412 P.3d 968
Kan.2018Background
- On Jan. 1, 2014, an intoxicated Pablo Gonzalez shot and killed his friend Levi Bishop; Gonzalez admitted pulling the trigger but claimed he did not know the gun was loaded. Blood-alcohol was .25. Forensic evidence showed the gun was functional, had a loaded-chamber indicator, and the shot was fired nearly against the victim’s neck.
- Gonzalez was charged with intentional second-degree murder, alternative count of unintentional second-degree murder (depraved-heart), and aggravated assault; a jury convicted him of unintentional second-degree murder and acquitted on aggravated assault. Sentence: 123 months.
- On appeal Gonzalez argued (1) the unintentional second-degree murder statute is unconstitutionally vague, (2) insufficient evidence supported the “extreme indifference” element, (3) his right to be present and right to a public trial were violated when the court answered a jury question off the record, and (4) the court erred by not giving a limiting instruction about prior-bad-acts testimony.
- The trial court had instructed the jury that unintentional second-degree murder requires killing "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life," while involuntary manslaughter required only recklessness; jury later asked for clarification of the difference.
- The Kansas Supreme Court affirmed the Court of Appeals, rejecting Gonzalez’s vagueness, sufficiency, jury-conference, public-trial, and limiting-instruction claims, and held any procedural presence error relating to the jury question was harmless beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gonzalez) | Held |
|---|---|---|---|
| Constitutionality of unintentional 2d-degree murder statute | Statute is constitutional and distinguishes depraved-heart murder from manslaughter by an additional element of "extreme indifference" | Deal and amended recklessness definition blur distinction with involuntary manslaughter; Johnson creates vagueness because it requires imagining an "ordinary" reckless killing | Statute is not unconstitutionally vague; Robinson controls—difference is degree, jury applies standards to facts, Johnson inapplicable |
| Sufficiency of evidence for "extreme indifference" element | Evidence (chambering round, pointing gun, experience with firearms, shot near victim's neck, intoxication) supports extreme indifference | Did not know gun was loaded; lacked intent; State failed to show degree beyond ordinary recklessness | Evidence sufficient; a rational juror could find extreme indifference beyond reasonable doubt |
| Right to be present / jury-question answered off-record | Any absence at jury-question conference violated statutory and Sixth Amendment right to be present | Response harmless: court merely referred jury back to correct instructions; strong evidence of guilt; no reasonable possibility error affected verdict | Presence error assumed but harmless beyond a reasonable doubt under Verser factors |
| Failure to give limiting instruction on contemporaneous bad-acts testimony | A limiting instruction should have been given to prevent propensity inference | Evidence was admitted as part of res gestae (events surrounding the offense), not under 60-455; no request was made | No error: limiting instruction not legally appropriate when evidence admitted independent of K.S.A. 60-455; failure to give one was not reversible |
Key Cases Cited
- State v. Robinson, 261 Kan. 865 (1997) (unintentional second-degree depraved-heart murder requires an additional element of "extreme indifference" and is distinguishable from involuntary manslaughter by degree)
- State v. Deal, 293 Kan. 872 (2012) (statute focuses on whether killing was intentional or unintentional; does not overturn Robinson)
- Johnson v. United States, 576 U.S. 591 (2015) (holding a residual clause unconstitutionally vague when it required judging an "ordinary case" of a crime; distinguished here)
- State v. Cordray, 277 Kan. 43 (2004) (jury question about "extreme indifference" does not by itself show statutory vagueness)
- State v. Wade, 295 Kan. 916 (2012) (trial court may direct jury to reread correct instructions when responding to a question)
- State v. Verser, 299 Kan. 776 (2014) (framework for analyzing harmlessness when defendant absent from ex parte communication; four-factor test used)