Appeal from Wyandotte District Court; Ernest L. Johnson, judge.
BY THE COURT
1. When sufficiency of the evidence is challenged in a criminal case, an appellate court's standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the reviewing court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate court does not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.
2. An appellate court presumes juries have the knowledge and experience to determine the reliability of an eyewitness identification. Neither inconsistent statements nor conflicting testimony support an appellate court declaration that an eyewitness was unreliable as a matter of law. Rather, the procedural mechanism for testing how inconsistencies impact a witness' credibility is through cross-examination.
3. Where the State proceeds on an aiding and abetting theory of criminal responsibility for first-degree premeditated murder, the State must prove the aiding and abetting defendant also possessed the specific intent of premeditation.
4. Premeditation may be proved by circumstantial evidence.
5. When determining whether to impose a hard 50 life sentence, a district court is not restricted to only considering matters relating to an aggravated circumstance; rather, K.S.A. 21-4635(c) allows a district court to consider a broad spectrum of evidence.
6. In determining whether to impose a hard 50 life sentence, a district court should not take judicial notice of information that the court acquired from prior proceedings without making a record of those facts upon which the court is relying and permitting the defendant an opportunity for rebuttal.
Michael G. Highland, of Bonner Springs, argued the cause and was on the brief for appellant.
Edmond D. Brancart, chief deputy district attorney, argued the cause, and Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
[299 Kan. 325] Johnson, J.
Juan Lopez directly appeals from his jury convictions for two counts of premeditated first-degree murder and one count of fleeing or attempting to elude a police officer. The State alleged that Lopez drove the vehicle from which his codefendant, Eldier Molina, shot and killed two rival gang members in another car. Lopez challenges the sufficiency of the evidence on two bases: (1) The eyewitness identification witnesses were unreliable; and (2) there was no evidence Lopez possessed the requisite premeditated intent to kill the victims when he aided and abetted Molina. Lopez also raises two issues regarding the imposition of a life sentence pursuant to K.S.A. 21-4635 with a mandatory minimum term of 50 years (hard 50), to-wit: (1) The district court erroneously considered irrelevant information about a previous murder trial in which Lopez was acquitted; and (2) the district court improperly weighed the statutorily prescribed aggravating and mitigating circumstances before imposing the hard 50 sentence. We affirm.
Factual and Procedural Overview
On the evening of November 13, 2009, two Kansas City, Kansas, police officers, Jason Pittman and Darrell Forrest, were in a marked patrol car, following a vehicle pursuant to an unrelated drug investigation. While stopped at the intersection of 18th and Central, Officer Pittman saw a silver Honda drive into the oncoming lane to pull alongside a black sedan, placing the Honda's passenger side next to the sedan's driver side. The officer heard several gunshots fired in quick succession and saw a muzzle flash coming from a gun that was extended out of the open passenger side window of the Honda. The shots hit and killed two occupants of the sedan, Gerson Diaz-Turcios and Jose Diaz-Turcios, who were brothers and ostensibly members of the Florence (F13) gang.
[299 Kan. 326] After the shooting, the Honda proceeded through the intersection in front of the officers, who had activated the patrol car's lights and siren. Officer Pittman would testify that he saw the Honda's driver well enough that he could see the driver mouth a scatological expletive. The officers gave chase and were joined by other pursuing officers until the Honda came to a dead end near a wooded area. The driver and front-seat passenger fled afoot, while the backseat passenger, later identified as 12-year-old Max Palomino, surrendered to the police.
The front-seat passenger, later identified as Molina, was tracked by a trained canine to a residence where he was found face down on the ground underneath a deck. The driver eluded capture that evening. But early the next morning, Palomino told a detective that Lopez was driving the Honda and Molina was the shooter. Officer Pittman, upon learning from the detective that Lopez was involved, located a police photograph and positively identified Lopez as the person he saw driving the Honda at the scene of the shooting.
The State charged Molina and Lopez with premeditated first-degree murder for the killings of the Diaz-Turcios brothers. Molina was also charged with criminal possession of a firearm, and Lopez was charged with fleeing or attempting to elude a police officer. They were tried together, and both were convicted on all counts.
Palomino testified at trial that Molina and Lopez were members of the Surenos Por Vida (SPV) gang with whom he associated, albeit he was not a member. On the night of the incident, Palomino accompanied Molina and Lopez, who were en route to a gang meeting in the Honda. They stopped for gasoline at 18th and Grandview, where they encountered five members of the rival F13 gang. Palomino testified at trial that he watched from inside the Honda as Molina and Lopez argued with the F13 gang members. He admitted that in his initial statement to the police he had lied about exiting the Honda to pump gasoline.
Palomino related that when they left the station with Lopez driving the Honda, the vehicle containing the F13 gang members (F13s) followed. Palomino suspected that Molina and Lopez had told the F13s to follow them. At some point, Lopez turned one way and the F13s' car went the other way; Lopez made a U-turn [299 Kan. 327] and ended up right behind the F13s at the 18th and Central stoplight. At that point, Lopez drove alongside the F13s' vehicle to allow Molina to shoot from the Honda's passenger seat into the driver's side of the F13s' vehicle. Palomino testified that Molina fired three rounds at the F13s before Lopez " peeled out" and proceeded through the intersection.
Palomino testified that he believed Lopez knew the drive-by shooting was going to occur. He based that belief on his own knowledge that someone was going to get shot after he saw the SPV gang members encounter the rival F13 gang members at the gasoline station and observed that Molina had a handgun. He related that everyone in the SPV gang knows that if an SPV runs into an F13, the SPV is expected to either fight the F13 or shoot the rival if a firearm is available. He further related that the F13 gang members are expected to shoot someone on a Friday the 13th, which was the day and date of this occurrence. Accordingly, Palomino said, " [W]e were out that day trying to see if we can catch somebody."
On the other hand, Palomino admitted he initially told police he thought that he, Molina, and Lopez were just going to drive around and he did not know they were going to shoot anyone. Further, on cross-examination at trial, Palomino contradicted his direct testimony by saying that until the shooting occurred, he did not see the gun and he thought the three of them were only going to fistfight with the F13s.
The State presented a surveillance videotape from the gasoline station that corroborated some of Palomino's testimony. Although the videotape has not been included in the record on appeal, we do have some discussion of the videotape by the witnesses. Those witnesses clearly put the Honda at the 18th and Grandview gasoline station, although the faces of Molina and Lopez were not displayed on the recording. The evidence did depict two men talking to the F13 group and then getting back into the Honda, who were identified by Palomino as Molina
and Lopez. Further, Detective Mike Lucas testified that he could identify the two victims as being on the videotape from the station.
Molina testified on his own behalf. He admitted he was a member of the SPV gang and he knew Palomino through Palomino's [299 Kan. 328] older brother. But Molina denied that he had ever been in the Honda on that day or that he had been involved in any manner with the drive-by shooting. Instead, he related an alibi scenario that placed him in the vicinity of his apprehension with marijuana in his pocket. He said the presence of police in the area prompted him to hide under the deck to avoid ...