State of Kan. v. KNIGHT
| Decision Date | 08 October 2010 |
| Docket Number | No. 100,167.,100 |
| Citation | 241 P.3d 120 |
| Parties | STATE of Kansas, Appellee, v. Michael Lorenzo KNIGHT, Jr., Appellant. |
| Court | Kansas Court of Appeals |
241 P.3d 120
STATE of Kansas, Appellee,
v.
Michael Lorenzo KNIGHT, Jr., Appellant.
No. 100,167.
Court of Appeals of Kansas.
Oct. 8, 2010.
COPYRIGHT MATERIAL OMITTED.
Syllabus by the Court
1. An appellate court reviews the trial court's decision on a motion to suppress evidence using a bifurcated standard. Without reweighing the evidence, the trial court's findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard.
2. When the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.
3. The State bears the burden of proof for a suppression motion and must prove to the trial court the lawfulness of the search and seizure.
4. Interpretation of a statute is a question of law over which this court has unlimited review.
5. When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. A court need not resort to statutory construction. It is only if the statute's language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature's intent.
6. Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where the intention of the legislature is plain and unmistakable. But a court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.
7. As a general
rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of
the accused. This rule of strict construction is nevertheless subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.
8. According to the rule of lenity, when there is ambiguity in the statute's meaning, the ambiguity should be narrowly construed in favor of the criminal defendant.
9. Issues not raised before the trial court cannot be raised on appeal. Furthermore, constitutional grounds for reversal asserted for the first time on appeal are also not properly before an appellate court for review. Nevertheless, there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its relying on the wrong ground or its assigning a wrong reason for its decision.
10. The constitutionality of a statute presents a question of law, which we review de novo.
11. The Second Amendment to the United States Constitution is incorporated in the Due Process Clause of the 14th Amendment to the United States Constitution and thereby enforceable against the states.
Carl Folsom, III, Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant district attorney, Sara Pfeiffer, legal intern, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.
Before GREENE, P.J., GREEN and STANDRIDGE, JJ.
GREEN, J.
On September 10, 2010, our Supreme Court granted appellant's petition for review and summarily remanded this appeal to the Court of Appeals for consideration of the United States Supreme Court's recent decision in
McDonald v. Chicago, 561 U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), which found that the Second Amendment right to keep and bear arms is fully applicable to the states by virtue of the 14th Amendment to the United States Constitution.
In our original opinion State v. Knight, 42 Kan.App.2d 893, 218 P.3d 1177 (2009), on page 894, Syllabus ¶ 11, stated: “The Second Amendment to the United States Constitution is not incorporated to the Due Process Clause of the 14th Amendment to the United States Constitution and thereby enforceable against the states.”
The previously quoted syllabus is modified to read: “The Second Amendment to the United States Constitution is incorporated in the Due Process Clause of the 14th Amendment to the United States Constitution and thereby enforceable against the states.”
We delete the following paragraph on page 910 of our original opinion:
“Indeed, the Heller Court states that Presser and Miller ‘reaffirmed that the Second Amendment applies only to the Federal Government.’ 128 S.Ct. at 2813 n. 23. As a result, until the Supreme Court overrules Presser and holds to the contrary, lower courts remain bound to follow the law that the Second Amendment has no application to the states. Because the Second Amendment is not incorporated in the Due Process Clause and thereby enforceable against the states, Knight cannot maintain that K.S.A.2006 Supp. 21-4301(a)(4) infringes on any Second Amendment rights.”
We replace the previously deleted paragraph of our original opinion with the following paragraph:
“Nevertheless, the United States Supreme Court recently held that the right to ‘keep and bear arms' embodied in the Second Amendment applies not only to the federal government, but also to the individual states. See McDonald v. Chicago, 561 U.S. ----, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). A four-justice plurality agreed that the Due Process Clause of the 14th
Amendment to the United States Constitution ‘incorporates' the Second Amendment's right to keep and bear arms, which was recognized in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).”
We delete the following paragraph on page 910 of our original opinion:
“Nonetheless, Knight contends that even if the court finds that the Second Amendment does not apply to the states, § 4 of the Kansas Constitution Bill of
Rights offers the same protection as the Second Amendment. Kansas case law, however, clearly proves that the regulations against carrying concealed weapons are not in violation of § 4 of the Kansas Constitution Bill of Rights. See Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1950) (ruling that § 4 of the Kansas Constitution does not confer an individual right to bear arms); State v. Doile, 7 Kan.App.2d 722, 725, 648 P.2d 262, rev. denied 232 Kan. 876 (1982) (noting a ‘legislative interest in controlling concealed weapons'). As a result, Knight's argument fails.”
We adhere to the original opinion in all other respects.
Michael Lorenzo Knight, Jr., appeals his convictions after a bench trial for criminal possession of a firearm and carrying a concealed firearm. On appeal, Knight contends that the trial court improperly denied his motion to suppress evidence arising from a car stop. We disagree and affirm. Knight also asserts that his conviction for criminal possession of a firearm is inappropriate, because the statute, K.S.A. 21-4204(a)(4)(A), under which he was convicted does not apply to his prior felony for an attempt crime. We agree. Accordingly, we reverse and remand with directions to dismiss this conviction. Knight further maintains that his conviction for carrying a concealed firearm violates his constitutional right to bear arms. We disagree and affirm. Finally, Knight contends that the trial court erred in ordering him to reimburse the Board of Indigents' Defense Services for attorney fees without first considering his ability to pay the fees and determining the financial burden that payment of these fees would impose on him. We agree. Accordingly, we vacate the trial court's imposition of attorney fees against Knight and remand for further consideration of this matter.
In October 2007, Knight was charged with misdemeanor carrying of a firearm in violation of K.S.A. 21-4201 and felony possession of a firearm in violation of K.S.A. 21-4204(a)(4). The felony possession of a firearm charge was based on Knight's prior conviction of attempted possession of cocaine.
Before trial, Knight moved to suppress evidence seized from the traffic stop. During the hearing on the motion, Kansas Highway Patrol Trooper Davon Brame testified that at approximately 11:24 p.m. on a summer night, he saw Knight driving a maroon Chevy Monte Carlo southbound on I-35 in Johnson County, Kansas.
Brame noticed that Knight was unable to keep his car within its proper lane of travel. The car crossed approximately 3 feet over the line separating the left lane of the highway from the shoulder. While following him, Brame also witnessed Knight weave within his proper lane of travel two or three times. Additionally, Knight crossed approximately 1 foot over the dotted line on the right side of the lane. After following Knight for approximately 1/2 mile, Brame initiated a traffic stop based upon Knight's inability to maintain a single lane of travel. Brame also testified that, as he walked up to the stopped car, he thought Knight was intoxicated.
At the conclusion of the hearing, the trial court denied Knight's motion to suppress. The court found that, independent of Brame's suspicion that Knight was driving while intoxicated, Knight had committed actual traffic infractions sufficient to justify Brame's stop. After Knight's motion to suppress was denied, he moved the trial court to reconsider its decision based on...
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