State v. White

• Decision Date: 03 November 1973
• Docket Number: No. 47165,47165
• Citation: 213 Kan. 276,515 P.2d 1081
• Parties: STATE of Kansas, Appellee, v. Delores WHITE, Appellant.
• Court: Kansas Supreme Court

Page 1081

515 P.2d 1081

213 Kan. 276

STATE of Kansas, Appellee, v.Delores WHITE, Appellant.

No. 47165.

Supreme Court of Kansas.

Nov. 3, 1973.

Rehearing Denied Dec. 20, 1973.

Syllabus by the Court

1.In a criminal action charging the defendant with violation of a drug statute, a proper foundation is laid for the admission of the drug exhibit in evidence, where the drug specimen analyzed is traced to the accused by accounting for the continuous possession and custody of the exhibit from the time of purchase until it was finally analyzed by the chemist and released to the county court at the preliminarty hearing, even though no testimony is offered showing the chain of possession of the exhibit from the preliminary hearing to the time of trial, where the purchasing agent of the drug identifies the drug exhibit introduced as being the same envelope in which she had placed the capsules, and that the capsules appeared to be the same.

2.Where counsel for the defendant in a criminal action presses a state's witness on cross-examination and elicits a responsive answer to a question propounded, the defendant cannot assert such responsive answer as a ground for mistrial, because the error, if any, was invited by the defendant's counsel.

3.In a criminal action charging a defendant with violations of a drug statute, the defendant has the burden of introducing evidence as a matter of defense that brings the defendant within an exception or exemption in the statute creating the offense, where such exception or exemption is not part of the description of the offense.

4.An instruction in a criminal action on burden of proof, presumption of innocence and reasonable doubt as set forth in Pattern Instructions for Kansas (P.I.K.) Criminal-52.02 is approved.(Following, State v. Taylor, 212 Kan. 780, 512 P.2d 449.)

Robert M. Brown, Topeka, augued the cause, and was on the brief for appellant.

John Taylor, Co. Atty., argued the cause and was on the brief for appellee.

SCHROEDER, Justice:

This is an appeal in a criminal action.The appellant was convicted in the lower court of delivering a drug, secobarbital, contrary to K.S.A.1971 Supp. 65-2602(1) and sentenced to a term of not less than one nor more than twenty years to the custody of the Kansas State Penal Director.

Various trial errors are assigned on appeal for reversal of the conviction and judgment.

On May 26, 1972, Candy Krueger, a special agent for the Kansas Attorney General, went to Junction City, Kansas, for the purpose of purchasing illicit drugs.She was accompanied by Thomas Mitchell, Jr., who was working without pay for the attorney general's office as an informant.At approximately 11:00 p. m. they went to a place known as 'Shorty's Record Shop', located at 536 West 12th Street in Junction City.Krueger and Mitchell testified that upon being admitted into the house Delores White(defendant-appellant) asked Mitchell what he wanted.Mitchell replied he wanted 'reds', if she had any.The appellant asked how many and Miss Krueger tole her six, whereupon the appellant stated they were one dollar apiece.The appellant went into another room, returned shortly thereafter, and handed Krueger six red capsules in a Kleenex.Krueger then handed the appellant a twenty dollar bill and receiveed fourteen dollars in change.

Miss Krueger testified that upon receiving the Kleenex and capsules from the appellantshe placed them in her purse and later in the glove compartment of her car.Upon returning to her residence that evening, she placed them in a brown envelope.On May 30, 1972, she delivered the envelope and contents, personally sealed and initialed, to the chemist's shelf in the evidence locker at the K.B.I. laboratory.At the trial she identified state's exhibit No. 1 as being the same envelope in which she had placed the capsules, and that the capsules appeared to be the same.

Robert Harvery, a forensic chemist for the K.B.I. stated that he obtained the envelope, Kleenex and capsules from the K.B.I. evidence locker on June 5, 1972.His analysis of the capsules revealed the presence of secobarbital.Following the analysis the capsules and Kleenex were placed back into the envelope and returned to the evidence locker, where state's exhibit No. 1 remained until August 14, 1972, when it was released to the county court at the appellant's preliminary hearing.

The appellant while testifying on her own behalf, admitted Krueger and Mitchell were at 'Shorty's Record Shop' on the night in question, but denied that either Mitchell or Krueger had asked her for any drugs or that she had ever sold any to them.

The case was tried to a jury in the district court, and the jury returned a verdict finding the appellant guilty.Sentencing followed the overruling of the appellant's motion for a new trial.

The appellant first contends the trial court erred in overruling her objection to the admission of state's exhibit No. 1(the capsules, Kleenex and envelope) for failure to show the chain of possession for the period of time between the preliminary examination and the trial.No objection is made to evidence accounting for the custody of the exhibit from the time of purchase until it was finally analyzed by the chemist and released to the county court at the preliminary hearing.

The appellant's argument is that since there was no testimony concerning the possession and custody of the exhibit after the preliminary hearing, the 'chain of evidence' for admission of this exhibit was not established.The foundation laid by the state for admission of the exhibit in evidence consisted of the identification by the agent, identification by the chemist, and a close accounting of the whereabouts of the exhibit from the time it was purchased until it was finally analyzed by the chemist.(See, State v. Foster, 198 Kan. 52, 422 P.2d 964.)

One of the most important prerequisites for the admission of the results of a chemical test made on a drug is that the specimen analyzed shall be traced to the accused.After analysis the exhibit itself is not vitally material as evidence.

The same point was asserted by the appellant in State v. Belote, 213 Kan. 291, 516 P.2d 159(this date decided), where the appellant's contention was rejected.In the opinion the court said:

'. . . It was not incumbent upon the prosecution to make the showing urged by appellant or even to show that the contents of the packages were in the same condition, at the time of trial in district court as when sold by appellant to the agent.There is no indication of tampering with the exhibits and it must be recognized that many substances may be either wholly or partially consumed or changed in appearance by reason of chemical analysis.Beyond this, the critical fact to be proven in connection with these exhibits was that the contents of the packages sold by appellant consisted of heroin.In such a situation the identity to be proved is that of the material sold with the material analyzed.Here the prosecution clearly established the essential links in the chain of evidence to show that the powder analyzed was that sold by appellant...