .357 handgun. Robin told Starks that Vasquez had brought the handgun into their home several months earlier and would not tell her where he had gotten it. The shotgun belonged to Ron Sebes, who had also kept a Smith & Wesson .357 in his pickup truck until September 1998, when he reported it stolen.

Still later the same afternoon, Starks spoke to Vasquez. Starks told Vasquez that the police had the shotgun, and that Vasquez was not permitted to possess a firearm because of an earlier domestic battery case and because of his immigration status. Starks told Vasquez that the police were going to get the Immigration and Naturalization Service (INS) "involved." He also told Vasquez that Robin had a restraining order against him; that she was filing for divorce; that she was happy with Dinkel; and that Vasquez needed to leave her alone.

Late the evening of December 11, Vasquez told his sister that he needed to "talk to Robin." He gave his sister a hug, which he did not normally do, and walked from her house to Robin's. He did not come back that night, and the bodies of Robin, Franks, and Dinkel were found the next morning.

Forensic pathologist Corrie May, M.D., testified that Franks suffered blunt force trauma and two gunshot wounds to his head, fired from intermediate range. Dinkel's death was caused by two gunshot wounds to the head and neck, but he suffered a number of blows to the head and neck, which probably incapacitated him before the fatal shots were fired. Robin sustained defensive gunshot wounds to her hand; an atypical gunshot wound to her left shoulder, received while she was hiding behind or under a table; and finally, a shot to the back of her neck.

KBI Special Agent Roger Butler, a bloodstain analyst, testified that the crime scene was consistent with a theory that each victim was executed with an "insurance shot" after being felled and incapacitated by gunshot wounds.

Mike Sebes, who had reported that his 9 mm Firestar was missing when he looked for it after learning of the murders, testified that, in the first few days of December, Vasquez had called him looking for work. After completing a day-long job, Vasquez borrowed Mike's truck. At the time, Vasquez was aware that Mike kept the gun behind the seat in the truck.

Police recovered a box of 9 mm ammunition from Vasquez' sister's house; eight rounds were missing from it.

Over a defense objection, the State also introduced evidence that, on July 17 or 18, 1998, the police had responded to a hang-up 911 call from the Vasquez home. According to responding officers Starks and Tammy Gross, Robin told them that Vasquez, who had been drinking, shoved her, threw her around, and bit her hard on her left breast. The police arrested Vasquez for domestic battery and disorderly conduct. At trial on these cases, Vasquez also objected to evidence that Robin had filed to obtain a PFA order as a result of the July 1998 incident. The PFA action was later dismissed.

Several of Robin's close friends testified to remarks Robin had made about her turbulent relationship with Vasquez. Defendant made a continuing hearsay objection to this testimony.

Mickey Avery, with whom Robin worked, testified about a letter from Vasquez that Robin had shown her. In the letter, Vasquez stated that he did not want...