State v. Waldrup

• Decision Date: 21 October 2011
• Docket Number: No. 103,936.,103,936.
• Citation: 46 Kan.App.2d 656,263 P.3d 867
• Parties: STATE of Kansas, Appellee,v.Jacob WALDRUP, Appellant.
• Court: Kansas Court of Appeals

46 Kan.App.2d 656

263 P.3d 867

STATE of Kansas, Appellee,

v.Jacob WALDRUP, Appellant.

No. 103,936.

Court of Appeals of Kansas.

Oct. 21, 2011.

Syllabus by the Court

1. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.

2. The two underlying purposes of the alternative means doctrine are to prevent jury confusion about what criminal conduct has to be proved beyond a reasonable doubt and to prevent the State from charging every available means authorized under a single criminal statute, lumping them together, and then leaving it to the jury to pick freely among the various means in order to obtain a unanimous verdict.

3. In a prosecution of the defendant for sale of cocaine, the district court's definitional jury instruction of the term “sale” did not create alternative means of committing the crime.

4. The statutory right to a speedy trial of an inmate who is confined in a penal or correctional institution in this state excluding a federal penitentiary is governed by the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22–4301 et seq. The statutory right to a speedy trial of an inmate who is confined in a penal or correctional institution in another state or in a federal penitentiary is governed by the Agreement on Detainers, K.S.A. 22–4401 et seq.

5. There are two distinct speedy trial deadlines under the Agreement on Detainers, depending on who initiates the inmate's return to the jurisdiction with pending charges. The 180–day speedy trial provision contained in Article III is controlling where a prisoner requests disposition of the charges pending against him or her in another state. The 120–day provision contained in Article IV controls where a prisoner is returned for prosecution upon the request of the prosecuting authorities in the state which filed the detainer against the prisoner.

6. Under either Article III or Article IV of the Agreement on Detainers, any continuance granted for good cause shown in open court with the prisoner or his or her counsel present extends the time limitation for bringing the prisoner to trial.

7. Under the facts of this case, the State did not violate the defendant's speedy trial rights under the Agreement on Detainers.

8. Whether a defendant's constitutional right to a speedy trial has been violated is a question of law over which an appellate court has unlimited review.

9. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court listed factors courts should consider when determining whether the state or federal government violated a defendant's constitutional right to a speedy trial. These factors are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right, and (4) prejudice to the defendant. None of the factors is controlling; rather, the factors must be considered together with any other relevant circumstances.

10. The law is well settled that a cautionary instruction on the testimony of an informant is only required when the informant's testimony is substantially uncorroborated and provides the sole basis for the defendant's conviction.

11. For purposes of discrediting a witness, drug-use evidence is admissible to the extent it shows the witness was under the influence of drugs at the time of the occurrence as to which the witness testifies or at the time of trial. It is also admissible to the extent that it shows the witness' mind, memory, or powers of observation were affected by the habit.

12. The Kansas Supreme Court has set out a three-part test to determine when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the trial court to instruct. Third, the court must determine whether the error is reversible.

13. The Kansas Supreme Court has identified four factors useful for determining if a case truly involves multiple acts: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.

14. Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.

Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.Jim Garner, of Lawrence, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.Before MALONE, P.J., MARQUARDT and HILL, JJ.MALONE, J.

Jacob Waldrup appeals his convictions of two counts of sale of cocaine, third offense. Waldrup claims: (1) Sale of cocaine is an alternative means crime based on the definition of sale given to the jury, and there was insufficient evidence to find him guilty of each alternative means of committing the crime; (2) the State violated his speedy trial rights under the Agreement on Detainers, K.S.A. 22–4401 et seq.; (3) the State violated his constitutional right to a speedy trial; (4) the district court erred in refusing to give a jury instruction on the testimony of a confidential informant; (5) the district court erred in limiting his cross-examination of the confidential informant; (6) the district court erred in failing to give a unanimity instruction in a multiple acts case; and (7) he was denied a fair trial based on cumulative error. We find each of Waldrup's claims to be unavailing, and we affirm the judgment of the district court.

On or about June 24, 2007, Cynthia Roubison called the Douglas County Sheriff's Office and spoke with Deputy Chris Thomas, who was assigned to the Drug Enforcement Unit (DEU), which works to regulate drug trafficking by using either undercover officers or confidential informants. Roubison, a drug user, said she was trying to clean up her life and that she wanted to help the Sheriff's department catch drug dealers. On June 29, 2007, Roubison met Thomas and Lawrence Police Officer Justin Rhoades at the Investigations and Training Center (ITC) in Lawrence. At the meeting, Roubison told the officers about her relationship with a man called “Big J.” Roubison indicated she had purchased drugs from “Big J.” in the past, and she had a phone number to contact him. Rhoades was aware that Waldrup was known as “Big J.,” so he showed Roubison a picture of Waldrup and she identified him as “Big J.”

That same day, Roubison signed a “Cooperating Individual Agreement” that stated, in part, that in consideration for her cooperation with law enforcement, she might receive compensation or reimbursement. Thomas later testified that Roubison received certain benefits from the DEU in exchange for her cooperation, including $60 to have Roubison's car towed after her tires were slashed, $38.18 toward new tires, and $10.73 in cell phone charges. Also, Thomas talked to the Lawrence city prosecutor about an outstanding municipal warrant on Roubison, which Thomas believed was later dismissed.

On July 6, 2007, at around 2 p.m., Roubison met with Thomas at the ITC. Lawrence Police Detective Amy Price searched Roubison to ensure she did not have any drugs or money in her possession. Thomas attached a recording device to Roubison's cell phone, and Roubison also wore a recording device on her body. Roubison called Waldrup on her cell phone and arranged to meet him that day at the Fast Lane gas station in Lawrence to buy crack cocaine. Thomas, acting as an undercover officer, accompanied Roubison to the arranged sale. When Thomas and Roubison arrived at the gas station, Waldrup was waiting in the passenger seat of a car driven by an unknown female. Roubison got into the car with Waldrup, where she remained for approximately 30 seconds. She then came back to Thomas' car, handed Thomas a packet of crack cocaine, and she and Thomas drove back to the ITC. Thomas placed the cocaine in a padlocked storage locker, and Price again searched Roubison to make sure she did not have any other drugs or money.

Later that same day, Roubison called Waldrup a second time, arranging to meet him to purchase more cocaine. The parties ultimately agreed to meet at the Pool Room in Lawrence. Thomas and Roubison drove to the Pool Room and within a few minutes of their arrival, Waldrup arrived in a car driven by a female later identified as Stephanie Jones. Roubison and Thomas walked over to the other car, where Thomas talked to Jones while Roubison spoke with Waldrup. Thomas heard Waldrup tell Roubison that he did not have a container in which to place the cocaine, so Roubison went back to Thomas' car and removed the cellophane from a package of cigarettes. Roubison handed the cellophane and the money to Thomas, who handed it all to Waldrup. Waldrup took the money, put the drugs in the cellophane, and gave the drugs to Thomas. Roubison and Thomas then returned to the ITC, and Thomas put the...