State v. Smith, 82,335.
| Citation | 28 Kan. App.2d 56,11 P.3d 520 |
| Decision Date | 13 October 2000 |
| Docket Number | No. 82,335.,82,335. |
| Parties | STATE OF KANSAS, Appellee, v. ANTHONY C. SMITH, Appellant. |
| Court | Kansas Court of Appeals |
Karen Eager, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.
Joe E. Lee, county attorney, and Carla J. Stovall, attorney general, for appellee.
Before ELLIOTT P.J., PIERRON and GREEN, JJ.
Anthony C. Smith was convicted by a jury of possession of cocaine and failure to have a drug tax stamp. The jury acquitted him of possession of drug paraphernalia. On appeal, Smith argues (1) that the State's cross-examination of him constitutes plain error, (2) that the trial court erred by allowing the State to introduce evidence regarding the sentence ranges for a possession of cocaine conviction, and (3) that the State committed prosecutorial misconduct by repeatedly referring to him as a liar. We reverse and remand for a new trial.
On April 2, 1997, police executed a search warrant on Smith's mother's home. The search warrant authorized the police to search for items related to a robbery for which Smith was a suspect. When the search warrant was executed, Smith was not living at his mother's home.
Police knocked on the front door of the home, but no one answered. One of the officers noticed an individual near the back door of the residence, and the order was given to kick in the front door. The officers found Smith inside the residence.
During the search of the home, the police did not find any items relating to the robbery. In a bathroom cabinet, however, officers found a brown paper sack that contained drug paraphernalia, syringes, a white substance later determined to be cocaine, and a receipt from Grave's Drug Store for the syringes. The sales receipt was dated April 2, 1997, the day the search warrant was executed.
The officers read Smith his Miranda rights and questioned him about the drugs found in the bathroom. Smith denied owning the drugs and told police that he was not living in the house. The officers then asked Smith whether the drugs belonged to his mother. Smith testified that the police threatened to have his mother arrested for possession of cocaine if he did not confess that the drugs were his. Smith then asked to speak to Officer Ron Davis who was a family friend.
Smith told Officer Davis that he had been watching drug dealers to see where they hid their drugs. According to Smith, that morning he retrieved drugs stashed by drug dealers at a laundromat and hid the drugs in a cabinet in his mother's house. Smith was charged with possession of cocaine, possession of paraphernalia, and failure to have a drug tax stamp.
At trial, an employee from Grave's Drug Store testified that sometime after 9 a.m. on April 2, 1997, she sold syringes to a tall black man. The employee was unable to identify Smith as the individual who purchased the syringes.
Bradley Kevin Harvey testified that he and Dwight Baker went to Grave's Drug Store on April 2, 1997, and that Baker purchased the syringes. After purchasing the syringes, Harvey and Baker went to Smith's mother's home where they stashed the bag in the bathroom cabinet. Harvey and Baker then went to buy some beer. Upon returning to the residence, they saw the police cars and left.
Harvey testified that the contents of the brown paper bag belonged to him. The State, however, sought to discredit Harvey's testimony by trying to establish that Harvey had a motive to lie. According to the State, Harvey's motive to lie was that if he were convicted of possession of cocaine, he would receive a nonprison sentence. Harvey, however, denied having any knowledge of the Kansas Sentencing Guidelines and denied discussing the guidelines with anyone prior to his testimony. Moreover, Harvey believed that if he were convicted he would automatically go to prison.
To establish that Harvey had a motive to lie about possessing the cocaine, the State called Lyon County District Attorney Joe Lee as a rebuttal witness. Smith objected to Lee's testimony as irrelevant, improper, and creating impermissible inferences of both Harvey's and Smith's criminal histories. The objection was overruled and the State asked Lee hypothetical questions regarding the sentence a person would face for a conviction of possession of cocaine if the offender did not have a criminal history or if the offender's criminal history consisted of either one nonperson felony or misdemeanors.
Smith argues that the State committed plain error when cross-examining him. Specifically, Smith contends that the State improperly asked him to comment on the veracity and credibility of the State's witnesses.
As noted by the State, however, Smith failed to object to this type of questioning. A point not raised in the trial court cannot be raised for the first time on appeal. State v. McDaniel, 255 Kan. 756, 765, 877 P.2d 961 (1994). Because Smith failed to present this argument to the trial court, he is precluded from raising the issue on appeal.
Smith next argues that the trial court erred when it allowed the State to impeach Harvey by presenting evidence regarding the sentence ranges for a possession of cocaine conviction if the offender did not have a criminal history or if the criminal history was minimal. Smith timely objected to this sentencing evidence. Because the State's unique method of impeachment has not been tested in the Kansas appellate courts, the issue of whether the State may present evidence of sentence ranges to impeach a witness' credibility is an issue of first impression.
Smith contends that the expert testimony regarding the sentence ranges was an improper method of impeaching a witness. The State sought to discredit Harvey's testimony that the drugs were his by showing that he had a motive to lie. According to the State, Harvey was motivated to lie for Smith because Harvey would receive a nonprison sentence for a conviction of possession of cocaine. However, although Harvey testified that he had not been convicted of possession of cocaine after the defense failed to object to an improper question by the State, no evidence was presented establishing his criminal history.
The admission of rebuttal evidence lies within the sound discretion of the trial court, and the trial court's ruling will not be reversed absent a clear abuse of the exercise of that power of discretion. State v. Davis, 237 Kan. 155, 159, 697 P.2d 1321 (1985).
Use of the sentencing evidence was not a proper method of impeachment because the evidence was inadmissible under our rules of evidence. K.S.A. 60-420 provides: "Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party ... may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility." In addition, K.S.A. 60-421 states that "[e]vidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility." K.S.A. 60-422 places further limitations on admissibility of evidence affecting the credibility of a witness. The pertinent sections of the statute are (c) and (d), which prohibit "evidence of traits of [the witness'] character other than honesty or veracity or their opposites" and "evidence of specific instances of [the witness'] conduct relevant only as tending to prove a trait of his or her character."
The State theorized that Harvey was motivated to lie for Smith because Harvey was only risking probation by admitting that the drugs were his. To prove this conclusion, the State needed to supply three premises: (1) that Harvey did not have a criminal history, (2) that an individual without a criminal history would receive presumptive probation under the Kansas Sentencing Guidelines Act, and (3) that presumptive probation is a motive to lie. Our rules of evidence, however, prevented the State from presenting evidence of Harvey's criminal history. See K.S.A. 60-421; K.S.A. 60-422.
Even though the State did not present evidence of Harvey's criminal history, it nevertheless introduced evidence on the sentence ranges for a conviction of possession of cocaine. The State presented hypothetical evidence as to the punishment for a conviction of possession of cocaine if the offender did not have a criminal history. Under these circumstances, however, hypothetical questioning was not an acceptable method of impeachment.
First, the hypothetical questions were not proper impeachment because the State failed to frame the questioning so as to recite all the facts in evidence which were relevant to the formation of the expert opinion. See Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 106, 490 P.2d 619 (1971). The State asked the expert witness general questions regarding the punishment for a conviction of possession of cocaine if the offender did not have a criminal history. Although this line of questioning was intended to impeach Harvey, the State did not frame the questions so as to ask specifically about the punishment Harvey would receive if he was convicted of possession of cocaine. As a result, the jury was left to speculate as to who the sentencing evidence was intended to impeach.
Although the State did not explicitly link the sentencing evidence to Harvey, the connection was strongly inferred. As such, the hypothetical questioning unfairly suggested that Harvey did not have a criminal history, a fact which was not in evidence. "The rule of this jurisdiction is that hypothetical questions put to an expert witness should be based upon only such facts as the evidence tends to prove, and if as to any material hypothesis, such question is without the support of...
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