State v. Powell
| Decision Date | 11 December 1998 |
| Docket Number | No. 79,385,79,385 |
| Citation | 266 Kan. 282,971 P.2d 340 |
| Parties | STATE of Kansas, Appellant, v. Paul POWELL, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. If, from the evidence presented at the preliminary examination, it appears that a crime has been committed and there is probable cause to believe the defendant committed the crime, the court shall bind the defendant over for trial.
2 From the evidence presented at a preliminary examination, the court must draw inferences favorable to the prosecution and the evidence need only establish probable cause, not guilt beyond a reasonable doubt.
3. A criminal action is between the State and the accused. The alleged victim's wishes and actions do not control whether a prosecution should be pursued. The fact that the alleged victim's testimony at the preliminary examination tends to minimize the severity of the conduct of the accused is not controlling where other evidence, afforded the required favorable inferences, establishes the requisite probable cause to believe the defendant committed the offense.
4. Under the facts herein, the evidence presented at the preliminary examination was sufficient to establish probable cause that defendant committed aggravated assault, and the district court erred in dismissing the charge.
Julie McKenna, county attorney, Christina Pellant, assistant county attorney, and Carla J. Stovall, attorney general, were on the brief for appellant.
Mike Sheahon, of Sweet & Sheahon, of Salina, was on the brief for appellee.
The State appeals from the dismissal of a complaint at a preliminary examination. We have jurisdiction pursuant to K.S.A. 22-3602(b)(1). The proceeding was on a charge of aggravated assault (K.S.A.21-3410[a] ) filed against Paul Conrad Powell, Sr. The district court dismissed the charge on the ground the State had failed to establish probable cause that the offense had been committed. A second charge of misdemeanor domestic battery (K.S.A.1997 Supp. 21-3412) alleging defendant's wife was the victim thereof was subsequently dismissed by the State.
If from the evidence presented at a preliminary examination, it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over for trial. K.S.A. 22-2902(3); State v. Martinez, 255 Kan. 464, 466, 874 P.2d 617 (1994). If there is not sufficient evidence, the defendant must be discharged. State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985); K.S.A. 22-2902(3).
From the evidence presented, the court must draw inferences favorable to the prosecution, and the evidence need only establish probable cause, not guilt beyond a reasonable doubt. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). Probable cause at a preliminary examination signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. State v. Allen, 260 Kan. 107, 110-11, 917 P.2d 848 (1996); State v. Puckett, 240 Kan. 393, Syl. p 1, 729 P.2d 458 (1986).
It is not the function of the judge at a preliminary examination to determine the wisdom of the prosecuting attorney's decision to file and pursue the charges against a defendant. Neither is it the function of the judge to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995). See State v. Whittington, 260 Kan. 873, 876, 926 P.2d 237 (1996).
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. This court is to conduct a de novo review of the evidence when considering the trial court's probable cause finding. State v. Bell, 259 Kan. 131, 133, 910 P.2d 205 (1996).
The charges herein grew out of a domestic fracas which occurred on September 25, 1996, on the grounds of defendant's residence. Those involved are defendant (Paul Conrad Powell, Sr.), his wife (Judith Powell), his son (Paul Conrad Powell, Jr.), and his daughter (Lisa Mesa). Lisa had to vacate her home on short notice, and Judith had agreed to the temporary storage of Lisa's furniture in a Morton building located on the senior Powell's property. After Judith and the two siblings started unloading the furniture, defendant came out of the house and became angry over the large quantity of items involved. He hit or hit at his wife. The incident escalated into a physical altercation between father and son. The daughter was so concerned she called 911 (from the Morton building). The tape of the 911 call is a part of the record. We have made the following transcription thereof (blanks are inaudible portions):
"# 2: Hi, I need the police bad. Um, my dad's crazy, he's hitting my mom and my brother _____ fight. We're at 4121 North Niles. He's got a bunch of guns out here. I'm trying to get my mom and my brother and we're going to leave. My little sister's in the house "# 1: What's the phone number out there, ma'am. You need to calm down.
she's only 13. He's got a bunch of guns. Can you please hurry?
After the law enforcement officers arrived, the daughter wrote out the following statement:
"Paul Jr, my brother, and I and my mom, Judy, went to 4121 N. Niles rd to unload a truck of boxes in my parents mason building & my dad came out & him and my mom were arguing and my dad hit my mom so my brother told him to quit & then he pushed my brother up againt the truck by the neck & then my brother & my father started fighting my mom & I tried to pull my brother off my dad & I tried to stop my dad from going inside to the house & I had to let go so I went to the phone in the mason building & called 911--my brother got in the truck & told me & mom to get in & I said no cause 911 hadnt answered yet then they answerd & I was talking to them & watching outside I saw my brother in the truck & I saw my dad had a rifle pointed at him & then I think I told 911 I had to go now & I ran through the field to the road & saw the sherriffs car & talked to them."
Asked if something besides the furniture precipitated the ensuing incident, Paul said defendant had "made a slapping motion at my mom enough to, you know, kind of tap, but it wasn't an actual hit." Paul said this upset him and he told defendant not to hit her. It was after the son confronted his father that defendant grabbed him.
Paul testified that he and defendant "got into it a little bit." Defendant pushed him up against the truck after the son had yelled at him. When asked if he remembered defendant grabbing him by the throat, the son responded that defendant "[j]ust pushed me up on my neck." Shortly after that, defendant tripped or fell and Lisa and Mrs. Powell attempted to intervene.
Paul testified that after this altercation he just wanted to leave and tried to get his sister to leave with him. Lisa, however, was on the phone in the Morton building with the 911 dispatcher. Paul also asked his mother if she wanted to leave with him; she said no. Paul got into his truck and started down the driveway. Paul testified about what happened next:
Paul said defendant was about 10 feet from the bumper of the truck when this happened. He identified the weapon as a shotgun.
When asked why he ducked down when he saw the gun "pointed at [him]," Paul replied, When asked what he was feeling when "this gun When asked on redirect what he would normally think if a person pointed a gun at him, Paul responded, Paul testified that no one else was in the truck with him when defendant pointed the gun.
was pointed at [him]," Paul replied, "That I needed to get out of there. Basically, just, you know, just to get out of there because he was mad and I was mad and I just--that's, basically, all I was thinking, that I had to get out of there." When asked if he was scared, Paul replied, "Not really. Not real scared, but I was--I was very upset." When asked if he thought his father was going to shoot him, Paul responded, "Not really."
Paul said when he left the scene he decided to stop at his aunt and uncle's house and tell them what had happened. Paul was crying and upset. Paul explained that he was emotionally upset because he and his father had never argued before.
Paul agreed that his statement to law enforcement officers, given immediately after the incident, conflicted with his testimony at the preliminary hearing. Paul did not remember telling the deputy that he tho...
To continue reading
Request your trial
-
State v. Brown
...96, 577 P.2d 1178 (1978) (noting that circumstantial evidence can establish victim's fear of bodily harm); see also State v. Powell, 266 Kan. 282, 291, 971 P.2d 340 (1998) (noting that because the Warbritton opinion did not discuss circumstantial evidence, this court must assume there was n......
-
State v. Beaver
...committed by the defendant, the magistrate shall order the defendant bound over for trial. [Citations omitted.]" State v. Powell, 266 Kan. 282, 283, 971 P.2d 340 (1998). Probable cause "`"is the reasonable belief that a specific crime has been committed and that the defendant committed the ......
-
State v. Fredrick, 102,848.
...determine whether the possibility of a conviction is likely or remote.” Anderson, 270 Kan. at 71, 12 P.3d 883 (citing State v. Powell, 266 Kan. 282, 283, 971 P.2d 340 [1998] ).B. Analysis The State points to K.S.A. 22–4902, which defines the term “offender” for the purpose of establishing w......
-
State v. Snodgrass, s. 81,173
...cause to believe that the felony was committed by the defendant. If the judge so finds, the defendant is bound over for trial. State v. Powell, 266 Kan. 282, Syl. p 1, 971 P.2d 340 (1998). In contrast, at the time the grand jury is impaneled, there is no defendant or a burden of proof place......