State v. Perez
261 P.3d 532
| Kan. | 2011Background
- Gangs Florencia and Familia Loca (FL) fought in Kansas City; Perez was a FL member juvenile at issue.
- April 3, 2007: Perez, Gonzalez, and Filero allegedly carried out a shooting mission on Moreno’s house; Perez ultimately participated with a shotgun.
- Moreno’s daughter Yelena Guzman was killed by a shotgun shot during the attack.
- Gonzalez testified against Perez; Cisneros testified about the plan and overheard orders; recorded jail calls where Perez admitted guilt or corroborated Gonzalez’ story.
- On Sept. 11, 2007 the district court authorized adult prosecution after weighing statutory factors; trial proceeded with Perez facing first-degree felony murder, criminal discharge of a firearm at an occupied dwelling, and conspiracy; jury found Perez guilty as charged and the convictions were appealed for (i) adult-prosecution procedure, (ii) Allen-type instruction, (iii) failure to instruct on second-degree reckless murder as a lesser included offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adult-prosecution decision required a jury determinations | Perez argues Apprendi requires jury findings. | State contends district court’s nonjury decision complies with law. | No reversible error; issue previously resolved against Perez. |
| Whether the Allen-type instruction was clearly erroneous | Perez contends the instruction misled the jury. | State argues harmless error given substantial evidence; no objection at trial. | Not clearly erroneous; no substantial likelihood of different verdict. |
| Whether second-degree reckless murder should have been given as a lesser included offense | Perez asserts under 22-3414(3) there is some evidence of lesser-offense liability. | State argues no evidence supports second-degree reckless murder beyond reasonable doubt. | No instruction required; evidence did not reasonably justify conviction for the lesser offense. |
Key Cases Cited
- State v. Tyler, 286 Kan. 1087 (2008) (admissibility of adult-prosecution issues and jury involvement)
- State v. Mays, 277 Kan. 359 (2004) (prior rejection of jury determination for adult-prosecution motion)
- State v. Kunellis, 276 Kan. 461 (2003) (earlier reliance on nonjury decision for adult prosecution)
- Jones v. State, 273 Kan. 756 (2002) (Apprendi-related considerations in Kansas)
- State v. Salts, 288 Kan. 263 (2009) (Allen-type instruction deemed erroneous but not reversible)
- State v. Brown, 291 Kan. 646 (2011) (Allen-type instruction language error without reversible impact)
- State v. Colston, 290 Kan. 952 (2010) (Allen-type instruction analysis similar to Salts)
- State v. Ellmaker, 289 Kan. 1132 (2009) (Allen-type instruction issues analyzed)
- State v. Berry, 292 Kan. 493 (2011) (abandoned judicially created felony-murder instruction rule; 22-3414(3) governs lesser included offenses)