State v. Tucker, 67377
| Decision Date | 28 May 1993 |
| Docket Number | No. 67377,67377 |
| Citation | 253 Kan. 38,853 P.2d 17 |
| Parties | STATE of Kansas, Appellee, v. Roger D. TUCKER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Possession and intent to sell are separate elements of the crime of possession with intent to sell cocaine. A finding of guilty of possession with intent to sell requires proof of possession. Conversely, proof of possession without proof of intent to sell is still sufficient proof of a crime (assuming proof of date and county).
2. Possession of cocaine is not a lesser degree of possession with intent to sell because both are class C felonies. K.S.A. 65-4127a. It is, however, an included crime as defined in K.S.A. 21-3107(2)(d).
3. The standard of review when the sufficiency of the evidence is challenged on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
4. Possession and intent may be proved by circumstantial evidence.
5. To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different had the defendant received effective assistance.
Garry L. Howard, of Slape and Howard, Wichita, argued the cause and was on the brief for appellant.
Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Rachelle Worrall Smith, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.
The primary issue in this criminal case concerns the relationship between possession of cocaine and possession of cocaine with intent to sell: What is the appropriate remedy when a defendant is convicted of possession with intent to sell, but an appellate court determines that the evidence supports only possession? The question is one of first impression.
The Court of Appeals, in an unpublished opinion filed October 2, 1992, reversed Roger Tucker's conviction of possession of cocaine with intent to sell (K.S.A. 65-4127a). The case was remanded to enter a new judgment of conviction for possession of cocaine and to resentence for possession.
We also address secondary issues concerning Tucker's claims of: (1) sufficiency of the evidence, (2) admissibility of police officer testimony, and (3) ineffective assistance of counsel. Our jurisdiction arises from granting Tucker's petition for review.
We find no error and affirm.
Tucker's claim of insufficient evidence signals a recitation of the events leading to his arrest.
Police Lieutenant Marceau testified that around 1:00 a.m. on May 20, 1991, he noticed a car protruding into the street from a Wichita motel driveway. According to Marceau, three persons were near the car. As Marceau pulled behind the car, the three left. Marceau noticed that the driver of the car (Tucker), a black male, was wearing sunglasses, a black hat, and a dark shirt. Shortly before, Marceau had received reports that there had been one or two robberies in which a black male had worn dark sunglasses and dark clothing. Marceau suspected that Tucker had been involved in those robberies.
Both Marceau and Tucker got out of their cars. Tucker stood between his car and the car door with his left hand hidden by the door. Marceau drew his revolver and ordered Tucker to slowly raise his left hand. Tucker did not comply with Marceau's demands for several seconds and then raised his left hand quickly. Marceau immediately heard what sounded like a cup dropping onto the pavement on the passenger side of Tucker's car. Marceau did not observe anything in Tucker's hand or see Tucker throw anything.
Marceau began to search for what he believed Tucker had thrown. Marceau found a plastic tube used for holding cough suppressants on the ground near the passenger side of Tucker's car. Officer Peckenschneider, who had arrived at the scene, noticed an orange cap with two rocks of cocaine lying on the hood of the car. There were also eight rocks of cocaine along the windshield wiper. The cap fit the empty tube of cough suppressants found by Marceau. Peckenschneider searched Tucker's car for weapons. A crack pipe was found in the center console ash tray. A billfold with Tucker's identification and a large roll of money, totaling $784, were in a jacket found under the passenger seat.
Tucker was arrested and searched, but no contraband was found on his person. The officer who conducted the search testified that Tucker appeared to be very nervous and that his legs kept shaking. At the time of his arrest, Tucker told the police he did not know why there were crack rocks on the hood of the car and did not know there was a crack pipe inside the car. He indicated that he did not own the car and that the money was for meals.
At trial, Tucker testified that he was unaware of the presence of the pipe in the center console ash tray. He also claimed that at the time of his arrest he had "no cocaine on me at any time." Tucker stated that he had nothing in his hands when he exited the car or at all other times that evening. He testified that he was carrying the cash because he did not have a bank account. According to Tucker, the money also belonged to his girlfriend and they were saving the cash for an apartment. The girlfriend testified that she had given Tucker approximately $500 toward the apartment rental.
Tucker also testified that prior to his arrest, 5 to 10 people rushed his car and offered him crack cocaine, which they held in their hands. Tucker denied having seen the cough suppressant tube prior at the time when the police showed it to him. According to Tucker, when Marceau arrived, "[e]veryone started yelling cops and stuff like that and started throwing the stuff down and running."
William Webb, who was standing outside the car and speaking with Tucker before Marceau's arrival, testified that four or five individuals were congregated around the car trying to sell Tucker drugs. Webb further explained that when the police arrived the group of people panicked, ran away, and tossed cocaine rocks on the ground. On cross-examination, he indicated that he did not see anyone throw cocaine rocks at the car. Webb testified that he observed Tucker's contact with the police and had not seen Tucker in possession of the cough drop bottle at any time. Webb also stated that he had not witnessed Tucker throwing any objects.
At trial, Marceau explained that in his four years as a narcotics detective he had been involved in several hundred undercover narcotics buys. Marceau also had three years' experience as a supervisor in narcotics, vice, and the Special Community Action Team (SCAT).
The State asked Marceau:
....
New counsel was appointed to assist Tucker during the post-conviction motion arguments and to represent him on the ineffective assistance of counsel claim. The trial court, in denying Tucker's motion for a new trial, heard lengthy testimony on the ineffective assistance of counsel claim.
The Court of Appeals: (1) determined that there was sufficient evidence to support the finding that Tucker possessed cocaine but insufficient evidence that he possessed cocaine with intent to sell; (2) found that Tucker had not overcome the presumption that his counsel's assistance was reasonable; and (3) did not address Tucker's complaint concerning the testimony indicating crack dealers commonly carry extensive amounts of currency.
Reversal of Tucker's Conviction of Possession of Cocaine
With Intent to Sell
The Court of Appeals reasoned:
The Court of Appeals concluded
We agree with the Court of Appeals' analysis.
Tucker objects to the remand ruling, emphasizing that at no time had a jury or trial court been asked to make a determination of Tucker's guilt of possession of cocaine. According to Tucker, the crime with which he was charged (possession with intent to sell) was never proved because the Court of Appeals set aside the conviction. Tucker argues that the State should be bound by its decision to charge him with possession with intent to sell. Additionally, Tucker explains that in State v. Smith, 4 Kan.App.2d...
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