State v. Starks

• Decision Date: 25 October 1991
• Docket Number: No. 65944,65944
• Citation: 249 Kan. 516,820 P.2d 1243
• Parties: STATE of Kansas, Appellant, v. Terry L. STARKS and Ricky L. Casey, Appellees.
• Court: Kansas Supreme Court

Page 1243

820 P.2d 1243

249 Kan. 516

STATE of Kansas, Appellant, v. Terry L. STARKS and Ricky L. Casey, Appellees.

No. 65944.

Supreme Court of Kansas.

Oct. 25, 1991.

Motion for Modification Granted

in Part and Denied in Part

Dec. 20, 1991.

Syllabus by the Court

1. If, from the evidence presented at the preliminary hearing, it appears that a crime has been committed and there is probable cause to believe the defendant committed the crime, the magistrate shall bind the defendant over for trial. K.S.A. 22-2902(3).

2. The evidence at a preliminary hearing need not prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw the inferences favorable to the prosecution. Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.

3. Under the facts of this case, the evidence presented at the preliminary hearing arising from a "reverse sting" drug operation was sufficient to establish probable cause that defendants aided and abetted in possessing marijuana with intent to sell within 1,000 feet of an elementary or secondary school, in violation of K.S.A.1990 Supp. 65-4127b(e) and K.S.A.1990 Supp. 21-3205(1).

4. Under the facts of this case, there was no evidence indicating an agreement to sell marijuana to support a charge of conspiracy to sell marijuana in violation of K.S.A. 21-3302 and K.S.A.1990 Supp. 65-4127b.

Richard J. Rome, Hutchinson, argued the cause and was on the brief, for appellee Terry L. Starks.

Kerry J. Granger, Hutchinson, argued the cause and was on the brief, for appellee Ricky L. Casey.

Keith E. Schroeder, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.

SIX, Judge:

This criminal case arises from a "reverse sting" drug operation. The case concerns the determination of probable cause during a preliminary hearing.

The State appeals the preliminary hearing order of dismissal. Our jurisdiction is under K.S.A. 22-3602(b)(1).

The trial court, at the conclusion of the preliminary hearing, dismissed the charges against defendant Terry L. Starks and Ricky L. Casey for possession of marijuana with intent to sell within 1,000 feet of an elementary or secondary school (K.S.A.1990 Supp. 65-4127b[e] and against Starks for conspiracy to sell marijuana (K.S.A. 21-3302 and K.S.A.1990 Supp 65-4127b).

We conduct a de novo review of the evidence when considering the trial court's preliminary hearing probable cause finding. See State v. Green, 237 Kan. 146, 149, 697 P.2d 1305 (1985).

We disagree with the disposition of the intent to sell charge. We agree that the dismissal of the conspiracy charge against Starks was proper.

Facts

Starks, Casey, and Jon A. Heter were charged with possession of marijuana with intent to sell within 1,000 feet of an elementary or secondary school (count I) and conspiracy to sell marijuana (count II). Their arrests were the result of a "reverse sting" operation conducted by the Reno County Drug Enforcement Unit and the Kansas Bureau of Investigation (KBI). A reverse sting occurs when law enforcement officials sell drugs to individuals who seek to purchase a large quantity for resale. Once the drugs are purchased from the undercover agent, the purchasers are arrested for drug possession, often with intent to sell.

The reverse sting, in the present case, began when a confidential informant told a sheriff's detective that Heter wanted to purchase a large quantity of marijuana. The KBI agreed to supply the marijuana. Special Agent Atteberry was sent to Hutchinson to act as an undercover agent.

Atteberry and a confidential informant arranged a meeting with Heter at a Hutchinson motel. According to Atteberry, Heter and a drug connection originally planned to purchase five kilos of marijuana for the price of a quarter pound of cocaine and $1,500. Heter told Atteberry that he did not know if the connection could obtain the cocaine. Heter agreed with Atteberry to buy five kilos of marijuana for $7,500 ($1,500 per kilo). Heter then left to show the connection a sample of the marijuana, stating he would return in 15 minutes with the money to complete the transaction. He did not return. Atteberry later learned that Heter believed that there were undercover police around the motel.

Atteberry met with Heter at Heter's residence the following day. They agreed to complete the transaction that evening at the residence, which was located 96 feet from Liberty Middle School.

Atteberry's Testimony

The State relied heavily on Atteberry's testimony. Atteberry testified that Heter stated the connection did not have a driver's license; consequently, another individual would drive the connection to Heter's residence. According to Heter, a vehicle would pull all the way to the back of a neighbor's driveway on the east and the connection would bring $9,000 to exchange for the marijuana. The connection did not want to meet Atteberry.

The complex arrangements among Heter, the connection, and the driver were related by Atteberry. Heter planned on paying Atteberry $7,500 for five kilos of marijuana; however, the connection was told the price was $9,000. Heter wanted Atteberry to return $1,500 to him after the connection left. Heter and his connection intended to deceive the driver regarding the quantity of marijuana purchased. Atteberry testified:

"Earlier, one of our conversations that Mr. Heter asked how much five kilos of marijuana weighed, and I replied eleven pounds. He believed it to be ten pounds. His deal with his connection was for ten pounds of marijuana for $9,000, so his intentions, what he stated was that he was going to cut one of the bricks in half and keep the one pound and him and his connection was going to meet later and split that one pound, but the connection did not want the driver of the vehicle to know that they were splitting the one pound up."

Atteberry also related Heter's statements regarding the driver's involvement:

"He stated that, that as I stated earlier, that Heter replied that he was charging his buddy a little bit more and that they're in it together on this, the driver and the connection. He says, I'm trying to make a little off it, and he's trying to make a little off it, 'cause he stated he was selling, Heter was selling the marijuana to his connection for $9,000, and at that time the connection was selling some of this marijuana to the driver of the car."

Atteberry testified that: (1) Heter stated his connection was leaving for Texas the following day to sell the marijuana; (2) Heter intended to sell some of the marijuana to make money to fix up his car; and (3) marijuana was currently selling for $60 per quarter ounce or $200 per ounce in the Hutchinson area.

The Reverse Sting

While Atteberry, Heter, and the informant waited for the connection to arrive, Atteberry brought in five kilos of marijuana. Heter picked out one of the kilos, cut it in half, and placed one half kilo under his chair. The remaining four and one-half kilos were placed next to the chair.

A brown Maverick, announced by its noisy muffler, pulled into the neighbor's driveway on the east side of Heter's residence. Heter went to the rear of the residence and returned to the living room carrying a large wad of money clutched with both fists. Heter and Atteberry began counting the money. The $9,000 cash pile had a strong odor of marijuana.

Law enforcement officers, listening to the conversation over the informant's body transmitter, moved in when they heard the money being counted. Heter was in the living room. A KBI agent testified that he observed a subject, identified as Casey, attempt to exit the back door of the residence. The agent illuminated Casey with a flashlight and ordered him into the house. Casey ran to the basement. Later, Casey informed the police officers that he was told to go to the basement and that he did not know what was going on. Casey had no driver's license.

Starks was slumped down low behind the wheel in the Maverick when apprehended.

After being Mirandized, Heter agreed to talk to the police. According to police, Heter stated that he had spoken with Casey about the $9,000 and about buying the five kilos of marijuana. Casey came to Heter's residence, brought $9,000, and the transaction took place. Heter claimed he was just the "middle man."

Starks, after being Mirandized, also agreed to talk to the police. According to police, Starks stated he (1) had no knowledge of any drug transaction; (2) was Casey's friend; (3) had been called by Casey and asked for a ride; (4) picked up Casey and took him to Heter's residence at Casey's direction; (5) did not know Heter; and (6) did not notice Casey carry anything into the residence.

Heter, Casey, and Starks did not testify at the preliminary hearing. Neither Casey's nor Starks' names were mentioned by Heter before the arrest.

The State admitted that neither Casey nor Starks actually possessed...