State v. Campbell
| Decision Date | 13 May 2022 |
| Docket Number | 123,188 |
| Citation | 509 P.3d 597 (Table) |
| Parties | STATE of Kansas, Appellee, v. Jerry W. CAMPBELL, Appellant. |
| Court | Kansas Court of Appeals |
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 Malone, P.J., Schroeder and Hurst, JJ.
Following a bench trial, the district court convicted Jerry W. Campbell of possession of methamphetamine with the intent to distribute, felony possession of drug paraphernalia, misdemeanor possession of drug paraphernalia, and driving while license suspended. The district court sentenced Campbell to 111 months on the distribution conviction and ran the other convictions concurrent. On appeal Campbell alleges the district court erred in several ways: 1) by failing to fully advise him of his jury trial right before accepting his waiver; 2) by denying his motion to suppress evidence; 3) by admitting prior bad acts evidence; 4) by applying an unconstitutional statutory rebuttable presumption for intent to distribute methamphetamine; and 5) that cumulative error below denied him a fair trial. This court agrees with Campbell in part, finding the district court failed to obtain a proper jury trial waiver and erred in denying his motion to suppress. Finding such error entitled Campbell to a new trial, this court declines to address his remaining claims. This court reverses Campbell's convictions and remands for a new trial.
The State charged Campbell with level 2 felony possession of methamphetamine with intent to distribute, level 5 felony possession of drug paraphernalia, class B misdemeanor possession of drug paraphernalia, and class B misdemeanor driving while license suspended for actions that occurred on July 18, 2017. The district court held a bench trial on March 26, 2019, where it found Campbell guilty of all four counts. The district court sentenced Campbell to a 111-month prison sentence on the distribution charge and ran all other charges concurrent.
Kristen Kennedy, an officer with the Lawrence Police Department drug enforcement unit (DEU), saw Campbell driving a light blue Saturn in Lawrence on July 18, 2017, and recognized him as the target of an ongoing methamphetamine investigation and knew his driver's license was suspended. Officer Kennedy ran the tag for the car Campbell was driving, but it was registered to a red Saturn. Officer Kennedy began following Campbell and witnessed him back his car into a parking stall at an apartment complex and watched a woman get into the front passenger seat of Campbell's car. Officer Kennedy testified that after two or three minutes, the woman got out of Campbell's car and Campbell immediately left the parking lot. Officer Kennedy continued to follow Campbell in her unmarked car and contacted Officer Justin Trowbridge to execute a stop on Campbell's car.
Officer Trowbridge stopped Campbell's car in the parking lot of a different apartment complex, and the officer's dashboard camera recorded the traffic stop and the subsequent vehicle search. At that same time, two additional DEU officers responded to the apartment complex where Officer Kennedy witnessed the interaction between Campbell and the woman in Campbell's car. The officers’ intent was to obtain evidence of a drug sale.
Within about twenty seconds of stopping Campbell's car, Officer Trowbridge approached the driver's side door and informed Campbell that his vehicle was stopped because the tag on his car belonged to a red Saturn, rather than the blue Saturn Campbell was driving. Campbell explained that he recently purchased the car and switched tags from another car and also told Officer Trowbridge his license was suspended. Officer Kennedy then approached the passenger side of the vehicle to assist in the stop. Officer Trowbridge asked if there were any weapons in the car, and Campbell said he had a knife in his pocket and a firearm tucked between his seat and the console. Officer Trowbridge then opened the driver's door and had Campbell get out of the car and searched his person. He retrieved the knife from Campbell's pocket. A third officer approached the vehicle stop and Officer Trowbridge told Campbell to walk toward the police car with that officer.
Officer Trowbridge then asked Campbell to verify the firearm location, and Campbell explained its exact location in the vehicle. At approximately four minutes into the traffic stop, Officer Trowbridge asked Campbell if he could get the gun out of the car to ensure officer safety. Campbell agreed to this request, and Officer Trowbridge began searching the vehicle for the firearm. Officer Kennedy and another officer on scene stood with Campbell while Officer Trowbridge secured the gun. Officer Trowbridge then searched the vehicle for about two minutes and told Campbell the gun was stuck and not easy to remove. As Officer Trowbridge continued to try and retrieve the gun, about six minutes into the stop Officer Kennedy placed Campbell in handcuffs for "safety reasons," but did not place him under arrest at that time.
The dashboard camera footage shows that Officer Trowbridge had possession of Campbell's firearm at approximately nine minutes into the stop and described its condition to Officer Kennedy. Officer Trowbridge testified that—after securing the gun, clearing it of ammunition, and confirming it was not stolen—he conducted what he referred to as a "protective sweep" of the car. This occurred while Campbell was handcuffed in the distance with another officer. Officer Trowbridge testified that this meant he looked in the immediate area of the driver's seat and opened the center console of the car. He said when he opened the console, he saw what he believed to be a methamphetamine pipe with white residue.
Officer Trowbridge testified that at the point in time when he had secured the gun—he had seen no controlled substances or drug paraphernalia in the car. At about 11 minutes into the stop, Officer Trowbridge told Officer Kennedy that during his protective sweep he located what appeared to be a meth pipe. Officer Kennedy responded to Officer Trowbridge, saying they should do a search of the entire car, and that she had already been informed that Campbell was in legal possession of the gun, so they would be unable to charge Campbell with illegal possession of a weapon.
The officers then conducted a full search of Campbell's vehicle. Officer Trowbridge proceeded to search the vehicle for about six minutes before Officer Kennedy received a call from one of the officers investigating Campbell's contact with the woman at the apartment complex—informing Officer Kennedy that the woman who got into Campbell's car told the officer Campbell had sold her methamphetamine. Officer Kennedy testified that before she received the phone call about 18 minutes into the stop, they had a reasonable suspicion that Campbell had made an illegal sale of drugs, but after the phone call, they had probable cause that he made an illegal sale of drugs. Officer Kennedy can be heard telling the officer on the phone that they had found the drug paraphernalia but could not locate the methamphetamine. About five minutes after Officer Kennedy received the phone call, Officer Trowbridge found suspected methamphetamine and money inside a hat on the front passenger floorboard in Campbell's car. A Kansas Bureau of Investigation scientist later confirmed it was 9.95 grams of methamphetamine, packaged in four bags of varying weights.
Officer Trowbridge then approached Campbell, who was handcuffed and outside the view of the dashboard camera. Officer Trowbridge asked Campbell where he was coming from, and Campbell responded that he was coming from the Country Club apartments. Officer Trowbridge asked Campbell, "Who did you talk to over there?" Campbell responded, "I dropped off a girl named [K.]." Officer Trowbridge then asked Campbell what he sold that person for $20, and Campbell responded that "I didn't sell her anything." Officer Trowbridge then told Campbell he was being arrested for possession. Campbell asked, "Possession of what?" Officer Trowbridge responded, "methamphetamine," and Campbell said, "but I don't have anything." Officer Trowbridge and Campbell then exchanged a few more words regarding the location of the methamphetamine and Officer Trowbridge then said, "well we'll talk about that later." When Campbell requested to be cuffed in front so he could have a cigarette, Officer Trowbridge conducted a more thorough search of Campbell's person while standing by the police car and away from Campbell's car.
Officer Trowbridge then confirmed with someone at the scene who was purportedly able to authorize parking at the apartment complex that Campbell's car could remain in the parking lot for a couple of days. Officers Trowbridge and Kennedy continued searching Campbell's car for almost 10 additional minutes. Officer Trowbridge returned to the patrol car where Campbell was cuffed, and Campbell said, "So where was this stuff at?" Officer Trowbridge said, Campbell said he understood and then asked Officer Trowbridge the potential jail sentence for a charge like this and Officer Trowbridge said, "I don't know, I know that it's a felony related charge so you're gonna have to see a judge before you get out" and then they discussed the likelihood of Campbell getting out of jail that same evening. After a short time, Campbell said, "So you're telling me that chick left something in my fucking car then or something?" Officer Trowbridge responded "No, no, I can't talk to you about that man, you know that." Officer Trowbridge and Officer Kennedy then finished their search of the car.
...
To continue reading
Request your trial