State v. Huser

• Decision Date: 29 May 1998
• Docket Number: No. 80128,80128
• Citation: 959 P.2d 908,265 Kan. 228
• Parties: STATE of Kansas, Appellant, v. Dalene Gail HUSER, Appellee.
• Court: Kansas Supreme Court

Page 908

959 P.2d 908

265 Kan. 228

STATE of Kansas, Appellant, v. Dalene Gail HUSER, Appellee.

No. 80128.

Supreme Court of Kansas.

May 29, 1998.

Syllabus by the Court

1. A judge may determine that a felony has been committed, based on the evidence presented at the preliminary hearing, if there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that a felony has been committed.

2. While the judge at a preliminary hearing must determine that there is some evidence to support a finding that a felony has been committed and the person charged committed it, the evidence need not prove guilt beyond a reasonable doubt, only probable cause. In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.

3. This court is to conduct a de novo review of the evidence when considering the trial court's probable cause finding. Therefore, this court should not give deference to the trial court's finding when it considers the evidence presented by the State and the defendant and evaluates the credibility and competency of the witnesses.

4. Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms gross negligence, culpable negligence, wanton negligence, and wantonness are included within the term recklessness as used in this code.

5. The offense of reckless driving is a distinct offense and is established by different evidence than the crime of driving under the influence of intoxicating liquor, so that a conviction or acquittal of one offense will not bar prosecution for the other.

6. Additional evidence, beyond evidence that an accused was driving under the influence of alcohol, is necessary to create probable cause for reckless aggravated battery charges. Simply driving under the influence of alcohol does not, standing alone, amount to reckless behavior.

Stephen D. Maxwell, Assistant Attorney General, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief, for appellant.

Ted E. Smith, of Myers, Pottroff & Ball, Manhattan, argued the cause, and Robert L. Pottroff, of the same firm, was on the brief, for appellee.

ABBOTT, Justice:

This is an appeal by the State from the trial court's dismissal of two counts of reckless aggravated battery at the conclusion of the preliminary hearing. The defendant, Dalene Gail Huser, was bound over for trial on one count of driving under the influence (DUI) and one count of refusal to submit to a preliminary screening alcohol test. The State dismissed the two remaining counts of DUI and refusal to submit to an alcohol test and appealed the trial court's ruling to this court.

At approximately 1:45 a.m. on August 18, 1996, the defendant was driving a vehicle near the Kansas State University campus in Manhattan. The bars were closing and a group of six people were crossing a street. Four of them had already crossed the street, and the last two were crossing when the car driven by the defendant struck them. The two pedestrians struck by the car were crossing the street at an angle and they were not in a marked crosswalk.

Both pedestrians testified that they did not see the defendant's car until after it hit them. Evidence was presented that the pedestrians were two or three steps past the center line when they were struck. No skid or brake marks were left, and the defendant's car traveled 1 to 3 feet after it struck the pedestrians. Ample evidence was introduced to bind the defendant over on the driving under the influence charge. In so holding, the trial court stated:

"So really the charge is recklessly causing this--these injuries by Mrs. Huser. Mr. Pottroff has provided the Court with his brief. In it [he] cites the definition from K.S.A. 21-3201c of reckless conduct. It reads reckless conduct is conduct done under circumstances that show a realization of the [imminence] of danger to the person of another, and a conscious ... disregard of that danger. The terms gross negligence, culpable negligence, wanton negligence, and wantonness are included within the term of recklessness as used in this code. I think there is merit to Mr. Huser's statement and his argument that we do not have evidence from the operation of the vehicle or the vehicle of itself of--of reckless conduct in the handling and driving of the vehicle. And to find that there is probable cause to believe that this crime was committed from the facts presented to the Court, the Court would have to presume that Mrs. Huser was in fact intoxicated, and the fact that she was driving a vehicle in an intoxicated state would then equate into being reckless to be guilty of this offense. The Court does not make that jump and so the Court [implies] that there is not probable cause from the evidence presented that--that there is--that the two offenses of reckless aggravated battery were committed, so the Court does find that there is not probable cause on those two offenses. We do have the driving under the influence charge and Count 4 of the refusal to submit to a preliminary alcohol screening test."

Instead of proceeding to trial on the DUI charge and the preliminary breath test infraction, the State filed a motion to dismiss the remaining charges. The trial court granted this motion. With the dismissal of these charges, the trial court's ruling was a final judgment, and the State appealed the trial court's ruling to this court, pursuant to K.S.A. 22-3602.

Preliminary examinations are authorized by K.S.A. 22-2902. K.S.A. 22-2202(16) defines a preliminary examination as "a hearing before a magistrate on a complaint or information to determine if a felony has been committed and if there is probable cause to believe that the person charged committed it."

Under step one, a judge may determine that a felony had been committed based on the evidence presented at the preliminary hearing if "there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that it appears a felony has been committed." State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985). If a preliminary hearing judge determines a felony has been committed, then the judge must determine whether there is probable cause to believe that the person charged committed the crime. "In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. State v. Green, 237 Kan. 146, Syl. p 3, 697 P.2d 1305 (1985)." State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995).

While the judge at a preliminary hearing must determine that there is some evidence to support a finding that a felony has been committed and that the person charged committed it, the evidence need not prove guilt beyond a reasonable doubt, only probable cause. Bockert, 257 Kan. at 492, 893 P.2d 832; State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). According to In re Mortimer, 192 Kan. 164, 166-67, 386 P.2d 261 (1963),

"[t]here is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty. State v. Pfeifer, 109 Kan. 232, 233, 198 Pac. 927 [1921]; In re Danton, 108 Kan. 451, 195 Pac. 981 [1921]."

Furthermore, a judge at a preliminary hearing should not evaluate the prosecutor's decision to file criminal charges against the defendant. The judge should not dismiss the case simply because the judge has determined that the State should not have prosecuted the case due to the remote or nonexistent possibility of a conviction. Bockert, 257 Kan. at 492, 893 P.2d 832 (citing State v. Puckett, 240 Kan. 393, Syl. p 3, 729 P.2d 458 [1986] ).

The trial court found that the State had failed to meet its burden of proof for establishing that a crime of reckless aggravated battery had been committed. In appeals by the prosecution from an order discharging the defendant for lack of probable cause, this court follows the same standard for weighing the evidence as the judge at the preliminary examination. See Bockert, 257 Kan. at 492-93, 893 P.2d 832. This court is to conduct a de novo review of the evidence when considering the trial court's probable cause finding. State v. Martinez, 255 Kan. 464, 465, 874 P.2d 617 (1994). Therefore, this court should not give deference to the trial court's finding when it considers the evidence presented by the State and the defendant and evaluates the credibility and competency of the witnesses. The end result is that instead of one magistrate judge conducting a preliminary hearing, seven Supreme Court justices conduct a preliminary hearing on the record and issue an opinion that the State is free to ignore if it can produce additional evidence.

For the defendant to be held over for trial and tried for reckless aggravated battery as charged, pursuant to K.S.A. 21-3414(a)(2)(B), the trier of facts must find probable cause that the following elements existed and could be proved at trial: The defendant acted " recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted."

From the testimony...