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Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge.
BY THE COURT
1. The prosecution must prove by a preponderance of the evidence that an accused's inculpatory statements to a law enforcement officer were freely and voluntarily given.
2. In determining whether an accused's inculpatory statements to a law enforcement officer were freely and voluntarily given, a trial court looks at the totality of the circumstances surrounding the statements and determines their voluntariness by considering the following nonexclusive factors: (a) the accused's mental condition; (b) the manner and duration of the interviews; (c) the accused's ability to communicate on request with the outside world; (d) the accused's age, intellect, and background; (e) the officer's fairness in conducting the interviews; and (f) the accused's fluency with the English language.
3. On appeal of a trial court's determination regarding the voluntariness of an accused's inculpatory statements, an appellate court applies a dual standard when reviewing the trial court's decision on a suppression question. First, the factual underpinnings of the decision are reviewed under a substantial competent evidence standard. Next, the appellate court reviews the trial court's legal conclusion drawn from those facts de novo. An appellate court does not reweigh evidence, assess witness credibility, or resolve conflicting evidence.
4. The right to counsel under the Fifth Amendment to the United States Constitution applies when the accused has expressed his or her wish for the particular sort of attorney assistance that is the subject of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with a custodial interrogation by law enforcement. Likewise, after an accused has invoked his or her statutory right to counsel under K.S.A. 22-4503, a police-initiated interrogation of the accused is a stage of the criminal proceedings at which the accused is entitled to the assistance of his or her counsel.
5. Generally, this court reviews a trial court's determination that hearsay is admissible under a statutory exception, such as K.S.A. 60-460(i)(2), for an abuse of discretion. There are three ways in which a trial court can abuse its discretion: (1) when no reasonable person would take the view adopted by the trial court; (2) when a ruling is based on an error of law; or (3) when substantial competent evidence does not support a trial court's findings of fact on which the exercise of discretion is based.
6. K.S.A. 60-460(i)(2) provides that hearsay evidence is inadmissible unless the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination. K.S.A. 60-460(i)(2) does not require the statement to have been made outside the party's presence.
7. K.S.A. 60-460(i)(2) explicitly limits the admissibility of hearsay to a statement made while a plan is in existence and before its complete execution or other termination. This requirement pertains to the furtherance of the plan's common design, to its consummation, to the disposition of its fruits, and to acts done to preserve its concealment.
8. Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), applies only when a confession of a codefendant implicating the accused is received in evidence in a joint trial.
9. Statements in furtherance of a conspiracy are not testimonial.
10. An eyewitness identification instruction need only be given where eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the identification.
11. An appellate court considering a criminal defendant's challenge to the sufficiency of the evidence must consider all the evidence in a light most favorable to the prosecution. After doing so, the appellate court can uphold the conviction only if it is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In assessing the sufficiency of the evidence, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.
12. Premeditation may be inferred from factors that include: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The reasonableness of an inference is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. Use of a deadly weapon by itself, however, is insufficient to establish premeditation.
13. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. In testing if this right has been violated, courts use the two-prong test stated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).
14. An appellate court reviewing a trial court's ruling on a claim of ineffective assistance of counsel reviews any factual findings for substantial competent evidence and evaluates whether those findings support the trial court's conclusions of law.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 284] Luckert, J.
Thirteen-year-old Miguel Andrade died from gunshot wounds suffered as he opened the door of his family's home. The State charged four men with crimes related to Miguel's death. One of those men, Eli A. Betancourt, brings this appeal after a jury convicted him of premeditated first-degree murder and criminal discharge of a firearm at an occupied building. He raises five issues [301 Kan. 285] related to (1) the admission of his statements to law enforcement officers, (2) the admission of certain hearsay statements, (3) the trial court's failure to give an instruction on eyewitness testimony, (4) sufficiency of the evidence, and (5) allegations of ineffective assistance of trial counsel. In response, the State initially raised a jurisdictional question regarding the timing of Betancourt's notice of appeal but subsequently withdrew its argument; in addition, the State argued and maintains that the trial court committed no errors. For the reasons stated in this opinion, we conclude Betancourt's arguments lack merit, and, therefore, we affirm his convictions and sentences.
Facts and Procedural Background
Besides Betancourt, the State charged Betancourt's half brother, Alejandro Betancourt, Jr.; Edward Laurel; and Gregory Patton with crimes related to Miguel's death. Patton entered into a plea agreement with the State under which Patton agreed to testify in the prosecution of the other men in exchange for reduced charges. Alejandro's and Laurel's cases went to trial, and jurors convicted them as charged. Both men appealed, and their convictions were affirmed. See State v. Laurel, 299 Kan. 668, 325 P.3d 1154 (2014); State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014). Although the general facts of the crimes are discussed in those opinions, we will discuss the evidence at Betancourt's trial because he raises a sufficiency and other fact-based arguments. Betancourt's jury learned the details of the crimes through the testimony of a detective who interrogated Betancourt shortly after the shooting, several eyewitnesses, forensic experts, Patton, and Betancourt himself.
Betancourt's Statements to Detectives
According to Betancourt's statements to law enforcement officers, the night before the shooting he, Alejandro, Laurel, Patton and many other individuals attended a birthday party. During the party, several individuals challenged Betancourt to avenge a previous " attack" on Daniel Betancourt, Eli's half brother and Alejandro's brother. As these discussions progressed, Laurel indicated
he knew where one of the individuals associated with the attack had [301 Kan. 286] been staying. In the early morning hours, Betancourt left the party with Alejandro and Patton. Betancourt drove the other two men to another location where they picked up Laurel, who directed Betancourt to a house occupied by Miguel's family. The group merely drove by Miguel's house and then went to another location where Laurel retrieved two guns. The group returned to Miguel's house, this time with Alejandro in the driver's seat.
En route to Miguel's house, Laurel gave Betancourt one of the guns, which Betancourt described as a " Beretta." Betancourt told detectives that Laurel kept a " real small" gun with a " long" barrel. While they drove, Betancourt texted a female friend, saying, " I'm gonna go do something," and " If I don't see you for a while . . . I don't want you to think that I'm just gonna disappear."
When the men got to Miguel's house, Betancourt and Laurel got out of the car and approached the front door. Betancourt held open the screen door with his leg, and Laurel banged on the main door with his gun. When the knob began to turn and the door began to open, Laurel said, " [G]et him." Laurel started shooting, and Betancourt followed suit. According to Betancourt, he aimed his shots for the middle of the door. After the shooting, they ran up the street, and the others picked them up. Betancourt gave his gun back to Laurel.
Alejandro drove until they dropped off Laurel, who took both guns with him. Betancourt took over the driving and within minutes noticed a police car following him. He pulled over, and the three friends were taken into custody. Later that day, Laurel was located and taken into custody as well. The guns were never recovered.
At trial, Betancourt relayed a somewhat different version. He told the jury he went to Miguel's house with Laurel and the others only because he wanted to get an address to give to his father, who had been conducting his own investigation of the assault on Daniel. When the men drove by the house the first time, it was too dark to see the house numbers, so they left. After drinking until it got brighter outside, they returned to " look in the window for some [301 Kan. 287] bald-headed guy that was in the fight." Betancourt testified that, as far as he knew, they did not have guns on this second driveby. They still could not see the address, so they kept going " and started drinking some more." Betancourt told the jury that after a night of partying and drinking he was intoxicated to a level of 8 on a scale of 10.
As the sun began to rise, the group made a third trip to Miguel's house. This time, Laurel brought guns. Betancourt testified that he agreed to " just get it" --the address--" and go." Someone handed him a gun--he thought it was a Beretta--" just in case." He denied that there was a plan to kill anyone, asserting that he only took a gun for " precaution reasons."
Betancourt put the gun under his shirt and walked up to the house with Laurel, while Alejandro drove a short distance away. Laurel told Betancourt, " [L]et's just walk up there, . . . see if we can find some numbers somewhere and that was it." When he and Laurel stepped up to the front door, Betancourt pulled on the screen door as he tried to balance himself while looking into the front window located to the left of the door. He could not see anything because of the window coverings. Laurel then suggested that they knock on the door, and Betancourt said " no," " I'm done," and " I'm not stickin' around." Betancourt started walking away as Laurel knocked on the door. Halfway back to the driveway, Betancourt " heard a gunshot" and " froze." At first Betancourt thought Laurel was shooting at him because Laurel was angry that he had walked away. Then, he heard more shots, so " I just put my arm back and was just . . . shooting the gun." He told the jury he did not know what direction he was shooting, but he denied shooting at the center of the front door. He testified, " I just panicked, I got scared, freaked out."
The State presented evidence from other witnesses who incriminated Betancourt.
Patton testified that Laurel told the others that he " wanted to get back at these guys" by shooting somebody. When they got to the house, Patton knew a shooting was about to take place and told Betancourt three times that " we shouldn't do this." [301 Kan. 288] But Betancourt insisted on going forward. After the shooting, Laurel told them, " I got him." Patton noticed that both Betancourt and Laurel had a gun.
Neighbors who observed the scene were able to describe what happened and to give descriptions of the two gunmen who resembled Betancourt and Laurel. They saw two Hispanic men walk up to the house; one was wearing a white shirt--like the one Betancourt was wearing when arrested--and the other a red shirt. One of the men either knocked on the door or rang the doorbell while the other looked into a window. The two men started shooting at the door when it appeared that someone inside the house was approaching the door. One neighbor saw a man near the driveway, and it looked like he was firing a weapon. Another neighbor reported seeing one gunman in a red shirt fire first, followed by the other gunman in the white shirt; the one in the white shirt was " running backwards, firing," and moving towards the driveway. Some neighbors identified Betancourt as one of the shooters.
A crime scene investigator testified that at least 10 shots from a .22 caliber gun and a .9 mm gun were fired into the main door. Other shots flanked the door. Eyewitness testimony and other corroborating evidence suggested that Betancourt fired the .22 caliber bullets and Laurel fired the .9 mm bullets. The location of casings suggested the .9 mm gun was fired closer to the house than the .22 caliber casings (linked to Betancourt). Upon examination of the body, the coroner was able to recover a .9 mm bullet, but the coroner could not attribute the death to any particular bullet. Miguel suffered injuries to his abdomen, legs, and hand.
The State filed an information charging Betancourt with one count of premeditated first-degree murder, or, in the alternative, one count of felony first-degree murder, and one count of criminal discharge of a firearm at an occupied building. A jury found him guilty of premeditated first-degree murder and criminal discharge of a firearm. The court sentenced him to a hard 25 ...