State v. Hawkins

• Decision Date: 08 February 2008
• Docket Number: No. 95,310.,95,310.
• Citation: 176 P.3d 174
• Parties: STATE of Kansas, Appellee, v. Charles R. HAWKINS, Jr., Appellant.
• Court: Kansas Supreme Court

176 P.3d 174

STATE of Kansas, Appellee, v. Charles R. HAWKINS, Jr., Appellant.

No. 95,310.

Supreme Court of Kansas.

February 8, 2008.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

Charles R. Hawkins, Jr., seeks review of the Court of Appeals decision in State v. Hawkins, 37 Kan.App.2d 195, 152 P.3d 85 (2007), in which the court affirmed Hawkins' jury convictions for driving under the influence, failing to stop at a stop sign, failing to dim headlights, and making an illegal right turn; affirmed the district court's imposition of a Board of Indigents' Defense Services (BIDS) application fee; and reversed and vacated the district court's order for reimbursement of BIDS attorney fees. We affirm.

In the summer of 2003, Hawkins was charged with felony driving under the influence (DUI) and driving while suspended (DWS). Hawkins pled guilty to the DWS charge but went to trial on the DUI count in 2005. At trial, the district court read the complaint to the prospective jurors, which included an allegation that Hawkins had prior convictions for DUI. Accordingly, the district court granted the defense motion for a mistrial. A new trial commenced the next day, but ultimately the jury was unable to reach a verdict, and the court declared a second mistrial.

Prior to the third trial, the State filed an amended information, again charging Hawkins with felony DUI, but adding one count each of failure to stop at a stop sign, failure to dim headlights, and illegal right turn. Apparently, Hawkins did not challenge the State's amendment and proceeded to trial on the amended information.

As he had done prior to the first trial, Hawkins filed a motion for a Jackson v. Denno hearing, challenging admission of his statements made to the arresting officer, and a motion to suppress the results of the breathalyzer test. Hawkins' basis for suppression was his allegation that the officer first elicited his refusal to take the breath test during a custodial interrogation and, only afterward, gave him the required implied consent warnings. The court ruled that the officer had substantially complied with the implied consent warnings, and Hawkins does not challenge that ruling on appeal.

Hawkins' theory on the Jackson v. Denno motion centered on the arresting officer's testimony that the initial driver's license check revealed that Hawkins had two outstanding warrants and that the officer was going to arrest Hawkins on those warrants, regardless of the outcome the DUI investigation. Hawkins made the creative argument that, because he was under arrest on the warrants and not free to leave, all of the subsequent DUI investigation including the field sobriety testing was a custodial interrogation which had been effected without the required Miranda warnings. The district court found that "there is no need to give Miranda at that particular stage, or during this investigation."

At this trial, the jury convicted Hawkins on all four counts of the amended information. At sentencing, the court ordered Hawkins to reimburse BIDS in the amount of $1,400 attorney fees and $100 application fee.

In the Court of Appeals, Hawkins made three claims: (1) The district court erred in allowing the State to use Hawkins' refusal to submit to a breathalyzer against him at trial; (2) the district court violated Hawkins' rights under the compulsory joinder statute by allowing the State to add three counts to the information after he was convicted of DWS and (3) the district court erroneously ordered the BIDS reimbursement without considering the defendant's ability to pay, the financial burden the payment would inflict, and the validity of the attorney fees.

EVIDENCE OF TEST REFUSAL

In his brief to the Court of Appeals, Hawkins acknowledged that his trial counsel had not objected at trial to the introduction of the evidence of his breath test refusal. However, citing to State v. Puckett 230 Kan. 596, 598-99, 640 P.2d 1198 (1982), Hawkins pointed out that appellate courts have recognized three exceptions to the rule that issues may not be raised for the first time on appeal: (1) where the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) where consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) where the judgment of the district court may be upheld on appeal even though that court may have relied on the wrong ground or assigned a wrong reason for its decision. Hawkins declared, without elaboration, that this case fit within the first two exceptions.

The Court of Appeals found two impediments to appellate review. Hawkins did not lodge a timely and specific objection at trial, which is required even where the district court has made a pretrial ruling. See State v. Lowe, 276 Kan. 957, 961, 80 P.3d 1156 (2003). Further, the court found that the issue presented on appeal was not the same issue presented to the district court. The court then declared that "[b]ecause the district court was not given the opportunity to address the claim, the matter is not properly raised for consideration on appeal. [See] State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006)." Hawkins, 37 Kan.App.2d at 196, 152 P.3d 85. The court did not discuss the applicability of the proffered exceptions permitting first-time consideration on appeal.

In his petition for review, Hawkins begins by declaring: "The Court of Appeals found that it was not error for the district court to allow Mr. Hawkins' refusal to submit to a breathalyzer at trial. The Court of Appeals is incorrect." The petition then proceeds to discuss the merits of Hawkins' argument that Miranda warnings were a prerequisite to the admissibility of his statement refusing the proffered breath test.

Of course, as noted, the Court of Appeals did not reach the merits of Hawkins' claim. Rather, the ruling on the table at this point is that Hawkins did not preserve the issue for appellate review. In that regard, Hawkins does not challenge the appellate court's finding that Hawkins failed to contemporaneously object to the introduction of the evidence or that the issue raised on appeal was not the same issue raised in his pretrial motions.

To get us to address the merits of the issue, Hawkins would need to convince us that the case presented such exceptional circumstances that the Court of Appeals was compelled to depart from the ordinary rules of appellate practice. However, neither the initial brief of appellant nor the petition for review provides any explanation as to why the judicially-created exceptions should apply here. That omission could resolve the matter. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) (issue not briefed deemed waived or abandoned).

However, we do acknowledge that appellate courts have been known to fill in the gaps for appellants failing to provide argument on an issue. If we were to do that here, we would nevertheless find that the exceptions listed by Hawkins do not compel appellate review.

Even if the issue is a question of law on undisputed facts, its resolution would not be finally determinative of the case. Hawkins' statement that he refused the breath test was only one small piece of the State's evidence, without which a rational jury could still have found him guilty.

Further, Hawkins' theory is contrary to existing statutory and case law. See K.S.A.2006 Supp. 8-1001(i) ("The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both."); see also Pennsylvania v. Muniz, 496 U.S. 582, 604 n. 19, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (a State may permit a suspect to refuse to take a breath or blood alcohol test but then allow comment upon that refusal at trial and such does not "compel" the suspect to incriminate himself or herself and hence does not violate the privilege against self-incrimination); State v. Bishop, 264 Kan. 717, 724, 957 P.2d 369 (1998) (neither requesting a defendant to take a breath test nor the administration of an actual breath test amounts to an interrogation). We would not deem a request to change existing law, made for the first time on appeal, as falling within the necessitous circumstances of serving the ends of justice or preventing a denial of fundamental rights. Accordingly, we affirm the Court of Appeals' determination that Hawkins failed to preserve this issue for appellate review.

COMPULSORY JOINDER

In his second issue, Hawkins raises an interesting question on the application of the compulsory joinder provisions of our statute codifying the prohibition against double jeopardy, K.S.A. 21-3108(2). If, a defendant was formerly prosecuted for a different crime or for the same crime based upon different facts and that prosecution resulted in a conviction or acquittal, K.S.A. 21-3108(2)(a) bars a subsequent prosecution for crimes "of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely." However, K.S.A. 21-3108(2)(c)(ii) excepts the termination of a prosecution because of the "inability of the jury to agree" from the bar on a second prosecution, i.e., a retrial following a hung jury mistrial is not prohibited.

Hawkins was convicted of the DWS charge, and he argues that the three traffic infractions could have been included in the complaint...