State v. Escarcega

── State v. Escarcega ── Court: Court of Appeals of Kansas Date: June 05, 2026 Category: General NOT DESIGNATED FOR PUBLICATION No. 126,335 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. ROBERT JOHN ESCARCEGA, Appellant. MEMORANDUM OPINION Appeal from Kingman District Court; FRANCIS E. MEISENHEIMER, judge. Submitted without oral argument. Opinion filed June 5, 2026. Reversed and remanded with directions. Jacob Nowak, of Kansas Appellate Defender Office, for appellant. Tyler W. Winslow, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee. Before HILL, P.J., PICKERING and BOLTON FLEMING, JJ. PER CURIAM: In this appeal, we are asked to decide whether preliminary hearing testimony obtained in violation of a defendant's right to self-representation may be admitted at trial. Robert Escarcega was charged with attempted first-degree murder after an altercation with his significant other, Jane (pseudonym). During the preliminary hearing, Escarcega asserted his Sixth Amendment right to self-representation. A magistrate judge denied Escarcega's request to represent himself and after some discussion, removed 1 Escarcega from the courtroom. The preliminary hearing continued in Escarcega's absence. Escarcega's attorney cross-examined Jane in his absence. Realizing the error that occurred in the first preliminary hearing, the district court ordered a second preliminary hearing. Jane did not appear at the second preliminary hearing, but the district court nonetheless found probable cause that Escarcega committed attempted first-degree murder. The case proceeded to a jury trial. Jane did not appear at trial. After declaring Jane an unavailable witness, the district court admitted Jane's testimony from the first preliminary hearing testimony over Escarcega's objections. Escarcega believed that admitting Jane's testimony violated both his rights of self-representation and of confrontation under the Sixth Amendment. At the conclusion of the trial, Escarcega was convicted of the lesser included charge of attempted second-degree murder. He raises multiple issues on appeal, but we find the resolution of one issue is determinative of the case. After a thorough review of the record, we find that the district court erred in admitting Jane's preliminary hearing testimony at trial. While prior preliminary hearing testimony may be admitted into evidence at trial, its admissibility requires a prior, adequate cross-examination of the witness. And here, that adequate cross-examination did not occur because the cross-examination was conducted as part of the violation of Escarcega's right of self-representation at the first preliminary hearing. The use of Jane's preliminary hearing testimony at trial violated Escarcega's right to confrontation under the Sixth Amendment of the United States Constitution. The district court's error was not harmless because the State failed to show that there is no reasonable possibility that the violation of Escarcega's confrontation rights contributed to the verdict. Accordingly, we reverse and remand for a new trial. 2  FACTUAL AND PROCEDURAL BACKGROUND Robert Escarcega and Jane were in a romantic relationship. Together, they left the state of California, where they had been residing with family, and started to travel the country. Their travels brought them to Kingman County, Kansas. On October 2, 2021, while Escarcega and Jane were pulled over on the side of the road, an altercation between them ensued, resulting in significant injury to Jane. Jane would late