State v. Barney

• Decision Date: 05 October 2007
• Docket Number: No. 96,497.,96,497.
• Citation: 185 P.3d 277
• Parties: STATE of Kansas, Appellee, v. Jerry Lee BARNEY, Appellant.
• Court: Kansas Court of Appeals

185 P.3d 277

STATE of Kansas, Appellee, v. Jerry Lee BARNEY, Appellant.

No. 96,497.

Court of Appeals of Kansas.

October 5, 2007.

Rachel Pickering, of Kansas Appellate Defender Office, for appellant.

Robert D. Hecht, district attorney, Jamie L. Karasek, assistant district attorney, and Paul J. Morrison, attorney general, for appellee.

Before GREENE, P.J., MALONE and LEBEN, JJ.

MEMORANDUM OPINION

MALONE, Judge.

Jerry Lee Barney appeals his convictions and sentences for aggravated burglary, burglary, theft, and criminal damage to property. Barney raises the following issues on appeal: (1) the district court erred in admitting evidence of a police dispatch statement made as a result of an anonymous phone call; (2) there was insufficient evidence to support Barney's convictions of aggravated burglary, burglary, and criminal damage to property; (3) the district court erred in ordering Barney to reimburse the Board of Indigents' Defense Services (BIDS) for attorney fees; and (4) the district court erred in basing the term of Barney's sentence on his criminal history which was not proven to a jury beyond a reasonable doubt. We affirm Barney's convictions and the term of his sentence but reverse and remand on the BIDS issue.

On June 18, 2005, Topeka police officers John Trimble and David Gogian received a dispatch call at 1:46 p.m. The dispatcher had received an anonymous call which reported a suspicious person going to doors, peeping in windows, and ringing doorbells in the 300 block of Broadmoor and in the 300 block of Kendall in Topeka. Dispatch described the individual as a "white male, possibly balding, wearing a white tank top and blue [jean] shorts."

The two officers immediately went to the area and searched for an individual matching the description, but could not find anyone. They left the area around 2 p.m. At 3:32 p.m., the officers received another dispatch to a burglary that had taken place within the previous 2 hours. The location of the burglary was about 3 or 4 blocks west of the initial suspicious person call. After Gogian finished taking the burglary report, the two officers parked about 1/2 block away in hopes of seeing an individual matching the description of the suspicious person.

A short time later, a man matching the description of the suspicious person walked near the police car. Trimble exited the vehicle and spoke to the individual, who was later identified as Barney. Barney was carrying a Dillard's plastic bag which contained jewelry, a prescription bottle belonging to Nexelina Schumacher, and Dillard's receipts and clothing tags. Trimble learned through dispatch that Schumacher lived at 605 Fillmore and that Schumacher had reported a burglary earlier that afternoon.

Trimble then handcuffed Barney and searched him. Trimble found a cell phone, a pocket full of change, two $20 bills, one $10 bill, and two $5 bills. Trimble called a number logged on the cell phone and learned that the phone belonged to Ellen Malloy, who lived at 125 S.W. Greenwood, which was 3 to 4 blocks from where the officers had originally been searching for the suspicious male.

The officers then went to Malloy's residence. Malloy reported that someone had entered her residence earlier that afternoon and had stolen two $20 bills, one $10 bill, two $5 bills, and some coins from her purse. She also identified the cell phone found in Barney's possession by serial number, as well as eight rings and two necklaces that had been in the Dillard's bag.

The two officers also went to Schumacher's residence. Schumacher identified the prescription bottle found in Barney's possession as being hers. She also told the officers that earlier in the afternoon, while two of her children were upstairs playing, someone had forced entry into her home. Schumacher showed the officers where the door had been forced open. Pieces of wood were laying on the floor from where it had been kicked in. The lock was also broken.

The State charged Barney with aggravated burglary of Schumacher's residence, burglary of Malloy's residence, criminal damage to Schumacher's door, and two counts of theft. Barney filed a motion in limine to exclude as hearsay the statements made by the anonymous caller which were repeated in the police dispatch. The district court overruled the motion, finding that the statements were not offered to prove the truth of the matter asserted.

The case proceeded to a jury trial. The State's witnesses were Trimble, Gogian, Malloy, Schumacher, and Schumacher's daughter, who was playing in the house at the time of the burglary. During the trial, Trimble testified about the police dispatch statement made as a result of the anonymous phone call. The district court instructed the jury that the testimony was allowed "for the limited purpose of explaining the officer's actions" after receiving the dispatch, and the testimony should not be considered by the jury "to establish the truth of the information received by the officer."

Barney did not testify at trial and he called no witnesses. However, Barney argued the State failed to prove the charges beyond a reasonable doubt because there were no eyewitnesses placing Barney inside the burglarized residences and Barney's fingerprints were not found in either residence. Barney was found guilty as charged. Based on his criminal history, Barney received a presumptive sentence of 120 months' imprisonment. He was also ordered to reimburse BIDS for attorney fees in the amount of $600. Barney timely appeals.

Police dispatch statement

Barney first claims the admission of Trimble's testimony regarding the police dispatch statement made as a result of the anonymous phone call was error. The anonymous call had reported a suspicious person going to doors and peeping into windows in a Topeka neighborhood. The caller gave a description of the person, which was repeated in the police dispatch. Barney asserts the testimony regarding the police dispatch statement constituted inadmissible hearsay evidence. He also claims the evidence violated his rights under the Confrontation Clause of the United States Constitution.

Although Barney raised this issue in district court by filing a motion in limine to exclude the testimony, the record reflects that Barney failed to make a contemporaneous objection to the evidence when it was admitted at trial. As a result, normally this issue would not be properly preserved for appeal. See State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003). However, Barney claims he made a continuing objection in district court to the admission of the evidence. The record on appeal does not reflect when Barney made a continuing objection to the evidence. The first time defense counsel mentioned a continuing objection on the record occurred at the instruction conference near the end of the trial. However, we note with significance that at the instruction conference the prosecutor acknowledged it was it the State's understanding that defense counsel had a continuing objection to the testimony regarding the dispatch statement. Furthermore, as argued in this case, the issue involves only a question of law arising on proved or admitted facts. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). For these reasons, we will address the merits of Barney's claim.

When an appellate court considers a challenge to the district court's admission of evidence, it must first consider whether the evidence is relevant. K.S.A. 60-407(f); State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). After relevance is established, "evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question." Gunby, 282 Kan. at 47, 144 P.3d 647. When the issue involves the adequacy of the legal basis on which the district court decided to admit or exclude evidence, the appellate court reviews the decision de novo. 282 Kan. at 47-48, 144 P.3d 647.

Hearsay is evidence of "a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated." K.S.A.2006 Supp. 60-460. "Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted." State v. Crowley, 220 Kan. 532, 536-37, 552 P.2d 971 (1976).

The district court relied on State v. Laubach, 220 Kan. 679, 556 P.2d 405 (1976), in ruling that the testimony regarding the police dispatch statement was admissible. In Laubach, the defendant allegedly robbed a hotel night clerk. A description of the robber was sent out to various motels and a few hours later a motel employee reported to the police that the suspect was trying to check into that motel. All this information, including the robber's description, was reported by one police officer to another police officer, which led to the defendant's arrest. At trial, the defendant objected, as hearsay, to the testimony from an investigating officer about the description of the suspect he had received from another officer. The trial court ruled the testimony was admissible because it was not offered to prove the truth of the matter asserted, and the Supreme Court agreed. The court reasoned the statement did not place the defendant at the scene of the crime, but rather the testimony was introduced to explain the officer's actions in the investigation of the crime. 220 Kan. at 682, 556 P.2d 405.

In State v. Hollaway, 214 Kan. 636, 522 P.2d 364 (1974), the defendant was charged with aggravated robbery of a market. After the robbery, the defendant sped away in a car driven by another man. A description of the car was obtained and reported over police dispatch. At trial, some of the police officers referred to statements made by the police dispatcher regarding the route the defendant was taking in his getaway car. The defendant contended the police dispatch statements were...