State v. Hensley

• Decision Date: 06 December 2013
• Docket Number: No. 102,055.,102,055.
• Citation: 313 P.3d 814
• Parties: STATE of Kansas, Appellee, v. Michael Rae HENSLEY, Appellant.
• Court: Kansas Supreme Court

313 P.3d 814

STATE of Kansas, Appellee,

v.Michael Rae HENSLEY, Appellant.

No. 102,055.

Supreme Court of Kansas.

Dec. 6, 2013.

Syllabus by the Court

1. Stale information is information that no longer informs whether there is a fair probability that evidence of a crime will be found at a particular place because sufficient time has elapsed between when the informant acquired the information or when an event occurred and when officers act on the information.

2. The amount of time that must lapse before information regarding a crime becomes stale is a particularized inquiry that takes into account the facts and circumstances of each case.

3. Courts analyze informant tips by using the totality of the circumstances test articulated in Illinois v. Gates, 462 U.S. 213, 230–33, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under that test, the informant's veracity and basis of knowledge are relevant, but a deficiency in one may be compensated for by a strong showing as to the other, or by some other indicia of reliability.

4. The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prohibit a criminal defendant from being “twice put in jeopardy.”

5. The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prohibit a court from imposing multiple punishments under different statutes for the same conduct in the same proceeding when the legislature did not intend multiple punishments.

6. In considering a double jeopardy challenge under the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, this court applies a two-step analysis. First, the court determines whether the convictions arose from the same conduct. Second, the court considers whether by statutory definition there are two crimes or only one. Under United States Supreme Court precedent, this question is answered by using the same-elements test. Under that test, if each statute contains an element not found in the other statute, the legislature presumably intended punishment for both crimes.

7. K.S.A. 21–3107(2)(b) is essentially the inverse of the same-elements test as it prohibits a defendant from being convicted of both a greater and lesser crime, and defines a lesser crime as “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.”

8. K.S.A. 21–3107(2)(b) supplants the same-elements test because either test in a double jeopardy challenge results in the same outcome for the defendant and the statutory test removes the need to turn to legislative history to divine legislative intent.

9. Under K.S.A. 21–3107(2)(b), possession of marijuana is a lesser included crime of possession of marijuana with no tax stamp.

Randall L. Hodgkinson, Topeka, of Kansas Appellate Defender Office, argued the cause, and Alice L. Walker, legal intern, was with him on the brief for appellant.

Amy E. Norton, assistant county attorney, argued the cause, and Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by MORITZ, J.

We granted Michael Rae Hensley's petition for review seeking reversal of a Court of Appeals decision affirming his convictions of possession of marijuana, possession of marijuana with no tax stamp affixed, and possession of drug paraphernalia. Hensley argues the panel erred in affirming the district court's conclusion that probable cause supported the issuance of a warrant to search his home and in rejecting his challenge to the district court's failure to compel the appearance of a witness. Additionally, he asserts the panel erred in rejecting his claim that his convictions of possession of marijuana and possession of marijuana with no tax stamp were multiplicitous.

We reject Hensley's assertions that the probable cause affidavit was insufficient and conclude Hensley's compulsory process claim of error fails because the district court never refused to issue process. However, we agree with Hensley that his convictions for possession of marijuana and possession of marijuana with no tax stamp are multiplicitous and reverse his conviction for possession of marijuana.

Factual and Procedural Background

Hensley's ex-girlfriend, Crystal Post, telephoned the Saline County Sheriff's Office in April 2007 and reported having seen a large amount of marijuana in Hensley's freezer the previous day and said she believed Hensley had a handgun. Post advised that she feared Hensley because they had previously had physical confrontations and Hensley had threatened her. A few days before Post contacted the sheriff's office, an unidentified woman advised an officer that there was a lot of traffic coming and going from a house where “Mike” lived and she was concerned someone in the house was dealing narcotics.

After receiving these tips, officers checked their in-house information on Hensley and learned the following: in December 2004, Hensley visited a local inmate arrested for marijuana possession; in January 2005, officers executed a search warrant on an apartment across the hall from Hensley's apartment and found his fingerprint on a baggie of marijuana; and in July 2005, an identified informant told police Hensley was his marijuana dealer in 2004. Officers also discovered that Hensley had a 1997 drug-related juvenile adjudication and that from 2003 to 2007 Hensley had several arrests related to domestic violence and one domestic violence conviction.

Armed with the tips, in-house information, and Hensley's criminal history, an investigator applied for and received a search warrant for Hensley's residence, person, and vehicle. As officers conducted pre-raid surveillance on Hensley's home, they saw two men drive up in a van, park, enter, and quickly leave Hensley's home. The officers followed the van and stopped it after the van's driver committed a traffic violation. A search of the van revealed eight baggies of marijuana.

As officers searched the van, other officers executed the search warrant on Hensley's residence. During the search, officers discovered 200 grams of marijuana in Hensley's freezer, a folding lock blade knife, a baggie of marijuana, a pipe, rolling papers, and a marijuana roach with blunts.

Based on the contraband discovered during the search of the van and Hensley's home, the State charged Hensley with sale, delivery, or distribution of marijuana; possession of marijuana with intent to sell, deliver, or distribute; possession of marijuana with no tax stamp affixed; possession of drug paraphernalia; and criminal use of a weapon.

Hensley moved to suppress evidence discovered in the search of his home, arguing officers deliberately failed to disclose in the probable cause affidavit that Post had previously given false information to the police about Hensley and Hensley had previously secured a protection from abuse order against Post. The district court rejected this argument after the investigator who sought the warrant testified he was unaware Post had provided false information to police in the past. The district court also rejected Hensley's argument that the warrant was unsupported by probable cause, concluding the affidavit showed Hensley had a “fairly long-standing involvement in the marijuana culture.”

On the morning of trial, the State filed a motion in limine seeking to prevent Hensley from soliciting testimony about his previous relationship with Post and arguing such testimony would not be probative. Hensley objected, suggesting Post had previously made false reports about his alleged illegal activities and that he intended to argue or “potentially argue” that Post had “planted” the marijuana found in his home.

Noting that evidence regarding the basis of a search warrant usually is irrelevant at trial, the district court deferred ruling on the motion and asked Hensley to proffer evidence regarding his and Post's relationship prior to offering it to the jury.

Before the court empanelled the jury, Hensley informed the court that Post had personally been served with a subpoena directing her to appear for trial but she had failed to appear. Hensley requested a pick-up order to secure Post for trial. The district court responded, “Well see if you can't locate her and get her here. We'll deal with that after we get the jury on their way here.”

After the court swore in the jury and recessed for lunch, Hensley requested the court's assistance in securing Post's address from her court services officer in order to locate Post. The district court indicated that it did not believe the court should involve itself in securing a witness until the witness violated a subpoena, but the court directed Hensley's counsel to check with court services to obtain Post's address. After the lunch break, Hensley's counsel informed the court she had obtained Post's address from court services and had unsuccessfully attempted to locate her.

During a recess later that afternoon the judge announced on the record that he would accompany Hensley's attorney to court services to seek assistance from Post's probation officer in contacting Post. When the judge and Hensley's counsel returned to the courtroom, the judge commented that Post's probation officer had agreed to contact Post and direct her to appear the following morning.

But the trial transcript from the following day contains no mention of Post or whether she appeared. Nor does the record contain any indication that Hensley sought a continuance, a pick-up order, or further assistance in locating Post. Instead, after the State rested, Hensley rested his case without presenting any evidence.

The jury convicted Hensley of possession of marijuana, possession of marijuana with no tax stamp affixed, and possession of drug paraphernalia. The district court imposed a 20–month jail term and 12 months'...