State v. Littrice

• Decision Date: 30 May 1997
• Docket Number: No. 75514,75514
• Parties: STATE of Kansas, Appellee, v. Mabel LITTRICE, Appellant.
• Court: Kansas Court of Appeals

Page 70

940 P.2d 70

23 Kan.App.2d 1016

STATE of Kansas, Appellee, v. Mabel LITTRICE, Appellant.

No. 75514.

Court of Appeals of Kansas.

May 30, 1997.

Syllabus by the Court

1. If a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. The failure to object to the evidence at trial results in the issue not being preserved on appeal.

2. A motion for continuance is directed to the sound discretion of the trial court, and a decision to deny a defendant's motion for a continuance will not be set aside absent a showing of abuse of that discretion.

3. The failure of the trial court in this case to give an unrequested instruction on nonexclusive possession was not clearly erroneous.

Reid T. Nelson and Jean K. Gilles Phillips, Assistant Appellate Defenders, Jay Yancey, Student Intern, and Steven R. Zinn, Deputy Appellate Defender, for appellant.

Frank E. Kohl, County Attorney, Vernon Anderson, Legal Intern, and Carla J. Stovall, Attorney General, for appellee.

Before GERNON, P.J., LEWIS, J., and VICKERS, Special Judge.

LEWIS, Judge:

Defendant was convicted of possession of cocaine with intent to sell after three previous convictions. This is a drug severity level 1 felony in violation of K.S.A.1993 Supp. 65-4127b(b). Defendant was sentenced to 150 months' incarceration, which is a sentence within the presumptive range for the crime of which she was convicted. She appeals from her conviction.

We affirm.

Since the parties are familiar with the evidence which led to defendant's arrest and conviction, we will not detail any of those facts unless it becomes absolutely necessary.

SUPPRESSION OF EVIDENCE

The evidence against defendant was, by and large, seized from her home during the process of the execution of a search warrant. Defendant filed a motion to suppress the evidence which was denied after a hearing. However, when the disputed evidence was later offered at trial, defendant did not object.

Defendant argues on appeal that the trial court erred in failing to suppress the evidence seized from her home. We conclude that defendant has not preserved this issue for appeal.

In State v. Cheeks, 258 Kan. 581, 592-93, 908 P.2d 175 (1995), the Supreme Court stated the well-known rule which applies under these circumstances:

"The defendant's court-appointed attorney made no timely objection to the introduction of the evidence seized from the defendant's car at trial. The State argues that in the absence of a timely objection at trial, the defendant has not preserved this issue for appeal.

"A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404 states that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. See State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994); State v. Johnson, 255 Kan. 252, 254, 874 P.2d 623 (1994). By failing to make a contemporaneous objection at trial In State v. Johnson, 255 Kan. 252, 253-54, 874 P.2d 623 (1994), the court stated:

the defendant failed to preserve this issue for appeal."

"If a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Synoracki, 253 Kan. 59, Syl. p 8, 853 P.2d 24 (1993); State v. Clements, 252 Kan. 86, Syl. p 1, 843 P.2d 679 (1992); and State v. Bailey, 251 Kan. 156, Syl. p 6, 834 P.2d 342 (1992). The same rule applies when a trial court reserves its ruling on a motion in limine until trial. The failure to request a ruling on the motion at trial or otherwise object to the evidence at trial results in the issue not being preserved on appeal.

"Defendant asks us to abandon our prior decisions requiring a contemporaneous objection to preserve the issue on appeal and adopt the clearly erroneous exception set forth in K.S.A. 22-3414(3) relative to appellate review of jury instructions. This we decline to do. The contemporaneous objection rule is required by K.S.A. 60-404. We therefore conclude that neither of the first two issues has been preserved on appeal."

See State v. Sims, 262 Kan. 165, 936 P.2d 779 (1997); State v. Johnson, 258 Kan. 61, 70-71, 899 P.2d 1050 (1995); State v. Alford, 257 Kan. 830, 840, 896 P.2d 1059 (1995); State v. Duke, 256 Kan. 703, 707-08, 887 P.2d 110 (1994).

As can be noted from the numerous cases cited above, defendant did not preserve this issue for appeal when she failed to object to the evidence being offered at trial. Under the settled law of this state, we do not reach the merits of the search warrant issue. While we do not necessarily agree with the reasoning of the dissenting opinion on this issue, we submit that the rule is not meant to apply only when the issue not preserved is without merit. In other words, we do not first determine the merits and then apply the rule outlined above only if the issue has no merit. We apply the rule where the issue has, as here, not been preserved for appeal. As recently as 1994, our Supreme Court has flatly refused to abandon the rule in question for the more liberal "clearly erroneous rule" applied in instruction issues. State v. Johnson, 255 Kan. at 254, 874 P.2d 623. We rest our decision on the issue on the long line of appellate decisions which have formulated and applied it.

CONTINUANCE

Defendant next contends that the trial court erred in denying her motion for a continuance to secure the presence of material witnesses.

"The granting of a continuance in a criminal case is within the discretion of the trial court, and its ruling will not be disturbed unless such discretion has been abused and the substantial rights of the defendant have been prejudiced." State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995).

Defendant argues we should apply a de novo standard of review to this issue rather than the abuse of discretion rule set forth above. We decline to do so. Defendant cites State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995), as authority for her requested departure from the traditional standard of review. We do not believe that Randall provides support for the proposition advanced by defendant, and we find no other authority to support a de novo standard of review rather than the traditionally applied abuse of discretion standard.

The motion for continuance was filed 2 days before trial was scheduled to begin. The purpose of the continuance was to allow defendant to locate her son or grandson and other witnesses so that she could secure their presence for trial. Defendant's counsel argued that it had been difficult to prepare for trial because defendant's health often prevented her from making it to his office for appointments.

The State objected to the continuance, stating the case had been filed for a year and that the State had been ready to go to trial for some time. The trial court denied the continuance, noting that the trial date had been set for over a month.

We conclude the trial court did not abuse its discretion in denying the motion for a continuance. The brief of defendant indicates that the witnesses that defendant wanted to have at her trial were her grandson and other people living in her house or next door. We find it difficult to believe that people living in defendant's house or living next door to her could not have been secured at some time during the 3 months her defense counsel was appointed and represented her.

"Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court." State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995). We believe that reasonable people would have agreed with the trial court's decision to deny the motion for a continuance, and we hold that denial was not an abuse of discretion.

INSTRUCTIONS

Defendant's final issue is that the trial court should have given the jury an instruction on nonexclusive possession. The trial court declined to do so.

We note that defendant did not propose any specific language for the instruction she suggested, and there is no PIK Crim. instruction on nonexclusive possession.

The State's objection to the instruction pointed out the fact that all of the drugs and drug paraphernalia were found in defendant's bedroom.

Defendant did not object to the failure to give the proposed instructions when the trial court read the instructions to the jury.

" 'No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]' [Citation omitted.]" State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995).

We have reviewed the evidence in this case, and we are unable to reach a conclusion that there was a real possibility that the jury would have returned a different verdict if the instruction requested by defendant had been given. We note that during the trial and at closing arguments, defense counsel made the argument to the jury that other people had access to defendant's home and speculated that the evidence found during the search could have belonged to any of those other people. It appears, therefore, that defendant's theory of defense was presented and argued to the jury even though it was not...