The Kansas Supreme Court today affirmed the conviction of Patricio Briseno in connection with a gang-related drive-by shooting in Kansas City, Kan.
Briseno was convicted on one count of first-degree premeditated murder and three counts of attempted first-degree premeditated murder. He was sentenced to a hard-25 life sentence and three consecutive sentences of 155 months.
According to court documents, four teens were gathered in front of a house around 3:10 p.m. on a February day in 2009 when a black SUV drove by, firing bullets. The scene was near Pearson Elementary School in Kansas City, Kan. One of the teens was killed, and another was injured.
Court records stated that police were told that the teens in front of the house were members of the F-13 gang, while Briseno was a member of a rival gang, SPV.
Briseno argued, in his appeal, that the district court erred by admitting evidence he is a gang member without a limiting instruction and instructing the jury to consider the eyewitnesses’ degree of certainty. He also alleged the errors constituted cumulative error that deprived him of a fair trial.
A unanimous court rejected all of Briseno’s arguments and affirmed his convictions and sentence. The Supreme Court held the district court did not err by failing to give an unrequested limiting instruction regarding the gang evidence.
The Supreme Court held the district court erred by instructing the jury to consider the eyewitness’ degree of certainty, but it concluded the error was harmless in light of other procedural safeguards and the entire record of the case.
And finally, the Supreme Court held that one harmless instructional error is insufficient to constitute cumulative error.
The Supreme Court opinion is online at http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20140613/107351.pdf.