State v. Gray, No. 112,035.

CourtCourt of Appeals of Kansas
Writing for the CourtMALONE, C.J.
Citation51 Kan.App.2d 1085,360 P.3d 472
Docket NumberNo. 112,035.
Decision Date30 October 2015
PartiesSTATE of Kansas, Appellee, v. Marcus GRAY, Appellant.

51 Kan.App.2d 1085
360 P.3d 472

STATE of Kansas, Appellee,
v.
Marcus GRAY, Appellant.

No. 112,035.

Court of Appeals of Kansas.

Oct. 30, 2015.


Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jason R. Lane, assistant county attorney, David E. Yoder, county attorney, and Derek Schmidt, attorney general, for appellee.

Opinion

MALONE, C.J.

Marcus Gray appeals following his convictions of possession of cocaine, possession of marijuana, driving with a suspended license, failure to signal a turn, and two counts of felony interference with law enforcement. Gray claims: (1) the district court erred in denying his motion to suppress because the law enforcement officer who conducted the traffic stop did so in violation of Kansas statutes prohibiting racial or other biased-based policing; (2) the State failed to present sufficient evidence to support his convictions of felony interference with law enforcement; and (3) the district court lacked jurisdiction to impose a felony sentence for possession of marijuana because the State did not charge Gray with felony possession of marijuana. We agree with Gray that the State failed to present sufficient evidence to support his convictions of felony interference with law enforcement, but we otherwise affirm the district court's judgment.

Factual and Procedural Background

On November 10, 2013, at approximately 2 a.m., Deputy Brandon Huntley of the Harvey County Sheriff's Office was on patrol when he noticed a silver Ford Focus driving north on Interstate 135 (“I–135”), south of Newton. Huntley later testified that he began following the car simply because it was there. He ran a check on the license plate and discovered that the car was registered to a female living in Salina. Based on Huntley's “extensive experience with drug interdiction,” he knew that illegal drugs were often trafficked on I–135 from Wichita to Salina.

Huntley continued to follow the car along I–135, off at Exit 31, and through a roundabout with street lighting, at which point he realized the driver was male. Huntley later testified that in his experience, many drug cases involve someone operating a vehicle not registered in his or her name. The car pulled into a gas station but parked with the gas pumps on the passenger's side. According to Huntley, this was suspicious because he believed the gas cap was on the driver's side—Huntley was unaware at the time that a Ford Focus has the gas cap on the passenger's side of the car.

Huntley decided to continue watching the car, so he drove past the gas station and parked down the road where he could still see the car. The driver got out of the car and went into the gas station. It was not until the driver got out of the car that Huntley realized he was African–American. The driver walked back to the car a few minutes later, looked all around, got into the car, and drove away.

Huntley continued to follow the car and shortly thereafter saw the driver turn without using a turn signal. At that point, Huntley turned on his emergency equipment and conducted a traffic stop. According to Huntley's written report, which was introduced into evidence at the suppression hearing, Huntley approached the driver and explained

360 P.3d 476

the reason for the stop. Huntley asked the driver for his driver's license. The driver stated that he had a Louisiana driver's license but not in his possession. Huntley asked the driver if he had any identification on him. The driver stated that he did not, but he said that his name was Jimmy Ray Turner. At that point, Huntley smelled a moderate odor of marijuana and a slight odor of an alcoholic beverage emitting from inside the vehicle.

Because the driver did not have any type of identification on him, Huntley asked him to provide his social security number and address as listed on his driver's license. After rambling off several combinations of numbers, the driver finally provided a social security number. He also stated that the address listed on his driver's license was 106 Turner Lane, in Ruston, Louisiana. Huntley told the driver to stay inside his vehicle while he checked his driver's license status.

Huntley returned to his patrol vehicle and requested dispatch to send a second officer to his location because of the circumstances with the stop. Huntley also checked for a driver's license through the State of Louisiana under the name of Jimmy Ray Turner. Huntley was informed that a Louisiana driver's license was issued to Jimmy Ray Turner, but the address and social security number did not match the information that the driver had provided. Also, the physical description of Jimmy Ray Turner provided on the Louisiana driver's license did not match the driver's physical description. At this point, Huntley was confident that the driver had provided him with a false name.

Officer Jon Adkins with the Newton Police Department arrived at the scene a short time later. Huntley reapproached the driver and explained that the information from the State of Louisiana did not match the information he had provided. However, the driver insisted that his name was Jimmy Ray Turner. Huntley asked the driver to exit the vehicle and he did. After conducting a quick pat-down to check for weapons, Huntley asked the driver to place his hands behind his back. At that time, the driver quickly spun to his left and attempted to run away. He ran about 20 feet before Huntley and Adkins pulled him to the ground. After being told to stop resisting numerous times, the driver complied and was placed under arrest. At that point, the driver identified himself as Marcus Gray. When Huntley contacted dispatch for information on Gray, he learned that Gray had outstanding out-of-state warrants and a suspended driver's license. Adkins took Gray to the Harvey County Detention Center and found marijuana and cocaine on him.

On November 13, 2013, the State charged Gray with possession of cocaine with intent to distribute, possession of marijuana, possession of cocaine with no drug tax stamp, driving with a suspended license, failure to signal a turn, and two counts of felony interference with law enforcement. On December 5, 2013, Gray filed a motion to suppress the evidence. The motion generally alleged that Gray had been subject to an “illegal traffic stop and detention.” The motion did not allege illegal racial policing as a ground for suppression of the evidence.

The district court held a hearing on the motion to suppress on January 6, 2014. At the hearing, Huntley and Gray testified. Huntley freely admitted that at the time he pulled Gray over, he was watching for a traffic infraction so that he could conduct a pretextual stop; he wanted to see if he might find drugs in the car. However, he maintained that the only reason he stopped the car was Gray's failure to signal a turn.

Gray testified that on the night in question, he was driving his girlfriend's car to Salina, where he and his girlfriend lived. He noticed Huntley following him on I–135 and exited at Exit 31 because he was hungry. When he pulled into the gas station, he went into the store and bought a sandwich. Gray further testified that when he came out of the gas station, he looked around to see if the officer who had been following him was still around, but he did not see anyone. According to Gray, he used his turn signal at every turn, including the turn Huntley testified that Gray had failed to use his signal.

At the end of the hearing, the district judge denied the motion to suppress, explicitly stating that he believed that Huntley observed

360 P.3d 477

Gray failing to use his turn signal. The district court found that the traffic stop was a permissible pretextual stop. Gray's counsel then stated there was “one other issue [he wanted] to put on the record” before the hearing closed. Gray's counsel briefly argued that the stop violated the racial profiling prohibitions in K.S.A. 2014 Supp. 22–4606and K.S.A. 2014 Supp. 22–4609. Without much explanation, Gray's counsel asserted that racial profiling rendered the pretextual stop illegitimate. The district court rejected Gray's argument and found from the evidence that Huntley did not stop Gray because of his race. The judge specifically noted that Huntley did not know that Gray was black until he stopped at the convenience store. The judge concluded by stating: “I find Deputy Huntley to be credible. I don't find there's anything in the record Mr. Gray got stopped because he happened to be a black man.”

The parties agreed to proceed to a bench trial on the evidence submitted at the hearing on the motion to suppress—Huntley's and Gray's testimony, Huntley's police report, and maps on which Huntley and Gray had indicated their route through Newton—as well as a Kansas Bureau of Investigation (KBI) laboratory report. In a pleading entitled “Trial Stipulation of Facts,” signed by both parties, Gray “specifically continue[d] to object to the admission of said evidence based on said motion, as well as the evidence and arguments made at the suppression hearing.”

The bench trial was held on March 25, 2014. The State dismissed the charge of possession of cocaine with no tax stamp. In addition, for the purposes of convicting Gray of possession of marijuana as a second-time offense, a felony, the State submitted into evidence a journal entry from Louisiana showing Gray's prior convictions of possession and distribution of marijuana. Gray stipulated to the documents. Similarly, Gray had...

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2 practice notes
  • State v. Gray, No. 112,035.
    • United States
    • United States State Supreme Court of Kansas
    • October 27, 2017
    ...have not had occasion to consider the biased-based policing statute and the suppression statute together. In State v. Gray , 51 Kan.App.2d 1085, 360 P.3d 472 (2015), a panel of the Kansas Court of Appeals agreed with Gray's legal theory that these two statutes provide a suppression remedy f......
  • State v. Cobb, 123
    • United States
    • Court of Appeals of Kansas
    • January 28, 2022
    ...an official duty related to a felony or to a misdemeanor. State v. Hudson, 261 Kan. 535, 538-39, 931 P.2d 679 (1997); State v. Gray, 51 Kan.App.2d 1085, 1098, 360 P.3d 472 (2015) rev'd on other grounds by State v. Gray, 306 Kan. 1287, 403 P.3d 1220 (2017); State v. Lundquist, 30 Kan. App. 2......
2 cases
  • State v. Gray, No. 112,035.
    • United States
    • United States State Supreme Court of Kansas
    • October 27, 2017
    ...have not had occasion to consider the biased-based policing statute and the suppression statute together. In State v. Gray , 51 Kan.App.2d 1085, 360 P.3d 472 (2015), a panel of the Kansas Court of Appeals agreed with Gray's legal theory that these two statutes provide a suppression remedy f......
  • State v. Cobb, 123
    • United States
    • Court of Appeals of Kansas
    • January 28, 2022
    ...an official duty related to a felony or to a misdemeanor. State v. Hudson, 261 Kan. 535, 538-39, 931 P.2d 679 (1997); State v. Gray, 51 Kan.App.2d 1085, 1098, 360 P.3d 472 (2015) rev'd on other grounds by State v. Gray, 306 Kan. 1287, 403 P.3d 1220 (2017); State v. Lundquist, 30 Kan. App. 2......

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