State v. Fisher

• Decision Date: 26 March 1983
• Docket Number: No. 54170,54170
• Citation: 233 Kan. 29,661 P.2d 791
• Parties: STATE of Kansas, Appellant, v. Darrel R. FISHER, Appellee.
• Court: Kansas Supreme Court

Page 791

661 P.2d 791

233 Kan. 29

STATE of Kansas, Appellant, v. Darrel R. FISHER, Appellee.

No. 54170.

Supreme Court of Kansas.

March 26, 1983.

Syllabus by the Court

1. Ordinarily, this court will not consider an issue raised for the first time on appeal and which was not presented to the trial court.

2. Three elements must be present to bar a subsequent prosecution under the first portion of K.S.A. 21-3108(2)(a): First, the prior prosecution must have resulted in a conviction or an acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case.

3. Under the constitutional double jeopardy prohibitions, a valid and subsisting conviction of one offense, although based on a plea of guilty or of nolo contendere, bars future prosecutions for the same or other offenses, where the later charges are based upon the same acts.

4. Under the rule of collateral estoppel, when an issue of ultimate fact has once been determined by a valid and final judgment that issue cannot again be litigated between the same parties in any future lawsuit.

5. The rule of collateral estoppel in criminal cases is to be applied with realism and rationality. This approach requires a court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.

6. Where the same evidence is common to two or more distinct offenses but standing alone does not substantially prove them, its use in one prosecution will not bar a subsequent prosecution for a different offense and its use therein.

Kerwin L. Spencer, Asst. County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

Charles E. Watson, Wellington, argued the cause and was on the brief for appellee.

MILLER, Justice:

The Sumner District Court dismissed the complaint in this criminal case with prejudice, holding that under K.S.A. 21-3108(2)(a), this prosecution subjects defendant to double jeopardy. The State of Kansas appeals, pursuant to K.S.A. 22-3602(b)(1). The issue presented is whether defendant's conviction of traffic charges bars his prosecution on criminal charges, separately filed but arising out of the same sequence of events.

The facts, for the purpose of this appeal, are not disputed. The defendant, a truck driver, was stopped for speeding on the Kansas Turnpike in Sumner County by a trooper of the Kansas Highway Patrol on September 23, 1981. While at the scene, the trooper called for aid and a deputy sheriff came to assist him. Apparently the relationship which developed between the officers and the defendant was not one of cordiality. Ultimately, the officers arrested the defendant and took him to the Sumner County jail on charges of disorderly conduct, obstructing legal process, and battery of law enforcement officers.

The trooper issued to defendant a uniform citation and notice to appear, K.S.A. 8-2106, charging him with traffic charges: exceeding the speed limit, K.S.A. 8-1336, and failing to produce and surrender his daily log for inspection, K.S.A. 66-1,129, 66-1,130 and K.A.R. 1981 Supp. 82-4-7a. The uniform citation and notice to appear was filed with the clerk of the district court on September 23, 1981, and became the complaint charging the traffic offenses. K.S.A. 8-2108. This was docketed as Case No. 81 TR 4070, and will be referred to as the traffic case. Meanwhile, the county attorney filed with the clerk of the district court on September 25, 1981, a formal complaint charging the defendant with disorderly conduct, K.S.A. 21-4101, obstructing legal process, K.S.A. 21-3808, and two counts of battery of a law enforcement officer, K.S.A. 21-3413. This was docketed as Case No. 81 CR 351, and is the criminal case now before us. On September 25, the defendant was released upon posting bond for his appearance.

On October 23, 1981, the defendant entered a plea of guilty to the speeding charge, and a plea of nolo contendere to the log book charge; the trial court accepted the pleas and imposed fines; defendant paid the fines and court costs, and the traffic case was thus terminated.

In the criminal case, No. 81 CR 351, the defendant obtained several continuances and then on January 13, 1982, filed a motion to dismiss the criminal charges on the grounds that the traffic charges and the criminal charges all grew out of the same acts and transaction; that a trial on the criminal charges will require a reexamination of some of the issues of fact determined--and admitted--in the traffic case; and that the criminal charges could have been included along with the traffic charges in a single complaint. The defendant argued that his presence in Sumner County, at a certain milepost on the Kansas Turnpike on the day in question, was one of the elements of each of the criminal charges against him and remaining for trial. Counsel called to the court's attention the cases of In re Berkowitz, 3 Kan.App.2d 726, 602 P.2d 99 (1979), and State v. Becker, 1 Kan.App.2d 671, 573 P.2d 1096 (1977).

The trial judge, after recessing to review the cited cases, announced his decision as follows:

"The Court after careful examination of the statute and the authorities cited to the Court believes that the spirit and the purpose for the adoption of K.S.A. 21-3108 would be violated by allowing the defendant to be prosecuted in regard to this matter; that in fact it would constitute a violation of the statute submitting him to double jeopardy. The legislative history ... as discussed in the cases cited show that [the statute] was specifically directed towards a double prosecution .... This case is one arising out of one transaction. Kansas is apparently in the forefront of adopting the rules that apply to require the joinder of events occurring in a single transaction; and under those circumstances the Court believes that the ... defendant's motion is correct and that the motion should be sustained and so rules."

One preliminary matter requires our attention. The State contends that the defendant waived his right to raise the double jeopardy claim by failing to make a motion to dismiss within twenty days of his arraignment. The defendant was arraigned in district court on the three criminal charges on December 1, 1981, and a plea of not guilty was entered. His motion to dismiss was not filed until January 13, 1982, some forty-three days later. The State's argument is based upon K.S.A. 22-3208(4), which provides:

"The motion to dismiss shall be made at any time prior to arraignment or within 20 days after the plea is entered."

A review of the files and records in this case, and of the transcript of the oral argument of counsel when the motion to dismiss was argued to the trial court, discloses that this issue was not raised before or presented to that court. Ordinarily, this court will not consider an issue raised for the first time on appeal and not presented to the trial court. See State v. Puckett, 230 Kan. 596, 598, 640 P.2d 1198 (1982); Boswell, Inc. d/b/a/ Reno County Adult Care Home v. Harkins, 230 Kan. 610, 613, 640 P.2d 1202 (1982); and State v. Estes, 216 Kan. 382, 385, 532 P.2d 1283 (1975). Certain exceptions to the rule are enumerated in Puckett, 230 Kan. at 598-599, 640 P.2d 1198, but none of them are applicable here. We see no reason to make any further exception here and we decline to consider this issue.

The controlling issue on this appeal involves the double jeopardy provisions of K.S.A. 21-3108(2)(a), which read:

"(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:

"(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely ...."

Three elements must be present to bar a subsequent prosecution under this portion of K.S.A. 21-3108(2)(a). First, the prior prosecution must have resulted in a conviction or an acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case. State v. Calderon, 233 Kan. 87, 661 P.2d 781 (this day decided); State v. Mahlandt, 231 Kan. 665, Syl. p 2, 647 P.2d 1307 (1982); and In re Berkowitz, 3 Kan.App.2d 726, 602 P.2d 99 (1979).

The first and third elements are present here. The traffic case resulted in the defendant's conviction, by way of pleas of guilty and nolo contendere, of speeding and failing to produce his daily log book for inspection; and the criminal charges of disorderly conduct, obstructing legal process, and battery of law enforcement officers could have been included within the same complaint. The offenses all arose during the same transaction or sequence of events, and it is likely that the initial stop and speeding charge precipitated the subsequent offenses. See K.S.A. 22-3202(1).

The determinative issue is whether the second element is met: Was evidence of the present crimes introduced in the prior prosecution? As Chief Justice Schroeder notes in his opinion in State v. Calderon, the cases which have construed K.S.A. 21-3108(2)(a) or its forerunner, K.S.A. 62-1449 (Corrick), have focused upon the admission of evidence at a prior trial as the necessary factor bringing the statute into play. See In re...