State v. Griffin, 63938

• Decision Date: 02 March 1990
• Docket Number: No. 63938,63938
• Citation: 787 P.2d 701,246 Kan. 320
• Parties: STATE of Kansas, Appellant, v. Dane R. GRIFFIN, Appellee.
• Court: Kansas Supreme Court

Page 701

787 P.2d 701

246 Kan. 320

STATE of Kansas, Appellant, v. Dane R. GRIFFIN, Appellee.

No. 63938.

Supreme Court of Kansas.

March 2, 1990.

Syllabus by the Court

1. K.S.A. 22-3603 permits the State to appeal a district court order that suppresses or excludes evidence so as to substantially impair the State's ability to prosecute the case.

2. Evidence is rejected for remoteness when the fact or facts proposed to be established as a foundation from which indirect evidence may be drawn, by way of inference, do not have a visible, plain, or necessary connection with the proposition eventually to be proved.

3. The question of whether to admit or exclude evidence for remoteness is a question of law for the trial judge to determine; the weight to be given the evidence when admitted is for the trier of fact to determine.

4. The question of whether evidence is too remote to be relevant is left to the discretion of the trial judge, whose decision will not be disturbed unless a clear abuse of discretion has been demonstrated.

James E. Flory, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

Edward G. Collister, Jr., of Collister & Kampschroeder, of Lawrence, argued the cause and was on the brief for appellee.

LOCKETT, Justice:

Dane Griffin was charged with possession of cocaine (K.S.A.1989 Supp. 65-4127a, K.S.A.1989 Supp. 65-4107(b) (Count 1); sale of cocaine (K.S.A.1989 Supp. 65-4127a, K.S.A.1989 Supp. 65-4107(b) (Count 2); and failure to affix a drug tax stamp to the cocaine he had sold (K.S.A. 79-5201[c], K.S.A.1989 Supp. 65-4107(b), K.S.A. 79-5204) (Count 3). At the preliminary examination, the district court refused to admit certain evidence, dismissed the possession charge (Count 1), and then bound Griffin over for arraignment on the remaining charges. The State took an interlocutory appeal pursuant to K.S.A. 22-3603, claiming the judge's suppression of the evidence had substantially impaired its ability to proceed with the remainder of the case. The State's action stays the proceeding against the defendant until the interlocutory appeal is determined.

The complaint is based on the following allegations: On March 23, 1989, law enforcement officers arranged for Dusty Wilson, an informant, to purchase cocaine from Dane Griffin. Later that day, Griffin agreed to meet Wilson near 9th and Iowa Streets in Lawrence for the purpose of selling him cocaine. The meeting took place at 7:00 p.m., and Griffin sold Wilson seven packets of cocaine for $300 in marked, official funds.

The packets, containing a total of 3 1/2 grams of cocaine, were made out of yellow lined paper. After Wilson turned the drugs over to police, officers arrested Griffin in a parking lot near 9th and Iowa. Griffin's car was impounded and he was taken to police headquarters.

After the police had unsuccessfully searched Griffin and his car for the "buy money," an officer was sent to the parking lot where the defendant had been arrested to search for the money. The officer, who began his search at least 45 minutes after Griffin had been removed from the area, found 45 packets of cocaine in the parking lot. These packets contained a total of 22.5 grams of cocaine and were also made out of yellow lined paper. The "buy money" was later found stuffed under a chair in an interview room where Griffin had been held.

Griffin was charged with possession of the cocaine found in the parking lot, sale of cocaine, and violation of the drug tax stamp law. At his preliminary examination, the district court refused to admit into evidence the 45 packets found in the parking lot and a KBI forensic report which indicated that those packets contained cocaine. At the conclusion of the preliminary examination, the court dismissed the possession charge and bound Griffin over for arraignment on the remaining charges. The State appeals the dismissal of the possession charge, claiming: (1) K.S.A. 22-3603 provides jurisdiction for this court to hear the appeal; and (2) the district court erred in excluding the evidence and dismissing the possession charge. Other facts are provided as necessary.

At common law, appeals by the State in a criminal case were unknown. By statute, a number of states now permit prosecution appeals in specified circumstances. The purpose of allowing prosecution appeals is to insure that lower court rulings do not restrict proper police conduct and to correct inconsistent trial court rulings. Permitting the State to take an interlocutory appeal from pretrial rulings does not violate a defendant's double jeopardy protection, since jeopardy does not attach until the jury is sworn or, in a trial to the court, when the first witness for the prosecution is sworn.

There are two statutory options available in the Kansas Criminal Code for the State to test the dismissal of the possession charge prior to trial: K.S.A. 22-3602 and 22-3603. K.S.A. 22-3602 is more restrictive than its federal counterpart, 18 U.S.C. § 3731 (1988), which allows the United States to appeal an order of a district court dismissing part of an indictment or information. See Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). K.S.A. 22-3602 allows the prosecution to appeal an order dismissing a complaint at the conclusion of a preliminary examination. The statute does not allow the prosecution to appeal the dismissal of some, but not all, of the counts of a multiple-count complaint after a preliminary examination. That procedure would create concurrent jurisdiction, with some counts of the complaint pending in the district court while review of the counts dismissed are being resolved in the appellate courts. See State v. Freeman, 234 Kan. 278, 282, 670 P.2d 1365 (1983).

The State cites State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), as authority for this court to reverse the trial court's decision to discharge the defendant on the possession count of the complaint. In Jones, there was conflicting testimony during the preliminary examination as to whether the defendant had acted in self-defense. This court said:

"The defendant should not be discharged where evidence conflicts or raises a reasonable doubt as to the guilt of the defendant. Where there is a conflict in testimony, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution." 233 Kan. at 174, 660 P.2d 965.

The State's reliance on Jones would be correct if there was conflicting testimony and the State had chosen 22-3602 as the vehicle for its appeal. Instead, the State has appealed pursuant to K.S.A. 22-3603, which provides:

"When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order ... suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order." (Emphasis added).

Originally, Kansas appellate courts interpreted the term "suppressing evidence," as used in the statute, to mean constitutional suppression of evidence illegally obtained by the government. State v. Boling, 5 Kan.App.2d 371, 617 P.2d 102 (1980). Boling questioned whether the trial court's exclusion of evidence of other crimes committed by the defendant was an order "suppressing evidence" under 22-3603. To define "suppressing evidence," the Court of Appeals looked to the Code of Criminal Procedure and found that term used in two places: K.S.A. 22-3215 authorizes a pretrial motion to suppress a confession or admission; K.S.A. 22-3216 authorizes a pretrial motion to suppress illegally seized evidence. Finding that the two statutes, together with K.S.A. 22-3603, provide an integrated statutory scheme for dealing with essential evidentiary rulings on issues of constitutional dimensions, the Court of Appeals limited appeals under 22-3603 to evidence suppressed under 22-3215 and 22-3216.

In 1984, this court departed from Boling 's bright line rule, finding that the term "suppressing evidence," as used in K.S.A. 22-3603, has a broader meaning than the suppression of evidence which is illegally obtained. State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984). The term was held to include not only "constitutional suppression" but also rulings of a trial court which exclude the State's evidence so as to substantially impair the State's ability to prosecute the case. 235 Kan. at 34, 680 P.2d 257. This interpretation expanded the State's right to appeal under 22-3603 from evidence suppressed so as to coincide with the United States' right to appeal from a district court's order suppressing or excluding evidence under 18 U.S.C. § 3731.

We have applied the Newman standard in four cases: State v. Huninghake, 238 Kan. 155, 156-57, 708 P.2d 529 (1985) (suppression of blood alcohol test, given the statutory presumption of intoxication based on the test, substantially impaired State's ability to prosecute DUI case); State v. Jones, 236 Kan. 427, 428, 691 P.2d 35 (1984) (suppression of testimony by highway patrolman regarding defendant's refusal to complete one phase of field sobriety test did not substantially impair State's ability to prosecute DUI case); State v. Wanttaja, 236 Kan. 323, 325, 691 P.2d 8 (1984) (suppression of blood alcohol test substantially impaired State's ability to prosecute DUI...