State v. Hernandez

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,837

STATE OF KANSAS,
Appellee,

v.

KEVIN HERNANDEZ,
Appellant.


SYLLABUS BY THE COURT


1.
During closing arguments, it is improper for the prosecutor to comment on a
matter outside the evidence, but such prosecutorial misconduct is only grounds for a new
trial when the remarks constitute plain error.

2.
Before a Kansas court can declare an error harmless, it must determine the error
did not affect a party's substantial rights, meaning it did not affect the trial's outcome. If
the error implicates a federal constitutional right, the court must be persuaded beyond a
reasonable doubt that there was no impact on the trial's outcome.

3.
In this case, it is the State's burden, as the party favored by the trial error, to prove
beyond a reasonable doubt that the error did not affect substantial rights, meaning it did
not contribute to the verdict obtained.


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4.
A voluntary intoxication instruction is required when the evidence, viewed in the
light most favorable to the defendant, shows that the defendant was intoxicated to the
extent that his or her ability to form the requisite intent was impaired.

Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed July 29, 2011.
Affirmed.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Barry R. Wilkerson, county attorney, argued the cause, and Bethany C. Fields, deputy county
attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Kevin Hernandez was convicted of premeditated first-degree murder,
aggravated robbery, aggravated burglary, and residential burglary following a jury trial.
He was sentenced to life imprisonment with a hard 50 mandatory minimum term on the
primary offense of murder, plus a consecutive term of 74 months for the other offenses.

FACTUAL BACKGROUND

On June 9, 2007, Melissa Whitemore encountered Hernandez, an acquaintance of
hers, while she was driving around Countryside Estates in Manhattan, Kansas. She
stopped to talk to him because she had a couple of bags of his clothing to return to him.
Hernandez told Whitemore he had moved back into the trailer home of the eventual
victim, Adam Hooks. Together, they took the clothing into Hooks' trailer. Hernandez
collected a Sony Play Station and several DVDs, which he said belonged to him.
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Hernandez then helped Whitemore locate her boyfriend, Anthony Cassell, and all three
drove to a pawn shop. Hernandez went in alone to sell the Play Station and DVDs that he
had taken from Hooks' trailer. The three of them then went to a hotel room in Junction
City.

Meanwhile, Hooks returned to his trailer home at Countryside Estates from his
parents' home to find that his trailer had been broken into and items had been taken.
Hooks discussed the burglary and theft with several people, including his father, Stan
Gettys, a close friend, and a pawn shop owner and reported the incident to the police.
Hooks identified his former roommate, Hernandez, as the only person who might have
had reason to steal his Sony Play Station and over 100 DVDs.

Near the end of his shift on June 9, 2007, Officer Apodaca of the Riley County
Police Department met Hooks to take a report of the burglary and theft. After returning to
the office to finish his report, Officer Apodaca looked up and identified Hernandez on the
police department's computer.

During this same time, at the hotel room in Junction City, Hernandez and Cassell
smoked some marijuana, drank, and possibly used cocaine. When Whitemore and Cassell
were ready to go to bed, they asked Hernandez to leave. Hernandez called a friend to pick
him up from the hotel. Crystal Coker picked Hernandez up from the hotel in Junction
City at the request of the friends she was hanging out with that evening. She dropped
Hernandez and the friends off at Countryside Estates around midnight.

Brock Baker-Odell, one of the friends riding with Coker that evening, testified that
Hernandez appeared to have been "pretty well intoxicated," as though "he had been
having fun all day," when they picked him up at the hotel. He described Hernandez'
speech as unimpaired, although Hernandez "wasn't speaking like a normal person would
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that would be sober. He wasn't using long words. He was just being brief and talking, but
we were still talking and carrying on a conversation." Baker-Odell said that they smoked
marijuana on the trip from Junction City to Countryside Estates in Manhattan and, upon
arriving at Countryside Estates, they went to a storm shelter and smoked more marijuana
before they parted company.

Virgil Koppenhoffer, whose backyard abutted Hooks' backyard in Countryside
Estates, testified that Hernandez stopped by in the early morning hours of June 10, 2007,
and "drank some beers and left." Koppenhoffer stated that Hernandez was "[n]ot
intoxicated, not drunk like I was." In fact, Koppenhoffer testified that he was already
intoxicated when Hernandez arrived such that he could not remember the time, and he
passed out after Hernandez left.

When Officer Apodaca began his patrol the next morning, June 10, 2007, he saw
Hernandez driving Hooks' vehicle near Countryside Estates. The officer followed, but
ultimately lost sight of the vehicle. He decided to return to Hooks' residence to see if
Hooks could explain this unusual occurrence. When Officer Apodaca arrived at Hooks'
trailer home, the vehicle was parked in the driveway. He could see Hernandez walking
away from the trailer, taking off a red shirt and exchanging it for a blue shirt. The officer
followed Hernandez on foot, but again lost sight of him.

Officer Apodaca returned to the trailer home to attempt to make contact with
Hooks. The officer knocked on the door and attempted numerous times to call Hooks' cell
phone. On one occasion, the cell phone was answered by a male who identified himself
as "Ryan" and told the officer that he had the wrong number. Officer Apodaca called
Hooks' father, Stan Gettys, to see if anyone else might answer Hooks' cell phone and if he
knew a person named Ryan.

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At Officer Apodaca's request, Gettys arrived at the trailer home. Gettys eventually
forced open the window to a bedroom, where Officer Apodaca was able to enter and
search the home for Hooks. Other officers, as well as Gettys, walked through the trailer
looking for Hooks, but Hooks was not in the residence.

After the backup officers left, Officer Apodaca obtained permission from Gettys to
look in Hooks' vehicle. The officer saw several white trash bags with miscellaneous
paperwork and clothing in them leaning against the door. In the back of the vehicle,
Officer Apodaca opened a Rubbermaid container that was among more bags of what
appeared to be laundry. Gettys identified the jeans in the top layer of the container as
Hooks' jeans by the belt still through the loops of the jeans. Underneath the jeans, Officer
Apodaca found what appeared to be human remains. Hooks' body, in seven parts, was
ultimately recovered from the Rubbermaid container, four individual trash bags, and two
trash bags wrapped in blankets located in the vehicle.

Police located Hernandez and arrested him at a movie theater, where Hernandez
had been watching the movie Hostel 2. After being transported to the Riley County Law
Enforcement Center, Hernandez was interviewed and recorded on a videotape in which
he provided a fairly detailed description of the events of June 9 and 10. Hernandez said
that he knew basically where he went that night, but he was "really messed up." He
admitted that after leaving Koppenhoffer's residence, he went to Hooks' trailer to see if he
could stay there for the night. Hernandez was unable to remember the details of the
conversation, but he knew they had argued.

Hernandez explained that he felt like he was outside his body, watching what
happened. Hernandez described finding a hammer on the floor, chasing Hooks into the
bedroom, and hitting Hooks, "just [going] off on him," with the hammer. Hernandez was
so disturbed by the sight of blood gushing out of Hooks' head and the sound of Hooks'
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labored breathing that he ran into the living room, sat on the couch, and chain-smoked a
pack of cigarettes. Hernandez said that he considered killing himself, because he did not
think he was capable of something like that. Feeling bad about what had happened, he
decided to hide the body.

Hernandez returned to the bedroom, turned on the light, and observed that "it was
bad." Hooks was still gasping for air. Hernandez first said that Hooks "just died" while he
tried to figure out what to do, but he eventually admitted that he stabbed Hooks twice in
the chest. He described two different knives, one that he used to stab Hooks in the heart
and another that he used to cut up the body after razor blades did not work. Hernandez
described dismembering the body and putting it into plastic bags. He remembered that it
was difficult to cut the body into pieces. He wrapped the torso in blood-soaked blankets
from the bed and then used towels to clean up the scene. He put the bedding and towels
in the vehicle to dispose of with the body and flipped the mattress over to hide the
bloodstains. He remembered taking several trips out to the vehicle.

At trial, the jury found Hernandez guilty of premeditated first-degree murder,
aggravated robbery, aggravated burglary, and residential burglary. He was sentenced to
life imprisonment with a hard 50 mandatory minimum prison term on the primary offense
of murder, plus a consecutive term of 74 months for the other offenses.

ANALYSIS

Prosecutor's Closing Argument

Hernandez argues that a comment during closing argument constituted misconduct
and denied him a fair trial. The disputed comment was made when the prosecutor began
the rebuttal portion of his closing argument: "Since June 10th of 2007, when I watched
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Adam Hooks' body being removed from a vehicle . . . ." An objection made at trial was
directed at another part of the closing argument, but the State concedes that a timely
objection is not required to preserve an issue of prosecutorial misconduct that occurs
during closing argument. See State v. Morningstar, 289 Kan. 488, Syl. ¶ 5, 213 P.3d 1045
(2009).

Hernandez contends that this was a statement of fact not in evidence because no
evidence had been presented that the prosecutor actually watched Hooks' body being
removed from the vehicle. Further, Hernandez argues that this statement improperly
bolstered the State's case by painting the prosecutor "as an insider who had personal
knowledge of the case, and therefore the authority to dismiss doubts."

The standard of review is well established:

"We employ a two-step analysis in considering claims of prosecutorial
misconduct. First, the court must determine whether the prosecutor's statements were
outside the wide latitude for language and manner a prosecutor is allowed when
discussing the evidence. If the first step of the analysis has been met, we consider
whether the comments constitute plain error, that is, whether the statements were so gross
and flagrant as to prejudice the jury against the accused and deny him or her a fair trial."

"In determining whether a new trial should be granted because of prosecutorial
misconduct under the second step in our analysis, we consider: (1) whether the
misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the
remarks show ill will on the prosecutor's part; and (3) whether the evidence against the
defendant is of such a direct and overwhelming nature that the misconduct would likely
have little weight in the minds of the jurors. None of these three factors is individually
controlling, and before the third factor can ever override the first two factors, an appellate
court must be able to say both the K.S.A. 60–261 and the Chapman v. California, 386
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U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), harmlessness tests have been met." State
v. Scott, 286 Kan. 54, Syl. ¶¶ 17-18, 183 P.3d 801 (2008).

Our decision in State v. Ward, No. 99,549, this day decided, synthesized and
clarified our case law on the definition and application of the harmless error standard,
including the two standards we have relied upon in the second step of our analysis of
prosecutorial misconduct claims, concluding:

"[B]efore a Kansas court can declare an error harmless it must determine the error did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.
The degree of certainty by which the court must be persuaded that the error did not affect
the outcome of the trial will vary depending on whether the error implicates a right
guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial." State v. Ward, No. 99,549.

Like Ward, Hernandez claims a violation of rights guaranteed by the United States
Constitution, specifically, a violation of his right to a fair trial and a violation of his
Fourteenth Amendment right to due process. As such, we need not address the questions
left open by Ward regarding the standard that applies to errors which do not implicate the
federal constitution. In this case, it is the State's burden, as the party favored by the error,
to prove beyond a reasonable doubt that the error did not affect Hernandez' substantial
rights, meaning it did not contribute to the verdict obtained. See State v. Ward, No.
99,549.

A comment on a matter outside the evidence is improper. Scott, 286 Kan. at 84. In
Scott, the disputed statement was that the prosecutor had listened to the 3-hour confession
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tape for 60 hours and knew it by heart. Scott argued that the statement was improper
because (1) it was a statement outside the evidence, and (2) the statement was designed to
make the jury believe the prosecutor's recollection of the tape was especially accurate.
After noting that Scott did not argue that the prosecutor's subsequent characterization of
his confession was false or misleading, we concluded that the comment was nothing more
than a "harmless retrospection." 286 Kan. at 84. Similarly, in this case, the prosecutor's
comment was a harmless retrospection on how this case began.

At oral argument, the prosecutor candidly acknowledged that his statement during
rebuttal was a comment on a matter outside the evidence. We agree that the statement
should have been more artfully phrased to avoid reference to the prosecutor's
involvement in the investigation of this case and that this statement was in error.
However, we are satisfied by the State's explanation of the statement and persuaded
beyond a reasonable doubt that this statement was little more than harmless retrospection
that did not contribute to the verdict obtained.

Further, Hernandez does not argue that the statement shows ill will on the part of
the prosecutor. Direct physical evidence put Hernandez in close proximity to Hooks at
the time of death. Additional testimony showed Hernandez was attempting to dispose of
the body and all evidence of the murder when Officer Apodaca interrupted. Combining
the physical evidence and the testimony presented at trial with Hernandez' confession,
which did not implicate a third person, the evidence in this case was overwhelming and
sufficient such that the jury was not likely influenced by the prosecutor's statement.

Voluntary Intoxication Instruction

Hernandez objected to the lack of a voluntary intoxication instruction. The State
did not oppose such an instruction. In denying the request, the trial court relied on State v.
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Brown, 258 Kan. 374, 904 P.2d 985 (1995), for the proposition that evidence that the
defendant consumed alcohol and drugs on the night of the offense was not enough to
support an instruction on voluntary intoxication unless there was evidence that the
defendant's consumption of those substances impaired his mental faculties so as to render
him unable to form the requisite intent. The trial court went on to say that, as in Brown,
the "evidence showed the defendant's mental abilities were intact and the defendant's
ability to recall in detail the events occurring on the night of the offense. The defendant
gave a statement in this case within a number of hours after the events must have
occurred and gave a fairly explicit description of what happened. That is a detailed
recollection of the events occurring the night of the offense."

Hernandez points to one witness who said that while Hernandez' speech was not
impaired by his intoxication, Hernandez' vocabulary was limited and he was unable to
use big words. At oral argument, Hernandez reiterated his position that any evidence of
consumption of alcohol and/or marijuana is sufficient to require a voluntary intoxication
instruction. In this instance, counsel argued that the jury could infer from evidence of
consumption alone that Hernandez was intoxicated to the extent that his ability to form
the requisite intent was impaired.

The State concedes that there was evidence that Hernandez had gotten high, had
consumed alcohol, and had used marijuana and possibly cocaine on June 9, 2007, but
maintains that there was no evidence that Hernandez was intoxicated at the time of the
murder. The State focuses on Hernandez' confession, in which he stated that he
apologized to Hooks before stabbing him twice in the heart so that Hooks would not
suffer. Further, shortly after the stabbing, Hernandez admitted to dismembering the body,
wrapping it in plastic bags, and moving it to the vehicle with the ultimate plan of
disposing of the body in the river. Finally, Hernandez used latex gloves while
dismembering the body, carefully collected bloodstained items at the scene to dispose of
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with the body, and attempted to clean up himself and the crime scene before leaving.
These actions, the State argues, are not the actions of a person who is so intoxicated that
he is unable to form the specific intent required for murder.

"'A defendant is entitled to instructions on the law applicable to his or her theory
of defense if there is evidence to support the theory. However, there must be evidence
which, viewed in the light most favorable to the defendant, is sufficient to justify a
rational factfinder finding in accordance with the defendant's theory.'" State v. Anderson,
287 Kan. 325, 334, 197 P.3d 409 (2008).

Voluntary intoxication may be a defense to any crime that requires specific intent.
Brown, 258 Kan. at 386. Hernandez was charged with premeditated first-degree murder,
aggravated burglary, and burglary, all of which require specific intent. K.S.A. 21-3401;
K.S.A. 21-3716; K.S.A. 21-3715. This question hinges on whether the evidence, viewed
in the light most favorable to Hernandez, shows that Hernandez was intoxicated to the
extent that his ability to form the requisite intent was impaired. See, e.g., Brown, 258
Kan. at 386-87 ("Although there was evidence, presented by both the State and the
defense, that the defendant had consumed alcohol and drugs on the night of the offense,
the record is devoid of evidence that the defendant's consumption of those substances
impaired his mental faculties so as to render him unable to form the requisite intent.
There was no evidence that the defendant's physical or mental abilities were impaired. In
fact, the evidence demonstrates the defendant's mental abilities were clearly intact in that
he was able to recall in detail the events which occurred the night of the offense."); State
v. Johnson, 258 Kan. 475, 486, 905 P.2d 94 (1995) ("Although there was evidence,
presented by both the State and the defense, that the defendant had consumed alcohol,
and even by one witness that he was 'drunk,' the record is devoid of evidence that the
defendant's consumption of alcohol impaired his mental faculties so as to render him
unable to form the requisite intent. The defendant was able to recall his activities on the
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night of the offense. [Citations omitted.] An instruction on voluntary intoxication was not
required.").

Although there was evidence in this case that Hernandez had consumed alcohol
and marijuana on the night of the murder, there was not evidence which, viewed in the
light most favorable to the defendant, is sufficient to justify a rational factfinder finding
that Hernandez was so intoxicated that he was unable to form the specific intent
necessary for the crimes charged. Witnesses described Hernandez as "high" or
"intoxicated," but all believed that Hernandez was aware of what was going on and what
he was doing. Perhaps more importantly, Hernandez provided a detailed recollection of
the events on the night of the offense, which demonstrates that Hernandez' mental
faculties were intact. The trial court used the appropriate standard to determine whether a
voluntary intoxication instruction was appropriate. A defendant must present evidence
that his or her consumption of alcohol or drugs impaired his or her mental faculties so as
to render him or her unable to form the requisite intent. State v. Parker, 22 Kan. App. 2d
206, 209, 913 P.2d 1236 (1996). This court will not infer impairment based on evidence
of consumption alone. Accordingly, the trial court did not err in finding that there was
insufficient evidence to find that Hernandez' mental faculties were so impaired as to
render him unable to form the requisite intent.

Identical Offense Doctrine

Hernandez argues that the premeditation required for premeditated first-degree
murder is no different from the intentional killing required for intentional second-degree
murder. Further, Hernandez argues that the instructions defining "premeditation" and
"intentional" imply that acting on purpose, with knowledge of one's actions, satisfies both
elements. This court rejected this argument in State v. Warledo, 286 Kan. 927, 951, 190
P.3d 937 (2008).
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"It is well established that offenses are identical when they have the same
elements. [Citations omitted.] In order to determine whether the elements are identical for
sentencing purposes, an appellate court must consider the statutory elements and that
review is unlimited." Warledo, 286 Kan. at 951. In Warledo, this court considered the
argument that premeditated first-degree murder and intentional second-degree murder run
afoul of the identical offense sentencing doctrine because there is no appreciable
difference between "premeditation" and "intentional." This court concluded that the two
"crimes are clearly not identical." Warledo, 286 Kan. at 951. Hernandez has not presented
any new arguments or rationale that persuades us to change our analysis of this issue.

Hard 50 Sentencing Scheme

Hernandez argues that the hard 50 sentencing scheme is unconstitutional because a
jury does not find the facts that increase the term of parole ineligibility beyond a
reasonable doubt. This court has repeatedly upheld the hard 50 sentencing scheme against
constitutional challenges of this nature. See, e.g., State v. Ellmaker, 289 Kan. 1132, Syl. ¶
11, 221 P.3d 1105 (2009); State v. Horn, 278 Kan. 24, 44, 91 P.3d 517 (2004); State v.
Washington, 275 Kan. 644, 680, 68 P.3d 134 (2003). Again, we see no new arguments
that persuade us to alter our analysis.

Sentence to the Highest Term in a Presumptive Grid Block

Hernandez argues that it was error for the trial court to sentence him to the high or
aggravated sentence in the grid box for aggravated robbery, aggravated burglary, and
burglary without a finding of the aggravating factors made by a jury. "Under K.S.A. 21-
4721(c)(1), an appellate court is without jurisdiction to consider a challenge to a
presumptive sentence, even if that sentence is to the highest term in a presumptive grid
block." State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008). As we noted in
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Johnson, we have consistently found that a sentence that falls within the grid box is
constitutional and may be considered a presumptive sentence; therefore, the appellate
courts lack jurisdiction to consider such sentences. Johnson, 286 Kan. at 842.

BIDS Fee

Hernandez claims that although the trial court considered his ability to pay, the
trial court's assessment of Board of Indigents' Defense Services (BIDS) attorney fees
defies logic and is unconstitutional because the court acknowledged that the fees may
never be paid in full. The trial court made the following findings:

"The Court will direct that the restitution and the reimbursement to BIDS be paid in that
order. Restitution first and then other matters following―other financial matters
following over the period of sentence. I recognize that Mr. Hernandez is not going to be
in a position to gain outside employment. On whatever limited basis that he is able to
engage in the remunerative employment during his incarceration that that should go
toward these items. The Court will direct that reimbursement to BIDS be made for fees.
Again, I understand that that may never get paid in full, but there is a long period of time
that is involved and to the extent that money can be paid toward it that it can and should
be done because it enables others to be represented as well. I don't want to diminish in
any respect the efforts—substantial efforts made by counsel for the defendant on his
behalf by implying through the Court's order that he has not received anything other than
the best benefit of counsel throughout this case."

The assessment of attorney fees involves the interpretation of a statute, which is a
question of law over which an appellate court exercises unlimited review. State v.
Robinson, 281 Kan. 538, 539, 132 P.3d 934 (2006). This court has interpreted the statute
at issue here to

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"'clearly require[] a sentencing judge, "in determining the amount and method of
payment" of BIDS reimbursement, i.e., at the time the reimbursement is ordered, to "take
account of the financial resources of the defendant and the nature of the burden that
payment of such sum will impose." The language is mandatory; the legislature stated
unequivocally that this "shall" occur.'" State v. Drayton, 285 Kan. 689, 715-16, 175 P.3d
861 (2008) (quoting Robinson, 281 Kan. at 543).

This court uses an abuse of discretion standard to review the amount of the fee
imposed. Drayton, 285 Kan. at 716. In Drayton, this court reversed the assessment of
attorney fees for reimbursement of BIDS fees because the district court found Drayton
was essentially unable to afford to reimburse any of the $7,110 fee imposed because he
would be imprisoned for the next 25 years. Drayton, 285 Kan. at 716. In this case, the
trial court made a finding that Hernandez would have some ability to pay the BIDS fees
due to the possibility of remunerative employment during his lengthy incarceration
period. The fee imposed here was not an abuse of discretion.

Affirmed.