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Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge.
BY THE COURT
1. K.S.A. 22-3421 requires jury unanimity as to guilt in a criminal case. Jury unanimity concerns arise when (1) the court instructs the jury on alternative means of committing the crime charged but the State fails to present substantial evidence of both means; or (2) the jury hears evidence of multiple acts that could each constitute the crime charged, but the State fails to elect the specific act it relies on to support the charge and the district court fails to instruct the jury it must unanimously agree on the defendant's guilt as to a specific act.
2. The Kansas aiding and abetting statute does not add distinct material elements to the definition of a charged crime, thus creating alternative means of committing that crime. Rather, the aiding and abetting statute simply extends criminal responsibility to a person other than the principal actor.
3. In a multiple acts case the State alleges several acts, any one of which could constitute the crime charged, and the jury must be unanimous as to which act the defendant committed.
4. When multiple acts jury unanimity is at issue, the threshold question for an appellate court is whether it is presented with a multiple acts case. This is a question of law subject to unlimited review.
5. The pattern jury instruction, PIK Crim. 3d 54.05, is a correct statement of Kansas law on aiding and abetting.
6. When a defendant challenges the admission of photographic evidence, an appellate court first determines the photographs' relevancy. Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant to a murder charge.
7. When a party argues photographs are overly repetitious, gruesome, or inflammatory, i.e., unduly prejudicial, an appellate court reviews for an abuse of discretion.
8. Determining a statute's constitutionality is a question of law subject to unlimited review. An appellate court presumes statutes are constitutional and must resolve all doubts in favor of a statute's validity. Further, an appellate court must interpret a statute in a manner that renders it constitutional if there is any reasonable construction that will maintain the legislature's apparent intent.
9. Kansas' statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as interpreted in Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 2155, 2160-63, 186 L.Ed.2d 314 (2013), because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.
Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, argued the cause, and Charles A. O'Hara, of the same firm, was on the briefs for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, Nola Tedesco Foulston, former district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
[299 Kan. 103] OPINION
Rogelio Soto appeals his jury conviction and sentence for the first-degree premeditated murder of Arturo Moreno, Jr. Soto seeks a reversal of his conviction and new trial, claiming he was denied his statutory right to a unanimous jury verdict, the jury was given a clearly erroneous aiding and abetting instruction, and the district court abused its discretion in admitting overly gruesome autopsy photographs. We reject each of Soto's claims and affirm his conviction.
Soto also challenges his sentence, claiming the district court erred in imposing a life sentence without the possibility of parole for 50 years (hard 50). Soto contends Kansas' hard 50 statutory procedure as provided in K.S.A. 21-4635 is unconstitutional in light of Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). We agree and conclude Kansas' hard 50 sentencing scheme violates the Sixth Amendment to the United States Constitution [299 Kan. 104] as interpreted in Alleyne because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating circumstances necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating circumstances beyond a reasonable doubt. Based on this conclusion, we vacate Soto's sentence and remand for resentencing.
Factual and Procedural Background
On March 17, 2009, Arturo Moreno spent the afternoon and evening at his Wichita apartment with his girlfriend, Aurora Tinoco; Aurora's infant son; Aurora's sister, Pamela Tinoco; and the Tinoco sisters' friend, Lisa Chavez. Aurora had been dating Moreno for about 6 months and knew that he formerly was involved with the Vato Loco Boys, or VLBs, a north side Wichita gang.
With Moreno's permission, Pamela invited her boyfriend, Rogelio Soto, to Moreno's apartment. Soto arrived at Moreno's apartment sometime after 6 p.m., along with his friends Giovanni Gonzalez and Luis Navarrette-Pacheco. Soto and his friends were affiliated with the Lopers, a subset of the Surenos, or Sur 13s, a south side Wichita gang and known VLB rival.
Officer Jeremy Miller, a gang intelligence officer, testified at Soto's trial about the rivalry between the Sur 13s and the VLBs. Miller explained that the rivalry intensified in the late 1990s when VLB members killed 8-year-old Tony Galvan, a.k.a. " Little Tony," in a drive-by shooting. Although Galvan was not a known gang member, he lived in a close-knit south side community that was primarily Sur 13 territory. According to Miller, the Sur 13s perceived Galvan's murder both as a sign of disrespect to the Sur 13s and as the killing of a family member. Miller explained that just the mention of Galvan's murder could " spike violence" between the Sur 13s and the VLBs.
On the evening of the murder, Moreno primarily stayed inside his apartment with Aurora and her son, while Pamela, Soto, and their friends congregated outside, dancing, drinking, and listening to music. Pamela took photographs, several of which depicted Soto and Navarrette-Pacheco holding beer cans and bottles and " throwing [299 Kan. 105] up gang signs." At some point, everyone gathered inside Moreno's apartment and continued drinking and listening to music. Pamela and Gonzalez played chess in Moreno's living room. According to Aurora and Pamela,
Moreno interacted with Soto and his friends, and no one argued about gang affiliation.
Aurora and her son, along with Pamela and Chavez, left Moreno's apartment at about 9 p.m., while Soto, Gonzalez, and Navarrette-Pacheco remained at the apartment. Neither sister was concerned that anything would happen because when they left " everything was cool."
Shortly after Aurora and Pamela left Moreno's apartment, Gonzalez and Navarrette-Pacheco also left to pick up a fourth friend, Angel Castro. Around 9:25 p.m. Soto sent Pamela a text message from Moreno's cell phone and told Pamela he and Moreno were alone. When Soto's friends returned to the apartment, Soto told Castro not to touch anything. Castro thought Soto was playing around so Castro eventually handled a beer can and a remote control. Everyone gathered in the living room.
Not long after Castro arrived, he overheard Moreno talking on the phone. It sounded to Castro as though Moreno was either taking responsibility for a young boy's killing or talking to someone who was claiming responsibility for the killing.
Bryan Duran, Moreno's friend and coworker, testified that at about 10 p.m. the night of the murder he spoke on the phone with Moreno, who sounded as if he had been drinking. At one point, Moreno told Duran he loved him and would die for him. Moreno asked Duran about Tony Galvan's murder, and Duran responded that Galvan's killers were caught almost immediately after the shooting. In the background, Duran could hear music and people conversing in Spanish. Duran asked Moreno if everything was okay and whether Moreno wanted Duran to come over. Moreno said he was fine.
Shortly after Moreno ended his phone call, Castro looked up and saw Soto holding a knife. Castro stood up to walk outside, and as he did so he heard Moreno twice ask, " Why?" Castro walked outside to a fence in the backyard, urinated, and stayed outside for [299 Kan. 106] a " short time." When he returned to the apartment, he could see blood on the floor of the living room.
Castro entered the living room to retrieve the beer can and remote control he had touched, and as he did so, he could see Moreno's body lying on the floor in a pool of blood. Castro took the items outside and placed them in Gonzalez' truck and watched as Soto, who had bloody hands, placed a black trash bag in the bed of the truck. Castro did not know the contents of the trash bag, but he thought it might contain the murder weapons. All four men got into the truck, and Castro drove away from the apartment. At some point, Castro asked Soto " why'd he do it, why did they do it, and [Soto] just said, [Be]cause of Little Tony." The group discussed the need to clean Gonzalez' truck and someone suggested they check their shoes for blood.
Castro drove to an area of south Wichita near the Arkansas River where Soto, Gonzalez, and Navarrette-Pacheco disposed of the black trash bag and other items taken from Moreno's apartment, including the remote control and beer can. Castro then drove the group to Soto's home where Soto, Gonzalez, and Navarrette-Pacheco changed clothes and placed their soiled clothing in Soto's washing machine. Gonzalez left Soto's house around 11 p.m., and Castro and Navarrette-Pacheco left around midnight.
Sometime after 11:30 p.m., Moreno's brother, David Moreno, discovered Moreno's body and flagged down a police officer driving through the neighborhood. Based on information from David, Aurora, and Pamela, officers quickly developed four suspects: Soto, Gonzalez, Navarrette-Pacheco, and Castro.
Through investigation, law enforcement officers discovered Moreno's blood on several items: Gonzalez' shoes, Soto's left shoe, Navarrette-Pacheco's shorts, Castro's jeans, and the exterior of Gonzalez' truck near the passenger side door. They also discovered that zigzag patterns on the soles of both Castro's and Soto's shoes were consistent with zigzag shoe patterns found in blood on Moreno's apartment floor. Additionally, after Castro led officers to the location where he and the others disposed of items from Moreno's apartment, officers recovered a torn black trash bag containing a [299 Kan. 107] black shirt,
beer cans, a beer bottle, and a remote control; a paper sack containing a knife; a DVD player; and several chess pieces.
Detective Wendy Hummell testified she interviewed Castro twice. During the second interview, Castro said he and Soto talked in Gonzalez' truck after the murder and Soto told Castro that Soto and Moreno had discussed Little Tony's murder while they were alone in the apartment. Further, Soto told Castro that Moreno confessed to killing Little Tony and that Soto " 'just kept keeping it cool'" until the others returned to Moreno's apartment.
Dr. Bamidele Adeagbo performed Moreno's autopsy and testified at trial that Moreno bled to death from a combination of 79 stab wounds and cuts, including cuts to main arteries on both sides of his neck and several deep stab wounds to his right lung, liver, intestines, and diaphragm. Adeagbo explained that while it was difficult to determine from Moreno's injuries whether he had been stabbed by more than one person, the different wound sizes suggested the use of more than one weapon.
Gary Miller, a firearm and toolmark examiner, examined several knives recovered during the investigation. Miller compared each knife to a cast made from one of Moreno's deep stab wounds. Miller could not exclude three of the knives as the weapon that caused that particular injury--a knife found on Moreno's bookshelf, a multipurpose tool found in Gonzalez' truck, and the knife found near the river.
In an interview with Detective Robert Chisholm the day following the murder, Soto admitted he was at Moreno's apartment on the night of the murder and he was affiliated with the Lopers. But Soto maintained he and his friends left the apartment immediately after Aurora and Pamela left. When asked to explain the blood found on his shoes, Soto suggested it appeared through " witchcraft or something." During the interview, Chisholm did not see any injuries on Soto's hands.
After the State charged Soto, Gonzalez, and Navarrette-Pacheco with first-degree premeditated murder, Castro pled guilty to aiding a felon and agreed to testify at Soto's trial. The district court granted the State's motion to prosecute Soto, who was 16 years old at the time of the murder, as an adult and tried him separately [299 Kan. 108] from the other defendants. A jury found Soto guilty of first-degree premeditated murder.
The State filed notice of its intent to seek a hard 50 sentence, alleging Soto committed the crime in an especially heinous, atrocious, or cruel manner. After an evidentiary hearing at which the State presented evidence related to Soto's gang activities before and after the murder and Soto presented evidence of multiple mitigating circumstances, the district court agreed that Soto committed the murder in a heinous, atrocious, and cruel manner and found only one mitigating circumstance, Soto's age. The court then imposed a hard 50 sentence after determining the aggravating circumstance was not outweighed by the mitigating circumstance. This court's jurisdiction over Soto's direct appeal arises under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed).
Soto Was Not Denied His Statutory Right to a Unanimous Jury Verdict
On appeal, Soto argues he was denied his statutory right to a unanimous jury verdict in two respects. First, he argues the district court instructed the jury it could find him guilty of committing first-degree murder based on alternative means and the evidence was insufficient to support either means. Second, he contends the State presented evidence of multiple acts to support the murder charge but failed to elect a specific act, and the district court failed to instruct the jury it must unanimously agree on the specific act supporting the charge.
K.S.A. 22-3421 requires jury unanimity as to guilt in a criminal case. Jury unanimity concerns arise when the court instructs the jury on alternative means of committing the crime charged but the State fails to present substantial evidence of both means. See State v. Brown, 295 Kan. 181, 188, 284 P.3d ...