State v. Abu-Isba

• Decision Date: 13 July 1984
• Docket Number: No. 55890,ABU-ISB,A,55890
• Citation: 685 P.2d 856,235 Kan. 851
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Mustafa Abdullappellant.

Page 856

685 P.2d 856

235 Kan. 851

STATE of Kansas, Appellee, v. Mustafa Abdulla ABU-ISBA, Appellant.

No. 55890.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

1. Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint and supporting affidavits should supply the magistrate with sufficient factual information to support an independent judgment that probable cause to arrest exists.

2. In determining whether to issue a warrant for arrest or search a magistrate should consider the "totality of the circumstances" presented and make a practical, common-sense decision whether there is a fair probability that a crime has been committed and the defendant committed the crime, or that contraband or evidence of a crime will be found in a particular place.

3. On appeal, the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

4. Where a county attorney acquiesces in the decision of the attorney general to prosecute a case in the district court, the attorney general may properly file a complaint and prosecute the case to its conclusion independent of any court order.

5. Evidence of subsequent statements and conduct of the defendant bearing on the issue of his intent with respect to a criminal offense with which he is charged may be admissible within the sound discretion of the trial court. The determination of whether evidence of such statements or conduct should be admitted should be based upon the circumstances of the case, whether such evidence is of any probative value in establishing the defendant's state of mind at the time of the alleged criminal acts, and if so, whether such evidence would unduly entangle the issues and confuse the jury.

6. Error cannot be predicated on the refusal to give an instruction when its substance is adequately covered in other instructions.

7. In deciding whether improper remarks by the prosecutor during closing argument constitute harmless error, the reviewing court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.

Robert L. Pottroff, of Myers & Pottroff, Manhattan, argued the cause and was on brief for appellant.

James Flory, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., and Frank D. Diehl, Asst. Atty. Gen., were on brief for appellee.

SCHROEDER, Chief Justice.

This is an appeal in a criminal action from a jury verdict finding Mustafa Abdulla Abu-Isba (defendant-appellant) guilty of communicating a terroristic threat (K.S.A. 21-3419). The appellant contends (1) his arrest was not based on probable cause, (2) the Kansas Attorney General did not have authority to prosecute the action, (3) the trial court erred in the admission of certain evidence, and (4) comments made by the prosecutor during closing argument constituted reversible error.

The appellant was a Ph.D. candidate in the School of Veterinary Medicine at Kansas State University. Dr. Stanley Dennis, a KSU professor in the Department of Pathology, was the appellant's adviser for his Ph.D. program. The appellant was dismissed from the graduate program in the fall of 1981, and subsequently applied for readmission.

On May 18, 1982, the appellant went to see Dr. Dennis concerning his readmission application. When Dr. Dennis informed the appellant the application had been denied, the appellant became very agitated and told Dr. Dennis, "I will destroy you before leaving the university. I will destroy Dr. Leipold, and I will destroy Dr. Kruckenberg." Dr. Dennis asked the appellant if he was threatening him. If so, he was going to call the campus police. The appellant said to go ahead and call the campus police. Dr. Dennis did so, but the appellant left his office before the police arrived. The campus police investigated the matter and submitted their findings to the Riley County Attorney.

The appellant again went to see Dr. Dennis the next day and demanded to know why he was not readmitted to the program. The appellant continued to go to Dr. Dennis' office one to three times per day until May 27, 1982. The appellant told Dr. Dennis he would keep up his visits each day until Dr. Dennis did what the appellant wanted.

On June 25, 1982, the appellant went to see Dr. Dennis about his second application for readmission to the graduate program. Dr. Dennis handed the appellant a letter informing him his application had been considered and denied. The appellant took the news calmly and left the office. Shortly after this the appellant met Dr. Horst Leipold, another professor in the Department of Pathology, in a corridor of the building. Dr. Leipold testified the appellant told him several times in a very enraged and loud voice, "I am going to get you."

Dr. Dennis testified he believed the appellant was threatening his life on May 18, 1982, and that the threat has changed his life. He alters the path he drives to work and keeps his house locked up. The threats interfered with his teaching, research and service work. He was under medication for blood pressure problems at the time of trial. The appellant has never physically attacked Dr. Dennis.

The Riley County Attorney conducted an investigation into the case and decided not to prosecute. A complaint was then filed in the Riley County District Court by an assistant Kansas Attorney General charging the appellant with two counts of communicating a terroristic threat. The case was prosecuted in the district court by two assistant attorneys general. The appellant was found guilty of communicating a terroristic threat to Stanley Dennis and not guilty of communicating a terroristic threat to Horst Leipold.

The appellant first contends the State's complaint and the supporting affidavit did not contain sufficient factual information to support an independent determination that probable cause to arrest existed.

Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint should supply the magistrate with sufficient factual information to support an independent judgment that probable cause to arrest exists. Mere conclusions are not sufficient to support such a finding. Wilbanks v. State, 224 Kan. 66, Syl. pp 1, 3, 579 P.2d 132 (1978). Probable cause is the reasonable ground for belief that a specific crime has been committed and that the defendant has committed or is committing it. Under K.S.A. 1983 Supp. 22-2302(1) probable cause information may be set forth in separate affidavits filed with the complaint. Probable cause does not require specific evidence of each element of the offense as would be needed to support a conviction. Probable cause exists if the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. State v. Weigel, 228 Kan. 194, 197, 612 P.2d 636 (1980), and cases cited therein.

The appellant refers to the "two-pronged test" under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), used to evaluate the validity of a warrant based on hearsay. This "two-pronged test" was abandoned by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in favor of a "totality of the circumstances" approach. In adopting the totality of the circumstances approach to ascertain whether based on all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place, the United States Supreme Court stated:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." 103 S.Ct. 2317, 76 L.Ed.2d at 548.

The Kansas Court of Appeals followed the United States Supreme Court's abandonment of the "two-pronged test" in State v. Rose, 8 Kan.App.2d 659, 665 P.2d 1111 rev. denied 234 Kan. 1044, 677 P.2d 1011 (1983). This court approved the Rose decision in State v. Walter, 234 Kan. 78, 81-82, 670 P.2d 1354 (1983).

The arrest warrant in the instant case was issued by the judge upon a complaint and supporting affidavits. The complaint is in language similar to K.S.A. 21-3419, which defines the offense of communicating a terroristic threat. A supporting affidavit by an assistant attorney general states Don Winsor, an agent for the Kansas Bureau of Investigation, investigated the incidents involving the appellant and the KSU faculty members. Winsor interviewed numerous witnesses including Drs. Dennis and Leipold. The affidavit recites the appellant's dealings with the pathology department in his attempt to obtain his degree. The affidavit also relates Dr. Dennis' version of the alleged threat made by the appellant on May 18, 1982, and Dr. Leipold's statements about his encounter with the appellant on June 25, 1982.

The affidavit supplies information of the alleged threats made by the appellant to Drs. Dennis and Leipold. All sources of information in the affidavit are named and reliable. These sources include the victims of the alleged threats. The affidavit establishes probable cause to believe the...