State v. Northrup
| Decision Date | 24 January 1992 |
| Docket Number | No. 65911,65911 |
| Citation | 825 P.2d 174,16 Kan.App.2d 443 |
| Parties | STATE of Kansas, Appellee, v. Clayton NORTHRUP, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Although scientific tests are probative in identifying marijuana or other controlled substances, they are not the only means by which the State can prove its case in a prosecution for a violation of the controlled substances act.
2. Lay testimony and circumstantial evidence may be sufficient without the introduction of an expert chemical analysis to establish the identity of the substance involved in an alleged illegal drug transaction. Such evidence must prove the identity of the substance beyond a reasonable doubt.
3. Circumstantial proof to establish the identity of a substance involved in an alleged illegal drug transaction may include evidence of the physical appearance of the substance in question, evidence that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence.
4. When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
5. In the absence of reliable scientific tests to identify the nature of the substance, the determination of the sufficiency of the circumstantial evidence to prove the identity of the alleged illegal drug must be made on a case-by-case basis.
Kaye Messer, Asst. Appellate Defender, Tamera S. Hicks, Legal Intern, of Washburn Law Clinic, Lisa Nathanson, Supervising Atty., and Jessica R. Kunen, Chief Appellate Defender, for appellant.
Dee W. James, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before LEWIS, P.J., BRAZIL, J., and BILL D. ROBINSON, Jr., District Judge, assigned.
Clayton Northrup, defendant, appeals from his convictions by a jury of one count of the sale of methamphetamine and one count of the sale of marijuana.
The convictions were primarily based on evidence from two controlled purchases of illegal drugs from the defendant. The police had utilized the services of Leslie Bowley, who had agreed to work undercover for the authorities. Bowley made one buy of methamphetamine and one buy of marijuana from the defendant on separate occasions.
The defendant argues that his convictions should be reversed because the trial court erred in admitting into evidence a statement he made to the police officers. The defendant also argues that the evidence was insufficient to prove that the substance he sold to Bowley was marijuana. We affirm the defendant's convictions.
Bowley had run afoul of the law himself and was charged with several drug-related violations. The authorities offered him a chance to dispose of these charges by working undercover and making drug buys for the police. Bowley accepted this proposition and was assigned to work with Detective Brad Homman of the Dickinson County Sheriff's Department.
On October 14, 1989, Bowley approached the defendant, seeking to purchase "crank," or methamphetamine. The defendant produced a quantity of the substance, which Bowley purchased with money provided by the authorities. After the purchase, Bowley turned over the substance to Detective Homman. Detective Homman performed a field test on the substance, concluded it was a controlled substance, and sent it to the KBI laboratories for further examination and identification.
On November 10, 1989, a warrant was issued for the arrest of the defendant. The warrant was issued pursuant to a complaint, charging the defendant with the sale of methamphetamine on October 14, 1989, as well as with other crimes. Contemporaneously, a search warrant authorizing the search of the defendant's home was obtained.
On November 11, 1989, Bowley made a second controlled purchase from the defendant. On this occasion, he purchased a substance alleged to be marijuana for the price of $120 per ounce. The facts of the purchase will be further developed.
After the purchase was made on November 11, 1989, the authorities arrested the defendant and searched his home under the authority of the search warrant issued. Subsequent to his arrest, the defendant made several unprompted statements. These statements included comments to the effect that many times a five-dollar bill from a drug purchase had provided food for his family. He also expanded upon his belief that drugs should be legalized and that drugs were no worse than alcohol. These statements were admitted at trial during cross-examination of the defendant and during the State's rebuttal evidence.
Prior to the trial, the court granted the defendant's motion to suppress the evidence seized from his residence. The court concluded that the affidavit used to obtain the search warrant was insufficient and that the search was illegal. The State does not appeal from that ruling.
The defendant contends that his convictions should be reversed because of error by the trial court in admitting into evidence the spontaneous statements referred to earlier in this opinion.
The defendant's argument evolves from the order of the trial court suppressing illegally seized evidence. The defendant argues that his statements were the indirect products of the unconstitutional search. According to Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), the exclusionary rule extends to the indirect as well as the direct products of an unlawful search. Furthermore, policies underlying the exclusionary rule invite no logical distinction between physical or verbal evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Underlying the defendant's argument is his insistence that the State lacked probable cause to arrest him without the suppressed evidence. In addition, he argues that not enough time elapsed between the illegal search and his statements to dissipate the taint of illegality. As a result, the defendant submits that his statements were "fruits of the poisonous tree" and, therefore, inadmissible.
The State counters by pointing out that the statements were made as a result of a legal arrest, which had nothing to do with the illegal search and seizure. This position is fortified by the fact that the police officers went to the defendant's home not only with a search warrant, but also an arrest warrant, which authorized the arrest of the defendant for his sale of methamphetamine to Bowley on October 14, 1989. The defendant's arrest on an arrest warrant issued prior to the illegal search indicates that the defendant's statements were not the "fruits" of the illegal search.
State v. Childers, 222 Kan. 32, 40, 563 P.2d 999 (1977).
We hold that the position taken by the State is meritorious. The evidence shows that, on October 14, 1989, Bowley purchased a controlled substance from the defendant. This sale by the defendant was a violation of the law and subjected him to arrest. On November 10, 1989, a warrant was issued for the defendant's arrest based, at least partially, on the first sale to Bowley. There is no challenge by the defendant to the validity of the arrest warrant. It follows that the defendant's arrest on a warrant for an illegal drug sale, which occurred prior to the search, was not and could not have been based on evidence illegally seized from the defendant's premises. The statements made by the defendant while in custody under the arrest warrant could not be considered "fruits" of an illegal search. The defendant's argument that the statements were inadmissible is without merit.
The defendant's argument fails on another ground as well. The offending statements were not offered by the State as part of its case in chief. The statements were offered first during the cross-examination of the defendant in an effort to impeach his direct testimony. The defense to the charges was that the defendant had worked undercover with Detective Homman in the past. He attempted to explain the drug sales by suggesting they were done in an effort to gain the confidence of the drug community and to improve on his undercover skills. The defendant testified that he advised the arresting officers of his motivation as he was being escorted from his house to the jail. However, when asked what else he may have said to the police officers, the defendant would only state that all other comments were "mumbled or garbled."
In an effort to impeach this testimony, the defendant was asked if he made statements to the police concerning drug money, putting food on the table, and his belief that drugs should be legalized. These questions were asked in an effort to show that all of his statements were not "mumbled or garbled." The State argues that it made use of the complained-of statements only to discredit prior testimony of the...
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