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State v. Villa-Vasquez

Court of Appeals of Kansas

September 13, 2013

STATE of Kansas, Appellee,
v.
Isidro VILLA-VASQUEZ, Appellant.

Page 427

[Copyrighted Material Omitted]

Page 428

Syllabus by the Court

1. Pursuant to K.S.A. 60-404, a party must make a contemporaneous and specific objection to the admission of evidence at the time the evidence is introduced at trial in order to preserve the issue for appeal.

2. Under the facts of this case, background knowledge obtained from discussions with laypersons and drug traffickers about Jesus Malverde and other " narco saints," accumulated by a law enforcement officer in order to gain expertise regarding the association between narco saints and drug traffickers, does not constitute inadmissible hearsay.

Page 429

3. Under the facts of this case, the witness' research outside of a purely academic setting does not undermine his qualification to provide expert opinion testimony regarding the association between the maintenance of shrines to narco saints and drug traffickers.

4. The claimed hearsay to which the defendant objected did not relate to the substances of the expert's opinions but only to one small facet of the witness' expertise accumulated over many years in law enforcement. Under the facts of this case, any error in the admission of this evidence did not affect the outcome of the case and, therefore, was harmless.

5. In considering whether the State's preemptory challenge of a prospective juror satisfies the constitutional requirements of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court (1) determines whether the defendant has made a prima facie showing that the challenges were made on the basis of race. This is a question of legal sufficiency which is subject to plenary review on appeal. (2) The court then considers whether the State provided a race-neutral explanation for striking the prospective jurors. The State's explanation need not be persuasive or even plausible but merely facially valid. Unless a discriminatory intent is inherent in the State's explanation, the reason offered will be deemed neutral. (3) Finally, because the defendant always bears the ultimate burden of persuasion, the court must determine whether the defendant has met the burden of proving purposeful discrimination. Because the district court is in a better position to view the demeanor of prospective jurors and attorneys during voir dire, the district court's ruling on a Batson challenge will not be disturbed on appeal unless it amounts to an abuse of discretion.

6. Under the facts presented, the district court did not err in finding the State's preemptory challenges were racially neutral with respect to a prospective juror who was nonresponsive during voir dire and who may have worked with the defendant and a prospective juror who worked at night and appeared tired during voir dire.

7. A defendant on appeal may not argue that the district court failed to make a credibility determination under Batson regarding the State's proffered race-neutral reasons for striking a prospective juror if the defendant failed to object to the district court's failure to explicitly make this determination.

Adam Stolte and Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.

J. Scott James, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., McANANY and POWELL, JJ.

McANANY, J.

Isidro Villa-Vasquez was convicted of animal cruelty and various drug crimes. On the appeal of his drug convictions, he contends that the district court erred in admitting testimony regarding " narco saint" religious icons and their association with drug traffickers. He also contends we should reverse all his convictions because the court erred in permitting the State to exercise peremptory challenges with respect to two Hispanic prospective jurors contrary to his equal protection rights as determined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Facts

Based on the information provided by a confidential informant, law enforcement officers secured a search warrant for Villa-Vasquez' residence. During the search, the officers found drugs and drug paraphernalia in Villa-Vasquez' bedroom.

The officers also found in Villa-Vasquez' basement various religious icons arranged with candles into a shrine honoring Jesus Malverde, who is not recognized by the Catholic Church or any other religious organization but who is considered by drug traffickers to be their patron saint. The shrine also contained a statute of Santa Muerte, a cult figure revered by drug criminals and by the Mexican poor but denounced by the Catholic

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Church; a book containing rituals for worshipping Santa Muerte; candles depicting San Ramon (a 13th century Catholic saint whose lips were pierced with a hot poker and padlocked together) with pennies taped over his mouth; and a broken statue of Saint Michael the Archangel, the patron saint of law enforcement.

The State filed a pretrial motion to certify United States Marshal Robert Almonte as an expert witness on the subject of shrines and icons used by drug dealers. The State contended that Almonte was an expert whose testimony was relevant to show Villa-Vasquez' intent to distribute drugs and that Almonte's testimony would aid the jury in understanding the purpose of the shrine the officers found.

At the conclusion of the first day of trial, the district court held a hearing on the State's motion and its proffer of Almonte's testimony. Almonte testified that he was a United States marshal for the western district of Texas who had worked in law enforcement since 1978, including approximately 13 years overseeing a narcotics task force in El Paso, Texas. According to Almonte, it was common to encounter shrines and altars during the execution of search warrants in drug cases.

Almonte researched how individuals involved in crime prayed to different icons for protection from law enforcement. Almonte studied case reports and photographs of scenes depicting narco saints found by other officers. Almonte said he had talked to traffickers who had similar shrines about the connection between drug trafficking and the use of these shrines.

Almonte also travelled to Mexico to visit these shrines and to study the topic. He created a law enforcement training video called " Patron Saints of the Mexican Drug Underworld," which he has presented to law enforcement officers around the nation. Almonte has testified in federal court as an expert witness on the topic of narco saints. He testified that the association between the presence of narco saints and drug activity is quite high.

Over Villa-Vasquez' objection, the district court found that Almonte was qualified as an expert under K.S.A. 60-456. The court found that " Almonte has that specialized knowledge that goes beyond what a normal lay juror would understand," and the testimony would be helpful for the jury to understand the significance of the evidence found in Villa-Vasquez' basement. Further, the court found that Villa-Vasquez' challenge to Almonte's association of these icons to drug dealers goes to the weight rather than to the admissibility of this testimony.

The court then recessed for the day. The following morning, the State presented the testimony of two witnesses before calling Almonte to the stand. The first was a witness who was recalled for brief additional testimony on the animal cruelty charge. The second was a police officer involved in conducting the search of Villa-Vasquez' house. She identified photos of Villa-Vasquez' basement, including photos of the shrine. The photos and the items depicted in the photos were admitted into evidence without objection. The officer testified, without objection, that the photos were taken " because these appear to us to be a shrine, some of which are depicting saints that we often see in the drug trafficking business."

Almonte then testified at trial. Villa-Vasquez did not lodge a timely and specific objection to Almonte's credentials as an expert or to the substance of Almonte's testimony, other than to lodge a hearsay objection when, in testifying about the development of his expertise in the area, Almonte testified that he interviewed drug suspects " at least 50 times, maybe more, maybe 100 or more." When the prosecutor asked what these people told him, Almonte answered, over Villa-Vasquez' overruled hearsay objection, that he " was told by several of these people that they would use these items and pray to these various items, and icons, and saints, for protection from law enforcement."

Almonte testified that " a lot of these drug traffickers were invoking the spiritual world for protection against law enforcement." He told the jury that the photographs of ...


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