State v. Campbell
| Decision Date | 01 July 2022 |
| Docket Number | 123,190 |
| Parties | State of Kansas, Appellee, v. Jerry W. Campbell, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Douglas District Court; Amy J. Hanley, judge.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Brian Deiter, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Isherwood, P.J., Green and Bruns, JJ.
A jury convicted Jerry W. Campbell of two counts of possessing methamphetamine and four counts of possessing drug paraphernalia with intent to use to distribute. Campbell appeals those convictions, arguing that the trial court committed reversible error by admitting prior bad acts evidence at his jury trial and by granting the State's motion to reconsider its original ruling granting his suppression motion. He also argues that the prosecutor committed reversible error by using an inflammatory hypothetical to describe his presumption of innocence during voir dire. And he concludes his appeal by arguing that cumulative error otherwise requires the reversal of his convictions. As considered below the trial court's erroneous admission of prior bad acts evidence denied Campbell his right to a fair trial. Accordingly, his convictions are reversed, and his case remanded for a new trial.
On November 20, 2017, law enforcement applied for and received a search warrant to place a GPS tracking device on Campbell's car. In the affidavit supporting this search warrant, Officer Kristen Kennedy alleged that Campbell was a methamphetamine distributor. As proof, Officer Kennedy cited Campbell's prior encounters with law enforcement that year. Those encounters included Campbell's May 21, 2017 (May stop), July 18, 2017 (July stop), and September 23, 2017 (September stop) encounters where law enforcement found what appeared to be methamphetamine and drug paraphernalia in Campbell's car.
After attaching a GPS tracker to Campbell's car, law enforcement monitored Campbell's movements for about a month. On the evening of December 28, 2017, and the early morning hours of December 29, 2017, law enforcement physically followed Campbell while also using the GPS tracker. They followed Campbell as he drove his girlfriend Kayla Stroda, from Lawrence, Kansas, to Kansas City Missouri, and back towards Lawrence. Then, around 3 a.m Deputy Taylor Zook stopped and arrested Campbell just outside of Lawrence, Kansas because he was driving without a valid license. Afterward, a drug sniffing dog alerted that Campbell's car contained drugs. During the ensuing search, law enforcement found what appeared to be methamphetamine, pill pieces, and drug paraphernalia in Campbell's car. Following his arrest, Deputy Zook questioned Campbell about the methamphetamine found in his car. According to the deputy's later trial testimony, Campbell denied knowing about the methamphetamine, denied that the methamphetamine may have belonged to Stroda, and suggested that maybe someone he had given a ride to left the methamphetamine in his car.
Law enforcement sent samples of the apparent drugs discovered in Campbell's car on the May stop, July stop, September stop, and December 29, 2017 (December stop), to the Kansas Bureau of Investigation (KBI) for lab testing. KBI lab testing indicated that the crystal substance seized from Campbell's car on each of those dates was methamphetamine. It also indicated that the pill pieces seized from Campbell's car on the December stop, contained buprenorphine and diazepam.
Eventually, based on the items seized from his car on the May stop, Campbell was convicted of one count of possessing methamphetamine with the intent to distribute, two counts of possessing drug paraphernalia for distribution purposes, and one count of possessing drug paraphernalia for personal use. In a separate case, based on items seized from his car on the July stop, Campbell was convicted of one count each of possessing methamphetamine with the intent to distribute, possessing drug paraphernalia for distribution purposes, and possessing drug paraphernalia for personal use. In both criminal cases, the trial court sentenced Campbell to consecutive 111-month prison terms.
For his September stop and the December stop encounters with law enforcement, though, the State charged Campbell with several crimes in a single case. Based on the items seized from his car on the September stop, the State charged Campbell with the following: (1) one count of methamphetamine possession with the intent to distribute-a severity level 4 drug felony in violation of K.S.A. 2017 Supp. 21-5705(a)(1); (2) two counts of possessing drug paraphernalia with the intent to use to distribute drugs-both severity level 5 drug felonies in violation of K.S.A. 2017 Supp. 21-5709(b)(1); and (3) one count of child endangerment-a severity class A misdemeanor in violation of K.S.A. 2017 Supp. 21-5601(a). As to this last charge, Campbell's daughter was in his car when law enforcement arrested him on the September stop. On the other hand, based on the items seized from his car on the December stop, the State charged Campbell with the following: (1) one count of possessing methamphetamine with the intent to distribute-a severity level 2 drug felony in violation of K.S.A. 2017 Supp. 21-5705(a)(1); (2) two counts of possessing drug paraphernalia with intent to use to distribute drugs-both severity level 5 drug felonies in violation of K.S.A. 2017 Supp. 21-5709(b)(1); (3) one count of possessing diazepam with intent to distribute-a severity level 4 drug felony in violation of K.S.A. 2017 Supp. 21-5705(a)(2); and (4) one count of possessing buprenorphine-a severity level 5 drug felony in violation of K.S.A. 2017 Supp. 21-5706(a).
Before his jury trial, Campbell moved to suppress all the evidence seized from his car on the December stop. Campbell's written suppression motion broadly argued that law enforcement lacked probable cause to search his car on the December stop. Initially, the trial court suppressed the December stop evidence, ruling that law enforcement used the GPS tracker to search Campbell's car after the GPS search warrant had expired. But after hearing evidence and arguments on the State's motion to reconsider, it reversed this ruling. It determined that although law enforcement relied on the GPS tracker to monitor Campbell's movements after the search warrant's technical expiration, the evidence seized from Campbell's car on the December stop, was admissible because the warrant's technical expiration resulted from Officer Kennedy's clerical error.
In addition to its reconsideration motion, before Campbell's jury trial, the State moved to admit evidence of Campbell's prior bad acts under K.S.A. 60-455. In its written K.S.A. 60-455 motion, the State argued that evidence from Campbell's May stop and July stop encounters with law enforcement should be admissible at Campbell's upcoming jury trial because Campbell's intent to distribute methamphetamine and intent to possess drug paraphernalia with the intent to distribute were material facts in dispute for two reasons: (1) because Campbell had pleaded not guilty to the methamphetamine-related offenses on the September stop, and the December stop; and (2) because Campbell had given Deputy Zook an innocent explanation why there was methamphetamine in his car on the December stop. Campbell opposed the State's motion, arguing that the prejudicial effect of the evidence outweighed the probative value of the evidence. He also argued that his postarrest comments to Deputy Zook did not constitute an innocent explanation. But the trial court disagreed with Campbell's arguments. It granted the State's motion, allowing the State to admit evidence of Campbell's prior bad acts to generally establish Campbell's intent and to evaluate the veracity of his innocent explanation.
At Campbell's jury trial, the State presented the testimony of the law enforcement officers who searched Campbell's car on the May stop, July stop, September stop and December stop. Their testimony along with the testimony of KBI forensic scientists supported that Campbell had 41.62 grams of methamphetamine in his car on the May stop, 9.95 grams of methamphetamine in his car on the July stop, trace amounts of methamphetamine in his car on the September stop, and 7.75 grams of methamphetamine in his car on the December stop. Their combined testimony also supported that Campbell had drug paraphernalia in his car on each of those dates.
Campbell did not present an opening argument or any evidence. Instead, Campbell only made closing arguments in which he emphasized that the State carried the burden of proof. In doing so, he stressed that the State presented no direct evidence that he knew about the methamphetamine or drug paraphernalia found in his car on the September stop and the December stop. He argued that the State failed to prove that he was guilty of any crimes. Alternatively, he asserted that at best, it had proven that he had possession of the drug-related items in his car.
During the jury instruction conference, the trial court granted the State's request to instruct the jury that it could consider the prior bad acts evidence "as evidence of the defendant's knowledge, intent, and to prove the truth or falsity of the defendant's innocent explanation." Also, the trial court granted the State's request to instruct the jury on simple possession of methamphetamine-a severity level 5 drug felony in violation of K.S.A. 2017 Supp. 21-5706(a)-as a lesser included offense of both possession of methamphetamine with intent to distribute charges.
Ultimately for the September stop charges, the jury...
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