State v. Brickhouse

Decision Date10 February 1995
Docket NumberNo. 70415,70415
Citation890 P.2d 353,20 Kan.App.2d 495
PartiesSTATE of Kansas, Appellee, v. Smith N. BRICKHOUSE, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. A hearsay declaration against interest may be denied admission into evidence on the grounds that the statement, the declarant, or both are not "reliable."

2. Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.

3. The question of the admission of hearsay evidence is left to the sound discretion of the trial judge.

4. In a criminal case, it is an abuse of discretion to admit into evidence an incriminating hearsay statement in an effort to convict a defendant and, at the same time, deny admission into evidence a hearsay statement from the same declarant which tends to exonerate the defendant and supports the theory of defense employed. Application of the hearsay rule in this fashion amounts to a denial of due process to the defendant.

5. The question of whether an exculpatory hearsay statement is reliable is overridden by the inherent unfairness that will occur if an exculpatory statement is denied admission into evidence while an incriminating statement by the same declarant is admitted into evidence.

6. K.S.A.1993 Supp. 65-4135(b)(3) permits the warrantless seizure of property subject to forfeiture when there exists probable cause to believe the property was used or intended to be used to transport or in any manner to facilitate the transportation, sale, receipt, possession, concealment, purchase, exchange, or giving away of controlled substances in violation of the Kansas Uniform Controlled Substances Act.

7. The measure of determining the legality of a seizure under K.S.A. 1993 Supp. 65-4135(b)(3) is whether the seizure was reasonable under the Fourth Amendment.

8. The warrantless seizure of a motor vehicle under K.S.A.1993 Supp. 65-4135, based upon probable cause that the vehicle was used to violate the Kansas Uniform Controlled Substances Act, is reasonable and does not violate any constitutional prohibition against illegal searches and seizures.

9. The warrantless seizure of a vehicle based upon probable cause subjects the vehicle to a valid inventory search, and evidence found in the course of such search is admissible in a criminal prosecution.

Jessica R. Kunen, Chief Appellate Defender, for appellant.

Debra A. Vermillion, Asst. Dist. Atty., Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before LEWIS, P.J., LARSON, J., and TIMOTHY E. BRAZIL, District Judge, Assigned.

LEWIS, Presiding Judge:

Defendant Smith N. Brickhouse was convicted of distribution of marijuana and possession of methamphetamine, both class C felonies, and possession of marijuana, a class A misdemeanor. He was subsequently sentenced to a controlling term of 5 to 15 years. He appeals from those convictions.

Defendant's problems stem from an agreement between Frank Cardello and Russ Gardner. Cardello, unaware that he was dealing with an undercover police officer, agreed to sell Gardner a quarter of a pound of marijuana for $575. The attempt to execute this agreement led to defendant's arrest and convictions.

After agreeing on the quantity and price of the drugs involved, Cardello told Gardner that he would require the money in advance. He indicated that after he had the money, he would arrange to meet his "connection," obtain the drugs, and deliver the amount ordered. Gardner acceded to these terms and obtained $575 in cash from his superiors. Unfortunately for Cardello and defendant, the cash was photocopied prior to being given to Gardner.

The parties to the agreement met at a Denny's restaurant in Overland Park. Cardello arrived at Denny's driving a white Honda Accord with dealer tags. After receiving the money, Cardello advised Gardner that he "would go to the Applebee's at 110th and Metcalf, meet his connection, pick up the marijuana and come right back to the Denny's to deliver the marijuana to [Gardner]."

Cardello then left Denny's and proceeded to Applebee's. Gardner called his supervisor and informed him of the arrangements. The supervisor passed along the information, and The police followed Cardello to Applebee's, where he parked his car and went inside. In the meantime, defendant also arrived at Applebee's. As the police watched, Cardello and defendant met inside Applebee's but soon left together and stood outside the front door. After a period of time, Cardello went to his automobile and sat down in the driver's seat. The police observed defendant walk to his parked blue Honda automobile and retrieve a backpack from the inside of that vehicle. Defendant then took the backpack, walked to Cardello's vehicle, and got in the car on the passenger side. As soon as defendant was comfortably seated in Cardello's automobile, the police moved in, ordered Cardello and defendant out of the automobile, and placed them both under arrest.

police officers soon began to converge on Applebee's in search of Cardello, who was driving the white Honda automobile.

A search of Cardello's vehicle revealed a gray backpack, with the main compartment open, lying between the console and the passenger seat. Also, a quarter-pound bag of marijuana was found on the car floorboard near where defendant had been seated. The backpack was found to contain $475 of the cash which Gardner had given to Cardello. The remaining $100 was found in Cardello's wallet. In addition, the authorities found in Cardello's car a small quantity of marijuana in a plastic bag between the driver's seat and the console.

After defendant had been arrested, he was subjected to a personal search. This search uncovered a small quantity of marijuana in a black fannypack being worn by defendant at the time of his arrest. The search of defendant's person also yielded a ziplock baggy containing methamphetamine.

The police seized defendant's automobile for forfeiture purposes pursuant to K.S.A.1993 Supp. 65-4135. This seizure was accomplished without a warrant and in the absence of any claimed exigent circumstances. The State justifies the seizure under K.S.A.1993 Supp. 65-4135(b)(3), which permits property to be seized when there is probable cause to believe it was used to violate the Kansas Uniform Controlled Substances Act (Controlled Substances Act). The seized vehicle was impounded and subjected to an inventory search. Among the items recovered from defendant's automobile was a white plastic tube from the dash, a hand scale with a weight conversion chart from the map holder, and a mobile phone and belt pager in the glove box. In the trunk of defendant's automobile, the police found a plastic bag containing a quarter-pound of marijuana wrapped in a newspaper. Also from the trunk of the vehicle, the police recovered a first aid kit containing a hypodermic needle, a tablespoon with methamphetamine residue on it, and a plastic bag containing methamphetamine.

The admission of evidence from the various searches described was objected to, unsuccessfully, by defendant.

Other facts will be discussed when appropriate to the issues being recited.

Defendant raises several issues of error which he argues should result in reversal of his convictions.

CARDELLO HEARSAY STATEMENTS

During the course of several conversations with police officers, Cardello gave conflicting explanations of defendant's involvement in the drug sale to Gardner. He ultimately refused to testify at defendant's trial based on his Fifth Amendment rights. As a result, statements made by Cardello to the police officers were subject to the hearsay rules at defendant's trial. One of the hearsay statements made by Cardello to police officers implicated defendant in the drug transaction. The other hearsay statement was exculpatory as to defendant. Both statements were offered for admission into evidence at defendant's trial. The trial court admitted the hearsay statements implicating defendant and refused to admit the hearsay statements which tended to exonerate defendant. Defendant argues that this decision was erroneous and that his conviction should be reversed as a result. We agree.

Approximately one week prior to trial, Cardello told the prosecutors that defendant did not know there was marijuana in the gray backpack which he delivered to Cardello.

                According to Cardello, he had arranged to buy the marijuana from an individual by the name of Steve Nelson, who allegedly worked with defendant at the same place of business.  Nelson, by prearrangement with Cardello, placed the marijuana in defendant's car without his knowledge.  Cardello then called defendant to "meet him for drinks, and once they were together, Mr. Cardello would get the marijuana out of Mr. Brickhouse's car."   Cardello went on to tell the prosecutors that defendant knew nothing of the marijuana in the backpack until Cardello pulled it out of the bag.  Cardello indicates that he then put the $475 in cash in the backpack with instructions to defendant to deliver the backpack to Nelson
                

The prosecutors were not satisfied with this particular explanation of defendant's involvement. After the interview with Cardello was over, the prosecutors called his attorney. The State advised Cardello and his attorney that the plea agreement entered into by them would be off unless Cardello would provide truthful testimony. The prosecutors indicated that they did not believe Cardello's exculpatory explanation of defendant's role in the drug transaction.

Sometime after the conversation between the prosecutor and his attorney, Cardello retracted his statement that defendant was unaware that he was delivering drugs in the gray backpack. Cardello told the prosecutors on this occasion that he had lied earlier when he told them defendant knew nothing of the drug deal. He professed to be afraid of...

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13 cases
  • State v. Stano
    • United States
    • Kansas Supreme Court
    • June 8, 2007
    ...of due process as articulated in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and State v. Brickhouse, 20 Kan.App.2d 495, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995). In the alternative, the defendant argues that the statements should have been admitt......
  • Meehan v. Kansas Dept. of Revenue, 77311
    • United States
    • Kansas Court of Appeals
    • May 29, 1998
    ...cannot impair criminal defendant's right to cross-examine witnesses and present witnesses in his defense.). See State v. Brickhouse, 20 Kan.App.2d 495, 500-02, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995) (hearsay rules and district court discretion cannot be applied unfairly to deprive c......
  • White v. State
    • United States
    • Florida District Court of Appeals
    • July 29, 1996
    ...See also, Lowery v. Nelson, 43 Wash.App. 747, 719 P.2d 594 (Wash.App.1986), rev. denied, 106 Wash.2d 1013 (1986); State v. Brickhouse, 20 Kan.App.2d 495, 890 P.2d 353 (1995); c.f., Davis v. State, 813 P.2d 1178 (Utah We join the majority of the federal and state jurisdictions which have con......
  • U.S. v. Eylicio-Montoya, EYLICIO-MONTOY
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • November 22, 1995
    ...405, 679 P.2d 1123, 1123-24 (1984); State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984); Epperson, 703 P.2d at 770; State v. Brickhouse, 20 Kan.App.2d 495, 890 P.2d 353, 359 (1995); State v. Harms, 233 Neb. 882, 449 N.W.2d 1, 4 (1989) (collecting cases). In cases subsequent to Erwin, this Circuit......
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1 books & journal articles
  • The automobile exception swallows the rule: Florida v. White.
    • United States
    • Journal of Criminal Law and Criminology Vol. 90 No. 3, March 2000
    • March 22, 2000
    ...laws have upheld them. See, e.g., State v. White, 680 So. 2d 550, 554 (Fla. Dist. App. Ct. 1996) (citing State v. Brickhouse, 20 Kan. App. 2d 495 (Kan. 1995); State v. McFadden, 63 Wash. App. 441 (Wash. Ct. App. 1991), rev. denied 119 Wash. 2d 1002 (Wash. 1992); Lowery v. Nelson, 43 Wash. A......

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