State v. Newman, 55037

Citation680 P.2d 257,235 Kan. 29
Decision Date24 March 1984
Docket NumberNo. 55037,55037
PartiesSTATE of Kansas, Plaintiff-Appellant, v. Chester NEWMAN, Defendant-Appellee.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Under K.S.A. 22-3603, pretrial orders of a district court which exclude state's evidence so as to substantially impair the state's ability to prosecute the case may be appealed by the state by interlocutory appeal.

2. A communication between a husband and wife in the presence of or overheard by a third person is not within the protection of the marital privilege granted by K.S.A. 60-423(b).

3. The statutory marital privilege between husband and wife does not extend to all observations of the acts of one spouse by the other. The marital privilege is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another.

4. The fruit of the poisonous tree doctrine is not applicable in the absence of a showing of police misconduct.

5. The statutory marital privilege does not bar the testimony of other witnesses discovered as the result of information lawfully obtained by the police from an accused's spouse.

Kenneth R. Smith, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., Timothy G. Madden, Asst. Atty. Gen., and William H. Pringle, County Atty., were on the brief, for plaintiff-appellant.

Jerry M. Ward, of Ward & Berscheidt, Great Bend, argued the cause and was on the brief, for defendant-appellee.

PRAGER, Judge:

This is an interlocutory appeal taken by the State from pretrial orders of the district court of Barton County suppressing certain evidence of the State and excluding the same from the trial of the defendant, Chester Newman. The defendant was charged with arson, K.S.A. 21-3718; burglary K.S.A. 21-3715; and theft, K.S.A. 21-3701(a). The Court of Appeals in an unpublished opinion dismissed the interlocutory appeal for want of jurisdiction. 670 P.2d 539. The Supreme Court granted the State's petition for review.

For purposes of this appeal, the facts are undisputed. On January 12, 1982, the Good Times Club located in Barton County was damaged by fire. An investigation revealed arson as the cause; stereo equipment located within the club was discovered missing after the fire. In the course of their investigation, Barton County sheriff's officers interviewed Catherine Newman, defendant's wife. She told them what she had observed the night of the fire concerning the defendant's activities. She stated that she had accompanied defendant to Hutchinson where she observed defendant sell stereo equipment. The officers, using this information, went to Hutchinson and located the purchaser and also the stereo equipment allegedly stolen from the club prior to the fire. The purchaser of the equipment identified defendant Newman as the one from whom he made the purchase. Defendant was subsequently charged with arson, burglary, and theft.

Prior to the pretrial conference, defendant filed a motion to suppress his wife's testimony and all testimony and evidence obtained as a result of her statements to investigating officers. The prosecution filed a motion to endorse additional witnesses who would testify as to evidence of a prior crime allegedly committed by defendant in Russell County for which defendant had been tried and acquitted. The trial court took both motions under advisement and subsequently sustained the defendant's motion and denied the prosecution's motion. Additional and more specific facts will be presented later in the opinion.

The State filed this interlocutory appeal pursuant to K.S.A. 22-3603 which provides as follows:

"22-3603. Interlocutory appeals by the state. When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal." (Emphasis supplied.)

Defendant contends that this court does not have jurisdiction to hear the interlocutory appeal and that the court should dismiss the appeal. It is the position of the State that the district court made an order suppressing evidence which is essential to its case and it, therefore, is entitled to an interlocutory appeal. The determination of the issue presented requires us to consider K.S.A. 22-3603 and the Kansas decisions which discuss the scope of the issues which will be considered on an interlocutory appeal by the State. This specific question has never before been presented to the Supreme Court.

In dismissing the state's interlocutory appeal in this case, the Court of Appeals relied upon its decision in State v. Boling, 5 Kan.App.2d 371, 617 P.2d 102 (1980), which provides an extensive discussion on the jurisdiction of a Kansas appellate court to hear an interlocutory appeal by the State under K.S.A. 22-3603. Simply stated, Boling made a distinction between a trial court ruling suppressing evidence obtained in violation of constitutional rights and a ruling excluding evidence because of the statutory rules of evidence. It concluded that interlocutory appeals may properly be taken from the former but not from the latter. In Boling, the court noted that piecemeal appeals are frowned upon in this state, particularly in criminal cases, where the defendant's constitutional right to a speedy trial is involved. State v. Ramirez, 175 Kan. 301, 263 P.2d 239 (1953). The Court of Appeals was obviously concerned about unnecessary delays which would occur in criminal prosecutions, if the State were permitted to appeal every evidentiary ruling of a trial court entered prior to trial.

The opinion in Boling acknowledged that the Kansas cases have implicitly recognized appellate jurisdiction of interlocutory appeals from an order which prohibits the introduction of relevant evidence for reasons other than the involuntariness of a confession or the illegality of a search and seizure under K.S.A. 22-3215 and 22-3216. In this regard Boling stated:

"Nevertheless, in each of those cases the order had a purpose closely akin to that of the general exclusionary rule. That is, it served either to vindicate constitutional rights or as a sanction for official conduct deemed prejudicial to the defendant, and in either case to deter such conduct in the future.

"When 'other crimes' evidence is examined against the kinds of evidence which have been subject to 'suppression' orders which have been found appealable, it is apparent that there is a qualitative difference. Under [State v.] Bly [215 Kan. 168, 523 P.2d 397 (1974) ] and cases following it, the admissibility of evidence of other crimes or civil wrongs depends on a weighing of relevance and materiality against possible prejudice. The court here found that the proposed evidence would be 'not very material.' This is the type of discretionary evidentiary ruling made regularly in the course of every trial. No constitutional rights are involved and no deterrent effect is sought." 5 Kan.App.2d pp. 377-78, 617 P.2d 102.

Boling was recently cited in State v. Martin, 233 Kan. 148, 150, 660 P.2d 563 (1983), where the court said:

"The purpose of K.S.A. 22-3603 is to permit appellate review of pretrial rulings which may be determinative of the case. State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451 (1977). See also State v. Boling, [Citation omitted], which provides a thorough analysis of the statutory scheme and the difference between an order 'suppressing' evidence obtained in violation of constitutional rights and one 'excluding' evidence because of evidentiary rules."

It is important to note that the precise jurisdictional issue presented in this case was not before the court in State v. Martin, which simply held that K.S.A. 22-3603 does not permit the State to take an interlocutory appeal from a trial court's order holding the State could not grant a witness immunity from prosecution for perjury. The opinion in Martin emphasizes the trial court had not entered an order suppressing or excluding evidence proffered by the State.

In discussing K.S.A. 22-3603, the court in Boling observed that the statute, by permitting review before trial, eliminates the double jeopardy problems arising where the State secures a reversal of a trial court's evidentiary ruling, but only after trial and acquittal. It noted that the purpose of K.S.A. 22-3603 is described by the Judicial Council comment to the statute as follows:

"The foregoing sections are intended to permit Supreme Court review of trial court rulings on pretrial motions which may be determinative of the case. The committee believed that in the case of trial court rulings which suppress evidence essential to proof of a prima facie case, the prosecution should have an opportunity for review in the Supreme Court if a substantial question exists as to the correctness of the trial court's decision." (Emphasis supplied.)

The Judicial Council comment was relied upon by the court in upholding the constitutionality of K.S.A. 22-3603 in State v. Burnett, 222 Kan. 162, 166, 563 P.2d 451 (1977).

The Boling opinion then turned to other sections of the Kansas Code of Criminal Procedure to find what an order "suppressing evidence" is. Those sections are K.S.A. 22-3215 which authorizes a pretrial motion to "suppress" a confession or admission, and K.S.A. 22-3216 which authorizes a pretrial motion to "suppress" illegally seized evidence. The Boling court concluded that these two statutes together with K.S.A. 22-3603 provide an integrated statutory scheme for dealing with important--indeed essential--evidentiary rulings on issues having constitutional dimensions. However, the court stated that the scheme does not envision an interlocutory...

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45 cases
  • State v. Galloway, 55370
    • United States
    • United States State Supreme Court of Kansas
    • March 24, 1984
    ...substantially to impair the State's ability to prosecute the case may be appealed by the State by interlocutory appeal. Following State v. Newman, 680 P.2d 257 (this day 2. Where jurisdiction of an interlocutory appeal in a criminal case is challenged on the basis the appealed from orders a......
  • State v. Myers
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    • Court of Appeals of Kansas
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    ...dealing with evidentiary rulings having "constitutional dimensions." 5 Kan. App. 2d at 374, 617 P.2d 102.Later, in State v. Newman , 235 Kan. 29, 34, 680 P.2d 257 (1984), the Kansas Supreme Court interpreted K.S.A. 22-3603 more broadly:"We hold that the term ‘suppressing evidence’ as used i......
  • Com. v. McBurrows
    • United States
    • Superior Court of Pennsylvania
    • June 1, 2001
    ...... See State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984) (holding the statutory marital privilege under K.S.A. ......
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    ...issue de novo; however, the facts did not appear to be disputed to any substantial degree in those cases. See, e.g., State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984). In other contexts, however, the appellate courts have reviewed to determine whether the district court's findings of fact a......
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3 books & journal articles
  • Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons
    • United States
    • Kansas Bar Association KBA Bar Journal No. 78-4, April 2009
    • Invalid date
    ...State v. Kerby, 259 Kan. 104, 106, 910 P.2d 836 (1996); State v. G.W.A., 258 Kan. 703, 705-07, 906 P.2d 657 (1995). [82] State v. Newman, 235 Kan. 29, 34, 680 P.2d 257 (1984). [83] State v. Mitchell, 285 Kan. 1070, 1083, 179 P.3d 394 (2008). [84] State v. Mooney, 10 Kan. App. 2d 477, 479, 7......
  • Appellate Decisions
    • United States
    • Kansas Bar Association KBA Bar Journal No. 84-5, May 2015
    • Invalid date factually distinguished. Consistent with State v. Mooney, 10 Kan. App. 2d 447, rev. denied 238 Kan. 879 (1985), State v. Newman, 235 Kan. 29 (1984), has no application here. State not required to show substantial impairment in ability to prosecute the case, and has statutory right to app......
  • Appellate Decisions
    • United States
    • Kansas Bar Association KBA Bar Journal No. 79-3, March 2010
    • Invalid date prosecute the case. ISSUE: Appellate jurisdiction for interlocutory appeal, K.S.A. 22-3603 HELD: Cases applying State v. Newman, 235 Kan. 29 (1984), are discussed. In an interlocutory appeal, the prosecutor should be prepared to make a showing to the appellate court that the pretrial ord......

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