State v. Holt, 48391

• Decision Date: 05 March 1977
• Docket Number: No. 48391,48391
• Parties: STATE of Kansas, Appellee, v. Dalton HOLT, Appellant.
• Court: Kansas Supreme Court

Page 435

561 P.2d 435

221 Kan. 696

STATE of Kansas, Appellee, v. Dalton HOLT, Appellant.

No. 48391.

Supreme Court of Kansas.

March 5, 1977.

Syllabus by the Court

1. The granting of a continuance lies within the sound discretion of the trial court and its refusal to sustain a motion for continuance will not be overturned in the absence of a clear abuse of discretion.

2. A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion. (Following State v. Gustin, 212 Kan. 475 (Syl. 3), 510 P.2d 1290.)

3. It is the function of the jury, not of an appellate court, to weigh evidence and pass upon the credibility of the witnesses; and a verdict based on substantial competent evidence will not be disturbed on appellate review.

4. In an appeal from a conviction for the sale of narcotic drugs, the record is examined and it is held: The trial court did not err in overruling defendant's motions (1) for a continuance; (2) for judgment of acquittal; and (3) for a new trial.

Frank W. Liebert, of Liebert & Liebert, Coffeyville, argued the cause and was on the brief for the appellant.

Richard A. Medley, Asst. County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Paul D. Oakleaf, County Atty., Independence, were with him on the brief for the appellee.

KAUL, Justice:

Defendant-appellant, Dalton Holt, appeals from convictions by a jury on two counts charging the sale of Lysergic Acid Diethylamide (LSD) in violation of K.S.A. 1976 Supp. 65-4127b and 65-4109, and one count charging the sale of Cannabis Sativa L. (marijuana) in violation of K.S.A. 65-4105(d) and K.S.A. 1976 Supp. 65-4127(b)(3).

The state's evidence consisted of several trial exhibits, testimony of a forensic chemist, who identified the exhibits as LSD and marijuana, and the testimony of John J. Washington, a black undercover narcotic agent employed by the Kansas Bureau of Investigation (KBI), who testified that he made purchases of the described substance from the defendant. Washington testified he had previously worked as a Youth Counselor for the Federal Government and that he had also been employed by the Federal Bureau of Prisons. He became interested in the eradication of narcotics violations and, therefore, commenced his present work for the KBI. He testified that during the summer of 1974 he was using the name of John Long in his undercover work in Coffeyville. He made the purchases from defendant which gave rise to the charges herein on July 29 and August 11, 1975, in Coffeyville. Washington had become acquainted with a young black man named Gerald Higgins who was present when the July 29th purchase was made. Concerning this July 29th purchase, Washington testified he contacted the defendant near a Coffeyville restaurant on that date and asked him about finding some LSD. About 5:50 p. m. Washington, accompanied by Higgins, set out to find defendant and located him at the residence of one Frank .l. Fullard on East Sixth Street. Washington testified he asked defendant about getting some 'acid' and was told that defendant's brother, Jesse Hutchinson, had some LSD, but they would have to come back later to get it.

Washington and Higgins returned to the defendant's residence at approximately 6:25 p. m. On this occasion defendant told them his brother was at the hospital with sixty 'hits' of the LSD that Washington wanted. Thereupon, defendant got into a station wagon with a young woman, later identified as his sister, Dorothea Holt, and drove to the Coffeyville Memorial Hospital. Washington and Higgins followed in Washington's automobile.

Once at the hospital parking lot, defendant parked his station wagon and got into Washington's automobile, directing him to park near a blue Chevrolet Impala automobile bearing tag number MG H 11. Defendant went to the blue Chevrolet and talked to its occupant for a short time. He then returned to Washington and reported his brother had only fifty-one hits. According to Washington a deal was made for $102.00 and he gave $110.00 in cash. Defendant went back to the Chevrolet Impala and returned with $8.00 in currency and a vial containing fifty-one yellow tablets. Washington took Higgins back to the bar where he had met him and drove alone to his motel room, where he tagged and stored the vial and its contents in an evidence box located in the state vehicle he was driving. On August 11, 1975, this vial was delivered to the KBI Narcotics Division Headquarters in Topeka.

Approximately two weeks after the first purchase, on August 11, 1975, Washington again made contact with defendant in the same bar in which he had previously met Higgins. Washington inquired about buying some more drugs. Defendant replied he had '4 bags of pot' and '5 hits of acid.' Defendant got into the automobile with Washington and produced four bags of a 'green leafy substance.' Washington then drove with the defendant to his residence on East Fifth Street, where, according to Washington, the defendant waved to his sister, Dorothea, who, thereupon, brought to the car a small vial containing several tiny yellow tablets. Washington testified he gave the defendant $90.00 and left with the vial and the four bags of vegetable matter. Within twenty-five minutes Washington tagged these containers and placed them in the evidence box. On August 15, 1975, he delivered these items to the KBI laboratory in Topeka. A check on the car bearing MG H 11 license number revealed that it belonged to Jesse Hutchinson of Independence, who was identified by defendant as his brother.

Defendant took the witness stand in his own behalf and denied selling any drugs to Washington, whom he had known as John Long. He recalled seeing Washington and Gerald Higgins at Frank Fullard's house on July 29, but testified that Washington stayed in the car and had no conversation with him. Defendant testified he stayed in Fullard's house all day and until after the time of the alleged sale at the hospital. He denied having gone to the hospital that day and denied having seen his brother, Jesse Hutchinson, on that occasion. Defendant also contradicted the narcotic agent's testimony, stating that his brother drives a 1972 steel gray Impala with a black vinyl top and not a blue car.

Regarding the alleged sales on August 11 defendant recalled seeing Washington that afternoon and testified that Washington asked him if he knew where he could get some drugs. Defendant testified he replied 'No' to this question and denied giving Washington any drugs. He also stated his sister did not deliver a vial of drugs to Washington at the family residence as the agent had previously testified.

Defendant called Frank L. Fullard, a neighbor of his, to corroborate his testimony that Washington stayed in the automobile and never came to Fullard's house.

Dorothea Holt was also called on defendant's behalf. She denied riding to the hospital with her brother and also denied delivering the vial of pills to Washington on August 11.

Defendant's brother, Jesse, denied seeing the defendant on July 29, 1975, and denied giving or selling him any drugs. He said he came to Coffeyville about 7:30 p. m. on this date to take his wife to the hospital, but did not see his brother. He was at the hospital the time Washington testified the sale was made.

Defendant also called Stanley B. Hendrix who testified he was with defendant during the afternoon of August 11, 1975, when they were contacted by Washington who asked defendant if he knew anybody who had some drugs or 'weed.' Hendrix testified that defendant told Washington no and that no money or drugs changed hands.

Defendant raises three points on appeal. He first contends the trial court erred in overruling his motion for a continuance filed on December 8, 1975, the date set for trial. Defendant renewed his motion at the close of the state's evidence. Defendant's motion was denied in both instances. The ground asserted for a continuance was the absence of Gerald Higgins, who was alleged to be the key witness.

Under the provisions of K.S.A. 22-3401 a continuance may be granted either party for good cause...