Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge.
1. An appellate court's standard of review is de novo for questions of statutory and constitutional interpretation.
2. A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause of the United States Constitution, Article I, § 10, clause 1, when it is applied to revive a previously time-barred prosecution. Under the facts of this case, application of the 2001 amendments to K.S.A. 21-3106 resurrects a time-barred prosecution and violates the Ex Post Facto Clause of the United States Constitution.
3. Under the facts of this case, the Ex Post Facto Clause issue is addressed despite not being raised below because its consideration is necessary to serve the ends of justice and to prevent a denial of fundamental rights.
4. Under K.S.A. 21-3401(b), an accused need not be prosecuted for or convicted of the underlying felony in order to be convicted of felony murder.
5. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.
6. Evidence of other crimes or civil wrongs committed by a criminal defendant is admissible if relevant to prove one of the eight material facts listed in K.S.A. 60-455 or some other material fact not listed in the statute, if the district judge determines (1) the relevance exists; (2) the material fact is in issue; and (3) the probative value of the evidence outweighs its prejudicial effect. In addition, to avoid error, the district judge must give a limiting instruction informing the jury of the specific purpose for admission.
7. Where under K.S.A. 60-455 a similar offense is offered for the purpose of proving identity for the charged offense, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both offenses. While the quality of sameness is important when pondering the admission of other crimes to prove identity, the crimes need not be identical.
8. An appellate court uses an abuse of discretion standard when reviewing admission of otherwise relevant evidence which arguably should have been excluded after a weighing of its probative value against the risk of unfair prejudice.
9. Under the facts of this case, the court did not err in admitting evidence of defendant's prior crimes to prove identity under K.S.A. 60-455.
10. Under the facts of this case, after reviewing all of the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the defendant guilty beyond a reasonable doubt of the crime of felony murder based upon attempted rape.
The opinion of the court was delivered by: Nuss, J.
Affirmed in part, reversed in part, and remanded with directions.
A jury convicted Ray F. Garcia of the rape and first-degree felony murder of P.E., a 73-year-old woman. Garcia received consecutive sentences: life in prison for the felony murder and 408 months' imprisonment for the rape. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did Garcia's prosecution for rape violate the Ex Post Facto Clause of the United States Constitution? Yes.
2. Did the district court err in allowing admission into evidence of Garcia's prior convictions of two counts of rape and one count of aggravated criminal sodomy? No.
3. Does sufficient evidence support Garcia's conviction of felony murder? Yes.
4. Do Garcia's convictions violate double jeopardy? Moot.
Accordingly, we affirm Garcia's felony-murder conviction, reverse his rape conviction, and remand to the district court with directions to vacate the rape sentence.
On Sunday, November 12, 1995, P.E., a 73-year-old woman, met her friend Blanche Cooper at church in Wichita. P.E. was wearing a black floral dress Cooper had given her. After church, the two women went to Cooper's home for a lunch of chicken chow mein, milk, and cherry cheesecake. P.E. left Cooper's residence at 1:30 p.m. Although P.E. stated that she would return to Cooper's house the following day for lunch, P.E. did not return. The next day Cooper went to P.E.'s apartment to look for her; police at the scene informed Cooper that P.E. was dead.
At the time, P.E. was living at the Interdale Apartments on North Broadway. Kevin Brewington lived in the apartment below P.E.'s. On Tuesday November 14, he went to check on her; the door was locked, so he retrieved a key. After again knocking, Brewington entered P.E.'s apartment to find her on the floor. P.E.'s black floral dress had been pushed up towards her neck and the heel of her left leg was up on the edge of the coffee table. Brewington went back downstairs and called 911. Detective David Alexander and EMS responded; EMS determined that P.E. was dead.
After Detective Alexander entered the apartment to secure the crime scene, he interviewed Brewington. Alexander asked Brewington if he saw anything unusual in the apartment. From outside the door of P.E.'s apartment, Brewington had observed a pair of dark-colored winter gloves on the coffee table that he did not recognize as P.E.'s. Brewington also stated that he did not recall seeing rolls of tape on the floor previously.
Detective Alexander observed a white, heavy-set, elderly female, blindfolded, lying face up, with her arms out to her side, palms down. The woman's legs were spread a couple of feet apart and her dress was pulled up to her armpits. Aside from the dress, the woman was nude. Alexander noticed what appeared to be "fresh" minor abrasions on one of her knees, her left shin, and her right toe, as well as a light bloody discharge from her mouth and vaginal area. He also observed a pair of wadded up pantyhose by the window, a pair of men's white briefs by her right shoulder, and a roll of surgical tape on the floor. On the coffee table, he observed winter gloves, masking tape, and a ceramic ashtray containing two partially smoked hand-rolled cigarettes. Alexander did not see any evidence of forced entry.
Although police processed the apartment for fingerprints, they did not find any usable impressions. Due to the state of DNA technology at the time, police were unable to retrieve DNA samples from the cigarette butts.
Dr. Marcus Nashelsky performed the autopsy. Because he observed rice, short noodles, and a portion of a red cherry in P.E.'s stomach, he concluded that she died within a few hours of eating that particular meal. He collected DNA samples from P.E.'s mouth, vagina, and rectum; no spermatozoa was found. Additionally, Dr. Nashelsky found a few small hairs or fibers on the body. He also noted numerous abrasions to P.E.'s knees. The autopsy also revealed dried blood extending downward from the opening of the vagina to the anus. The blood covered several very small abrasions or scrapes of the skin. He also found a 1/2-inch laceration on the opening of the vagina, consistent with some type of blunt force.
Dr. Nashelsky concluded that the genital injuries resulted from an assault that occurred hours before her death. He noted that P.E. had severe coronary artery disease that could have precipitated a heart attack caused by extreme stress. Dr. Nashelsky could not, however, state the specific cause of death or the mechanism of death: suffocation or heart attack from the stress of a physical assault.
Wayne Crouse was at the apartment complex on the day P.E.'s body was discovered. Crouse told police that while he and his friend Tony Erskine were talking at the apartment complex, a man named Ray rode up on a bicycle and asked if they had heard about P.E. According to both Crouse and Erskine, the man referred to her solely by her first name. Crouse described the man as white, having black hair with a little bit of grey, a mustache, no glasses, and no tattoos. The man was short--5 feet 8 inches to 5 feet 9 inches tall--and stocky, weighing approximately 180 to 200 pounds. Crouse estimated his age as late 40's to early 50's. Crouse had seen him around the apartment complex before.
Although the police followed up several leads, P.E.'s death eventually became a "cold case." Several years later Detectives Dana Gouge and Kelly Otis were assigned to review it. Gouge eventually submitted evidence for DNA testing, including the cigarette butts found in the ash tray in P.E's living room. Test results showed an unknown male profile, which was later run through CODIS, the combined DNA indexing system. The profile was matched to convicted felon Raymond Garcia. Garcia's DNA was the only DNA found on the cigarette butts.
Gouge and Otis then contacted Crouse for more information. He positively identified a photograph of Garcia as the man he saw on the bicycle whom he knew as "Ray." The detectives also contacted Erskine; however, he was not able to positively identify Garcia.
Gouge then learned that Garcia was incarcerated in the El Dorado State Correctional Facility. In August 2003, Gouge and Otis procured a search warrant to obtain DNA samples from Garcia. At the correctional facility, Gouge took buccal swabs from the inside of Garcia's mouth. A test of the swabs confirmed the CODIS information.
After execution of the search warrant, Garcia agreed to speak with the detectives. He repeatedly denied knowing P.E. Initially, he claimed he had never been at the apartment building, but later he admitted he had been there. Garcia maintained, however, that he had not been in P.E.'s apartment. When Gouge told him that his DNA was found at the scene, Garcia responded that around the time of P.E.'s death, he went to the apartment building with a friend of his named Keith. Keith introduced Garcia to an unknown white male who performed oral sex on him. Garcia was unsure whether he ejaculated. He also stated that he smoked Marlboro and Camel cigarettes, as well as marijuana, or "creeper weed," but not hand rolled cigarettes.
The following month Garcia was interviewed again. Garcia stated that although he had been at the apartment building, he did not know P.E. Garcia acknowledged that his main mode of transportation was his bicycle and that he frequently rode past the apartment complex. Garcia also stated that a man at the apartment complex would pick up cigarette butts out of ash trays.
On January 30, 2004, Garcia was charged with rape or, in the alternative, attempted rape and felony murder--with rape and attempted rape as the underlying felony. The State later filed a motion to admit evidence of Garcia's 1997 convictions of two counts of rape and one count of aggravated criminal sodomy. The court ...