Preview:

Original File Date: July 30, 2010 Last Revision Date: October 7, 2010

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,175 STATE OF KANSAS, Appellee, v. MIGUEL MARTINEZ, JR., Appellant.

SYLLABUS BY THE COURT 1. Statutory interpretation is a question of law subject to an appellate court's unlimited review.

2. The fundamental rule of statutory interpretation is to give effect to the legislature's intent as it is expressed in the statute. Courts must apply a statute's language when it is clear and unambiguous, rather than determining what the law should be, speculating about legislative intent, or consulting legislative history.

3. K.S.A. 22-3433(a) creates an exception to the hearsay rule, allowing admission of a recorded oral statement of a child made before any criminal proceedings began if the child is under 13 years old, alleged to be a crime victim, and the enumerated statutory conditions are satisfied.

4. Before admitting a recorded oral statement of a child victim into evidence as an exception to the hearsay rule, K.S.A. 22-3433(a)(8) requires each party to have an opportunity to view the recording and be provided a copy of a written transcript.

5. Failing to provide a written transcript as required by K.S.A. 22-3433(a)(8) renders a recording of an oral statement of a child, who is less than 13 years of age and alleged to be a victim of a crime, made before any criminal proceedings began, inadmissible in evidence. Substantial compliance with K.S.A. 22-3433 is not sufficient.

6. Under statutory interpretation rules, a more specific statute must control over a more general statute.

7. The erroneous admission of evidence is reversible error only if it is determined that a refusal to remand would be inconsistent with substantial justice.

8. The intent required for attempt crimes must be specific to the underlying crime. Intent may be inferred from acts, circumstances, and inferences reasonably deducible therefrom.

9. Evidence of attempted penetration is not required to establish attempted rape.

2

10. Appellate courts do not require a contemporaneous objection to preserve questions of prosecutorial misconduct for comments made during a prosecutor's closing argument.

11. Allegations of prosecutorial misconduct are subject to a two-step analysis, which inquires (a) whether the prosecutor's statements were outside the wide latitude allowed prosecutors when arguing cases and (b) if so, whether those statements denied the defendant a fair trial.

12. A prosecutor's closing argument that asks the jury to let the victim know "she did the right thing" in reporting the alleged crime is an improper attempt to divert the jury's attention from the evidence and the law.

13. It is well recognized the cumulative effect of trial errors may be so great that a defendant's conviction requires reversal. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.

14. This court will apply the harmless error analysis to the omission of an element from the instructions to the jury when a review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.

Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed July 30, 2010. Affirmed.

3

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BILES, J.: Miguel Martinez, Jr., appeals his conviction and sentence for attempted rape of a child under 14 years of age pursuant to K.S.A. 21-3301and K.S.A. 21-3502--an off-grid crime. He was sentenced to life in prison with a mandatory minimum sentence of 25 years under K.S.A. 21-4643, commonly known as Jessica's Law. The jury acquitted Martinez on the charge of rape of a child under 14 years of age in violation of K.S.A. 213502. This court has jurisdiction under K.S.A. 22-3601(b)(1) (off-grid crime; life sentence).

We affirm the conviction and sentence. But in doing so, we hold it was error to admit into evidence a videotaped interview with the child victim. K.S.A. 22-3433(a)(8) requires the State to provide a defendant with a written transcript of such a video. In this case, the State failed to do so. We reject the State's argument that it substantially complied with this statutory mandate by giving the defense counsel a copy of the video recording. We also reject the excuse that the State did not wish to spend money to have the transcript prepared. But despite this failure to comply, we find the video's admission was harmless error.

We further hold the prosecuting attorney made an improper comment during closing arguments sufficiently serious to constitute prosecutorial misconduct under the first step of our two-step analysis for such questions. But we conclude the improper comment did not deny Martinez his right to a fair trial. Other issues raised are addressed below. 4

FACTUAL AND PROCEDURAL BACKGROUND

On Martinez' 21st birthday, some friends and family gathered at his apartment to celebrate. A.G. (the victim), her mother, and her two younger siblings were staying with Martinez and his girlfriend, Melissa Luttrell, who is A.G.'s aunt. A.G. was 5 years old. There was conflicting testimony about how much alcohol Martinez consumed, but it is clear he drank some alcohol while guests were at the apartment. Martinez testified that later in the evening he went to an upstairs bedroom to use a computer to copy a CD he received for his birthday. He denies sexually abusing the child.

A.G. testified she was trying to sleep in the bedroom while Martinez used the computer. A.G. was wearing pajama pants and underwear. She later told the jury Martinez pulled her pants down to her knees and then "[h]e started to do the bad touch." She said Martinez touched her "bottom," which she clarified was the part she uses to urinate. The prosecutor asked, "[W]as that on the outside of your part that you go pee with?," and A.G. agreed. When asked how it felt, A.G. described a burning sensation. She testified he used his entire right hand to touch her. She said she did not know why he stopped, but at some point he pulled her pants back up and returned to the computer. Later her mother came upstairs, and A.G. went into a bathroom with her and told her mother what happened. During the ensuing criminal investigation, A.G. was given a sexual abuse exam, but the examining physician did not offer an opinion as to whether A.G. was sexually abused because the results were normal.

Four days after the incident, A.G. was interviewed by Sunflower House personnel. Sunflower House is a children's advocacy center in the Kansas City metropolitan area. The interview was videotaped, and the recording was played at trial. On the video, A.G. said Martinez "touched me in my no-no." She was given a two-sided drawing of a naked little girl to demonstrate what she referred to as her "no-no." A.G. circled the front side, the vaginal area. A.G. stated she and Martinez were sitting down in the same bed. She 5

then said Martinez pulled her pants down a little bit, and she indicated with her index finger to above the knee. She said he left her underwear on, and she later stated he was "touching skin." A.G. indicated Martinez used his index finger and was touching the inside of her "no-no" for "a little bit." When asked how far it went in, A.G. said, "It went way down."

At one point during the video, A.G. spontaneously stated, "My mommy called me. I told him to get off of me." The interviewer said, "And then, you said [Martinez] put [sic] his hand out of your pants?" A.G. responded, "When my mommy was calling me . . . and my brother and sister . . . to go eat dinner." At the video's conclusion, the interviewer showed A.G. a box and a pen and then asked A.G. to demonstrate what it meant for the pen to be inside the box. A.G. opened the lid and placed the pen inside the box.

Martinez was charged with rape of child under 14 years of age in violation of K.S.A. 21-3502. The charging document did not allege Martinez was 18 years of age or older. At trial, Martinez moved for a directed verdict at the close of the State's evidence, arguing there was insufficient evidence to convict. The district court denied the motion.

In his defense, Martinez testified he never touched A.G. He said he was using the computer in the bedroom to copy a CD he received for his birthday. He testified he was not paying attention to the children, but he remembered they were running up and down the stairs. He said at trial he could not remember whether A.G. was in the room that night, but earlier he had told a detective investigating the case that A.G. was never in the room with him.

Prior to deliberations, the district court instructed the jury on the charges of rape and attempted rape. Martinez was acquitted of rape but convicted of attempted rape. He

6

was sentenced under the statutorily set term in Jessica's Law to life in prison with a mandatory minimum of 25 years.

Martinez filed a motion for new trial or acquittal notwithstanding the verdict. He challenged his conviction on the following grounds: (1) The district court erred by admitting the Sunflower House video because the State did not provide him with a written transcript of the recording as required by law; (2) the district court improperly excluded evidence that A.G. made a prior allegation of sexual abuse; and (3) there was insufficient evidence because there was no physical evidence corroborating A.G.'s testimony. He also raised one additional jury instruction claim not relevant to this appeal.

The district court denied the motion. The court ruled the videotape was admissible even though a transcript was not provided to the defense. The court found the State substantially complied with K.S.A. 22-3433 by providing the defense with a copy of the video recording. As to the remaining points, the court ruled Martinez failed to demonstrate the prior allegation evidence was relevant and determined there was sufficient evidence for the jury to find Martinez guilty of attempted rape, even though the case was dependent only on the credibility of witness testimony. Martinez timely appealed.

Martinez makes the following arguments to this court: (1) The videotape was inadmissible under K.S.A. 22-3433 because the State failed to provide a written transcript; (2) there was insufficient evidence to convict on the attempted rape charge; (3) evidence that A.G. made a prior allegation of sexual abuse was improperly excluded; (4) the State committed prosecutorial misconduct during closing argument by misstating the law, attempting to inflame the jury, and improperly bolstering A.G.'s credibility; (5) cumulative error; (6) the failure to instruct the jury on an essential element as to defendant's age under the sentencing provisions to Jessica's Law; and (7) Martinez'

7

sentence is disproportionate and violates the Eighth Amendment to the United States Constitution and

Download State v. Martinez100359 State v. Garza.pdf

Kansas Law