State v. Johnson

• Decision Date: 02 September 2011
• Docket Number: No. 103,786.,103,786.
• Citation: 46 Kan.App.2d 387,264 P.3d 1018
• Parties: STATE of Kansas, Appellee,v.Lyndol JOHNSON, Appellant.
• Court: Kansas Court of Appeals

46 Kan.App.2d 387

264 P.3d 1018

STATE of Kansas, Appellee,

v.Lyndol JOHNSON, Appellant.

No. 103,786.

Court of Appeals of Kansas.

Sept. 2, 2011.

Syllabus By The Court

1. An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's factual findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard

2. A violation of K.S.A. 40–3104(b) is a class B misdemeanor, and a law enforcement officer is authorized to either issue a citation or arrest an individual who fails to provide proof of motor vehicle liability insurance.

3. A narrow public safety exception exists to the rule that Miranda warnings must be given prior to custodial interrogation. A law enforcement officer may question a suspect before giving Miranda warnings when it is objectively reasonable for the officer to believe the questioning is necessary to protect the officer or the public from immediate danger.

4. Under the facts of this case, the law enforcement officer's question asking whether the defendant “had anything on his person that she should know about” went beyond the scope of officer safety and was reasonably likely to elicit an incriminating response.

5. Under the inevitable discovery doctrine, evidence subject to suppression because it was obtained illegally may, nevertheless, be admissible if it would have been obtained legally in any event. The test under the inevitable discovery rule is that, if the prosecution establishes by a preponderance of the evidence that the unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means, the evidence is admissible.

6. The Sixth and Fourteenth Amendments to the United States Constitution, as well as §§ 5 and 10 of the Kansas Constitution Bill of Rights, guarantee a criminal defendant the right to a jury trial. The constitutional right to a jury trial is triggered when the defendant is facing potential imprisonment for the offense exceeding 6 months.

7. The criminal defendant's constitutional right to a jury trial may be waived. But since the right to trial by jury is constitutionally preserved, waiver of the right must be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury.

8. In order for a criminal defendant to effectively waive his or her right to a trial by jury, the defendant must first be advised by the court of his or her right to a jury trial, and the defendant must personally waive this right in writing or in open court for the record.

9. It is well settled that the deprivation of the right to a jury trial is structural error requiring reversal of the defendant's conviction.

10. Under the facts of this case, the defendant failed to effectively waive his right to a jury trial because the record does not reflect that the district court personally advised the defendant of his right to a jury trial.

Carol Longenecker–Schmidt, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Amanda G. Voth, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.Before ATCHESON, P.J., MALONE and McANANY, JJ.MALONE, J.

Lyndol Johnson appeals his convictions of felony possession of marijuana and misdemeanor possession of drug paraphernalia. Johnson claims: (1) The district court erred in denying his motion to suppress evidence because law enforcement officers extended a traffic stop without reasonable suspicion and arrested Johnson without probable cause; (2) the district court erred in denying his motion to suppress evidence obtained as a result of a Miranda violation; (3) the district court violated Johnson's constitutional right to a jury trial; and (4) the district court violated Johnson's right to be present at all stages of his criminal proceeding. We disagree with Johnson that the district court erred in failing to suppress the evidence, but we agree that Johnson did not effectively waive his right to a jury trial, and for this reason the case is remanded for further proceedings.

Factual and Procedural Background

On February 6, 2008, at approximately 12:34 pm, Detective Lee Campbell stopped a vehicle as it was leaving a parking lot when she saw a small child sitting on the driver's lap. The driver was identified as Johnson. Also present in the vehicle were Johnson's wife, Lynette; two other small children; and two other adults. Officer Jessica Kelly was also present at the car stop.

Johnson informed the law enforcement officers that his driver's license was suspended. Also, Johnson could not provide proof of insurance. While talking to Johnson, Campbell detected an odor of alcohol on his breath. Consequently, she asked Kelly to conduct field sobriety testing. Johnson passed the field sobriety tests.

After Kelly confirmed that Johnson was driving on a suspended license, he was arrested and placed in handcuffs. Before conducting a pat-down search, Kelly asked Johnson if he had any weapons, sharp objects, or anything else on his person she should know about. He responded he had marijuana in his pants pocket, and Kelly then removed a bag of marijuana from Johnson's pocket. Upon further search, Kelly found drug paraphernalia pipes and another container of marijuana. Johnson was booked into jail on possession of marijuana, possession of drug paraphernalia, driving with a suspended license, no proof of insurance, and failure to use a child safety restraint. Johnson was searched again by the police when he was booked into jail.

On February 8, 2008, the State filed a complaint/information charging Johnson with one count of felony possession of marijuana and one count of misdemeanor possession of drug paraphernalia. Johnson filed a motion to suppress the evidence. The motion argued that Johnson was arrested without probable cause and his statements were obtained as a result of a Miranda violation. After conducting a hearing, the district court denied the motion to suppress. The district court found that under the totality of the circumstances Johnson was lawfully placed under arrest. The district court also found that Johnson was not subjected to a custodial interrogation when Kelly asked him whether he had anything on his person that she should know about, and that the marijuana and paraphernalia were nevertheless subject to inevitable discovery.

On August 21, 2009, the district court held a status conference, and the parties submitted a stipulation of facts to the district court. Johnson was voluntarily absent from this hearing. Both counsel suggested that the district court review the stipulation of facts and then schedule the matter for a hearing, with the defendant present, so the court could announce its decision on the record. The district court subsequently considered the stipulation of facts and found Johnson guilty of possession of marijuana and possession of drug paraphernalia. Johnson was not present when the district court rendered its findings of guilt.

On December 4, 2009, the district court sentenced Johnson to a controlling term of 20 months' imprisonment and placed Johnson on probation for 18 months, conditioned on mandatory drug treatment. Johnson timely appealed his convictions. Additional facts will be included to address the issues.

Probable Cause to Arrest

Johnson first claims the district court erred in failing to suppress evidence because law enforcement officers extended the traffic stop without reasonable suspicion and arrested Johnson without probable cause. An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's factual findings are reviewed to determine whether they are supported by substantial competent evidence. Then the ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

Johnson concedes that Campbell's initial stop for safety reasons—the observation of a small child on the driver's lap—was permissible. However, on appeal Johnson argues that the law enforcement officers had no reasonable suspicion he was committing a crime so as to justify a continuation of the stop because driving with a suspended license in a parking lot is not a crime. See State v. Patton, 26 Kan.App.2d 591, 594, 992 P.2d 819 (1999) (appellant was not in violation of K.S.A. 1998 Supp. 8–262, driving on a highway with a suspended license, since he was driving a vehicle on a private parking lot and not a highway). Consequently, Johnson contends his detention should have ended after he passed the field sobriety tests, and the officers lacked probable cause to arrest him because driving with a suspended license in a parking lot is not a crime.

We note initially that Johnson's motion to suppress did not argue that his arrest for driving with a suspended license was illegal because he was driving on a private parking lot. Johnson also failed to raise this argument at the suppression hearing. Johnson is essentially asserting grounds for relief on appeal that were never asserted in district court. Nevertheless, we conclude from the evidence presented at the suppression hearing that the traffic stop was lawfully extended and Johnson was legally arrested. The validity of the initial traffic stop is uncontested. As the State correctly notes, once Johnson's vehicle was lawfully stopped, Campbell's detection of the odor of alcohol on Johnson's breath provided sufficient grounds to extend the scope and duration of the stop. See Nickelson v. Kansas Dept. of Revenue, 33 Kan.App.2d 359, 367, 102 P.3d 490 (2004) (after initial stop for public safety, odor...