State v. Greenlee
| Decision Date | 06 December 1980 |
| Docket Number | No. 51793,51793 |
| Citation | 620 P.2d 1132,228 Kan. 712 |
| Parties | STATE of Kansas, Appellee, v. Gerald J. GREENLEE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. General principles to be considered when a statute is attacked as being unconstitutional as a violation of the separation of powers doctrine iterated, reviewed and applied.
2. K.S.A. 1979 Supp. 22-2907 and 22-2908 are not unconstitutional as being in violation of the separation of powers doctrine.
3. The failure of the district attorney to establish and follow the procedures and guidelines of K.S.A. 1979 Supp. 22-2907 and 22-2908 did not violate defendant's constitutional
rights to due process and equal protection.
4. A prosecutor, although possessing wide discretion, is not immune from judicial review of the exercise of that discretion for arbitrariness.
5. In a prosecution for the possession and sale of marijuana the court did not commit error in refusing to dismiss the charge of possession of marijuana as being a lesser included offense of the sale of marijuana. Following State v. Woods, 214 Kan. 739, 522 P.2d 967 (1974).
6. In a prosecution as described in Syl. P 5, the record is examined and it is held the court did not commit error in refusing to suppress certain physical evidence, and the evidence adequately supports the convictions.
James S. Phillips, Jr., of Phillips & Phillips, of Wichita, argued the cause and was on brief, for appellant.
Ronald D. DeMoss, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., were with him on brief, for appellee.
Gerald J. Greenlee appeals from convictions in a trial to the court, the Hon. Nicholas W. Klein presiding, of two counts of possession of marijuana and one count of sale of marijuana. K.S.A. 1979 Supp. 65-4127b(a)(3) and 65-4127b(b) (3). He was found not guilty of a second count of sale of marijuana. He also appeals from certain pretrial rulings made in connection with his application to be admitted to the Sedgwick County diversion program administered by the district attorney.
On November 17, 1978, Greenlee allegedly sold, at his home, one ounce of marijuana to Wichita Police Department undercover agent William Boothe. No arrest was made at that time. On June 5, 1979, Boothe again visited defendant at his residence. Boothe was accompanied by another undercover agent, Detective Meyers, and their purpose was to purchase marijuana and arrest Greenlee. Greenlee admitted the two undercover agents to his house and then went to the refrigerator and removed a large bag of marijuana and dumped a portion of its contents into a cardboard box. The bag was replaced in the refrigerator. In the dining room Greenlee measured out an amount of marijuana, using a small scale, and put the measured amount in a small plastic bag. Before he gave the officers the bag he was placed under arrest. Greenlee dropped the bag on the floor and no money ever changed hands. The agents seized the small bag.
Officers then allowed Greenlee to go to the bedroom to change clothes. Detective Boothe seized the cardboard box and the scales which were still on the dining room table. As Greenlee was being returned from the bedroom, Detective Meyers seized a round tray and its contents which were later determined to be marijuana seeds and stems. Boothe also seized the remaining quantity of marijuana from defendant's refrigerator. Greenlee was charged with one count of possession and one count of sale of marijuana in connection with each incident. At trial on December 5, 1979, the marijuana purchased on November 17, 1978, and the small bag of marijuana, cardboard box, scales and the tray with its contents were admitted in evidence. The large bag of marijuana seized from the refrigerator was suppressed and not admitted in evidence. Greenlee was convicted of sale and possession for the November, 1978, incident and with possession for the June, 1979, incident and acquitted of the sale charge.
During the week of August 6, 1979, Greenlee submitted an application for admission to the pretrial diversion program administered by the office of the Sedgwick County District Attorney. On August 17, 1979, defendant met with Marty Miller, director of the diversion program, and was informed he would not be admitted to the diversion program since it was the policy of the Sedgwick County District Attorney's Office to exclude all drug offenders from participation in the program. On August 21, 1979, Greenlee was officially notified that his application for diversion had been denied.
Greenlee then filed a motion in district court to compel the district attorney to either admit him to the diversion program or at least comply with the statutes which create the diversion program and provide guidelines for its implementation. K.S.A. 1979 Supp. 22-2906, et seq.
Associate Judge Elliott Fry heard defendant's pretrial motions and held K.S.A. 1979 Supp. 22-2907 and 22-2908 unconstitutional. He also ruled that the district attorney's policy excluding all drug offenders from the diversion program did not deny such persons of their right to equal protection and due process.
K.S.A. 1979 Supp. 22-2907 provides:
"22-2907. Diversion agreements authorized; policies and guidelines by district attorney; background information; right to counsel. (1) After a complaint has been filed charging a defendant with commission of a crime and prior to conviction thereof, and after the district attorney has considered the factors listed in K.S.A. 1978 Supp. 22-2908, if it appears to the district attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the district attorney may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the district attorney in accordance with K.S.A. 1978 Supp. 22-2909.
(2) Each district attorney shall adopt written policies and guidelines for the implementation of a diversion program in accordance with this act. Such policies and guidelines shall provide for a diversion conference and other procedures in those cases where the district attorney elects to offer diversion in lieu of further criminal proceedings on the complaint.
(3) Each defendant shall be informed in writing of the diversion program and the policies and guidelines adopted by the district attorney. The district attorney may require any defendant requesting diversion to provide information regarding prior criminal charges, education, work experience and training, family, residence in the community, medical history, including any psychiatric or psychological treatment or counseling, and other information relating to the diversion program. In all cases, the defendant shall be present and shall have the right to be represented by counsel at the diversion conference with the district attorney."
K.S.A. 1979 Supp. 22-2908 provides:
"22-2908. Factors to be considered prior to diversion offer. In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the district attorney shall consider at least the following factors among all factors considered:
(1) The nature of the crime charged and the circumstances surrounding it;
(2) any special characteristics or circumstances of the defendant;
(3) whether the defendant is a first-time offender and if the defendant has previously participated in diversion, according to the certification of the judicial administrator;
(4) whether there is a probability that the defendant will cooperate with and benefit from diversion;
(5) whether the available diversion program is appropriate to the needs of the defendant;
(6) the impact of the diversion of the defendant upon the community;
(7) recommendations, if any, of the involved law enforcement agency;
(8) recommendations, if any, of the victim;
(9) provisions for restitution; and
(10) any mitigating circumstances."
Judge Fry held that the statutes constituted a legislative encroachment on the executive branch of government and were unconstitutional as a violation of the separation of powers doctrine long recognized in this state. While neither the federal nor Kansas constitution speaks directly to such a doctrine, it has been recognized that the very structure of the federal and state systems of government gives rise to the doctrine.
The doctrine of separation of powers is an outstanding feature of the American constitutional system. The governments, both state and federal, are divided into three branches, i. e., legislative, executive and judicial, each of which is given the powers and functions appropriate to it. Thus a dangerous concentration of power is avoided through the checks and balances each branch of government has against the others. For an excellent discussion of the historical development of the doctrine, see Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223 (1973). See also 16 Am.Jur.2d, Constitutional Law § 277, et seq., p. 764.
The basic meaning of the separation of powers doctrine is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902); Van Sickle v. Shanahan, 212 Kan. 426, 511 P.2d 223. It does not necessarily follow, however, that an entire and complete separation is either desirable or was ever intended by the framers of the constitution. The fact that the powers of one department may overlap with another department's powers has long been a recognized fact. Throughout the judicial history of this state early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers. State v. Johnson, 61 Kan. 803, 60 P. 1068 (1900). The more recent cases have modified the doctrine taking a more pragmatic, flexible...
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