State v. DuMars
| Decision Date | 25 March 2005 |
| Docket Number | No. 91,107.,91,107. |
| Citation | 108 P.3d 448,33 Kan.App.2d 735 |
| Parties | STATE OF KANSAS, Appellee, v. WENDY DuMARS, Appellant. |
| Court | Kansas Court of Appeals |
Paige A. Nichols, of Lawrence, for appellant.
Bobby J. Hiebert, Jr., assistant county attorney, Ellen Mitchell, county attorney, and Phill Kline, attorney general, for appellee.
Before HILL, P.J., MALONE and GREENE, JJ.
Petition for review denied 280 Kan. ___ (Sep. 22, 2005).
Wendy DuMars appeals her convictions of one count of attempted manufacture of methamphetamine, two counts of possession of drug paraphernalia for manufacturing purposes, and one count of child endangerment, arguing uneven application of the hearsay rule, prosecutorial misconduct, instruction errors, cumulative trial errors and insufficiency of evidence to support her convictions. We conclude that (i) one count of child endangerment is reversed; (ii) cumulative trial errors warrant reversal of the manufacturing-related convictions and a new trial; and (iii) appeals of remaining convictions are deemed abandoned.
During a search of the trash outside 1117 Franklin in Salina, officers found 45 empty blister packs of Sudafed, 3 syringes with residue that tested positive for methamphetamine, and lithium batteries with the lithium strips removed. After obtaining a warrant, officers entered the residence and found "Duff" Sullivan, Holly Metro, Heather Metro, Wendy DuMars (who was under the influence of methamphetamine), and three unattended children, one of whom was Holly's 1-year-old, and two of whom were Dumars' twin daughters. A search of DuMars' person revealed a switchblade knife and a film canister containing rocks and powder of methamphetamine. A search of the residence, backyard shed, and a car belonging to Sullivan revealed a host of items generally used in the manufacturing of methamphetamine, some of which bore residue that tested positive for methamphetamine. A search of DuMars' car revealed a can of Heet, a brand of gas line antifreeze.
DuMars ultimately admitted that she used methamphetamine on the morning of the search and that Sullivan was the source. From the outset, however, she told authorities that she and Sullivan had an agreement that he would not bring any methamphetamine manufacturing supplies into the house occupied by Heather Metro, Sullivan, and herself. At trial, DuMars testified that Sullivan had moved the methamphetamine lab supplies into the house and shed on the morning of the search without her knowledge or consent. Other witnesses testified that they had toured the house shortly before the day of the search and did not see anything to indicate methamphetamine manufacturing activity.
The jury convicted DuMars of one count of attempted manufacture of methamphetamine, two counts of possession of drug paraphernalia for manufacturing purposes, possession of methamphetamine, possession of marijuana, three counts of child endangerment, obstruction of official duty, and criminal use of a weapon. She now appeals the convictions for one count of attempted manufacture of methamphetamine, two counts of possession of drug paraphernalia for manufacturing purposes, and one count of child endangerment (that related to Holly Metro's child).
DuMars argues that she was denied due process by the district court's admission of certain inculpatory hearsay evidence and the exclusion of her exculpatory hearsay evidence, citing State v. Brickhouse, 20 Kan. App. 2d 495, 500-03, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995).
She cites five examples of the State's inculpatory hearsay, two of which received no objection, two of which were admitted after late objections, and one of which was stricken after a late objection. She was not permitted to elicit three instances of exculpatory testimony when the district court sustained the State's hearsay objection on each occasion. We review each instance of such testimony in determining whether the district court abused its discretion.
During direct examination by the prosecutor, one of the officers who executed the search warrant at the residence was asked:
There was no objection or motion to strike this testimony.
During cross-examination of the same officer, the following exchange occurred:
After objection of the defense, this testimony was stricken, but the jury was not admonished to disregard it.
During direct examination of another officer who executed the warrant, the prosecutor asked:
There was no objection or motion to strike this testimony.
During redirect examination of yet another officer involved in executing the warrant at the residence, and after testimony on direct regarding contraband found in Sullivan's jeep, the prosecutor asked:
During rebuttal the State recalled one of the officers for the purpose of relating an interview with Heather Metro. The following exchange occurred near the end of a trial day:
Although defense counsel did not immediately object or move to strike the testimony, the following day counsel moved to strike this testimony as containing double hearsay. The court denied the motion on grounds that Counsel then asked for a mistrial, which was denied. During its deliberations, the jury asked for a readback of this testimony, and the readback was granted over the objection of the defense.
On cross-examination of the officer involved in inculpatory instance No. 1, defense counsel attempted to elicit more specific "information" that the warrant may have been based upon, believing it could be established that it was Sullivan rather than DuMars who had been implicated by an informant. The State objected to this line of questioning, stating:
The court sustained the State's objection.
In order to distance DuMars from the manufacturing activity, the defense called Heather Metro for the purpose of establishing that Sullivan apparently took sole credit for the manufacturing. This exchange occurred:
On two occasions, during the testimony of DuMars' father and Heather Metro, the court sustained the State's objections to testimony regarding DuMars' statements to these witnesses on the grounds of hearsay, even though defense counsel guaranteed that DuMars would take the stand. The judge explained:
On appeal, DuMars relies principally on this court's decision in Brickhouse, where the court reasoned:
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