State v. Guhl, 50114
| Decision Date | 12 January 1979 |
| Docket Number | No. 50114,50114 |
| Citation | 588 P.2d 957,3 Kan.App.2d 59 |
| Parties | STATE of Kansas, Appellee, v. Donald William GUHL, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Business records or correspondence received by a probation department of the unified court system from an outside agency, not a branch of said department, do not constitute business records of the probation department and are therefore not admissible under K.S.A. 60-460(M ).
2. K.S.A. 22-3716, which governs probation revocation hearings, provides a method for the admission of written documents received which would not otherwise be admissible under any of the hearsay exceptions: relevant documents are admissible when made under oath.
3. Where a condition of a defendant's release on probation is participation in an out-of-state, in-patient, drug treatment program, evidence of his presence in Kansas is prima facie proof of violation of the release condition. Defendant has the burden of coming forward with evidence to meet and overcome the prima facie proof of violation.
L. Franklin Taylor, II and David J. Waxse, of Payne & Jones, Chartered, Olathe, for appellant.
Blair Watson, Asst. Dist. Atty., Olathe, Curt T. Schneider, Atty. Gen., and Dennis W. Moore, Dist. Atty., for appellee.
Before FOTH, C. J., and REES and SWINEHART, JJ.
This is an appeal from a probation revocation. At the hearing evidence in the nature of a "written notification" from a referral agency (Odyssey Institute in New York) was admitted over the defendant's objection. On appeal, the defendant alleges it was error to admit the letter, and for that reason the order revoking his probation should be set aside.
The defendant had been placed on probation for a term of two years upon the condition that he attend a drug rehabilitation program. The rehabilitation program was provided by Odyssey Institute, Inc., located in New York City, New York. The program provided for in-patient treatment for a period of eighteen to twenty-four months.
Testimony at the hearing indicated that probation was granted and defendant started the program in October of 1977; a bench warrant was issued for probation violation by the Johnson County authorities on the 1st of March, 1978; defendant was arrested in Johnson County on the bench warrant; and the revocation hearing was conducted May 1, 1978.
The trial court admitted into evidence over the objection of the defendant the following letter:
New York, New York, 10003
(212) 741-9597
02/06, 1978
Ms. Chris Rosborough
Johnson County Court House
Olathe, Kansas
Re: Donald Guhl
Dear Ms. Rosborough
This letter is to inform you that the above captioned who was inducted into Odyssey House on 10/03/77, 1977 left the program against medical advice on 02/04, 1978.
If you have any further questions or I can be of any further service please do not hesitate to contact me at any time.
The letter was admitted as a business record of the Johnson County probation department. The trial court reasoned that the New York agency was an arm of the probation department, a situation similar to that of In re Estate of Bernatzki, 204 Kan. 131, 460 P.2d 527 (1969).
We find the defendant's objection to the evidence is valid. It does not come within any exception to the hearsay rule as set out in K.S.A. 60-460. In order to bring hearsay evidence within the business records exception of K.S.A. 60-460(M ), a witness who can identify the report and explain methods and procedures used in its production must testify, establishing that the records were made in the regular course of a business at or about the time of the act, condition or event recorded, and that the sources of information from which the records were made and the method of preparation indicate their trustworthiness. State v. Foster, 198 Kan. 52, 53, 54, 422 P.2d 964 (1967).
We recognize it is not always necessary to have the individual who actually made the record lay the foundation. E. g., see State v. Martin, 223 Kan. 78, 573 P.2d 576 (1977); Olathe Ready-Mix Co., Inc. v. Frazier, 220 Kan. 646, 556 P.2d 198 (1976); State v. Newman, 213 Kan. 178, 515 P.2d 814 (1973); State v. Beasley, 205 Kan. 253, 469 P.2d 453 (1970). In all of the cases cited above, however, someone who was a member of the organization which made the record laid the foundation for the admission of the record. The situation is clearly distinguishable from that of In re Estate of Bernatzki, 204 Kan. 131, 460 P.2d 527. In Bernatzki, the warden of the Kansas Penitentiary was permitted to identify records made at the Kansas Reception and Diagnostic Center, which was found to be a branch of the penitentiary. Odyssey Institute clearly is not a branch of the Johnson County probation office: the probation office has no control over Odyssey's policies, methods of treatment, etc. To expand Bernatzki to cover this situation would, for practical purposes, eliminate the foundation requirements for admissibility under K.S.A. 60-460(M ).
We find the following line of cases to be persuasive. In each, it was held that a purported business record, made by a third party and sent to the identifying business in the regular course of its business and maintained in its...
To continue reading
Request your trial
-
State v. Miller
...met." On appeal, defendant argues the trial court improperly shifted the burden to him. This argument lacks merit. In State v. Guhl, 3 Kan.App.2d 59, 62, 588 P.2d 957, rev. denied 255 Kan. 846 (1979), this court noted that once the State presented prima facie proof of a violation of a condi......
-
Hudson v. City of Shawnee
...exception contained in K.S.A.1988 Supp. 60-460(m). The landowners argue the documents were inadmissible pursuant to State v. Guhl, 3 Kan.App.2d 59, 588 P.2d 957, rev. denied 225 Kan. 846 (1979). However, in State v. Cremer, 234 Kan. 594, 676 P.2d 59 (1984), we held the Court of Appeals erre......
-
Hudson v. City of Shawnee
...exception contained in K.S.A.1988 Supp. 60-460(m). The landowners argue the documents were inadmissible pursuant to State v. Guhl, 3 Kan.App.2d 59, 588 P.2d 957, rev. denied 225 Kan. 846 (1979). However, in State v. Cremer, 234 Kan. 594, 676 P.2d 59 (1984), we held the Court of Appeals erre......
-
State v. Carter, s. 51153
...competent admissible evidence to show defendant breached his probation, the decision remained undisturbed. This court, in State v. Guhl, 3 Kan.App.2d 59, 588 P.2d 957, rev. denied 225 Kan. 846 (1979), concluded that the trial court at a probation revocation hearing erroneously admitted as a......