261 Kan. 440
(932 P2d 940)
No. 74,955
STATE OF KANSAS, Appellee, v. RAMON A. NORIEGA, JR., Appellant.
SYLLABUS BY THE COURT
1. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. It is the function of the jury in a criminal case to determine the weight and credit to be given the testimony of each witness. On appellate review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are resolved in favor of the State.
3. No party may assign as error the giving or failure to give a jury instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3).
4. The giving or failure to give a jury instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error, there was a real possibility the jury would have returned a different verdict.
5. An accomplice is one who testifies that he or she was involved in the commission of the crime with which the defendant is charged.
6. An informant is an undisclosed person who confidentially discloses material information of a law violation, thereby supplying a lead to law enforcement officers for their investigation of a crime. This does not include persons who supply information only after being interviewed by law enforcement officers or who give information as witnesses during the course of an investigation.
7. Jury instructions are to be considered together and read as a whole, without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, the instructions do not constitute reversible error although they may be in some small way erroneous.
8. There is no constitutional requirement that a jury be instructed on the presumption of innocence.
9. The provisions of PIK Crim. 3d 52.02 accurately reflect the law of this state and properly advise the jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt.
10. A person being held in jail not solely for the crime charged is not entitled to be brought to trial within 90 days after the person's arraignment but is entitled to be brought to trial within 180 days after arraignment.
Appeal from Shawnee district court; MATTHEW J. DOWD, judge. Opinion filed January 24, 1997. Affirmed.
Lisa Nathanson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
James A. Brown, assistant district attorney, argued the cause, and Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Defendant Ramon A. Noriega, Jr., appeals his convictions of one count of felony murder, one count of aggravated burglary, and one count of aggravated robbery. Defendant claims the evidence was insufficient for a finding of guilty of aggravated burglary and aggravated robbery. Defendant also argues the trial court erred in (a) in failing to give cautionary jury instructions regarding accomplice and/or informant testimony and an eyewitness identification instruction; (b) failing to specify the statutory elements of burglary in the aggravated burglary instruction; and (c) giving an erroneous modified Allen instruction and an improper instruction on the burden of proof and the presumption of innocence. Defendant also claims he was denied his constitutional right to a speedy trial.
Sidney Robinson, the deceased, resided alone in Topeka. On January 11, 1994, his body was discovered in his back yard, clothed in a T-shirt and boxer shorts. Robinson had sustained three bullet wounds: one to his right lower leg, one to his left back, and one to his right lower back. The back wounds were fatal. The exact time of death could not be determined.
Robinson was a coin collector. Some of his coins and his 1979 Lincoln Continental automobile were missing. Police investigation indicated that the front door glass was broken. Penny wrappers, pieces of Robinson's coin collection, and square coin holders were found scattered in the living room. Police observed Robinson's pants beside his bed and his glasses sitting on his nightstand. Police recovered shell casings and a bullet fragment. They found a spent shell casing on Robinson's kitchen floor, a bullet fragment on the floor in the back porch area, and a third shell cartridge next to Robinson's left knee. The K.B.I. forensics firearms expert determined that the bullet fragment was consistent with a bullet commonly fired by a .380 caliber gun.
At trial, the State alleged that, after an evening of drinking at the Twilighter, a nearby tavern, Noriega and Douglas Leon Ray Abel, his codefendant, stole valuable coins from Robinson's collection at gunpoint in the early morning hours of January 10, 1994, and shot Robinson three times. Two witnesses, who had given several different and conflicting statements during the police investigation of Robinson's death, testified for the State.
Larry Baier testified that he and Fred Hunderfund, a neighbor of the deceased, went to the Twilighter tavern on Sunday night, January 9. While at the bar, Hunderfund introduced Baier to a man named "Keesh," whom Baier identified in court as Ramon Noriega, and to Noriega's friend, Douglas Abel. Baier left the Twilighter a little after 2 a.m. When he was about a quarter of a block away from the deceased's residence, he heard two or three shots. A short while later, he observed two men running between Hunderfund's and Robinson's houses. At trial, Baier identified the two men as Noriega and Abel.
Baier admitted that he had lied to the police several times when interviewed concerning the crime. He also stated that he had prior convictions of aggravated burglary and was on parole at the time of the shooting. Baier also testified that prior to the final police interview when he identified Abel, the police had booked Baier for a parole violation, told him he was a suspect in the murder, and stated that if he would cooperate in the investigation of the murder, they would attempt to keep him out of prison.
Police officers corroborated that there were discrepancies in Baier's testimony regarding the crime. One policeman testified that after Baier had initially stated he knew nothing about the murder, the police were contacted by a clerk at a Kwik Shop who stated Baier had told the clerk that Baier was near the house where the shooting had occurred and had encountered two white men, one of whom held a gun to him and told him, "You didn't see shit." After the police reviewed the Kwik Shop surveillance tape and identified Baier, they brought him back for further questioning. Baier continued to deny any knowledge of the crime until police confronted him with the tape. He then told police he had encountered two black males. Later he told police he had seen a Mexican male, "Speedy," whom Baier described as being 5'2". The police showed Baier pictures of Hispanic males, but Baier failed to identify "Speedy." Finally, Baier told the police that he encountered one man at the scene named "Keesh," the brother of Wilson Noriega, and another man with blond hair. Baier was shown some pictures, which included a picture of Abel. He did not identify Abel at that time.
Police testified that after being booked for a parole violation, Baier was interviewed again. When shown six photographs, he identified Douglas Abel as the other man he saw the night of the murder. When confronted with a wheat penny that officers had taken from him, Baier first stated he did not know where it came from. Baier eventually admitted that after Robinson's body had been removed from the house, Baier had entered Robinson's house and had taken food and the wheat penny found in his pocket.
A second witness, Bobby Shutts, who had hired an attorney and had been granted immunity from prosecution for all crimes connected with the incident except murder, testified that prior to the murder, Abel visited Shutts at his home on January 9, 1994. Abel showed Shutts a chrome .380 semiautomatic gun with bullets in the clip. Noriega then arrived at Shutts' house. The three went to the Twilighter tavern for a night of drinking. Abel had left the gun at Shutts' house. They departed the Twilighter at closing time. A few minutes after Shutts returned home, Abel came and picked up his gun.
Shutts stated that "within the next day or two," Abel returned, gave Shutts some coins, and asked him to sell them. Shutts was to keep $50 for himself and split the remaining money between Abel and Noriega. Shutts sold most of the coins for $200 to "some black guys" and threw the rest of the coins in the river.
Shutts testified he gave Abel his share of the money the next weekend and Noriega his part of the money a couple of days after Noriega telephoned him to ask if Shutts had the money. Shutts stated that Abel had told him on the telephone that he (Abel) had "fucked up" and "[w]hen they got the coins, something went wrong." The next weekend Abel informed Shutts he had disassembled the gun and thrown it in the Kansas River. On direct examination, Shutts acknowledged that he had lied to the police when first questioned about the murder and had been granted limited immunity from prosecution.
Tracy Anderson, a bartender at the Twilighter on the night of the murder, testified that she remembered seeing Abel, Noriega, Baier, and Hunderfund in the bar. Mark Thurber, a self-employed dealer in rare coins, testified that Robinson had been a customer who usually purchased wheat pennies. He testified that on January 17, 1994, a man who identified himself as "Ronald Ruiz" came into his store and inquired about selling several pennies which Thurber recognized as coins he had sold to Robinson. Ruiz was interviewed by police and eventually related that while he was playing video games at West Ridge Mall, he was approached by a black male who sold him coins.
Neither defendant testified at trial. Three witnesses for the defense, all police detectives, testified in detail concerning the contradictory stories told to the police by Baier and Shutts. Detective Thomas G. Young testified that Baier eventually admitted he was lying and told Young that he was afraid to tell the truth because he was afraid of reprisal by Noriega's brother, Wilson Noriega, with whom Baier had served prison time. Young testified that after Baier admitted he was afraid of Noriega's brother, Baier picked out a photograph of Noriega from a photo line-up. Detective Douglas Eby, chief investigator in the case, also testified. He stated that Baier did not identify Abel from a photo line-up until after Baier had been arrested.
SUFFICIENCY OF THE EVIDENCE
In denying the defendant's motion for judgment of acquittal at the close of the State's evidence, the trial judge stated:
"Well, I guess I could say that if there was ever a case where a defense motion for acquittal might be appropriate at this juncture, this might be one. The nexus or connection between the activities at the home of the deceased and these two defendants is very tenuous, and that's, that's the major difficulty that I have with denying the defendant's motion. But I do deny such. It seems to me that the credibility of the state's witnesses is the key, and if the jury believes the latest story that these two individuals told, together with the circumstantial evidence, that a reasonable trier of fact could come up with the conclusion that these two defendants are guilty of the three crimes charged against each of them."
On appeal, Noriega argues that there was insufficient evidence for the jury to conclude beyond a reasonable doubt that he was guilty of the underlying felonies of aggravated burglary and aggravated robbery and, therefore, his felony murder conviction cannot stand. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Johnson, 255 Kan. 252, Syl. ¶ 6, 874 P.2d 623 (1994); State v. Van Winkle, 254 Kan. 214, Syl. ¶ 5, 864 P.2d 729 (1993), cert. denied U.S. , 128 L. Ed. 2d 890 (1994); State v. Ferguson, 254 Kan. 62, Syl. ¶ 4, 864 P.2d 693 (1993). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Bradford, 254 Kan. 133, Syl. ¶ 2, 864 P.2d 680 (1993).
The jury found Noriega guilty of both underlying felonies of aggravated burglary and aggravated robbery. Aggravated burglary is "knowingly and without authority entering into or remaining within any building . . . in which there is a human being, with intent to commit a felony, theft or sexual battery therein." K.S.A. 21-3716. Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427.
The evidence at trial revealed that Robinson was shot three times, both inside and outside the house, and that two of the shots were fatal. Evidence supported inferences that Robinson's house had been broken into and that items from his house were stolen. The additional evidence was that Noriega, Abel, and Shutts all left Shutts' house together to go drinking on the evening of the crime. Several witnesses saw them drinking together at the Twilighter. Baier identified Noriega and Abel as the two men he saw running away from Robinson's house shortly after Baier heard shots fired. Shutts testified that Abel had left a gun of the same general type used to commit the murder at Shutts' house before the group left for the Twilighter. Shutts testified that a few minutes after he returned from the Twilighter, Abel retrieved the gun. Shutts also testified that he distributed proceeds from the sale of coins evenly between Abel and Noriega. Shutts testified that Abel told him that "[w]hen they got the coins, something went wrong."
It is the function of the jury in a criminal case to determine the weight and credit to be given the testimony of each witness. On review, the credibility of witnesses will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are resolved in favor of the State. Van Winkle, 254 Kan. at 225. The credibility of the State's primary witnesses, Shutts and Baier, was brought into question in opening argument, throughout the trial, and during closing arguments. Both witnesses admitted to lying to police prior to trial and having been involved in crimes subsequent to the murder. The jury had the opportunity to evaluate the evidence and the testimony of the witnesses. The jury obviously believed the State's witnesses were credible and accepted the evidence presented by the State as true. Under the circumstances, the evidence adduced at trial was sufficient for a reasonable factfinder to conclude that Noriega was guilty beyond a reasonable doubt of the underlying felonies of aggravated burglary and aggravated robbery.
ERRORS IN INSTRUCTION
Noriega contends that the trial court committed several errors in instructing the jury. Noriega made no objection to these instructions at trial, nor did he request any of the instructions he now claims the trial court erred in failing to give. Where a criminal defendant claims error in the trial court's giving or failure to provide a certain instruction, our standard of review depends on whether the defendant made a timely request for, or objected to the failure to give, the instruction at issue. See State v. Whitaker, 255 Kan. 118, 872 P.2d 278 (1994). No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). The giving or failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict. State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995); State v. Crawford, 255 Kan. 47, Syl. ¶ 5, 872 P.2d 293 (1994).
Cautionary Instructions
First, Noriega claims error in the trial court's failure to give cautionary instructions regarding accomplice and paid informant testimony with respect to the testimony of Baier and Shutts. As to the accomplice instruction, PIK Crim. 3d 52.18 defines an accomplice as one who testifies that he or she was involved in the commission of the crime with which the defendant is charged. Noriega's argument that an accomplice instruction was required fails as there was no testimony that either Baier or Shutts acted as accomplices in the murder, aggravated burglary, or aggravated robbery charged.
Noriega also asserts that the trial court erred in failing to instruct the jury that it should consider the testimony of an informant with caution. Noriega argues that because the police did not revoke Baier's parole or charge Shutts with crimes that occurred subsequent to the murder, they were informants who received benefits from the State in exchange for their testimony. PIK Crim. 3d 52.18-A provides:
"You should consider with caution the testimony of an informant who, in exchange for benefits from the State, acts as an agent for the State in obtaining evidence against a defendant, if that testimony is not supported by other evidence."
An informant is an "undisclosed person who confidentially discloses material information of a law violation, thereby supplying a lead to officers for their investigation of a crime. [Citation omitted.] This does not include persons who supply information only after being interviewed by police officers, or who give information as witnesses during the course of investigation." Black's Law Dictionary 780 (6th ed. 1990).
Baier and Shutts were individuals who supplied information only after being interviewed by police officers. They later gave additional statements during the course of the investigation. Neither witness was an informant. Under the facts, the giving of a "paid" informant cautionary instruction was not required.
Eyewitness Instruction
Noriega next asserts the trial court committed error in failing to give an eyewitness identification instruction, PIK Crim. 3d 52.20. Noriega did not request the instruction.
In any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of eyewitness identification testimony. State v. Richmond, 258 Kan. 449, Syl. ¶ 4, 904 P.2d 974 (1995).
The unreliability of Baier and his eyewitness identification was exhaustively explored at trial. In addition to hearing about Baier's prior convictions for dishonesty, the jury was thoroughly informed about Baier's inconsistent stories during the investigation and at the preliminary hearing. Many of the inconsistencies concerned the identification of the defendant. Baier also admitted that his identification of Noriega outside the Robinson home could have taken place between 40 seconds to 10 minutes after he heard the shots. Baier acknowledged more than once that he did not look at the defendant's face but recognized him by his clothes. He also admitted that a lot of people could have been wearing clothes similar to those of the defendant. Baier admitted lying when he told the police that he had seen a short Mexican man named "Speedy" and also admitted being so drunk he did not know "what planet he was on" at the time he claimed to have seen the defendant.
Noriega's entire defense was the lack of credibility of Baier and Shutts. Under these circumstances, jurors of ordinary intelligence would have received Baier's testimony with caution. For these reasons, we conclude that the giving of the eyewitness identification instruction was not required.
Aggravated Burglary Instruction
Noriega next argues the trial court committed error in giving an instruction on aggravated burglary which did not specify the felony he intended to commit upon entering the residence. Aggravated burglary was one of the alternative felony charges underlying the felony murder charge. Noriega did not object to the instruction as given; therefore, the clearly erroneous standard applies.
Burglary is defined as "knowingly and without authority entering into or remaining within any . . . [b]uilding, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein." K.S.A. 21-3715. Aggravated burglary merely requires the additional element that the place of the burglary be occupied by a human being during the course of the burglary. K.S.A. 21-3716.
The State's complaint charged aggravated burglary as follows:
"On or about the 11th day of January, 1994, in the County of Shawnee and State of Kansas, DOUGLAS LEON RAY ABEL, RAMON ALEXANDER NORIEGA, JR., did then and there unlawfully, wilfully and knowingly, without authority and with the intent to commit a felony or theft, to-wit: Robbery, Aggravated Robbery, or Theft therein, entered into a residence located at 417 NW Fairchild, occupied during time of said entrance by, Sidney J. Robinson, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas." (Emphasis added.)
The trial court's instruction on aggravated burglary provided:
"To establish this charge, each of the following claims must be proved:
(1) That the defendant knowingly entered a residence located at 417 NW Fairchild;
(2) That the defendant did so without authority;
(3) That the defendant did so with intent to commit a felony or theft therein;
(4) That at the time there was a human being in the residence at 417 NW Fairchild; and
(5) That this act occurred between January 9th and January 11th, 1994, in Shawnee County, Kansas."
The theft charge which originally dealt with theft of Robinson's automobile was dismissed at the close of the State's case in chief. As Noriega argues, the aggravated burglary instruction failed to identify the felony intended to be committed. Noriega asserts that this case is similar to State v. Linn, 251 Kan. 797, Syl. ¶ 2, 840 P.2d 1133 (1992), where this court stated: "An instruction as to the offense of aggravated burglary is defective unless it specifies and sets out the statutory elements of the offense intended by an accused in making the unauthorized entry."
In Linn, the defendant was charged with felony murder, aggravated battery, and aggravated burglary. The underlying felony for the murder charge was aggravated burglary of a residence. At trial, the defendant requested that the felony-murder instruction specify aggravated burglary as the underlying felony and that the aggravated burglary instruction specify its underlying crime as theft. The State argued that the evidence supported theft, aggravated battery, or robbery as the underlying felony for aggravated burglary.
The trial judge's instruction stated that to find the defendant guilty of aggravated burglary, the jury had to find that Linn entered or remained in the residence "with the intent to commit a felony or theft therein." 251 Kan. at 799. The defendant objected to the instruction on the ground there was no evidence of any intent to commit a crime other than theft. On appeal, Linn argued that the judge's instruction to the jury failed to identify a specific felony he allegedly intended to commit inside the home and to set out the statutory elements of theft. The Linn court observed that an instruction as to aggravated burglary is defective unless it specifies and sets out the statutory elements of the offense intended by the accused in making the unauthorized entry. The Linn court found that the trial court's failure to specify the underlying felony or felonies and their elements prevented the jury from rendering a lawful verdict and was an error of constitutional magnitude, depriving Linn of a fair trial. 251 Kan. at 802.
We agree that it would be error if the district court had failed to set out the statutory elements of the intended felony when instructing on aggravated burglary. See State v. Richmond, 258 Kan. 449, Syl. ¶ 5; State v. Watson, 256 Kan. 396, 404, 885 P.2d 1226 (1994); and State v. Maxwell, 234 Kan. 393, Syl. ¶ 3, 672 P.2d 590 (1983). Here, the defendant fails to consider the instructions together and as a whole. Jury instructions are to be considered together and read as a whole, without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, the instructions do not constitute reversible error although they may be in some small way erroneous. State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994).
The trial judge instructed the jury on count I of the complaint on the crime of aggravated burglary. Instruction No. 1 stated: "That the defendant did so with the intent to commit a felony or theft therein." Instruction No. 2 informed the jury that the defendant was charged with the crime of aggravated robbery. It then set out each of the claims the State must prove to establish this charge. Instruction No. 3 informed the jury that the defendant was charged with the crime of murder in the first degree (felony murder). The jury was informed that to establish this charge, each of the following claims must be proved: The defendant killed Sidney J. Robinson during the commission of the crimes of aggravated burglary or aggravated robbery. Instruction No. 3 noted that the elements of aggravated burglary and aggravated robbery were set forth in Instructions No. 1 and 2. The jury found the defendant guilty of the crimes of aggravated burglary, aggravated robbery, and first-degree felony murder.
When the three instructions are read together, we are able to conclude that the jury was properly instructed and to determine that the defendant entered the residence with the intent to commit the felony of aggravated robbery. Noriega's claim that the aggravated burglary instruction did not specify the felony he intended to commit upon entering the residence is without merit.
Noriega also asserts that when alternative felonies are charged, and the jury does not expressly specify in its verdict which felony was the basis for the felony-murder conviction, the felony-murder conviction cannot stand if the evidence was not sufficient for conviction on both underlying felonies. He argues that because it is impossible to tell whether the jury relied upon a legally sufficient felony for the murder convictions, his conviction for felony murder must be vacated.
Here, the jury was instructed that it could find the defendant guilty of felony murder if it convicted Noriega of either aggravated burglary or aggravated robbery and was instructed that its verdict must be unanimous. On separate verdict forms the jury found the defendant guilty of both aggravated robbery and aggravated burglary. Because the evidence of the underlying felony convictions was sufficient, the felony murder conviction stands.
Modified Allen Instruction
Noriega next argues it was error for the trial court to provide a modified Allen instruction prior to the jury retiring to deliberate. Since he did not object to the instruction at trial, he must now establish that, even if the instruction was erroneous, the jury would have returned a different verdict in the absence of this instruction. The challenged instruction provided:
"As you know this case has been exhaustively tried by both sides. If you are unable to agree on a verdict, the Court will then declare a mistrial and this matter will have to be tried again to another jury. There is no reason to think that a jury better qualified than you would be chosen to try this case.
"The Court suggests that in your deliberations on the case that you listen to arguments of other jurors with an open mind and be disposed to be convinced by them and scrutinize your opinions in light of the evidence presented and the Court's instructions."
This instruction is a substantially modified version of the Allen instruction found at PIK Crim. 3d 68.12, which provides:
"This is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases, it must be decided sometime. Another trial would be a heavy burden on both sides.
"There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.
"Also, there is no reason to believe that the case would ever be submitted to 12 people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.
"[These matters are mentioned now because some of them may not have been in your thoughts.]
"This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
"This does