State v. Bowen

• Decision Date: 03 March 2000
• Docket Number: No. 78,959.,78,959.
• Parties: STATE OF KANSAS, Appellee, v. MICHAEL KENNETH BOWEN, Appellant.
• Court: Kansas Court of Appeals

27 Kan. App.2d 122

999 P.2d 286

STATE OF KANSAS, Appellee, v. MICHAEL KENNETH BOWEN, Appellant.

No. 78,959.

Court of Appeals of Kansas.

Opinion filed March 3, 2000.

M. Ruth O'Neill, of Overland Park, for the appellant.

Larry D. Tittel, county attorney, and Carla J. Stovall, attorney general, for the appellee.

Before ELLIOTT, P.J., PIERRON and KNUDSON, J.J.

PIERRON, J.:

This case is back before us after having been remanded to the trial court for consideration of certain issues. Michael Kenneth Bowen and Christine Ridpath, who resided in a house in Ness City, were wanted on arrest warrants in Ellis County. Bryan Whipple, a Ness County deputy sheriff, received a tip regarding the arrest warrants and called Ellis County authorities for more information. The arrest warrants were drug related but did not involve methamphetamine. However, a person identified as Undersheriff McIntosh informed Whipple that Bowen had a background in chemistry and had been known to manufacture methamphetamine.

Whipple had previously received a tip connecting Bowen with methamphetamine. Three months earlier, Jason Schuler, a usually reliable informant, said Bowen had offered him methamphetamine at the Park Motel in Ness City. Bowen and Ridpath lived at the Park Motel before moving to the house.

On March 5, 1996, Whipple, accompanied by other officers, served the arrest warrants on Bowen and Ridpath at their house. Upon entering, Whipple noticed a distinct chemical odor which he identified as ether based on his prior exposure to starting fluid. When another deputy could not identify the odor, the officers moved toward the kitchen to discover its source. When Ridpath asked why the officers were snooping in her house, Whipple said they were trying to identify the chemical odor. Bowen explained the odor was produced by iodine used to treat a wound on their cat. Although Whipple did not see anything suggesting the production of methamphetamine, he later learned that iodine is used to manufacture the drug.

The Ness County Attorney, Larry D. Tittel, made an oral application for a search warrant of the house. Tittel told the magistrate the evidence would show probable cause that the manufacture and possession of methamphetamine had occurred at the "residence." Whipple's testimony provided the sole evidence in support of the warrant. Tittel asked Whipple if the offer alleged by Schuler had occurred at Bowen's "place of residence," which Whipple affirmed. Tittel added, "Now, while he has lived a couple of different places, Mr. Bowen was arrested last night at his residence, is that correct?" Whipple agreed with Tittel's statement. The State did not clarify the fact that the offer alleged by Schuler occurred somewhere other than at the residence the State wished to search.

The magistrate granted the search warrant. The search of the house, conducted with the assistance of the Kansas Bureau of Investigation (KBI), revealed bulk quantities or empty containers of ephedrine, iodine, lye, paint thinner, acetone, and muriatic acid, all raw materials for the production of methamphetamine. Red phosphorus, which can be extracted from the striker plate of matchbooks, was absent, but the authorities discovered a large number of matchbooks with the striker plates missing.

A reaction vessel was found in the kitchen, which, when tested, showed traces of ephedrine. The walls around the reaction vessel were stained in a way consistent with a long-term release of iodine vapor. A large quantity of coffee filters in the kitchen were stained reddish brown and also bore traces of ephedrine. The State's expert stated the filters were consistent with filters used to extract methamphetamine from iodine and red phosphorus during manufacture.

The authorities also found a pipe and a set of scales, both which bore traces of methamphetamine. A diary found at the house contained the following entry dated a few weeks before the search: "`Start batch # 33-1 oz..... [p]lan 36 hr. at least.'" The State's expert said production of methamphetamine required between 24 and 48 hours for a good yield. Finally, the authorities discovered a book entitled "Secrets of Methamphetamine Manufacture."

Bowen and Ridpath were charged with the manufacture, possession, and conspiracy to manufacture methamphetamine within 1,000 feet of a school, and possession of drug paraphernalia. They were appointed separate counsel. Bowen then secured retained counsel, B.A. Lightfoot, whose fee was paid by Bowen's mother.

At some point Ridpath indicated her wish to discharge her appointed counsel and also retain Lightfoot. According to Lightfoot, he resisted Ridpath's repeated requests to represent her because of potential conflicts with Bowen's defense. Lightfoot, however, eventually agreed to represent Ridpath for no additional fee. On remand, Bowen testified he also had asked Lightfoot to represent Ridpath.

At a hearing attended by Bowen, Lightfoot, Ridpath, and Ridpath's appointed counsel, the State objected to the joint representation. The prosecutor pointed out Bowen and Ridpath would probably have adverse defenses. Lightfoot stated that the defendants realized a joint representation would limit their potential defenses. The State asked for a waiver on the record from each of the defendants of their right to appeal on the conflict issue.

In response, Lightfoot said he possessed a memorandum of understanding which each defendant had signed. While Lightfoot indicated he would not produce the memorandum because it was confidential, the document was introduced into evidence on remand. Signed by Bowen, Ridpath, and Lightfoot, the memorandum recognized that the defendants "may be precluded from asserting defenses which would be detrimental to one or the other of us." The memorandum authorized Lightfoot to share any information he received concerning one defendant with the other. The memorandum also stated, "[W]e understand that if and in the event that the disposition of either or both of our cases is effected [sic] by consent, then we will both, individually and collectively, have the right to withhold our consent to the disposition of either case or both cases." Lightfoot interpreted this last provision as allowing either defendant to prevent the other from accepting a plea offer.

While the trial court concluded all parties were on notice concerning the situation, the trial court did not question either Bowen or Ridpath about the joint representation. The trial court allowed Ridpath's appointed counsel to withdraw but expressed concern that Lightfoot was assuming Ridpath's representation only 10 days before trial. Lightfoot admitted he was feeling unprepared for trial but said he would not seek a continuance because of speedy trial concerns. Both Bowen and Ridpath, however, were in custody awaiting other criminal proceedings in Ellis County. At the hearing on remand, in order to place more pressure on the State, Lightfoot stated Bowen did not want a continuance.

At trial, the State introduced the evidence collected from the search of Bowen and Ridpath's house. According to the State's expert, the items found were sufficient to complete production of methamphetamine. Lightfoot, however, failed to renew his pretrial objection to the evidence.

The State also called Randy Smith, a special agent with the KBI. Smith testified extensively, without hearsay objection from Lightfoot, to conversations he had with Bonnie Taylor and Scott Reeves about Bowen and Ridpath.

According to Smith, Taylor and Reeves said they had purchased methamphetamine from Bowen and Ridpath. Taylor and Reeves said Bowen had learned to produce methamphetamine and that one of Bowen's methamphetamine labs had exploded at the Park Motel. They described several instances when they had taken Bowen on shopping trips for materials to be used in methamphetamine production. They also indicated Bowen and Ridpath had provided them with the use of a car in exchange for methamphetamine. Lightfoot then cross-examined Smith and established that laboratory equipment found in Taylor and Reeves' car came from Bowen's house. The State rested without calling Taylor or Reeves as a witness.

Lightfoot did not object to the State's failure to provide Taylor and Reeves for cross-examination but instead called Taylor and Reeves as defense witnesses "because of the testimony bootlegged in by Mr. Smith." Regarding the provision of methamphetamine to Taylor by Bowen and Ridpath, Lightfoot's questioning established the rough number of transactions and the places the transactions occurred. The State was then able to lead Taylor in crossexamination, establishing the basis for Taylor's knowledge. Taylor also stated Bowen gave her a map of Hays and a list of items to purchase, including a large quantity of matchbooks, ephedrine, and iodine.

Upon direct examination of Reeves, Lightfoot confirmed the laboratory equipment in Taylor and Reeves' car came from Bowen's house. The State was again able to lead in cross-examination, establishing Bowen and Ridpath had manufactured methamphetamine near a grade school in another town as well. Reeves also testified to methamphetamine production in the Park Motel and claimed to have been present when the drug was produced in Bowen and Ridpath's house in Ness City.

Lightfoot also called Whipple as a defense witness and inquired about a receipt found in the dumpster outside Bowen and Ridpath's house. On cross-examination, the State introduced the receipt, which indicated 10 boxes of matches and iodine were purchased in Ness City 5 days before the defendants were arrested. Lightfoot then called Smith as a defense witness and used his testimony to lay the foundation for the introduction of a book found during the search of the house entitled "The Speed Culture: Amphetamine Use and Abuse in America" by the author of "Marihuana Reconsidered." Lightfoot offered the book as a defense exhibit. Through Smith, Lightfoot also...