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State v. Garcia-Garcia

Supreme Court of Kansas

May 10, 2019

State of Kansas, Appellee,
v.
Alejandro Arturo Garcia-Garcia, Appellant.

         SYLLABUS BY THE COURT

         1.

         Whether appellate jurisdiction exists is a question of law over which an appellate court has unlimited review.

         2.

         Statutory interpretation is subject to unlimited appellate review.

         3.

         An appellate jurisdiction question may be raised at any time and may also be raised sua sponte by a court.

         4.

         The contemporaneous objection rule under K.S.A. 60-404 is not satisfied by objecting to the introduction of evidence on one ground at trial and arguing another ground on appeal.

         5.

         K.S.A. 2017 Supp. 60-455 governs the admissibility of other crimes evidence. Generally, evidence a person committed a crime or civil wrong on a prior specified occasion is inadmissible to prove that person's disposition to commit crimes or civil wrongs as a basis for an inference that the person committed another crime or civil wrong on another specified occasion, unless such evidence is admissible as relevant to prove some other material fact, such as motive.

         6.

         To determine prosecutorial error, an appellate court decides whether the act complained of falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way that does not offend the defendant's constitutional right to a fair trial. If it finds error, the appellate court next determines if that error prejudiced the defendant's right to a fair trial.

         7.

         When evaluating the prejudice step for reversible prosecutorial error, an appellate court applies the traditional constitutional harmlessness inquiry from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Prosecutorial error during a trial is harmless if the State shows beyond a reasonable doubt the error did not affect the trial's outcome in light of the entire record, i.e., there is no reasonable possibility the error contributed to the verdict. 8.

         A sentencing court assessing fees to reimburse the Board of Indigents' Defense Services under K.S.A. 22-4513 must consider on the record at the time of assessment the defendant's financial resources and the burden that paying the fees will impose.

          Appeal from Montgomery District Court; Jeffrey D. Gossard, judge.

          Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

          Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

          Biles, J.

         The opinion of the court was delivered by

         A jury convicted Alejandro Garcia-Garcia of attempted capital murder, kidnapping, burglary, and interference with law enforcement. His Kansas crimes arose from a high-speed car chase that began in Oklahoma. In this direct appeal, Garcia-Garcia raises four issues: (1) the relevancy and undue prejudice of evidence about his criminal acts in Oklahoma, (2) prosecutorial error, (3) jury instruction error, and (4) the court's order that he pay a percentage of the attorney fees incurred for his defense. Before discussing these, we first consider an appellate jurisdiction question raised sua sponte and hold jurisdiction is proper. We affirm the convictions, vacate the attorney fees assessment, and remand to the district court with directions to reconsider that assessment.

         Factual and Procedural Background

         This appeal can be broken down into three separate but related incidents. We briefly describe them now and will provide more detail when addressing the applicable issue.

         The high-speed chase in Oklahoma

         This began when an Oklahoma police officer pulled Garcia-Garcia over for speeding. He had two passengers in his vehicle-one in the front seat and another in the back. Garcia-Garcia gave the officer his ID, which was invalid. Another officer arrived as backup. An officer instructed Garcia-Garcia to turn off the vehicle's engine, but he refused and drove away. The officers pursued in their respective patrol cars. During the chase, gunshots were fired from a rear window of Garcia-Garcia's vehicle. An officer was shot in the forehead and his car crashed. He survived his injuries.

         The Kansas kidnapping

         Law enforcement officers ended the vehicle chase by deploying stop strips near the Kansas border. Garcia-Garcia fled on foot. He saw Stanley Shafer Jr. standing by a truck outside a house. Shafer agreed to give him a ride. While in the truck, Garcia-Garcia showed Shafer a gun and gestured with it to continue driving beyond where Shafer had initially intended to take him. Shafer later testified he was scared and felt he had no choice. Shafer saw a friend fishing at a bridge and stopped to talk with him. Shafer took the keys with him so Garcia-Garcia could not drive away.

         The attempted capital murder

         While at the bridge, Garcia-Garcia flagged down another truck driven by David Henderson, who agreed to take him to Liberty, Kansas. As they drove, Garcia-Garcia asked Henderson to drive to Garnett. Henderson declined, refusing Garcia-Garcia's offer to pay him $500. They saw a sheriff's car as they approached Liberty. Garcia-Garcia ducked down when they passed and asked Henderson what the sheriff's car was doing. Henderson said it turned around and was following them. When Henderson stopped, Deputy Michael Grimes pulled up about 90 feet behind Henderson's vehicle.

         The stories conflict about what happened next. Henderson heard Grimes say, "Let me see your hands." He turned and put his hands out the window. By that time, Garcia-Garcia was outside the truck, holding a gun. Henderson heard gunshots and then blacked out when Grimes shot him in the neck.

         Grimes testified Garcia-Garcia fired first, so he returned fire. Grimes was in front of his patrol car. Realizing he had no cover, he tried to run backwards to his car but tripped and fell. Grimes said Garcia-Garcia continued shooting after he fell. When Grimes returned to his car, he saw Garcia-Garcia running away.

         In a later police interview, Garcia-Garcia said Grimes shot first. He told investigators he accidentally fired one shot toward the truck's rear. He repeatedly said he only fired once but agreed it was possible he fired more because he was scared. He said after he fired his single shot, he saw Grimes fall to the ground. He then ran to a nearby house. He was found inside in a closet, hiding under some clothes.

         At trial, a KBI agent testified about the physical evidence. The agent said investigators found four bullet casings matching Garcia-Garcia's pistol. The agent noted their location corroborated Garcia-Garcia's claim he fired a shot toward the truck's back. He also testified the physical evidence could not determine what order any particular shot was fired. Likewise, he noted both civilians and law enforcement are bad at estimating the number of shots fired in high stress situations.

         A jury found Garcia-Garcia guilty of attempted capital murder of Grimes, kidnapping Shafer, burglary, and interference with law enforcement. The district court imposed a hard 25 life sentence for the attempted capital murder conviction with consecutive presumptive sentences for the remaining convictions. Garcia-Garcia now brings this direct appeal.

         Jurisdiction

         Attempted capital murder is an off-grid offense. K.S.A. 2015 Supp. 21-5401(c). Conviction requires a hard 25 life sentence. K.S.A. 2015 Supp. 21-6620(a)(2)(A). This court has direct appellate jurisdiction over convictions of all life sentence and off-grid offenses, except those under Jessica's Law. K.S.A. 2016 Supp. 22-3601(b)(3), (4).

         But Garcia-Garcia filed his notice of appeal, stating: "Defendant hereby appeals to the Kansas Court of Appeals in the above referenced case." (Emphasis added.) We ordered Garcia-Garcia to show cause how his notice of appeal conferred appellate jurisdiction and suggested his notice was potentially defective because a notice of appeal "[1] shall designate the judgment or part thereof appealed from, and [2] shall name the appellate court to which the appeal is taken." (Emphases added.) K.S.A. 2017 Supp. 60-2103(b).

         Garcia-Garcia responded that his notice should be considered jurisdictionally sufficient, citing State v. Boyd, 268 Kan. 600, 607, 999 P.2d 265 (2000) (holding notice of appeal sufficient to give Court of Appeals jurisdiction by stating defendant "'appeals from his conviction in the above captioned matter'"). He claimed the notice made clear he was appealing from his criminal conviction although he did not mention it. He reasoned the State would be no more prejudiced by his notice than by one with generic language because the State would learn the issues on appeal by reviewing his brief.

         As to incorrectly naming the court to which his appeal is taken, he argued naming the Court of Appeals instead of the Supreme Court should also not be a jurisdictional defect, citing State v. Laurel, 299 Kan. 668, 325 P.3d 1154 (2014). But in Laurel, the court held a notice of appeal incorrectly directed to the Court of Appeals presented no jurisdictional obstacle unless the State was misled or disadvantaged by the error. 299 Kan. at 675. That is not claimed here.

         Garcia-Garcia explained he first docketed his case with the Court of Appeals because he considered K.S.A. 2016 Supp. 22-3601(b) ambiguous on which appellate court had jurisdiction. He also believed his case could be transferred to this court since his conviction of attempted capital murder was an off-grid felony carrying a hard 25 life sentence. See K.S.A. 2016 Supp. 22-3601(b)(3) (direct appeal when "a maximum sentence of life imprisonment has been imposed"); K.S.A. 2016 Supp. 22-3601(b)(4) (direct appeal when "the defendant has been convicted of an off-grid crime").

         Garcia-Garcia further suggested 2016 Supp. 22-3601(b)(4), not subsection (3), might control because his conviction "was a post-1993 conviction of an attempt of an off-grid crime," citing State v. Cameron, 294 Kan. 884, 899, 281 P.3d 143 (2012). He pointed out that if subsection (b)(4) applied, it "would appear to exclude a conviction of attempted capital murder as a crime subject to this Court's direct review" because of subsection (b)(4)(G) ("The provisions of this paragraph shall not apply to any case in which the off-grid crime was . . . an attempt . . . of any such felony." [Emphasis added.]).

         We ordered additional briefing to address "whether appellate jurisdiction arises under K.S.A. 2016 Supp. 22-3601(b)(3) or K.S.A. 2016 Supp. 22-3601(b)(4)(G)."

         Standard of review

         Whether appellate jurisdiction exists is a question of law over which this court has unlimited review. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014). To the extent the court's inquiry requires statutory ...


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