State v. Green
| Decision Date | 21 April 1995 |
| Docket Number | Nos. 70,942,71,045,s. 70,942 |
| Citation | 901 P.2d 1350,257 Kan. 444 |
| Court | Kansas Supreme Court |
| Parties | STATE of Kansas, Appellant, v. David Julian GREEN and James Arthur Smith, Appellees. |
Bryan M. Hastert, Assistant County Attorney, argued the cause, and Lawrence M. Wright, County Attorney, Dan Dunbar, Deputy County Attorney, and Robert T. Stephan, Attorney General, were on the brief, for appellant.
Wendell J. Barker, Ottawa, argued the cause and was on the brief, for appellee David Julian Green.
Robert L. Pinet, Ottawa, was on the brief, for appellee James Arthur Smith.
This appeal by the State involves separate criminal actions filed against David Julian Green and James Arthur Smith arising out of an alleged armed robbery in Franklin County. The State appeals from a district court order dismissing the complaint and suppressing evidence in the case of David Green. This court has jurisdiction under K.S.A.1994 Supp. 22-3602(b)(1) (). The State takes an interlocutory appeal, pursuant to K.S.A. 22-3603, from the district court's order suppressing evidence in the case of James Smith. Upon the State's motion, State v. Smith was transferred to the Supreme Court and consolidated with State v. Green.
The following background facts are not in dispute. On July 1, 1993, Ottawa police officers received a report that an armed robbery had just taken place at the Econo Lodge Motel in the City of Ottawa and an initial description of the getaway vehicle. Officers were directed to the Interstate 35 (I-35) area near the Econo Lodge. Officer Hawkins arrived at the motel within two minutes of receiving the report. The victims were two guests of the motel who were robbed at gunpoint in the parking lot while preparing to move their personal belongings into the motel room. Items taken from the victims included their purses and suitcases. The victims described the vehicle as a dark blue two-door, possibly a 1986 or 1987 Buick, with one black male in the back seat and two black males in the front. The victims observed the vehicle leave the scene of the robbery and proceed north on I-35. They also believed a red car might have been involved but did not know its direction of travel. Officer Hawkins immediately relayed the description of the suspects and their vehicles to the other officers.
After receiving the report from Officer Hawkins, Officers Lewis and Welsh proceeded out of the city limits and drove north on I-35 at a high rate of speed. Within seven minutes, they located a vehicle matching the description of the blue car. Prior to the officers initiating a stop, the vehicle pulled over to the side of the road and stopped. The officers stopped behind it and turned on their emergency lights for safety purposes. When one of the officers left the police car and attempted to make contact with the suspects, the vehicle sped away. The officers pursued the vehicle, and while doing so observed the occupants throwing property out the window, including, among other things, a large blue suitcase. The items thrown from the vehicle were later identified by the victims as their stolen property.
After the officers chased the vehicle approximately nine more miles, it stopped on the side of the road, and the three occupants, including Green and Smith, were arrested. The initial voluntary stop by the defendants occurred in Miami County and the subsequent stop and arrest, conducted by Ottawa police officers, took place in Johnson County. Approximately 28 minutes elapsed between the time of the initial report of the robbery and the ultimate stop and arrest of the defendants. The vehicle was actually a 1984 two-tone blue two-door Buick. The victims were unable to identify the defendants as the robbers.
The trial court found the stop and arrest were illegal and granted motions by both defendants to suppress evidence. The court found the officers were not in fresh pursuit because they did not locate the vehicle until it was out of their jurisdiction. The court suppressed all statements and evidence seized as a result of the arrest, including the items thrown from the vehicle during the pursuit. In addition, the trial court granted a motion to dismiss the complaint against Green, holding that the complaint was improperly verified. Additional facts will be set forth as necessary in resolving the issues on appeal.
The State on appeal asserts two issues: (1) whether the trial court erred in dismissing the complaint against Green for improper verification, and (2) whether the trial court erred in suppressing the evidence in both cases based upon its finding the Ottawa police officers were not in fresh pursuit as defined by K.S.A.1994 Supp. 22-2401a. Although Smith also filed a motion to suppress the complaint against him, the court found he had waived any objection to the complaint and denied the motion. Smith did not cross-appeal from that ruling, and the issue is not before us on appeal.
On July 2, 1993, David Green was charged in a properly executed and verified complaint with aggravated robbery, aggravated assault, and obstructing legal process. On July 19, 1993, the State filed an amended complaint, eliminating the aggravated assault charge. The amended complaint stated in pertinent part:
Later that same day, a preliminary hearing on the amended complaint was held before District Magistrate Judge Larry Coursen. At the hearing, the defendant argued the amended complaint was not properly verified because, while it states Lawrence M. Wright swore on oath, it was signed by Scott Ryburn. Scott Ryburn, the prosecutor, explained that he had not noticed the error. Ryburn requested that the court allow him to orally amend the complaint to replace "Lawrence M. Wright, Franklin County Attorney" with "Scott Ryburn, Assistant Franklin County Attorney."
Magistrate Coursen allowed the State to amend the complaint and bound the defendant over on count I, aggravated robbery. The magistrate found there was not sufficient evidence to bind the defendant over for trial on count II, obstruction of legal process. Arraignment was set for July 23, 1993.
On August 6, 1993, a motion to dismiss the amended complaint was filed along with a motion to suppress evidence. Rather than correct the amended complaint by interlineation or by filing a journal entry reflecting the magistrate's decision, the State chose to file a second amended complaint on September 1, 1993.
On October 7, 1993, a hearing was held on Green's motion to dismiss the amended complaint as defective. In granting the defendant's motion, the district judge found that the amended complaint was "improperly verified" and that the magistrate should have dismissed the amended complaint at the preliminary hearing. The judge apparently ignored the fact that the magistrate granted the State's motion to amend the amended complaint and also ignored the subsequently filed second amended complaint which, in effect, memorialized the magistrate's ruling.
K.S.A.1994 Supp. 22-2202(8) defines a criminal complaint as "a written statement under oath of the essential facts constituting a crime." K.S.A.1994 Supp. 22-3201(e) provides: "The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced."
In State v. Rasch, 243 Kan. 495, 501, 758 P.2d 214 (1988), we stated:
Although the defendant argues that the amended complaint was never verified or sworn to by anyone, there is no contention by the defendant that the notarial act on the amended complaint was invalid and no showing that it was not "subscribed and sworn to" by Scott Ryburn. K.S.A. 53-503(b) states: "In taking a verification upon oath or affirmation, the notarial officer must determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the officer and making the verification is the person whose true signature is on the statement verified." Nor is there any showing that K.S.A. 53-502(c) was not fully complied with at the time the amended complaint was "subscribed and sworn to" by Scott Ryburn. The notary public was not called to testify whether Ryburn actually swore to the amended complaint and Ryburn was not questioned on the matter.
The defendant also asserts on appeal, and the trial judge commented at the hearing, that the second amended complaint improperly included count II alleging the defendant committed the crime of "obstructing legal process." That charge had been dismissed by the magistrate at the preliminary hearing. As the defendant was not bound over on Count II, it constitutes mere surplusage and does not invalidate the complaint. In addition, there has been no showing that the alleged defects in the amended complaint resulted in any prejudice to the rights of the defendant.
As previously pointed out, the magistrate granted the State's motion to orally amend the amended complaint to correct the name of...
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