State v. Puckett, 59284

• Decision Date: 05 December 1986
• Docket Number: No. 59284,59284
• Citation: 240 Kan. 393,729 P.2d 458
• Parties: STATE of Kansas, Appellant, v. John David PUCKETT, Appellee.
• Court: Kansas Supreme Court

Page 458

729 P.2d 458

240 Kan. 393

STATE of Kansas, Appellant, v. John David PUCKETT, Appellee.

No. 59284.

Supreme Court of Kansas.

Dec. 5, 1986.

Syllabus by the Court

1. Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. Following State v. Green, 237 Kan. 146, Syl. p 3, 697 P.2d 1305 (1985).

2. When probable cause is shown at a preliminary hearing the judge is required by the provisions of K.S.A. 22-2902(3) to bind the defendant over for trial.

3. It is not the function of the judge or magistrate at a preliminary hearing 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.

4. A criminal action is one between the State and the accused, and the wishes or actions of the victim of the alleged crime do not control whether a prosecution should be pursued.

5. When the State has established the necessary probable cause at a preliminary hearing, it is the duty of the judge to bind the defendant over for prosecution regardless of the wishes of the alleged victim or the personal assessment of the judge as to the merits of the action.

6. The discharge of a defendant at a preliminary hearing does not constitute a bar on the grounds of double jeopardy to a subsequent prosecution on the same charges.

Bruce W. Beye, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Dennis W. Moore, Dist. Atty., were with him on the brief for appellant.

J.R. Russell, of Kansas City, argued the cause and was on the brief for appellee.

HOLMES, Justice:

This is an appeal by the State pursuant to K.S.A. 22-3602(b)(1) from an order discharging the defendant John David Puckett at the end of his second preliminary hearing on a criminal complaint charging one count of making a terroristic threat (K.S.A.1985 Supp. 21-3419).

The facts are not in dispute. On the evening of August 30, 1985, the prosecutrix, Nancy Schall, met her former boyfriend, the defendant John Puckett, while out socializing. Puckett was intoxicated at the time and Schall allowed him to accompany her home and sleep on her couch. When Puckett was awakened the next morning, he was belligerent and refused to leave Schall's residence for over an hour. Ultimately Schall drove the defendant to his residence, dropped him off and returned to her home. Shortly thereafter Puckett returned and entered Schall's home without authorization. Schall was frightened and when the defendant reached for her she fled to a neighbor's home and called the police. When the police arrived, Puckett had left the residence.

A short time later, and while the police were still at her home, Schall began to receive threatening calls from the defendant. The calls persisted and the victim estimated that she received between fifteen and twenty calls. She testified Puckett repeatedly threatened to kill her. A complaint was filed on September 19, 1985, charging Puckett with making a terroristic threat, and a preliminary hearing was held October 31, 1985. At the conclusion of that hearing the magistrate judge granted the defendant's motion to dismiss. The State then refiled the charge on November 14, 1985, and a second preliminary hearing was held March 4, 1986.

On cross-examination at the March 4, 1986, preliminary hearing, Schall testified that on the third weekend of October, 1985, she and the defendant had spent a weekend together vacationing at the Lake of the Ozarks. In addition, the victim acknowledged that Puckett had spent Christmas Day 1985 at her parents' house.

At the conclusion of testimony, the district judge dismissed the charge of terroristic threat and in doing so stated:

"Mr. Puckett, the circumstances of this case are such that this puts me in a bit of a quandary. There's no question but what technically, the State has made a prima facie showing in terms of the State's obligation to establish what you did on or about the 31st day of August, '85. There is no question in my mind but what the [complaining witness] was terrorized by your conduct on that occasion. What I have a problem with in this case is the fact that apparently you won't leave this lady alone at this point even though she has apparently made it repeatedly obvious to you that she does not wish to see you or have any further contact with you. Now, the law is very clear. It doesn't permit you to force yourself on this lady or on me or upon anybody else. If they don't want you on their property, then you've got to honor that. Now, I don't know how much you intend to spend on bond and legal fees and so forth in the process of learning that lesson, but you better learn it. [Emphasis added.]

....

"Now, I'm not going to buy the concept, Mr. Beye, I'm not going to buy the concept that this lady can be terrorized by the Defendant on 30 or 31 August and then go spend a nice weekend at Tan-Tar-A in October. Now, you know, there's a little thing called forgiveness in the law, whether its criminal law or civil law, and I'll draw you a parallel. It's very clear, you know, when a man and his wife are having marital problems that one can be very angry at the other and one may file for divorce, and maybe that person at that point has been beaten or knocked around or threatened or whatever. But when those two people through their own voluntary actions reconcile, then the law says very clearly that the past transgressions are forgiven because of the changed attitude and the reconciliation that occurred thereafter.

"Now, I'm not about to bind this case over and suggest that Mr. Puckett ought to go to trial on a felony charge of harassment of this lady after ...