State v. Snow, No. 93,749.
| Decision Date | 27 October 2006 |
| Docket Number | No. 93,749. |
| Citation | 144 P.3d 729 |
| Parties | STATE of Kansas, Appellee, v. Richard SNOW, Appellant. |
| Court | Kansas Supreme Court |
Randall L. Hodgkinson, of Kansas appellate defender office, argued the cause and was on the brief for the appellant.
Jacqueline J. Spradling, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, and Phill Kline, attorney general, were on the brief for the appellee.
Richard Snow appeals his convictions and sentences for multiple counts of nonresidential burglary, theft, and criminal damage to property for a string of burglaries at various businesses in Johnson County. Snow attacks his convictions, claiming that the district court improperly admitted evidence, erroneously endorsed a witness, permitted the prosecutor to commit misconduct, and denied his right to a fair trial by cumulative errors. Snow also attacks his sentence, asserting that the district court erroneously calculated his maximum controlling sentence, sentenced him based on an unconstitutional statute, increased his sentence based on vague, nonstatutory aggravating factors, enhanced his sentence using aggravating factors already included in the severity level of the crime, improperly included his criminal history in calculating his sentence, and violated his Eighth Amendment rights by sentencing him to consecutive misdemeanor sentences following his felony sentences.
Richard Snow, his brother Robert Snow, and their friend Charles Miller broke into Sears, Mid-America Golf and Equipment, the Bushnell Factory Outlet, Golf Discount, and Golf Stop in Johnson County and stole various items valued at over $60,800. The trio also stole a van valued at nearly $5,000 to assist in committing the thefts. When Charles Miller was arrested, he confessed to these crimes and advised police that Richard and Robert Snow were his accomplices. The State offered Miller immunity from prosecution based on his statements. Thereafter, Richard Snow was charged with six counts of burglary, seven counts of theft, two counts of felony criminal damage to property, and four counts of misdemeanor criminal damage to property. The State filed a motion for an upward dispositional and durational departure sentence.
While his charges in this case were pending, Snow was incarcerated in Saint Joseph, Missouri, at the Western Reception, Diagnostic and Correctional Center (WRDCC) for other, unrelated crimes in Missouri. Snow called his bail bondsman from the WRDCC. The phone call was automatically recorded by the WRDCC phone system, and a phone monitor listened to the conversation. The phone monitor identified Snow as the caller by checking the personal identification number (PIN) used to make the call. The phone monitor also heard Snow identify himself by name during the conversation. Among other things, Snow told his bondsman that he could not be identified as a participant in the Johnson County burglaries because he did not remove his mask or gloves until after he and his accomplices had left the businesses' parking lots. Snow further indicated his concern that Charles Miller would talk to police. Snow laughed when the bondsman warned him about making statements on the phone because the calls were recorded.
In addition to the statements Snow made to his bail bondsman, Snow also talked to Patrick Humble, a fellow inmate incarcerated with Snow in the Johnson County jail. Snow met Humble in the law library and bragged that he, his brother Robert, and Charles Miller had burglarized several businesses in Johnson County. Snow also told Humble about the taped phone conversation with Snow's bail bondsman, stating that he would not be identified as the caller because he had given out his PIN to other inmates.
At trial, the State presented testimony from Snow's accomplice, Charles Miller, and Snow's fellow inmate, Patrick Humble. In addition, the State introduced the recording of the phone conversation between Snow and his bail bondsman. A jury convicted Snow of all 19 counts, including 15 felony counts for nonresidential burglary, theft, and criminal damage to property, and 4 counts of misdemeanor criminal damage to property.
After the jury returned its verdict, the district court held a separate sentencing hearing for the jury to determine the existence of aggravating factors that could enhance Snow's sentence. The jury found beyond a reasonable doubt that Snow was not amenable to probation, posed a significant risk to the community, would more likely than not re-offend, and posed a risk of harm to the fact witnesses against him.
At sentencing, the district court used one of Snow's nonresidential burglary convictions, a severity level 7 felony, as the primary crime for calculating Snow's sentence. Based on Snow's criminal history score of E, the district court determined that Snow's presumptive sentence for nonresidential burglary was probation. However, the district court noted that Snow was on probation when he committed the crimes in this case and applied the special rule in K.S.A.2005 Supp. 21-4603d(f), which permits the district court to impose a prison sentence in a presumptive probation case without a dispositional departure when the crime was committed while the defendant was on probation. The district court then granted the State's motion for a durational departure, relying primarily on Snow's lack of amenability to probation as justification. The district court issued Snow's sentence, stating:
Snow brings this direct appeal of his convictions and sentences. We transferred the matter to this court on our own motion pursuant to K.S.A. 20-3018(c).
Convictions
Admission of taped telephone conversation
Snow claims that the district court improperly admitted the recording of the telephone conversation between himself and his bondsman. Snow raises three arguments to support his claim. First, Snow argues that the State lacked the proper foundation for the audio recording. Second, Snow asserts that the admission of the recording violated the Confrontation Clause of the Sixth Amendment the United States Constitution. Third, Snow contends that the recording included evidence of other bad acts.
When determining whether evidence is erroneously admitted, this court first determines whether the evidence was relevant. If the evidence is relevant, the court applies the evidentiary rules either as a matter of law or judicial discretion depending on the rule in question. State v. Engelhardt, 280 Kan. 113, 126, 119 P.3d 1148 (2005).
For his first argument, Snow asserts that the State failed to establish the proper foundation for the audio recording. The party seeking to admit an audio recording must establish the following foundational evidence regarding the recording before it can be admitted:
(1) demonstrate that the recording device was capable of recording sound;
(2) demonstrate that the operator of the device was competent in operating the device;
(3) establish the authenticity and correctness of the recording;
(4) demonstrate that no changes, additions, or deletions have been made to the recording;
(5) demonstrate the manner used to preserve the recording;
(6) identify the speakers; and
(7) demonstrate that the statements elicited were made voluntarily without any kind of inducement. State v. Williams, 235 Kan. 485, 491, 681 P.2d 660 (1984).
Snow limits his argument to the authenticity and correctness of the recording. Thus, our analysis will focus solely on this factor. Snow argues that the authenticity and the correctness of the recording were not proven because the phone monitors at the WRDCC did not listen to the call as it occurred. Snow relies on Williams for the proposition that the phone monitor had to listen to the original call while it occurred rather than listening to an automatic recording of the call. However, Williams does not stand for this proposition.
In Williams, the defendant claimed that the State failed to establish an adequate foundation for admitting an audio recording for a 911 call made during a rape. 235 Kan. at 490-91, 681 P.2d 660. The issue was whether the State established the authenticity and correctness of a cassette tape recording that had been rerecorded from a master reel-to-reel tape that automatically recorded all incoming 911 calls as they occurred. The Williams court concluded that the rerecorded cassette tape was sufficiently authenticated because the operator who copied the tape listened as the master tape was rerecorded onto the cassette tape. The operator who copied the tape and the dispatcher who took the call both testified that the rerecorded tape admitted into evidence was an accurate copy of the master reel-to-reel tape. 235 Kan. at 491-92, 681 P.2d 660. Thus, Williams stands for the proposition that rerecorded conversations may be admitted into evidence if a witness can testify that the rerecording is the same as the original recording. See 235 Kan. at 492, 681 P.2d 660.
The State called the WRDCC phone monitor as a...
To continue reading
Request your trial
-
State ex rel. Morrison v. Sebelius
...final shape rather than remaining nebulous and contingent; and (d) issues cannot present a political question. See State v. Snow, 282 Kan. 323, 343, 144 P.3d 729 (2006) (standing); Martens, 279 Kan. at 244-45, 106 P.3d 28 (mootness); Department of Revenue v. Dow Chemical Co., 231 Kan. 37, 4......
-
State v. Killings
...a prosecutor from making disparaging comments about a defendant exercising his or her right to a jury trial. See State v. Snow, 282 Kan. 323, 336–39, 144 P.3d 729 (2006), disapproved on other grounds by State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012) ; State v. Tosh, 278 Kan. 83, 91–92, 9......
-
State v. Huerta
...that consecutive presumptive misdemeanor sentences were disproportionate and violated the Eighth Amendment. He cites State v. Snow, 282 Kan. 323, 346–47, 144 P.3d 729 (2006), in which we applied an abuse of discretion standard when the appellant complained not that a statute was unconstitut......
-
State v. Carter
...the wide latitude afforded a prosecutor. State v. Killings , 301 Kan. 214, 231, 340 P.3d 1186 (2015) ; see also State v. Snow , 282 Kan. 323, 336–39, 144 P.3d 729 (2006) (prosecutor's argument that “ ‘[n]ow, the defendant wants his jury trial, he's had his jury trial, and it[’]s time to put......