State v. Zuniga-Rodriguez

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NOT DESIGNATED FOR PUBLICATION

No. 116,031

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RAFAEL ZUNIGA-RODRIGUEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed June 30, 2017.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Laura L. Miser, acting county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., POWELL and GARDNER, JJ.

Per Curiam: Rafael Zuniga-Rodriguez was convicted of possession of
methamphetamine, misdemeanor possession of drug paraphernalia, and possession of
more than 1 gram of methamphetamine with no tax stamp affixed. On appeal, he argues
we should reverse his convictions because the district court improperly admitted his
statements to law enforcement. We affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2015, Emporia Police Department officers executed a search
warrant on Zuniga-Rodriguez' home and arrested Zuniga-Rodriguez outside of the
residence. Deputy Heath Samuels took custody of Zuniga-Rodriguez and brought him
into the kitchen. Samuels advised Zuniga-Rodriguez of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Another officer was
present and witnessed Samuels giving Zuniga-Rodriguez his Miranda rights; however,
Zuniga-Rodriguez maintained that officers never informed him of his Miranda rights.
Zuniga-Rodriguez then walked around the residence with the officers and led them to a
white, crystalline substance—that later tested positive for methamphetamine—located in
multiple locations throughout the home. The methamphetamine weighed 2.3 grams total
and did not bear a tax stamp. Zuniga-Rodriguez also led the officers to a digital scale and
a glass pipe. During the search, Zuniga-Rodriguez admitted to Samuels that he sold
drugs.

The State charged Zuniga-Rodriguez with possession with intent to distribute
methamphetamine within 1,000 feet of a school, aggravated endangering a child, felony
possession of drug paraphernalia, misdemeanor possession of drug paraphernalia, and
possession of more than 1 gram of methamphetamine with no tax stamp affixed. Zuniga-
Rodriguez' court-appointed counsel did not file a motion to suppress the evidence derived
from the search or Zuniga-Rodriguez' statements to the officers, nor did counsel file any
other motions challenging the validity of the search. The State filed a motion requesting a
Jackson v. Denno hearing, which the district court held on January 27, 2016. See Jackson
v. Denno, 378 U.S. 368, 376-77, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); State v.
Betancourt, 301 Kan. 282, 289, 342 P.3d 916 (2015) (noting that "at a Jackson v. Denno
hearing, the issue before the court is whether defendant's statement or confession was
voluntary"). After weighing the evidence, the court found Zuniga-Rodriguez' statements
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to the officers were voluntarily made after having received an adequate warning of his
rights under Miranda and deemed the statements admissible at trial.

The charges against Zuniga-Rodriguez proceeded to trial. Zuniga-Rodriguez'
counsel made no contemporaneous objections to the admission of his statements to the
officers and was not granted a continuing objection to the admission of these statements.
The jury found Zuniga-Rodriguez guilty of possession of methamphetamine,
misdemeanor possession of drug paraphernalia, and possession of more than 1 gram of
methamphetamine with no tax stamp affixed. The district court sentenced Zuniga-
Rodriguez to 18 months' probation with an underlying 12-month term of imprisonment.

Zuniga-Rodriguez timely appeals.

DID THE DISTRICT COURT ERR BY IMPROPERLY ADMITTING INCULPATORY STATEMENTS?

Zuniga-Rodriguez contends the district court erred in admitting inculpatory
statements he made to the police officers as they were involuntary. The State counters
that because Zuniga-Rodriguez failed to make a contemporaneous objection to the
introduction of these statements during the trial, he failed to preserve the issue for
appellate review. Zuniga-Rodriguez has offered no reply explaining how the point has
been preserved.

K.S.A. 60-404 states that "[a] verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the erroneous admission of
evidence unless there appears of record objection to the evidence timely interposed and
so stated as to make clear the specific ground of objection." In recent years, the Kansas
Supreme Court has strictly enforced the contemporaneous objection rule. See State v.
Potts, 304 Kan. 687, 700-01, 374 P.3d 639 (2016). In State v. Hollingsworth, 289 Kan.
1250, 1256-57, 221 P.3d 1122 (2009), the court applied this rule and refused to consider
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for the first time on appeal a challenge to the admission of the defendant's statements to
law enforcement when there was no contemporaneous objection at trial, despite a
Jackson v. Denno hearing having been held. Accordingly, Zuniga-Rodriguez' failure to
make a contemporaneous objection at trial precludes our review of this issue.

Alternatively, even if the issue were properly before us on the merits, we conclude
sufficient evidence supports the district court's conclusion that Zuniga-Rodriguez'
statements to law enforcement were voluntary.

"When a trial court conducts a Jackson v. Denno hearing, determines a defendant's
statements were freely, voluntarily, and knowingly given, and admits the statements into
evidence at the trial, an appellate court reviews the factual underpinnings of the decision
under a substantial competent evidence standard and reviews the ultimate legal
conclusion drawn from those facts de novo. In doing so, an appellate court does not
reweigh evidence or assess the credibility of the witnesses but will give deference to the
trial court's findings of fact." State v. Warledo, 286 Kan. 927, 934-35, 190 P.3d 937
(2008) (citing State v. Harris, 279 Kan. 163, 167, 105 P.3d 1258 [2005]).

Zuniga-Rodriguez principally attacks the district court's finding that he was
Mirandized prior to being questioned and makes numerous arguments attacking the
officers' credibility. While we acknowledge the conflicting testimony on this point, we
are forbidden from reweighing the evidence or offering our own credibility assessment.
The district court had the opportunity to see and evaluate the witnesses, and sufficient
evidence supports the court's findings that Zuniga-Rodriguez' statements were voluntarily
made.

Affirmed.