STATE OF KANSAS, Appellee, v. ELI A. BETANCOURT, Appellant.
No. 108,944
IN THE SUPREME COURT OF THE STATE OF KANSAS
February 13, 2015
342 P.3d 916
282-301
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.
The opinion of the court was delivered by
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
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
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.
Betancourt‘s Testimony
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 bеen 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
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 sсreen 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.”
Other Evidence
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.”
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 life sentence for murder and a consecutive 13-month sentence for criminal discharge of a firearm.
Betancourt argues the trial court erred in admitting into evidence his statements to the detectives. He suggests that his age, his intellect, the influence of alcohol, sleep deprivation, and the “long isolation and detention” in the interview room rendered his confession involuntary.
Additional Facts
Betancourt first raised this issue before trial by filing a motion to suppress, and the State filed a motion requesting admission of the statements and an evidentiary hearing on the matter. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); see also State v. Bogguess, 293 Kan. 743, 751, 268 P.3d 481 (2012) (at a Jackson v. Denno hearing, the issue before the court is whether defendant‘s statement or confession was voluntary; truthfulness of a statement is not at issue). The trial court held a hearing at which a detective testified about what happened before and during the interrogation.
The detective testified that Betancourt was taken to an interrogation room and held there for 7 to 8 hours while detectives investigated the crime. During this time, the detectives handcuffed one of Betancourt‘s arms to the table. Officers repeatedly checked on him and offered water, food, and a restroom. Meanwhile, law enforcement officers visited the scene of the crime and interviewed other witnesses. Two detectives then conducted a recorded interview of Betancourt. The interrogation lasted just over 3½ hours. During that time, the detectives often left the room, leaving Betancourt alone. Actual quеstioning lasted approximately 2½ hours. The detective calculated that a total of 14 or 15 hours passed between Betancourt‘s arrival at the police station and his transport to the jail.
The testifying detective told the trial court that when he asked Betancourt for personal information, “all of his answers [were] appropriate,” and Betancourt “sat upright, we made eye contact, he spoke immediately in response” to questions, and “his dialogue appeared to be very much ... normal for any other person.” After obtaining Betancourt‘s personal history, the detective read an ad-
General Principles/Standards of Review
When Betancourt challenged his inculpatory statements as involuntarily given, the State was required to prove voluntariness by a preponderance of the evidence. See State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). The trial court was then obligated to assess voluntariness under the totality of the circumstances, considering several nonexclusive factors: (1) Betancourt‘s mental condition; (2) the manner and duration of the interrogation; (3) Betancourt‘s ability to communicate on request with the outside world; (4) Betancourt‘s age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) Betancourt‘s fluency with the English language. See State v. Gibson, 299 Kan. 207, 214, 322 P.3d 389 (2014). Any one factor or a combination of factors “may inevitably lead to a conclusion that under the totality of circumstances a suspect‘s will was overborne and the confession was not therefore a free and voluntary act.” [Citations omitted.] State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009).
In this case, the trial court explicitly considered these factors, made findings on the record, and concluded that Betancourt‘s statement was voluntary.
As we consider Betancourt‘s challenge to these findings, we apply a bifurcated standard of review. First, without reweighing the evidence, we examine the trial court‘s findings of fact to determine whether they are supported by substantial competent evidence. Next, we apply a de novo standard of review to the ultimate legal conclusion regarding the suppression of evidence. We cannot reweigh evidence, assess witness credibility, or resolve conflicting evidence. Gibson, 299 Kan. at 215-16.
In asking this court to consider the totality of the circumstances, Betancourt focuses on three factors: his mental condition; his age and intellect; and the duration and manner of the detention and interrogation. He does not cite any caselaw to support his arguments.
Mental Condition
First, Betancourt claims that his statements were rendered involuntary because he was sleep deprived and had “cocaine and alcohol [running] through his veins[,] dulling his brain and impairing his judgment.” Several points weaken Betancourt‘s argument. First, no evidence supports Betancourt‘s assertion that there was cocaine in his system. The record citation he provides is to a post-trial hearing, and that evidence only establishes that others were using cocaine at the birthday party. Second, although Betancourt points to evidence of excessive drinking, the evidence is conflicting. While Betancourt told the jury he drank hеavily throughout the evening and was very intoxicated, he had told interrogating officers he had only 2 or 3 beers approximately 12 hours before the interview. Third, merely having alcohol or drugs running through his veins did not make his statement involuntary; rather, there must be evidence the alcohol and drug use impaired Betancourt‘s ability to give a knowing and voluntary confession. See State v. Gilliland, 294 Kan. 519, 529, 276 P.3d 165 (2012), cert. denied 133 S. Ct. 1274 (2013); State v. Norris, 244 Kan. 326, 334-35, 768 P.2d 296 (1989). Similarly, lack of sleep does not per se render the statements involuntary. See State v. Gonzalez, 282 Kan. 73, 104, 145 P.3d 18 (2006). Finally, Betancourt does not identify any point in the interrogation where the effects of alcohol and drug use or sleep deprivation were manifested. For example, he does not cite to a point where he seemed confused, unable to understand, or unable to remember what had occurred. This court has repeatedly rejected appellate arguments suffering from similar weaknesses. One such case is State v. Holmes, 278 Kan. 603, 613, 102 P.3d 406 (2004).
Likewise, in this case, substantial competent evidence supports the trial court‘s findings. Betancourt‘s behavior and responses during the interview do not suggest that he had a difficult time staying awake during the interrogation or was affected by drugs or alcohol. The recording of the interview reveals Betancourt sleeping during portions of the 7- or 8-hour period that he was held in the interview room before the detectives arrived for questioning. When questioning began, Betancourt appeared tired, but he listened carefully, spoke clearly, and answered questions without hesitation. He did not request sleep, and he remained responsive and articulate.
Age and Intellect
As for Betancourt‘s age and intellect, the trial court found that Betancourt “was given a Miranda warning, he went through the form with the officer, he understood what his rights were. Throughout the course of the interview [Betancourt] was responsive and the answers were within the context of the questions that were asked.” In arguing to reverse the trial court, Betancourt labels himself as a 20-year-old “high school drop out.” He offers no other evidence to suggest his age or intellect weighs toward a conclusion that his statements were involuntary.
The record shows that Betancourt was 19 years old at the time of the interview, approximately 1 month before his 20th birthday.
In sum, there is no evidence that Betancourt‘s genеral mental condition, his age, or his intelligence interfered with his ability to understand his rights or to voluntarily and knowingly waive those rights, to understand the detectives’ questions, or to “understand the incriminating nature of his own statements,” which are the essential considerations. See Randolph, 297 Kan. at 331; State v. Ackward, 281 Kan. 2, 9, 12, 128 P.3d 382 (2006) (where defendant was 20 years old and failed to graduate from high school, finding “he was not of an especially tender age and the trial judge, who had the opportunity to observe defendant in person, perceived him as being mature“).
Duration and Manner
Betancourt‘s strongest argument—one that raises considerable concern—arises from the detectives’ holding him for 14 or 15 hours, much of it handcuffed to a table. The case of State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007), is instructive.
Brown was 21 years old at the time of his police interrogation, appeared to be a person of reasonable intelligence, and had previous exposure to the justice system. He attacked the voluntariness of his statements made during a custodial interrogation, in part, because he was held in the interview room, handcuffed to a table, for nearly 12 hours and because the interview itself lasted just under 5 hours. The Brown court noted that in periods between questioning, when officers stopped to investigate various aspects of the case, Brown appeared to be napping. He was also given breaks to eat a meal and to use the restroom. 285 Kan. at 271.
The Brown court stated that the “length of Brown‘s confinement to the interrogation room, while handcuffed to a table for long periods of time, causes the issue of voluntariness to be close.” 285 Kan. at 272. Although there were legitimate reasons for the delays,
Ultimately, the Brown court stated that the 12 hours “stretch[ed] to the temporal boundaries of an uncoercive interrogation,” but the duration and manner of the interview were not coercive under the circumstances of the case, where breaks were taken, the defendant napped, and the defendant was permitted to leave the room for short periods. 285 Kan. at 274.
The duration of the detention in this case—14 to 15 hours—exceeds Brown‘s 12 hours; clearly, if Brown stretched the temporal limits, so does this case. But this court has held other interrogations were voluntary even though they lasted similar or longer periods of time. See State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 (2007) (statements voluntary where defendant was held for almost 13 hours and confessed to committing crime after about 8 hours); State v. William, 248 Kan. 389, 409-10, 807 P.2d 1292 (1991), cert. denied 502 U.S. 837 (1991) (statements voluntary where defendant was interrogated for approximately 6 hours over a 19-hour period). In addition, similar to the situation in Brown, there were breaks taken, Betancourt slept, he was allowed to go to the restroom, and he was offered and given food and water. Betancourt does not claim that
Under the circumstances, there is substantial competent evidence to support the trial court‘s conclusion that the duration and manner of the interview did not render Betancourt‘s statements involuntary.
Outside Contact
In Betancourt‘s appellate brief, he complains he was in “isolation” and was kept “away from the comfort of friends[,] families[,] counselors or advisors” while he waited in the interview room for 8 hours. But past cases have examined “the accused‘s ability to communicate on request with the outside world.” (Emphasis added.) Gibson, 299 Kan. at 214. Here, Betancourt fails to cite any support in the record for such a request. See State v. Stone, 291 Kan. 13, 22, 237 P.3d 1229 (2010) (defendant did not ask to communicate with anyone outside of the interrogation; thus, that factor “simply did not apply“).
Totality of the Circumstances
As discussed above, while the duration and manner of the interview are troubling, that circumstance alone does not compel us to conclude as a matter of law that Betancourt‘s statements were involuntary. And no other factor weighs in his favor. Therefore, the totality of the factors and circumstances of the interrogation lead to the conclusion that Betancourt‘s statements were the product of his free and independent will.
Right to Counsel
Primarily relying on State v. Lawson, 296 Kan. 1084, 1094, 297 P.3d 1164 (2013), Betancourt also argues his statements should have been suppressed because he was denied his right to counsel under the Fifth Amendment to the United States Constitution and
Because Betancourt fails to establish that he requested the assistance of counsel during his interrogation, he fails to establish that he was denied his statutory or constitutional right to counsel during the interview.
NO ERROR IN ADMISSION OF HEARSAY STATEMENTS
Next, Betancourt argues the trial court erred by admitting into evidence hearsay statements made by Laurel and Alejandro under the coconspirator‘s statement exception found in
Although Betancourt attempts to sweep many statements into his argument, he cites to only two places in the record where he preserved appellate review of this issue by making an objection when the statements were admitted at trial. See
Standard of Review
Generally, this court reviews a trial court‘s determination regarding whether hearsay is admissible under a statutory exception, such as
In addition to determining if the trial court abused its discretion in applying
Coconspirator Exception
The exception on which the trial court based the admission of the evidence,
To support his argument that the statements must have been made outside his presence, Betancourt cites State v. Bird, 238 Kan. 160, 176, 708 P.2d 946 (1985). This court in Bird approved a five-part test that must be met for statements to be admissible under
Betancourt focuses on the third requirement in his next argument, asserting that the two statements made by Laurel were not made while the conspiracy was in progress. This requirement is explicitly stated in
First, the State argues that Betancourt did not make this argument before the trial court. While Betancourt‘s arguments to the trial court are at best ambiguous as to this prong, the trial court did address and reject the possibility that the statements occurred
The State‘s second argument addresses the merits. The State contends the trial court did not err in concluding the statements were made while the conspiracy was in progress. We agree. There is substantial competent evidence supporting the trial court‘s ruling.
The first of Laurel‘s statements introduced through Patton‘s testimony—that is, of Laurel “saying he knows where these guys live“—occurred, among other times, while the men were driving to Miguel‘s house. Betancourt‘s own statements establish that there had already been discussions about seeking revenge against those involved in the fight with Daniel and that Betancourt had agreed to participate. Thus, admitted evidence established an agreement had been reached, and the men‘s actions of driving to the house were in furtherance of that agreement.
The second statement—that is, of Laurel saying, “I got him, I got him“—was made just after the shooting, during the getaway phase when Betancourt, Alejandro, Patton, and Laurel were fleeing the crime scene with the guns that Laurel later disposed of in such a way they were never found. The trial court found that the conspiracy “continued ... until Mr. Laurel was dropped off.” This finding follows the rationale that in Kansas, the
Confrontation Clause
Betancourt also argues the admission of these statements violated his right to confrontation under (1) the rule established in Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), where an accused‘s right to confrontation is violated when the confession of a codefendant implicating the accused is received in evidence in a joint trial; and (2) Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), because the statements were testimonial hearsay. Neither argument is supported by caselaw.
As to Betancourt‘s first argument, caselaw clearly establishes that Bruton only applies to statements that are admitted in a joint triаl. See Bruton, 391 U.S. at 135-36 (expressing concern “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial“); United States v. Volpendesto, 746 F.3d 273, 290 (7th Cir. 2004) (citing Bruton for the rule that “[i]f a co-defendant makes an out-of-court confession that inculpates the defendant, and the co-defendant does not testify at their joint trial, the out-of-court statement cannot be introduced as evidence at all; the risk of prejudice to the non-confessing defendant is simply too great“). There was no joint trial in this case, and Bruton does not apply.
Betancourt‘s second argument—that is, that Laurel‘s statements are testimonial and therefore inadmissible under the holding in Crawford unless Betancourt could confront Laurel—ignores the United States Supreme Court‘s categorical and unqualified declaration in Crawford that “statements in furtherance of a conspiracy” are not testimonial. Crawford, 541 U.S. at 56; Sharp, 289 Kan. at
Thus, Laurel‘s statements were admissible under
NO ERROR IN FAILING TO GIVE EYEWITNESS INSTRUCTION
Next, Betancourt argues the trial court committed clear error when it failed to sua sponte give PIK Crim. 3d 52.20, the pattern eyewitness identification instruction that lists various factors jurors should consider in weighing eyewitness reliability and accuracy. Betancourt‘s argument fails because he does not establish that the instruction was legally and factually warranted. State v. Williams, 295 Kan. 506, Syl. ¶¶ 3, 4, 5, 286 P.3d 195 (2012) (discussing
More specifically, Betancourt fails to acknowledge or discuss this court‘s explicit statements indicating that 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.” State v. Warren, 230 Kan. 385, 397, 635 P.2d 1236 (1981); see State v. Gaines, 260 Kan. 752, 758, 926 P.2d 641 (1996) (same), overruled on other grounds by State v. Carr, 300 Kan. 1, 331 P.3d 544 (2014); State v. Willis, 240 Kan. 580, 585, 731 P.2d 287 (1987) (same). In this case, the neighbors’ identification of Betancourt was not crucial to the State‘s case because Betancourt admitted—to interrogating officers and the jury—that he was present at the scene and was one of the shooters. The issue in dispute at trial involved Betancourt‘s intent or mental state, not his identity. Hence, the trial court committed no error by not providing a cautionary eyewitness identification instruction.
Betancourt next contends that there was insufficient evidence to support his conviction for premeditated first-degree murder. He argues that the State failed to prove the elements of premeditation and intent to kill.
Standard of Review/Legal Considerations
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. “Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.” State v. Kettler, 299 Kan. 448, 466, 325 P.3d 1075 (2014) (citing State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 [2013]).
When applying this standard to the sufficiency of evidence regarding premeditation and intent, it is not necessary that there be direct evidence of these elements. Instead, premeditation, deliberation, and intent may bе inferred from the established circumstances of a case, provided the inferences are reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755 (2008). In considering circumstantial evidence, Kansas caselaw identifies factors to be considered in determining whether the circumstantial evidence in a case gives rise to an inference of premeditation. These factors 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. [Citation omitted.]” Scaife, 286 Kan. at 617-18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). While each of these factors should be considered, the reasonableness of an inference of premeditation is not driven by the number of factors present in a particular case. Indeed, in some cases one factor alone may be compelling evidence of premeditation. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008); State v. Morton, 277 Kan. 575, 582-83, 86 P.3d 535 (2004) (evi
Evidence Was Sufficient
A review of the record shows both direct and circumstantial evidence of premeditation and intent to kill. In his appellate brief, Betancourt ignores the five factors and the circumstantial and direct evidence against him. Instead, he relies heavily on his trial testimony, which supported his defense theory that there was no plan or intent to kill; rather, he took a gun for “precaution reasons” but panicked and fired his weapon recklessly. Betancourt argues the evidence showed that “[a]t most, [he] considered that there may be a shooting toward the house, but not with the intent to hit anyone other than the building itself.”
Although the jury heard this evidence supporting Betancourt‘s defense theory, the jury also heard evidence incriminating Betancourt—evidence from which a rational factfinder could conclude that the killing was intentional and premeditated. Specifically, Patton testified to statements made in the car that evidenced a clear intent to shoot someone. Additionally, strong evidence of guilt came from Betancourt‘s own statements to detectives.
As to the nature of the weapon, Betancourt admitted to firing a gun. Regarding provocation, he indicated the motive for doing so was to avenge a fight in which his half brother Daniel was seriously injured; he cited no provocation on the day of the murder (or even the night before at the party). Rather, Betancourt and the other men actively sought out Miguel‘s residence; they were the aggressors. In fact, the jury learned that Daniel‘s alleged attacker, who was the boyfriend of Miguel‘s sister, had not stayed with Miguel‘s family for several weeks before Miguel‘s death because Miguel‘s mother disapproved of her daughter‘s relationship.
As for the third and fourth factors—Betancourt‘s conduct before and after the killing, and threats and declarations made before and/or during the occurrence—Betancourt admitted that he switched places with Alejandro, leaving Alejandro as the driver despite Ale
Finally, the fifth factor—dealing lethal blows after the deceased was felled and rendered helpless—also weighs toward a finding of premeditation. Certainly, there is no evidence that Betancourt knew Miguel had been injured. But expert testimony at trial showed that the victim was shot 10 times, which yielded 15 gunshot wounds. Some of the wounds were “graze wounds,” which showed the victim “was trying to avoid or run.”
Betancourt argues that the bullet strike pattern shows that he was firing “wildly and at random” and contends that his shots did not strike the fatal blow. But the evidence viewed in the light most favorable to the State provides evidence Betancourt shot in a pattern designed to hit someone standing on the other side of the door. And he did not just fire once, he fired multiple times. Furthermore, Betancourt fails to cite evidence that eliminates the possibility injuries resulting from the .22 caliber bullets caused or contributed to Miguel‘s death. The coroner left open the possibility, opining that he could not attribute the death to any particular bullet because of the devastating injuries to Miguel‘s abdomen, legs, and hand.
Even if Betancourt‘s bullets were not fatal strikes, the jury was instructed on aiding and abetting and, therefore, was told that a person who “either before or during its commission, intentionally
Betancourt essentially asks this court to reweigh the evidence in light of his own trial testimony. The jury and not this court had the duty to weigh the evidence and determine the credibility of the witnesses. The evidence, when viewed in the light most favorable to the prosecution, was sufficient for a rational factfinder to find Betancourt guilty of premeditated first-degree murder.
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL NOT ESTABLISHED
In Betancourt‘s final appellate issue, he contends that he is entitled to a new trial because he received ineffective assistance of trial counsel in violation of the
The
“counsеl‘s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel‘s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time. A court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Chamberlain, 236 Kan. at 656-57.
Here, the trial court conducted an evidentiary hearing on Betancourt‘s pro se motion. Under those circumstances, this court reviews any factual findings for substantial competent evidence and evaluates whether those findings support the trial court‘s conclusions of law. In re Ontiberos, 295 Kan. 10, 32, 287 P.3d 855 (2012); see Thompson v. State, 293 Kan. 704, 715-16, 270 P.3d 1089 (2011) (reviewing
At the evidentiary hearing on Betancourt‘s motion, his new counsel argued that trial counsel was ineffective because she failed to sufficiently communicаte with Betancourt. Betancourt‘s new counsel implied that trial counsel‘s alleged lack of communication left trial counsel less than prepared for Betancourt‘s trial. Trial counsel testified at the evidentiary hearing that she visited with Betancourt approximately seven or eight times before trial. Shortly before Betancourt‘s trial was to begin, trial counsel was involved in Alejandro‘s trial, which ran a bit longer than anticipated. Because of these demands, trial counsel told Betancourt‘s mother that she was not prepared for Betancourt‘s trial. But trial counsel requested a continuance of Betancourt‘s trial, and the trial court granted the continuance. Trial counsel testified that the continuance gave her the “breathing room” to get “geared up” for Betancourt‘s trial.
During trial counsel‘s meetings with Betancourt, they discussed, in part, the evidence and Betancourt‘s defense theory, which was that he had been drinking and recklessly fired bullets into the house. According to trial counsel, Betancourt agreed they should try to avoid a conviction for an off-grid offense—the classificatiоn for first-degree murder—and its corresponding life sentence; instead, they “were aiming for... second degree reckless” murder and a corresponding shorter sentence on the Kansas Sentencing Guidelines grid. See
During trial counsel‘s testimony, Betancourt‘s new counsel produced jail records memorializing trial counsel‘s visits with Betancourt. New counsel suggested that trial counsel spent only 3 hours total with Betancourt. But trial counsel estimated that she spent
After hearing this evidence, the trial court found that the evidence “is not sufficient to undermine this Court‘s confidence in the level of communication that [trial counsel] had with this defendant.” Substantial competent evidence—specifically, the evidence we have just summarized—supports the judge‘s fact findings. Because trial counsel‘s performance was not deficient under the first prong of the Strickland test, there is no need to progress to the second, prejudice prong.
Conflict of Interest
Relying on Galaviz, 296 Kan. 168, Betancourt attempts to morph his lack of communication claim into a conflict of interests due to “multiple concurrent representations.” Betancourt contends trial counsel‘s “duty to her other clients on her case load” created a conflict “in that her duties to other clients underminе[d] her ability to give sufficient attention to the interests” of Betancourt. He contends this conflict of interest rendered trial counsel per se ineffective. To qualify for this exception, Betancourt must establish several things, including that the trial court failed to investigate the conflict once Betancourt complained. Galaviz, 296 Kan. at 183 (discussing Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 [2002]). Betancourt fails to meet this burden because the record establishes that as soon as Betancourt voiced an objection, the trial court appointed new counsel and conducted an evidentiary hearing.
Galaviz also recognized situations in which a defendant is entitled to a new trial for a conflict of interest in which a defendant can establish an adverse effect. In attempting to argue adverse effect, Betancourt notes that trial counsel admitted that she re
Again, substantial competent evidence supports that conclusion. The witnesses and evidence at the two trials overlapped. Trial counsel needed to shift gears to evaluate the different focus necessary to Betancourt‘s specific case, but she asked for and received that breathing room. Betancourt fails to cite an adverse effect, and the trial judge who observed counsel‘s trial performance did not note any. The bottom line is that Betancourt must show more than he has presented here.
Failure to Consult Expert or Present Expert Testimony
In Betancourt‘s final argument on appeal, he argues as he did in the district court that his trial counsel was ineffective for failing to consult an expert or present expert testimony regarding the effects of cocaine and alcohоl. At the evidentiary hearing, Betancourt‘s new counsel presented the testimony of Dr. Mark Goodman, who opined that Betancourt “was unable to fully form the intent to commit [premeditated first-degree murder] because of his intoxicated state and not fully capable of thinking out the crime ahead of time.”
Notably, however, the background information which Goodman used in arriving at his ultimate conclusion came entirely from Betancourt himself and Betancourt‘s new counsel. Goodman was told to assume that Betancourt had ingested both alcohol—numerous shots of tequila chased with beer—and cocaine during the evening and early morning hours of the murder. Betancourt did not tell Goodman how much cocaine he allegedly used or how much alcohol he drank. And Goodman did not review any of the evidence from Betancourt‘s trial. Therefore, he was unaware that there was
Betancourt‘s trial counsel testified that during her investigation of Betancourt‘s case and her discussions with him, she became aware that Betancourt had consumed beer and liquor at the party. And although trial counsel was aware that there was cocaine at the party, nobody, including Betancourt, said Betancourt was using cocaine, and no evidence suggested that he had. As reflected in Betancourt‘s statements during his police interrogation, when he was specifically asked if he was under the influence of any drugs, he replied, “No.”
Trial counsel explained she was faced with Betancourt‘s statements to law enforcement regarding the amount of alcohol he had consumed, testimony from the arresting officer who observed Betancоurt operating his car, and Betancourt‘s appearance in the recorded interview in which he did not “seem to be blotto or drunk.” She concluded:
“So there was a lot of evidence contrary to our defense that I think an expert would be hard-pressed to stand up on the stand when crossed with that video of how well [Betancourt] is able to communicate, he‘s not throwing up, he‘s not dizzy, he doesn‘t have loss of memory. And then the fact that I have a trained law enforcement officer not consider a DUI at that time. So I have problems with an expert.
... And alcohol is one of those things where you can argue to a jury common sense. You know, use your common sense. And I had a lot of evidence that alcohol was there....”
In ruling on this ineffective assistance argument, the trial judge noted that although there was evidence that Betancourt consumed alcohol, there was no evidence at trial showing that Betancourt used cocaine. The judge implicitly found that Goodman‘s opinion
Trial counsel‘s testimony establishes that she made a strategic choice after investigating the facts. ” ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than a complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. [Citation omitted.]’ ” Rowland v. State, 289 Kan. 1076, 1083-84, 219 P.3d 1212 (2009). In advancing his challenge on appeal, Betancourt fails to explain how trial counsel‘s investigation was less than complete. In other words, he does not explain what more trial counsel should have done to gather relevant information before deciding whether to consult or present an expert. Nor does he establish that trial counsel‘s decision to refrain from seeking the services of an expert was unreasonable under the circumstances of this case.
Substantial competent evidence supports the trial court‘s finding that trial counsel was not deficient in failing to consult or present an expert on the effects of cocaine and alcohol. Under the circumstances, trial counsel‘s performance did not fall below an objective standard of reasonableness. Because trial counsel‘s performance was not deficient under the first prong of the Strickland test, there is no need to progress to the second, prejudice prong.
MICHAEL J. MALONE, Senior Judge, assigned.