State v. Gutierrez-Fuentes

508 P.3d 378

STATE of Kansas, Appellee,

v.Geldy GUTIERREZ-FUENTES, Appellant.

No. 120,339

Supreme Court of Kansas.

Opinion filed April 29, 2022.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs 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 Wilson, J.:

Geldy Gutierrez-Fuentes petitioned this court for review of three issues after the Court of Appeals affirmed his convictions for aggravated battery, aggravated burglary, and criminal threat. He argues (1) that his constitutional right to a speedy trial was violated, (2) that there was insufficient evidence to support his aggravated burglary conviction, and (3) that the district court erred by admitting out-of-court statements of an interpreter over defense hearsay objections. We affirm his convictions.

FACTS AND PROCEDURAL HISTORY

Gutierrez-Fuentes moved in with the victim, D.S., in late June 2016. After an argument in early October 2016 which resulted in Gutierrez-Fuentes grabbing D.S. by the throat and shoving her, D.S. told Gutierrez-Fuentes she did not want to be with him anymore and he needed to move out of the apartment. In compliance, Gutierrez-Fuentes gathered some of his belongings, but when D.S. asked him to return the key to the apartment, he claimed he had lost it.

A few days after the split, D.S. was in the apartment behind a door locked with a deadbolt. The deadbolt could not be unlocked from the outside. Because Gutierrez-Fuentes had not returned the key, D.S. took extra precautions to secure her apartment and placed a chair behind the door. That day, Gutierrez-Fuentes returned to the apartment, knocked on the window, and asked D.S. to talk with him. She refused and did not give him permission to enter the apartment. In response, Gutierrez-Fuentes broke through the front door, went into the apartment, grabbed D.S., and started hitting her. Gutierrez-Fuentes told D.S. that if she was not going to be with him, he would kill her. D.S. blacked out. When she regained consciousness, she found help in the apartment upstairs, where one of her neighbors called 911.

Officer Dane Myers responded to the assault call. He found D.S. covered in blood and being consoled by a neighbor. He was not able to speak directly with D.S. at that time because of a language barrier. Officer Myers concluded the apartment door had been forced open, because wood chips were lying on the ground and the deadbolt was still in a locked position.

An ambulance took D.S. to the hospital, where a staff interpreter facilitated a conversation between D.S. and Officer Myers. At trial, Officer Myers gave testimony outlining this conversation with D.S.

D.S. was examined by forensic nurse Tracy Hess. Through the services of a staff interpreter, D.S. gave information to Hess. At trial, Hess gave testimony outlining this conversation with D.S.

Officer Rick Peña, who speaks both English and Spanish and therefore needed no interpreter, communicated directly with D.S. at the hospital and testified at trial about this conversation with D.S. The information Peña provided was consistent with the trial testimony given by D.S., Myers, and Hess.

Gutierrez-Fuentes, like D.S., does not speak English. He tried to turn himself in at the police station on October 5, 2016—the same day as the attack—but he was turned away. Charges were filed against him on October 31, 2016. Gutierrez-Fuentes was arrested on February 3, 2017, and tried on August 20, 2018.

The jury convicted Gutierrez-Fuentes on two separate counts of aggravated battery, one count of aggravated burglary, and one count of criminal threat. He was sentenced to a controlling 82 months in prison. He timely appealed.

Before the Court of Appeals panel, Gutierrez-Fuentes argued that his constitutional right to a speedy trial had been violated, there was insufficient evidence for his aggravated burglary conviction, the district court had allowed inadmissible hearsay evidence, and the district court erred when it instructed the jury on the elements of aggravated battery. The panel affirmed the district court, and Gutierrez-Fuentes seeks review of only the first three issues.

ANALYSIS

CONSTITUTIONAL SPEEDY TRIAL

Gutierrez-Fuentes first argues that his constitutional right to a speedy trial was violated because he was held in jail for 18 months before being brought to trial. He argues that the panel's analysis of the issue was deficient and that a full review and application of the constitutional speedy trial test would show his rights have been violated and his convictions need to be reversed.

Preservation

A defendant has both a statutory and constitutional right to a speedy trial. While clearly related, they are two separate rights with different tests and different burdens. See K.S.A. 2020 Supp. 22-3402 (setting forth the number of days after arraignment by which trial must begin to avoid dismissal of charges); State v. Owens , 310 Kan. 865, 869, 451 P.3d 467 (2019) (outlining the constitutional balancing test of the Barker factors adopted by this court). In this appeal, Gutierrez-Fuentes asserts that he made a timely objection—before his case was concluded in the district court—that his constitutional right to a speedy trial was violated, and thus he preserved this issue for appellate review. Accordingly, our first task is to determine whether Gutierrez-Fuentes actually preserved a claim that his constitutional right to speedy trial was violated.

The answer is not easy to ascertain. The record shows that neither Gutierrez-Fuentes nor any of his attorneys specifically objected to the court that his constitutional right to a speedy trial had been violated. Nor was a motion to dismiss filed on the basis that the defendant's constitutional right to a speedy trial had been violated. Again, this highlights the difference between a defendant's statutory right and constitutional right to a speedy trial. The State has the burden of meeting the statutory speedy trial time requirement, and the defendant does not have to assert the right. State v. Dreher , 239 Kan. 259, 260, 717 P.2d 1053 (1986). However, in terms of a defendant's constitutional speedy trial right, neither the United States nor the Kansas Constitutions impose specific time requirements for bringing a criminal defendant to trial, which is why courts utilize the constitutional balancing test of the Barker factors. See Barker v. Wingo , 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). An effective review of the constitutional right often requires consideration in context of both trial delay and any prejudice to the defendant that may have resulted from that delay. Such an analysis of the constitutional requirements is more complex than simply counting days. A defendant benefits from ensuring the facts supporting the Barker factors are considered by the district court. Otherwise, those facts will not be included in the appellate court's contextual analysis, because appellate courts do not make findings of fact. In other words, the defendant also carries a burden to establish the Barker factors. State v. Queen , 313 Kan. 12, 16, 482 P.3d 1117 (2021) ("[Defendant] has not argued ... that he could meet his burden to establish any of [the Barker ] factors".). So, we look further. If evidence was presented by the defense from which the court made fact-findings relevant to the alleged violation of Gutierrez-Fuentes’ constitutional speedy trial rights, the objection may be preserved even if the court did not find that the evidence sufficiently supported the objection or the motion.

Both the Sixth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights guarantee defendants the right to a speedy trial.

"The test to determine whether an accused has been afforded a speedy trial was set forth in Barker v. Wingo , 407 U.S. 514 [92 S. Ct. 2182], 33 L. Ed. 2d 101 (1972). Barker identified four factors to be considered when a claim of unconstitutional denial of a speedy trial is asserted: the length of the delay, the reason for delay, the defendant's assertion of the right, and prejudice to the defendant. Kansas adopted the Barker four-point test in State v. Otero , 210 Kan. 530, 532-33, 502 P.2d 763 (1972). [Citation omitted.]" State v. Jamison , 248 Kan. 302, 306-07, 806 P.2d 972 (1991).

In weighing the Barker factors, the court must consider them together along with any other relevant circumstances, because none of the factors alone is sufficient to find a violation. However, the length of the delay could be determinative of the claim, because "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." State v. Rivera , 277 Kan. 109, 113, 83 P.3d 169 (2004).

Turning to the record, we observe:

(1) Defendant did not articulate a constitutional speedy trial objection. While defendant filed a document early in the case that he was asserting his right to a speedy trial, he based that assertion on a specific number of days, which indicates a reference to the speedy trial statute rather than the constitutional right. Then, despite his early assertion, defendant later explicitly agreed to some continuances. After that, defendant and his counsel objected to any further delays. However, the proactive assertion that one objects to further delay is not the same as claiming that a right—either statutory or constitutional—has been violated.

(2) Defendant identifies no hearing during which evidence was presented on a claim that his constitutional right had been violated. Because no specific assertion was made of a constitutional violation, the district court, in turn, neither addressed the Barker factors nor made a fact determination as to whether those factors would...