Opinion
No. 107,179.
2013-05-10
STATE of Kansas, Appellee, v. Oscar CERVANTES–CANO, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Step hen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Step hen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Oscar Cervantes–Cano was tried and convicted of one count of burglary of a dwelling and one count of felony theft. Cervantes–Cano appeals, claiming that the district court did not advise him of his constitutional right to a jury trial, erred in denying his motion to suppress, and violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Facts
In September 2009, Carla Crane's home was burglarized while she was at work. Her television was the only item taken. Three of her neighbors, Harold Owens, Larry Snell, and Misti Deberry, were in an alley behind Carla's house at the time of burglary and saw part of the burglary occur. They testified to witnessing a male approach Carla's house several times and eventually saw him leave with what appeared to be a large television.
According to Deberry's testimony, her brother, Snell, had been drinking, but she had not. Upon seeing the burglary, she and Snell got into a car, followed the man, and Deberry confronted him at a distance of about 4 feet. She asked what he was doing and told him that the police had been called, but the man continued walking with the television. Deberry testified that she got a good look at him and would “never forget him.” However, at a preliminary hearing, Deberry was unable to identify the object the burglar was carrying and could only identify it as something black and flat because she was trying to “study the facial features, what he was wearing, the clothes, the shoes, the whole nine yards.” Deberry told the police that the man might have gone to a house just west of Carla's. This house belonged to Cervantes–Cano.
The police found a television that matched the description of the stolen property sitting “along side” the residence. Based upon this evidence, the police conducted a lineup of five or six male Hispanics that were at the house at the time. However, the police failed to make a recording of the lineup, take photos of the lineup, or take notes of the lineup. At a distance of at least 25 feet, Deberry recognized Cervantes–Cano as the man she confronted, using street lights and the lights of a patrol car for illumination. She testified at trial that there was no doubt in her mind that Cervantes–Cano was the person she confronted. Cervantes–Cano was subsequently arrested.
When asked by the court at his arraignment hearing after his arrest whether he would prefer to proceed with a trial by jury or to the court, Cervantes–Cano expressed his wish to have a trial by jury. Several months later, the case was set on a docket for purposes of a jury waiver hearing. At the hearing, Cervantes–Cano's attorney told the district court that Cervantes–Cano wanted to waive his right to a jury trial. The district court asked Cervantes–Cano, through an interpreter, whether he wanted to waive his right to jury trial. When the interpreter responded that Cervantes–Cano's answer to this question was yes, the district court accepted the waiver and the court scheduled the case for a bench trial.
At the bench trial, Cervantes–Cano filed a motion to suppress the testimony of Deberry, claiming that the lineup was unnecessarily suggestive. The judge weighed the factors of identification and determined that Deberry's acuity was “very high.” Based on her attention, proximity, and certainty, the court denied the motion.
Cervantes–Cano ultimately was convicted of one count of burglary of a dwelling and one count of felony theft. At his sentencing hearing, Cervantes–Cano did not object to the court using his prior criminal history, and he was sentenced with a criminal score of H.
Analysis
Cervantes–Cano raises three issues on appeal. First, he claims the district court failed to inform him of the nature and extent of his right to a trial by jury, which necessarily rendered his waiver unknowing and involuntary. Second, he claims that the district court erred in denying his motion to suppress. Third, he claims that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi. We address each of these issues in turn.
I. Waiver of the Right to a Trial by Jury
A. Jurisdiction
Cervantes–Cano admits that he did not raise the issue of effective waiver of the right to a jury trial at the district court level. Issues not raised before the district court generally cannot be raised on appeal. However, exceptions may be granted if “ ‘consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights.’ “ State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011) (quoting State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 [2010] ).
With regard to the exceptions, a panel of this court previously has recognized “[t]here is no more fundamental right in the United States than the right to a jury trial.” State v. Larraco, 32 Kan.App.2d 996, 999, 93 P.3d 725 (2004); see also State v. Duncan, AA Kan.App.2d 1029, 1037, 242 P.3d 1271 (2010). Therefore, consideration of the denial of a right to a jury trial is necessary to prevent the denial of a fundamental right. State v. Bowers, 42 Kan.App.2d 739, 740, 216 P.3d 715 (2009). B. Standard of Review
When reviewing the factual underpinnings of a district court's decision to accept a jury trial waiver, the court has adopted a substantial competent evidence standard. See State v. demons, 273 Kan. 328, 340–41, 45 P.3d 384 (2002) (citing State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 [1975] ). However, when the facts underlying the decision are undisputed, as they are in this case, the question of whether a defendant voluntarily and knowingly waived his or her right to a jury trial is one of law, subject to unlimited appellate review. Barnes, 293 Kan. at 260 (citing Duncan, 291 Kan. at 470). Determining whether Cervantes–Cano effectively waived his right to a jury trial requires constitutional interpretation; thus, this court's standard of review is unlimited. C. Discussion
The right to a jury trial is guaranteed by both the United States and Kansas Constitutions. U.S. Const. Amend. VI; Kan. Const. Bill of Rights, § 5. The Sixth Amendment, which applies to the states through the Fourteenth Amendment, guarantees a jury trial to any defendant charged with a crime punishable by more than 6 months of imprisonment. Duncan, 44 Kan.App.2d at 1037–38 (citing Lewis v. United States, 518 U.S. 322, 325–26, 116 S.Ct. 2163, 135 L.Ed.2d 590 [1996];Irving, 216 Kan. at 589). Because Cervantes–Cano was being tried for burglary of a dwelling and felony theft, both of which are punishable by imprisonment of more than 6 months, Cervantes–Cano had a fundamental right to a jury trial. See K.S.A. 21–3715(a); K.S.A. 21–3701(a)(2).
Even when it comes to the fundamental right to a jury trial, however, a criminal defendant may waive that right if the court and State agree to the waiver. K.S.A. 22–3403; Irving, 216 Kan. at 589. But appellate courts have made it clear that a purported waiver of the right to a jury trial must be strictly construed to make sure the defendant has every opportunity to receive a fair and impartial trial by jury. 216 Kan. at 589. The test for determining the validity of a jury trial waiver is whether it was knowingly and voluntarily made by a defendant. To determine whether the waiver was knowingly and voluntarily made depends largely on the particular facts and circumstances in each case. State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012).
In this case, Cervantes–Cano attended a hearing with his attorney for the purpose of waiving his right to a jury trial. The following exchange occurred at this hearing:
“THE COURT: All right. And we are here for the purpose of waiver of trial by jury; is that correct?
“MR. TIMAN: That's correct, Your Honor. I have spoken to Mr. [Cervantes-] Cano and he is requesting to waive his right to a jury trial and ask for a trial to the Court.
“[Prosecution]: He also agreed, my understanding is to waive his right to a speedy trial as well.
“MR. TIMAN: We are asking for a continuance from this Tuesday since obviously we will have to reset it for a bench trial, and so that's fine.
“THE COURT: All right. Mr. [Cervantes-]Cano, your attorney has advised me that you wish to waive your right to a trial by jury; is that right?
“THE INTERPRETER: Yes.
“THE COURT: You are saying that you do not want a trial by jury?
“THE INTERPRETER: Yes.
“THE COURT: You want to try the case to the Court and you are waiving your right to a speedy trial; is that correct? Is that correct?
“THE INTERPRETER: Yes.
“THE COURT: All right. Mr. [Cervantes-]Cano, also I want to make sure that no one is forcing you to waive your right to trial by jury or threaten you with anything.
“THE INTERPRETER: No one is threatening him.
“THE COURT: Okay. And that is your own free will.
“THE INTERPRETER: Yes.
“THE COURT: All right. I will set it down for—I will take it off of the jury trial docket and then place it on the trial to the Court. Okay.
“MR. TIMAN: That's fine, Your Honor.
“THE COURT: All right, and the bond will continue in effect.”
The problem with this colloquy is that—although the district court asked whether he wanted “to waive [his] right to trial by jury” and “try the case to the Court”—the district court failed to advise Cervantes–Cano that he had a right to trial by jury, failed to verify that Cervantes–Caro understood that trying the case “to the court” meant that a judge would determine his guilt, and failed to explain the nature and extent of the right to a jury trial. See State v. Frye, 294 Kan. 364, 373, 277 P.3d 1091 (2012) (finding defendant's waiver invalid because defendant might not know what his right to a jury trial may be or understand what it means to “ ‘try the case to the Court’ ”).
In Frye, the Kansas Supreme Court discussed the purpose of requiring the court to advise the defendant of the nature and extent of the right to a trial by jury.
“If the district court fails to properly advise a defendant of the nature and extent of his or her constitutional right to a jury trial, how does that defendant know to object to the court's failure to inform, i.e., how does the defendant know what the defendant does not know? Granted, defense counsel should know, but the ability to waive the fundamental right to a trial by jury rests solely with the defendant and Irving informs us that the responsibility to inform a defendant of his or her jury trial right rests squarely with the presiding judge.” Frye, 294 Kan. at 370–71.
In Beaman, 295 Kan. at 858, the Kansas Supreme Court relied on the analysis in Frye to come to a conclusion contrary to that reached in Frye: that the district court satisfied its duty to inform the defendant of the nature and extent of his jury trial right. Although, like the case here, the district court in Beaman did not specifically advise the defendant he had a “right” to trial by jury, the court there found compelling the fact that the district court specifically advised Beaman that he would be better off with a jury and the fact that there was a thoughtful and detailed discussion between the court and Beaman regarding the nature and extent of the right being waived.
Like Beaman, the district court failed to specifically advise Cervantes–Cano that he had a “right” to trial by jury. Unlike Beaman, however, the district court failed to engage Cervantes–Cano in any discussion, let alone a detailed discussion, to verify that Cervantes–Cano understood the nature and extent of the right being waived. Although the right to a jury trial is a fundamental right, it is not an intuitive right. The terms “jury trial” and “trial to the court” are terms of art with specific legal consequences about which even a well-informed lay person may not be fully familiar, let alone a lay person who does not speak English and is communicating with the court through an interpreter. Given these facts, we cannot say that Cervantes–Cano knowingly and voluntarily waived his right to trial by a jury. Thus, the bench trial verdict must be reversed and the matter remanded to afford Cervantes–Cano his constitutional right to a trial by jury or to effect a valid waiver of the same.
II. Motion to Suppress
Although we have already determined that a new trial is necessary, we address this evidentiary issue for the purposes of assisting the district court on remand. Before trial, Cervantes–Cano filed a motion to suppress the testimony of Deberry. He argued that the procedure used to elicit Deberry's testimony was unnecessarily suggestive and that it led to a substantial likelihood of misidentification of the witness. The district court denied the motion and allowed Deberry's testimony. Cervantes–Cano claims on appeal that the district court erred in denying his motion. A. Standard of Review
Reviewing a decision to deny a motion to suppress eyewitness identification involves a mixed question of law and fact. The factual basis for a district court's denial of this motion is reviewed using a substantial competent evidence standard. State v.. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006). Substantial competent evidence is defined as “such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” State v. Luna, 271 Kan. 573, 575, 24 P.3d 125 (2001). In reviewing for substantial competent evidence, the appellate court does not reweigh the evidence or pass on the credibility of witnesses. State v. Combs, 280 Kan. 45, 50, 118 P.3d 1259 (2005). The ultimate legal conclusion of whether the eyewitness identification is admissible in light of the factual findings is reviewed de novo. Corbett, 281 Kan. at 304. B. Two–Part Test to Determine the Reliability of Eyewitness Testimony
Kansas courts apply a two-step procedure for analyzing whether eyewitness identification should be excluded. First, we consider whether the procedure used for making the identification was unnecessarily suggestive. If so, the second step requires an analysis of whether the unnecessarily suggestive procedure led to a substantial likelihood of misidentification. The court must consider the totality of the circumstances surrounding the identification and apply an eight-factor test. Corbett, 281 Kan. at 304–05.
1. Was the procedure used for making the identification unnecessarily suggestive?
The police failed to take video, photographic, or handwritten notes of the descriptions of the men who composed the lineup. The failure to photograph a lineup does not automatically mean that the identification procedure was unnecessarily suggestive. In State v.. Slansky, 239 Kan. 450, 454–56, 720 P.2d 1054 (1986), the Kansas Supreme Court considered whether it was reversible error for the police to fail to preserve an in-person lineup by failing to photograph it. The court held that there is no constitutional right to require a lineup to be photographed. The officers in Slansky were able to provide detailed descriptions of the people in the lineup, and the jury was therefore able to determine whether the lineup identification was properly conducted. 239 Kan. at 455–56.
In this case, the officers failed to photograph the line-up and, in addition, were unable to provide any description of the other people in the lineup, other than the fact that they were male Hispanics. Given the absence of information regarding the line-up procedure used to make the identification, we find it necessary to move on to the second step of the test.
2. Did the unnecessarily suggestive procedure lead to a substantial likelihood of misidentification?
Assuming the lineup was unnecessarily suggestive, the unduly suggestive nature of the line-up must still lead to a substantial likelihood of misidentification. We consider eight factors when weighing this issue:
1. The witness' opportunity to view the criminal at the time of the crime;
2. The witness' degree of attention;
3. The accuracy of the witness' prior description;
4. The level of certainty demonstrated by the witness at the confrontation;
5. The length of time between the crime and the confrontation;
6. The witness' capacity to observe the event, including his or her mental and physical acuity;
7. The spontaneity and consistency of the witness' identification and the susceptibility to suggestion; and
8. The nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly. Corbett, 281 Kan. at 304–05.
We have considered each of these factors and find they weigh in favor of allowing Deberry's testimony. Specifically, Deberry viewed part of the burglary while in progress, paid attention to the burglar's activity, and immediately confronted the suspect after seeing him leave with a large object. She felt certain of her observation of the suspect at the time of the confrontation and throughout direct and cross-examination. She testified that she made a point of studying the man's features during the confrontation. She had not been drinking. She was the person who identified to which house she thought the burglar had gone, and she immediately picked Cervantes–Cano out of a lineup without aid or suggestion from the police.
Cervantes–Cano argues that because Deberry could not identify the object the burglar was carrying, her testimony was not reliable and should have been suppressed. However, Deberry testified that she did not pay attention to the stolen object because she was studying the features of the burglar. Based on the way Deberry noticed the burglary, confronted the burglar immediately at a distance of 4 feet, picked Cervantes–Cano out of a lineup, and maintained her certainty in identifying the correct person throughout the trial, we conclude there was not a substantial likelihood of misidentification, even if the lineup was unnecessarily suggestive. Therefore, the district court did not err in denying Cervantes–Cano's motion to suppress.
III. Criminal History
Cervantes–Cano challenges the district court's use of his criminal history to determine his sentence under the Kansas Sentencing Guidelines Act. Interpretation of this Act is a question of law and is therefore subject to unlimited review. State v. Perez–Moran, 276 Kan. 830, 833, 80 P.3d 361 (2003). Cervantes–Cano did not object to the guidelines sentence at trial; generally, constitutional grounds asserted for the first time on appeal are not properly before an appellate court for review. See State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However, Kansas courts have recognized exceptions to this rule when considering the application of Apprendi. State v. Gould, 271 Kan. 394, 404–05, 23 P.3d 801 (2001).
Cervantes–Cano admits that in State v. Ivory, 273 Kan. 44, 47, 41 P.3d 781 (2002), the Kansas Supreme Court held that the use of prior convictions to establish a criminal history score does not violate the principles of Apprendi. However, Cervantes–Cano includes this issue for preservation for a possible federal review.
Because Ivory controls and allows the use of prior convictions to establish a criminal history score under Apprendi, the district court did not violate Cervantes–Cano's Sixth and Fourteenth Amendment rights.
Reversed and remanded.