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Date: 03-15-2024
Case Style:
Case Number: 120,994
Judge: Keynen Jae "K.J." Wall
Court: IN THE SUPREME COURT OF THE STATE OF KANSAS
Plaintiff's Attorney: Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, Natalie Chalmers, assistant solicitor general, Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general
Defendant's Attorney:
Description:
A man was shot in Garden City, and he identified Guebara as the shooter.
According to the victim, Guebara had followed him after an argument at a poker game
and then shot the victim as he exited his truck. Officers who investigated the shooting
eventually enlisted Guebara's daughter and her fiancé to record a series of conversations.
In those conversations, Guebara's friends and family discussed how to get rid of the gun
Guebara had used. Officers later recovered a stainless-steel .357 revolver that had been
concealed in the living room chair of a close friend of Guebara's brother-in-law. The
panel below described these facts in greater detail, but we need not restate them to
resolve the issues before us. See Guebara, 2023 WL 2194542, at *1-5.
The State charged Guebara with one count of attempted first-degree murder and
one count of criminal possession of a weapon by a felon. At that time, criminal
possession of a weapon was codified at K.S.A. 2014 Supp. 21-6304. One way to violate
that statute was by possessing a weapon after being convicted "within the preceding 10
5
years" of certain enumerated felonies. See K.S.A. 2014 Supp. 21-6304(a)(3)(A). The
State alleged that Guebara had violated that provision because he had been released from
prison within the past 10 years for first-degree murder, one of the enumerated felonies.
See State v. LaGrange, 294 Kan. 623, Syl. ¶ 3, 279 P.3d 105 (2012) (10-year statutory
weapons ban begins when offender is released from prison). He was convicted of that
offense in 1983 and sentenced to life in prison. Our court affirmed his conviction. See
State v. Guebara, 236 Kan. 791, 799, 696 P.2d 381 (1985). Guebara was later paroled.
Before trial, Guebara conveyed that he would stipulate to his prohibited status as a
prior felon. The stipulation that Guebara and the State agreed to was admitted into
evidence during Guebara's trial and later included in the jury instructions. It said that
Guebara "had been released from prison for a felony crime" within the last 10 years:
"51.020. Stipulations and Admissions:
"The following facts have been agreed to by the parties and are to be considered by you
as true:
"1. The defendant within 10 years preceding February 24, 2015, had been
released from prison for a felony crime.
"2. The defendant was not found to be in possession of a firearm at the time of
the prior crime, and has not had the prior conviction expunged or been
pardoned for such crime."
Consistent with the procedures for stipulations in criminal-possession cases that we laid
out in Lee and Mitchell, the State also introduced the certified journal entry of Guebara's
1983 murder conviction outside the jury's presence. See Mitchell, 285 Kan. at 1079;
Lee, 266 Kan. at 815-16. The district court admitted the journal entry "for purposes of
completing the record" but stated that it would not "be made available to the jury,"
which was "consistent with [the court's] understanding of what case law provides for and
allows." But the court failed to follow one of the procedures set out in those cases—it did
6
not consult Guebara "outside the presence of the jury" to secure his "voluntary waiver
of the right to have the State otherwise prove [the defendant's felon] status beyond a
reasonable doubt to the jury." Mitchell, 285 Kan. at 1079 (citing Lee, 266 Kan. at 815-
16).
At the end of a 7-day trial that included more than 100 exhibits and testimony
from 23 witnesses, the jury found Guebara guilty as charged. A slew of posttrial motions
were filed by Guebara's trial attorney, by a new attorney appointed by the court, and by
Guebara himself—so many, in fact, that sentencing did not take place until three years
after his conviction.
Two sets of those motions are relevant to the issues before us. First, Guebara and
his new attorney filed motions for a new trial based on ineffective assistance of trial
counsel. After a two-day evidentiary hearing, the district court denied the motion in a 63-
page decision that scrutinized each of the many claims Guebara had made. Second,
Guebara and his attorney filed motions for a new trial based on the State's disclosure that,
starting about 14 months after the trial, the lead detective began a sexual relationship with
Guebara's daughter, who had been a confidential informant in the investigation and a key
witness at trial. Guebara believed the relationship had started during the investigation.
The district court found that portions of two police files contained discoverable
information and ordered they be provided to Guebara. At a hearing on the motion, the
court said that once Guebara's attorney reviewed the second file, he could decide whether
there was evidence to "get this motion off the ground to a point where you really want to
pursue it." The attorney did not pursue the motion.
At sentencing, the district court imposed a controlling 586-month prison sentence
for attempted first-degree murder. It imposed a concurrent eight-month prison sentence
for criminal possession of a weapon. Guebara appealed to the Court of Appeals.
7
After a sequence of events discussed below, a motions panel of the Court of
Appeals allowed Guebara to proceed pro se. As a result, Guebara prepared all the
relevant appellate filings here without the help of an attorney. His brief raised many
challenges.
After Guebara filed that brief, we decided Valdez. That case was largely about
K.S.A. 2022 Supp. 21-5705's rebuttable intent-to-distribute presumption, but it also
addressed whether a generic prior-felony stipulation like the one here was sufficient to
support a criminal-possession conviction under the enumerated-felonies subsection.
Valdez, 316 Kan. at 17-20. We determined that a generic stipulation was insufficient.
Chief Judge Arnold-Burger—the presiding judge on the panel assigned to hear Guebara's
appeal—ordered Guebara and the State to address Valdez. Guebara argued that the
generic stipulation provided insufficient evidence; the State argued that the stipulation
was sufficient under Lee and the United States Supreme Court's decision in Old Chief v.
United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
In an opinion written by Chief Judge Arnold-Burger, the panel applied Valdez
and reversed Guebara's criminal-possession conviction, but it otherwise rejected his
challenges and affirmed his attempted first-degree-murder conviction. Guebara, 2023
WL 2194542, at *18-19, 23. The panel decided that resentencing was unnecessary
because the 8-month criminal-possession sentence ran concurrent to Guebara's 586-
month attempted-murder sentence. 2023 WL 2194542, at *19; see Valdez, 316 Kan. at 20
(remand for resentencing unnecessary when controlling sentence and applicable
postrelease term not affected). Judge Malone wrote a concurrence acknowledging that
Valdez controlled this appeal. But he wrote separately "to state [his] view that the holding
in Valdez is misguided and conflicts with the Kansas Supreme Court's own precedent."
2023 WL 2194542, at *23 (Malone, J., concurring). In his view—which we expand on
below—Valdez and Lee are irreconcilable, and he urged this court to resolve the conflict.
8
The State petitioned our court for review. It argued that we should affirm
Guebara's conviction under Old Chief and Lee. And it asked us to reverse Valdez or at
least clarify how it fits into the Lee framework. Guebara—who is still acting pro se—also
petitioned for review, renewing many challenges he had raised in his appellate brief.
Finally, the State also filed a conditional cross-petition for review. In that filing, the State
argued that the panel was wrong to declare one of the trial witnesses "unavailable" under
the Confrontation Clause of the Sixth Amendment to the United States Constitution.
We granted review of the three petitions and placed the case on the November
2023 summary-calendar docket. As a result, we decide this case based on the petitions for
review and the briefs. See Supreme Court Rule 7.01(c)(4) (2023 Kan. S. Ct. R. at 42)
("When a case is placed on the summary calendar, it is deemed submitted to the court
without oral argument unless a party's motion for oral argument is granted."). Jurisdiction
is proper. See K.S.A. 60-2101(b) (providing for Kansas Supreme Court review of Court
of Appeals decisions).
ANALYSIS
The principal issues here involve stipulations to prior felonies in criminalpossession-of-a-weapon cases, so we begin our discussion there. First, we explain how
Valdez aligns with our caselaw. Then, we apply our caselaw to Guebara's stipulation. We
agree with the Court of Appeals panel that Guebara's generic stipulation was inadequate.
But we do not agree that Guebara's criminal-possession conviction should be reversed.
After resolving the issues related to the stipulation, we turn our attention to the
many challenges Guebara raises in his pro se briefing. We agree with the panel that none
of them warrant reversal of Guebara's convictions. Finally, we address the State's crosspetition and explain why prudential considerations support our decision not to reach the
merits of the panel's Confrontation Clause holding.
9
I. Valdez Does Not Contradict Our Caselaw on Prior-Felony Stipulations in CriminalPossession-of-Weapon Cases
The State asks us to reverse the Court of Appeals panel and reinstate Guebara's
criminal-possession conviction. In its view, Guebara's generic stipulation to "a felony
crime" provides sufficient evidence to satisfy the prohibited-status element because Lee
requires the parties to stipulate that the defendant is "a prior convicted felon" without
"further elaboration" and without disclosing "the number and nature of the prior
convictions." Lee, 266 Kan. 804, Syl. ¶ 4. Thus, the State argues we contradicted our
earlier caselaw when we held in Valdez that a generic stipulation to "a felony" was
inadequate. Judge Malone agreed in his concurring opinion. But we believe the State and
Judge Malone's concurring opinion focus too narrowly on Lee without accounting for our
court's later caselaw, especially Mitchell.
Stipulations are commonplace in criminal-possession-of-a-weapon cases because,
otherwise, "the State would prove a defendant's [prohibited-felon] status by [introducing]
court records showing a defendant's prior felony," and those records might include details
that "run the risk of unfairly prejudicing the jury against the defendant based on his or her
past crimes." State v. Housworth, No. 115,836, 2017 WL 2834502, at *15 (Kan. App.
2017) (unpublished opinion). As the United States Supreme Court has recognized, that
risk of unfair prejudice is "especially obvious" when, as here, "a prior conviction was for
a gun crime or one similar to other charges" in the case. Old Chief, 519 U.S. at 185. In
fact, the Court has held that the risk of unfair prejudice is so acute that prosecutors are
required to accept defendants' offers to stipulate to their prohibited-felon status in most
cases. See 519 U.S. at 191-92. And our court adopted that same position in Lee. 266 Kan.
at 815-16.
10
The controlling question in Lee, like Old Chief, was whether the prosecution's
evidence establishing the defendant's prior felony was admissible under the rules of
evidence, notwithstanding the defendant's offer to stipulate to his prohibited status as a
convicted felon. The issue in Lee pitted K.S.A. 60-445, which allows a district court to
exclude evidence that unfairly prejudices the jury, against the common-law rule entitling
the prosecution "'to prove its case free from any defendant's option to stipulate the
evidence away.'" 266 Kan. at 810. Lee recognized that both a defendant's stipulation and
a copy of his prior felony conviction are equally probative of the defendant's prohibitedfelon status under the criminal-possession statute, but only the former avoids the risk of
undue prejudice to the defendant. Thus, Lee held that the district court abused its
discretion by rejecting the defendant's offer to stipulate and allowing the State to
introduce evidence of his prior felony conviction under K.S.A. 60-445. 266 Kan. at 813-
15.
Owing to that limited focus, Lee did not closely address the adequacy of the
stipulation—that issue was not before the court. Instead, it adopted procedures the Florida
Supreme Court, following Old Chief, had laid out in Brown v. State, 719 So. 2d 882, 889
(Fla. 1998). Those procedures required a district court to (1) approve the defendant's
requested stipulation, (2) allow the State to place the prior judgment and sentence into the
record, (3) prevent the State from disclosing that information to the jury, (4) obtain a
voluntary waiver of the defendant's right to have the State prove the prohibited-status
element beyond a reasonable doubt to the jury, (5) recognize that the stipulation satisfied
the prosecution's burden of proof for the prohibited-status element, and (6) instruct the
jury that it may consider the prohibited-status element proven by agreement of the
parties. Lee, 266 Kan. 804, Syl. ¶ 4. But Lee adopted those procedures without addressing
the differences between the Kansas criminal-possession statute and the comparable
Florida and federal statutes.
11
Those differences are crucial when considering the adequacy of the stipulation.
The federal criminal-possession statute at issue in Old Chief prohibited (with limited
exceptions) possession of a firearm by any person convicted of "'a crime punishable by
imprisonment for a term exceeding one year.'" Old Chief, 519 U.S. at 174 (quoting 18
U.S.C. § 922[g][1]). And the Florida statute prohibited possession by a person
"[c]onvicted of a felony." Fla. Stat. § 790.23(1)(a) (1995). But the relevant section of the
Kansas statute was narrower, prohibiting possession by a person convicted of only certain
felonies. K.S.A. 21-4204(a)(4)(A) (Furse). So while a stipulation to "a felony crime"
would have been sufficient to establish that the defendant was prohibited from possessing
a weapon under the federal or Florida statutes, the holdings from Old Chief and Brown
did not map neatly onto Kansas law.
But nine years after Lee, our court decided Mitchell. There, we held that the
prosecution's burden of proof is satisfied when the defendant stipulates that a prior
conviction "prohibited [the defendant] from owning or possessing a firearm on the date in
question." Mitchell, 285 Kan. at 1079. Although our court did not expressly depart from
Lee, that language makes clear the stipulations under the Kansas criminal-possession
statute must be to something more than "a felony crime." That is, because only certain
felonies trigger the Kansas statute, the stipulation must establish that the defendant has
committed a prior felony that prohibited them from possessing a weapon on the date in
question. Without that extra detail, a jury cannot conclude beyond a reasonable doubt that
the State had proved the prohibited-status element of the criminal-possession charge.
And since then, the stipulations in many of the criminal-possession cases we have
heard have included language in line with Mitchell. See, e.g., State v. Johnson, 310 Kan.
909, 910, 453 P.3d 281 (2019) (stipulation provided that prior juvenile adjudication
"'prohibited him from owning and possessing a firearm on October 14, 2013'"); State v.
Sims, 308 Kan. 1488, 1495, 431 P.3d 288 (2018) (The defendant stipulated that he was
"'convicted of a felony offense . . . within the ten years preceding'" and that he "'was
12
prohibited [] from owning or possessing a firearm on June 9, 2013.'"); State v. Logsdon,
304 Kan. 3, 14, 371 P.3d 836 (2016) ("The parties stipulated Logsdon was a felon and
was prohibited from possessing a firearm."); State v. Burnett, 300 Kan. 419, 444, 329
P.3d 1169 (2014) ("[H]e was released from prison for a felony, which prohibited him
from lawfully possessing a firearm on July 7—a fact that he stipulated to and was an
essential element of the crime of criminal possession of a firearm charged in this case.");
State v. Dobbs, 297 Kan. 1225, 1231, 308 P.3d 1258 (2013) ("Dobbs stipulated he had a
prior felony conviction and was prohibited from possessing a firearm on the date of the
shooting.").
Then in Valdez, we concluded that insufficient evidence supported a criminalpossession conviction because the stipulation said only that the defendant had committed
"'a felony,'" and thus "there is no factual basis or inference to convince us the jury could
have found the essential—yet missing—element from what it was given." 316 Kan. at 20.
That holding tracks Mitchell. Because Kansas' possession-of-a-weapon ban applies to
people who have committed only certain felonies, the generic stipulation in Valdez to "a
felony" did not satisfy the prosecution's burden because it failed to establish that the
defendant was prohibited from possessing a firearm on the date in question. So we
disagree that Valdez deviates from our earlier caselaw.
Of course, we acknowledge that we did not explain these nuances in Valdez. And
as Judge Malone pointed out, Valdez included language inconsistent with Lee. Guebara,
2023 WL 2194542, at *24 (Malone, J., concurring). For example, Valdez faulted the
district court for not instructing the jury "what [the defendant's] prior crime was" and for
withholding the certified journal entry of the defendant's prior conviction from the jury.
Valdez, 316 Kan. at 19-20. In Lee, however, our court had said that "[n]either [those]
documents nor the number and nature of the prior convictions should be disclosed to the
trial jury." Lee, 266 Kan. at 815-16. Despite those passing comments, the essential
holding in Valdez is that a generic stipulation to a prior felony provides insufficient
13
evidence to support a conviction under the Kansas criminal-possession statute because
only certain felonies trigger the weapons ban. Even so, we recognize that our failure to
spell all this out has generated uncertainty about the law governing prior-felony
stipulations in criminal-possession cases. We have endeavored to resolve that uncertainty
here.
Finally, before applying this framework to Guebara's trial proceedings, it is useful
to address the procedures for prior-felony stipulations, which our court adopted in Lee
and largely reiterated in Mitchell. See Mitchell, 285 Kan. at 1079. We are inclined to
address those procedures here because they, too, have generated some confusion. For
example, a Court of Appeals panel has questioned whether they amount to only "'best
practices.'" State v. Brooks, No. 113,636, 2017 WL 839793, at *10 (Kan. App. 2017)
(unpublished opinion). And during the trial proceedings here, the attorneys and district
court appeared unsure of the applicable procedures and controlling law. As a result, we
wish to emphasize three points.
First, when requested by a defendant charged with unlawful possession of a
weapon, a district court must approve a stipulation that the defendant had committed a
prior offense that prohibited the defendant from owning or possessing a weapon on the
date in question. See Mitchell, 285 Kan. at 1079. That stipulation is evidence that satisfies
the prosecution's burden of proving the prohibited-status element of the criminalpossession charge. See Old Chief, 519 U.S. at 186 (a defendant's "proffered admission
would, in fact, [be] not merely relevant but seemingly conclusive evidence of the
element"). The district court should instruct the jury that it can consider that fact proven
by agreement of the parties and ensure that the nature and number of the prior felonies is
not otherwise disclosed to the jury.
14
Second, the district court must obtain a jury-trial waiver before accepting a
"prohibited-felon" stipulation in a criminal-possession case. Arguably, Lee and Mitchell
already required that, since those cases instructed the district court to consult the
defendant "outside the presence of the jury" to secure "his voluntary waiver of the right to
have the State otherwise prove his [prohibited-felon] status beyond a reasonable doubt to
the jury." Mitchell, 285 Kan. at 1079 (citing Lee, 266 Kan. at 815-16). But even if our
court were insufficiently clear in those cases, we expressly held in Johnson that a
stipulation to the prohibited-status element of a criminal-possession charge requires a
jury-trial waiver. 310 Kan. at 918-19.
And third, the State may, but is not required to, submit a certified journal entry of
the prior felony outside the presence of the jury. See Lee, 266 Kan. 804, Syl. ¶ 4 ("[T]he
State may place into the record, at its discretion, the actual judgment(s) and sentence(s) of
the prior felony conviction(s)."). The purpose of that document is not to furnish the jury
with evidence establishing the prior-felony element; as we have said above, the
stipulation itself provides sufficient evidence. Instead, the journal entry protects the
State's legitimate interest in developing a record for appeal that, in the event of errors,
would allow the State to argue that it was prepared to put forth conclusive evidence of the
defendant's status as a prohibited felon had the defendant contested that element. See
Mitchell, 285 Kan. at 1077 (Lee "specifically requires the district court to admit the actual
judgment(s) and sentence(s) of the prior felony conviction(s) into the record without
disclosing them to the jury, thereby protecting the State's interest in proving all of the
elements of the defendant's status.").
With this framework in mind, we now consider whether the trial proceedings
involving Guebara's stipulation involved any errors and, if so, whether reversal is
warranted.
15
II. Guebara's Prior-Felony Stipulation Was Inadequate, and the District Court Failed
to Obtain a Jury-Trial Waiver Before Accepting the Stipulation, but Those Errors
Are Harmless Beyond a Reasonable Doubt
Guebara stipulated that within the previous 10 years, he had been "released from
prison for a felony crime." Based on the framework we just outlined, Guebara's generic
stipulation was inadequate because it failed to establish that he had been convicted of a
felony that would have prohibited him from owning or possessing a weapon on the day of
the shooting. But there was another error. As Guebara points out—and as the State
concedes—the district court failed to obtain a jury-trial waiver before accepting his
stipulation. As we held in Johnson, that waiver is required when a defendant stipulates to
an element of a crime because "the defendant has effectively given up" his or her federal
constitutional right to a jury trial on that element. 310 Kan. at 918-19.
The district court's failure to obtain a jury-trial waiver does not require reversal.
In Bentley, we decided that such an error was not "structural" (which would require
automatic reversal of the conviction) but was instead a constitutional error that appellate
courts should review under the constitutional harmless-error standard. Bentley, 317 Kan.
at 233-34. We determined that courts should conduct that harmless-error analysis
"through a more focused lens" and decide whether there is a "reasonable possibility" that
the failure to inform the defendant "of his right to jury trial led to his decision to enter the
stipulation." 317 Kan. at 234. We conclude that Guebara would have offered a stipulation
even if the court had advised him of his right to a jury trial on the element. The State was
prepared to present conclusive evidence of Guebara's prior murder conviction that
prohibited him from possessing a firearm on the date in question, and he would have had
no defense if the State had offered this evidence to the jury. Nor is there any suggestion
that Guebara meant to defend his case on that ground.
16
But what about the inadequate stipulation? When "an appellate court holds that
evidence to support a conviction is insufficient as a matter of law, the conviction must be
reversed." State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007). And in Valdez, we
held that a stipulation to "a felony" provided insufficient evidence for a conviction under
the Kansas criminal-possession statute, so we reversed the defendant's conviction. 316
Kan. at 20. The Court of Appeals panel here followed suit, reversing Guebara's
conviction.
In Valdez, however, the State had not addressed the proper remedy for a
stipulation error. And there was no indication from the record on appeal that the State had
offered a journal entry, outside the presence of the jury, establishing Valdez' prohibitedfelon status. Valdez, 316 Kan. at 19 (if the district court received evidence of Valdez'
prohibited-felon status, "it is not in the appellate record"). But here, the State argues that
the stipulation errors are harmless and the record includes a journal entry confirming
Guebara's prohibited-felon status.
We are persuaded that this is not a typical sufficiency-of-the-evidence situation. A
conviction based on insufficient evidence violates a defendant's due-process rights under
the Fourteenth Amendment to the United States Constitution. State v. Switzer, 244 Kan.
449, 450, 769 P.2d 645 (1989). As the United States Supreme Court has explained, "an
appellate reversal" for insufficient proof at trial "means that the government's case was so
lacking that it should not have even been submitted to the jury." Burks v. United States,
437 U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). And in that case, the prosecution
has no grounds to complain, "for it has been given one fair opportunity to offer whatever
proof it could assemble." 437 U.S. at 16.
By contrast, the State did assemble conclusive proof of Guebara's prior conviction
for first-degree murder, which establishes Guebara's prohibited-felon status. The State
was prepared at trial to call Guebara's parole officer, who had testified at his preliminary
17
hearing. The parole officer would have testified to Guebara's prohibited-felon status but
for Guebara's offer to stipulate. And the State submitted the certified journal entry of the
conviction into evidence outside the presence of the jury, a procedure our court expressly
contemplated in Lee and Mitchell. See Mitchell, 285 Kan. at 1077; Lee, 266 Kan. 804,
Syl. ¶ 4. In fact, the only thing stopping that evidence from reaching the jury was
Guebara's offer to stipulate to the prior conviction rather than contest it. See Lee, 266
Kan. at 815 (evidence of the "type and nature of the prior crime" may be admitted when
the defendant disputes the status of the prior conviction). We need not turn a blind eye to
these facts and conclude that the evidence here was so lacking that the charge should not
have even been submitted to the jury. As a result, although the stipulation was
inadequate, we believe the procedures for prior-felony stipulation in criminal-possessionof-a-weapon cases are unsuited for a standard sufficiency-of-the-evidence analysis.
Instead, the circumstances here are more "akin to a court's failure to submit an
element of the charged crime to the jury," which we discussed in Bentley. 317 Kan. at
233-34. As we recognized there, a constitutional harmless-error standard is appropriate
when the trial court "fails to secure a verdict on some elements of the crime, rather than
all of them" and the element "was not contested by the defendant and would not be
contested if the conviction were vacated and a new trial ordered." 317 Kan. at 233 (citing
Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L. Ed. 2d 35 [1999]). Here,
although the inadequate stipulation prevented the jury from finding Guebara guilty
beyond a reasonable doubt on one element of the criminal-possession charge, there was
adequate evidence supporting the remaining elements. And as we have emphasized,
Guebara did not contest his prior felony. Moreover, the stipulation procedures adopted in
Lee and Mitchell seemingly contemplate appellate review for harmlessness. Under those
procedures, the State may introduce the journal entry of the prior conviction "into the
record [but outside the presence of the jury], thereby protecting the State's interest in
proving all of the elements of the defendant's status." Mitchell, 285 Kan. at 1077.
18
A constitutional error is harmless only if the party benefitting from the error
demonstrates "beyond a reasonable doubt the error will not or did not affect the trial's
outcome in light of the entire record, i.e., when there is no reasonable possibility the error
contributed to the verdict." State v. Corey, 304 Kan. 721, 731-32, 374 P.3d 654 (2016). In
our view, the State has met that standard. The language of the stipulation was inadequate
to establish that Guebara had committed a prior felony that prohibited him from
possessing a weapon on the day of the shooting in Garden City. But had there been no
faulty stipulation (e.g., if Guebara had contested his prior conviction), the record shows
beyond a reasonable doubt that the State would easily have proved that element at trial
through the journal entry included in our record. And unlike Valdez, here, the State has
included the journal entry establishing Guebara's prohibited-felon status in the record on
appeal. This demonstrates that the stipulation error was harmless.
Having concluded that both stipulation errors were harmless beyond a reasonable
doubt, we reverse the panel's decision vacating Guebara's conviction for criminal
possession of a weapon and affirm the judgment of the trial court.
III. The Other Issues Raised by Guebara and the State Do Not Warrant Reversal
Guebara's petition for review raises many issues he raised in the Court of Appeals.
He argues that his trial counsel was constitutionally ineffective. He argues that the
prosecutor erred during closing argument by misdescribing the evidence. He argues that
the district court improperly allowed hearsay evidence. He argues that the State failed to
disclose exculpatory evidence. He argues that his right to appellate counsel has been
violated. And he argues that cumulative error denied him the right to a fair trial. The State
also raises another issue. In its view, the panel erred by concluding that one of the trial
witnesses was "unavailable" for Confrontation Clause purposes based on his limited
testimony and frequent failure to recall information.
19
Because we conclude that Guebara has either inadequately briefed or abandoned
several issues, we begin by addressing his right-to-appellate-counsel claim. Had he been
denied that right, he could hardly be blamed for those deficiencies. But as we explain
below, the reason Guebara is acting pro se is that he chose that path after the Court of
Appeals reasonably denied his motion for a third appellate attorney. We then address the
remaining issues raised by the parties and conclude that none of those challenges warrant
reversal of the panel's decision.
A. Guebara's Right to Appellate Counsel Was Not Violated, and the Court of
Appeals Did Not Abuse Its Discretion by Denying Guebara's Motion for a
Third Appellate Attorney
In his petition for review, Guebara argues that the Court of Appeals denied him
appellate counsel. The Appellate Defender's Office was at first appointed to represent
Guebara. The appellate defender filed a brief, but Guebara was unhappy with the
arguments that attorney made, so he moved for substitute counsel.
Outcome:
Plaintiff's Experts:
Defendant's Experts:
Comments: