State v. Campbell

Decision Date11 March 2022
Docket Number123,189
CourtKansas Court of Appeals
PartiesState of Kansas, Appellee, v. Jerry W. Campbell, Appellant.

NOT DESIGNATED FOR PUBLICATION

Appeal from Douglas District Court; Paula B. Martin, judge.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Jon Simpson, assistant district attorney, Suzanne Valdez district attorney, and Derek Schmidt, attorney general, for appellee.

Before Powell, P.J., Schroeder, J., and James L. Burgess, S.J.

MEMORANDUM OPINION

PER CURIAM

The State charged Jerry W. Campbell with several crimes arising from an incident that occurred in May 2017. After arresting Campbell for an outstanding warrant, police searched him and found (1) an empty gun holster on his waist, (2) a repurposed paperclip with black residue on the end, (3) a Ziploc baggy full of loose change, and (4) three counterfeit bills in his wallet. An officer also smelled the odor of burnt marijuana on Campbell's person-both while Campbell sat in the car and after he exited the vehicle. After a search of Campbell's vehicle, various items related to methamphetamine, drug paraphernalia, and drug distribution were found. Campbell moved to suppress the items found in the vehicle, citing the officer's lack of probable cause. After a suppression hearing, the district court denied the motion. Campbell later waived his right to a jury trial and informed the district court he wished to proceed with a bench trial on stipulated facts. The parties could not agree to the stipulated facts so the district court proceeded with a bench trial on presented evidence. The district court found Campbell guilty of possession of methamphetamine with intent to distribute two counts of felony possession of drug paraphernalia, one count of misdemeanor possession of drug paraphernalia, and forgery. Campbell appeals, arguing (1) the district court erred in denying his motion to suppress; (2) the district court erred in finding he knowingly and voluntarily waived his right to a jury trial; and (3) the State presented insufficient evidence to convict him of forgery. The district court's ruling on the suppression motion is affirmed. The district court's finding that Campbell waived his right to a jury trial is reversed, and the case is remanded for further proceedings.

Factual and Procedural Background

In June 2018, the State charged Campbell with: (1) one count of possession of methamphetamine with the intent to distribute a severity level 2 drug felony; (2) two counts of use or possess with intent to use drug paraphernalia to manufacture, cultivate, plant, propagate, harvest, test, analyze or distribute a controlled substance, a level 5 drug felony; (3) one count of forgery, a level 8 nonperson felony; (4) two counts of possession of any firearm while addicted and using a controlled substance, a Class B select misdemeanor; and (5) one count of use or possess with intent to use drug paraphernalia to store, contain, conceal, inject, ingest, inhale, or otherwise introduce a controlled substance into the human body, a Class A nonperson misdemeanor.

After a preliminary hearing, Campbell was bound over for all seven charges. Campbell pleaded not guilty and asked the district court to set the matter for trial. In November 2018, Campbell moved to suppress evidence found in his vehicle after his arrest. The State filed a written response.

At the motion for suppression hearing, Officer Matthew Roberts of the Lawrence Police Department testified that he arrested Campbell for an outstanding warrant and for driving on a suspended license. While talking to Campbell, who remained in the driver's seat of the car, Roberts smelled burnt marijuana. He could still smell it after Campbell exited the vehicle. He also made note of Campbell's hat depicting a marijuana leaf. Roberts searched Campbell's person and found (1) an empty gun holster on Campbell's waist, (2) a wire paperclip with burnt residue on the end of it that appeared to Roberts to be a marijuana pipe cleaning tool, (3) fake currency in Campbell's wallet found on his person, and (4) a little plastic baggy holding loose change that Roberts associated with drug distribution. Roberts testified he searched the vehicle because of the counterfeit money and "the smell of burnt marijuana coming from [Campbell] and/or the car." He stated he was looking for evidence relating to marijuana or paraphernalia, a firearm to accompany the empty holster, and evidence relating to equipment for making counterfeit money. When pressed later by Campbell's attorney, Officer Roberts testified he smelled the burnt marijuana smell when Campbell was in the car but that he searched the vehicle because of the burnt marijuana smell on Campbell's person.

During the suppression hearing, the State requested the district court incorporate Officer Roberts' previous testimony in a preliminary hearing, which the district court granted. In the preliminary hearing, Roberts testified he smelled "burnt marijuana emitting from the vehicle-and/or [Campbell]." After he searched Campbell incident to his arrest, Roberts searched the vehicle. He testified he searched Campbell's car in response to smelling the burnt marijuana.

The district court denied the motion to suppress, finding that the burnt marijuana smell, the wire paper clip with black residue, the baggy often used in drug distribution, and the fake currency found in Campbell's wallet were enough to establish probable cause to search his vehicle. The district court found these items gave the officer probable cause to search for evidence of crimes related to possession of marijuana, possession of drug paraphernalia, and the distribution of counterfeit money. The district court rejected the State's argument that the empty gun holster on Campbell's person gave the officer probable cause to search specifically under K.S.A. 2020 Supp. 21-6301(a)(10), which makes it illegal for a person who is addicted to, and an unlawful user of, a controlled substance to possess a firearm.

In January 2019, Campbell waived his right to a jury trial and informed the district court he wanted a bench trial on stipulated facts. When he waived this right, Campbell had a draft of the State's proposed list of stipulated facts. And although Campbell had "at least one disagreement" with the State, "the fact of the matter is [Campbell wanted] to go ahead [with] a trial on stipulated facts with an open sentencing." The district court addressed Campbell directly:

"THE COURT: All right. All right. Now, Mr. Campbell your attorney says you're going to waive your right to a jury trial and have this tried on stipulated facts. Is that what you want to do?
"DEFENDANT CAMPBELL: Yes, ma'am.
"THE COURT: You know you have the right to have a trial to a jury.
"DEFENDANT CAMPBELL: Yes, Your Honor.
"THE COURT: And have you had sufficient time to consider your decision and to discuss it with Mr. Crawford?
"DEFENDANT CAMPBELL: I believe by the time we get to trial we will.
"THE COURT: And, Ms. Kemple, since this is a felony the State also has to agree. Does the State waive the jury trial?
"MS. KEMPLE: Yes, Judge."

Campbell and the State could never agree on a list of facts. The district court scheduled a bench trial for March 12th, 2019.

Before beginning the bench trial, the district court revisited Campbell's right to have a jury trial. The following colloquy took place:

"THE COURT: We're here for a Court trial. And I want to just ask this question one more time, Mr. Campbell. You know you have the right to have a trial to a jury. Does he not?
"MS. KEMPLE: He waived his right to a jury trial, Judge.
"THE COURT: I know. I want to do it again. I just want to be sure. Before we start a Court trial, you know you have that right.
"THE DEFENDANT: Even still today, Your Honor, like, I could choose to do a jury trial?
"THE COURT: No. I want to go back to what you did before-
"THE DEFENDANT: Yes, I understand.
"THE COURT: You know you waived that. I should have phrased, 'You know you waived that, right?'
"THE DEFENDANT: Yes, ma'am."

Thereafter, the case proceeded to a bench trial without stipulated facts.

At trial, Officer Roberts testified he was on patrol in May 2017, but in a stationary position on the 1800 block of East 19th Street in Lawrence at 8:10 p.m. He saw a bluish Ford Focus traveling west on 19th Street. From previous knowledge about this address and vehicle, Officer Roberts suspected Campbell was leaving the address and driving the vehicle. At the time, Officer Roberts knew the State had suspended Campbell's driver's license and that the City of Lawrence had issued a warrant for his arrest.

Officer Roberts followed the vehicle to 2220 Harper, where it parked in a parking lot near a convenience store. After parking his patrol vehicle roughly 25 to 30 feet away, he approached the vehicle. While he approached, the passenger of the vehicle exited the vehicle and walked over and sat on a curb. Roberts spoke to the driver, who he recognized to be Campbell. Roberts asked Campbell if he had any weapons in the vehicle, to which Campbell replied that he had knives on him. Roberts asked Campbell who the backpacks in the backseat belonged to, and Campbell replied one was his and one was the passenger's.

Several other officers arrived on scene after Officer Roberts radioed for assistance. While he spoke with Campbell, who was still in the driver's seat, Roberts noted the smell of burnt marijuana through the open window. He asked Campbell to step out of the vehicle and then arrested him. Roberts also noted Campbell's hat had a marijuana leaf on the front, which he considered significant because of the burnt marijuana smell. While searching Campbell's person, Roberts found two counterfeit $20 bills...

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