State v. Zamora, 77110

• Decision Date: 12 December 1997
• Docket Number: No. 77110,77110
• Citation: 949 P.2d 621,263 Kan. 340
• Parties: STATE of Kansas, Appellee, v. Guadaloupe ZAMORA, Appellant.
• Court: Kansas Supreme Court

Page 621

949 P.2d 621

263 Kan. 340

STATE of Kansas, Appellee, v. Guadaloupe ZAMORA, Appellant.

No. 77110.

Supreme Court of Kansas.

Dec. 12, 1997.

Syllabus by the Court

1. K.S.A. 60-460(c)(2) permits the use of preliminary hearing testimony in a trial of the same action if the declarant is unavailable at the trial and the adverse party had the right and opportunity to adequately cross-examine at the preliminary hearing. The Sixth Amendment right of confrontation is satisfied if the accused was once confronted by the witness at any stage of the proceedings in the same case and has had an opportunity of cross-examination.

2. The standard for determining if a witness is unavailable is the "reasonable diligence rule," which requires a good faith effort to obtain the witness' presence at trial. The question of availability turns on the totality of the facts and circumstances of each case.

3. A trial court's determination that a witness is unavailable to testify will not be disturbed on appeal unless an abuse of discretion is shown.

4. Witnesses are presumed to be competent, and the burden of establishing incompetency rests on the challenger.

5. A trial court has discretion to order a mistrial if false statements of a juror during voir dire prevent a fair trial. The failure to grant a mistrial due to such misstatements will not constitute reversible error unless an abuse of discretion is shown.

Ezra J. Ginzburg, Assistant Appellate Defender, argued the cause, and Alice A. Craig, Assistant Appellate Defender, and Steven R. Zinn, Deputy Appellate Defender, were on the brief for appellant.

Lisa A. Beran, of Law Office of Lisa A. Beran, Great Bend, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief for appellee.

LARSON, Justice:

Guadaloupe Zamora appeals his 1995 jury convictions of two counts of aggravated criminal sodomy and one count of aggravated kidnapping, resulting in a controlling sentence of life imprisonment. The charges stemmed from the molestation of an 8-year-old boy in 1991. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1).

The issues on appeal relate to claimed trial errors of allowing preliminary hearing testimony to be read into evidence after finding the witness was unavailable and refusing to grant a mistrial after an impaneled juror stated that her adopted daughter might be related to the victim. This requires only a brief summary of the facts presented at trial.

The victim, A.J., was taken fishing by a neighbor, Alfredo (David) Chavez, with 16-year-old Jeremy Kline (the unavailable witness) and 33-year-old Zamora accompanying them.

Zamora was intoxicated. A.J. testified Zamora tried to kiss him before they left. A.J. and Kline testified that Zamora touched A.J.'s thighs on the way to the lake. A.J. and Kline both testified that at the lake, Zamora pressed himself against A.J.'s buttocks, although both were clothed.

A.J. testified that after returning to Chavez' home around dusk, he was anally sodomized by Zamora, then carried behind a concrete plant and again anally and orally sodomized by Zamora. A.J. escaped, ran home, went to a convenience store, and called 911.

The police had A.J. medically examined, but no medical proof that A.J. had been sodomized was found. After Chavez and Kline were interviewed, Zamora was found and questioned through a translator, who advised Zamora of his Miranda rights in Spanish. Zamora eventually said he was "gay" and "that he likes to suck little boys because it makes him feel good," although he could not remember what he had done to A.J.

A.J., Kline, and Chavez all testified at the preliminary hearing. Zamora was bound over for trial, but after being released on bond, he fled to Mexico. He was tried 4 years later after being apprehended in Texas. By this time, the State was unable to ascertain the whereabouts of Kline and sought to admit his preliminary hearing testimony at trial. The admission of this testimony is the first issue we consider.

Zamora claims the State did not attempt to locate Kline with due diligence and failed to demonstrate his testimony was sufficiently reliable.

K.S.A. 60-460(c)(2) permits the use of preliminary hearing testimony in a trial of the same action if the declarant is unavailable at the trial and the adverse party had the right and opportunity to adequately cross-examine at the preliminary hearing. Although this section states its provisions "shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face," we have held the Sixth Amendment right of confrontation is satisfied if the accused was once confronted by the witness at any stage of the proceedings in the same case and has had an opportunity of cross-examination. State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842, cert. denied 483 U.S. 1024, 107 S.Ct. 3272, 97 L.Ed.2d 770 (1987).

A witness is deemed unavailable pursuant to K.S.A. 60-459(g) when the witness is "(4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts."

The standard for determining if a witness is unavailable is the "reasonable diligence rule," State v. Vargas, 260 Kan. 791, 799, 926 P.2d 223 (1996), requiring a " 'good faith effort to obtain the witness' presence at trial.' " (Quoting State v. Watie, Heard & Heard, 223 Kan. 337, 340, 574 P.2d 1368 [1978] ). "The question of availability turns on the totality of the facts and circumstances of each case." Vargas, 260 Kan. at 799, 926 P.2d 223.

A trial court's determination that a witness is unavailable to testify will not be disturbed on appeal unless an abuse of discretion is shown. State v. Cook, 259 Kan. 370, 375, 913 P.2d 97 (1996). We have said that a trial court abuses its discretion only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court's view. State v. Baacke, 261 Kan. 422, 427, 932 P.2d 396 (1997).

The first and most important fact in this case is that Zamora failed to honor his bond and fled to Mexico, where he remained from October 1991 until he was located in Texas and extradited to Kansas in March 1995. The case was set for trial in May 1995, was rescheduled several times, and was finally tried in October 1995.

Each time the case was set for trial, new subpoenas were issued for each of the State's witnesses, with the exception of Kline, as the State was unable to discover his whereabouts. In August 1995, the State moved to admit Kline's preliminary hearing testimony pursuant to K.S.A. 60-460(c).

Prior to selecting the jury, the court addressed the State's motion. The county attorney described the efforts that had been taken to locate Kline. Zamora opposed this motion, arguing that after the preliminary hearing, his attorney had moved to question Kline's competency upon learning that Kline had possibly "gone off the deep end and been sent to Larned." Zamora also asserted that the State had not exercised due diligence in its attempts to locate Kline.

The trial court initially denied the motion on the grounds that subsequent information had arisen which placed the competency of Kline in question, so the nature and scope of cross-examination had substantially changed. The court did find, however, that the State had exercised due diligence in its attempt to locate Kline.

The following day, the court readdressed the issue of whether to admit Kline's preliminary hearing testimony. The State informed the court it had again contacted Magistrate Judge Lee Nusser and learned the Stafford County care and treatment case had concluded and that Kline did not have a mental illness. The State showed Kline had been adjudicated for misdemeanor theft of services, and during cross-examination at the preliminary hearing, Kline admitted he had been served with a warrant for this crime. The State further pointed out that although Judge Nusser had been familiar with Kline from the Stafford County cases, he had been the presiding judge at the preliminary hearing and made no effort to question Kline's competency or to disqualify him from testifying.

Zamora again questioned whether the State had exercised due diligence in trying to locate Kline. The court decided to allow the State to present evidence of its efforts, as required by State v. Mitchell, 18 Kan.App.2d 530, 855 P.2d 989 (1993). Linda Eggers, an employee of the county attorney's office, testified she was given the task of locating Kline prior to trial when the case was scheduled to be tried in August.

Eggers first called Kline's phone number, but the number was no longer in service, and she could find no other listings. Eggers then called Dell Heyden, an employee of the Larned State Hospital Youth Center, who confirmed that Kline had been there, but the Youth Center refused to release further information on the grounds of confidentiality. Eggers also spoke with Judge Nusser, who advised that Kline had been sent to the Topeka Youth Center but had been released and had reportedly gone to California. Judge Nusser also told Eggers that Kline's parents lived in Oklahoma and that the Department of Social and Rehabilitation Services (SRS) in St. John might have relevant information. Kline had long been gone from the last known address the SRS in St. John possessed. Eggers also called the sheriff's office to see if it could locate Kline, but to no avail.

Eggers made no attempt to locate Kline's parents in Oklahoma, and no subpoenas were issued to the Youth Centers to compel information regarding Kline. Eggers did not perform a postal check, nor did she attempt to check social security records or the National Crime Information Computer (NCIC). No subpoena was issued for Kline.

Next, Scott Ekberg, the county attorney's victim witness coordinator,...