State v. Whittington, 75076

• Decision Date: 25 October 1996
• Docket Number: No. 75076,75076
• Parties: STATE of Kansas, Appellant, v. Joe Donald WHITTINGTON, Appellee.
• Court: Kansas Supreme Court

Page 237

926 P.2d 237

260 Kan. 873

STATE of Kansas, Appellant, v. Joe Donald WHITTINGTON, Appellee.

No. 75076.

Supreme Court of Kansas.

Oct. 25, 1996.

Syllabus by the Court

1. If, from the evidence presented at the preliminary examination, 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. It is not the function of the magistrate at a preliminary examination to determine the wisdom of the prosecuting attorney's decision to file and pursue the charges against a defendant. Neither is it the function of the magistrate to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent.

3. Under the facts of this case, the district court conducting the preliminary examination exceeded its authority to the extent that the dismissal of the complaint was based not on a lack of evidence to show probable cause, but on the conclusion that prosecution would have a disruptive effect on the marital relationship of the victim and her husband, the defendant.

4. Marriage does not change the probable cause bind over standards for aggravated battery, K.S.A. 21-3414.

5. When there is a conflict in testimony at the preliminary examination, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution.

6. Under the facts of this case, the evidence presented at the preliminary examination, showing that the defendant drove his vehicle forward, striking his wife and causing her to fall backward and break her wrist, was sufficient to establish probable cause that the defendant committed aggravated battery, violating K.S.A. 21-3414(a)(1)(C) and K.S.A. 21-3414(a)(2)(B).

Thomas R. Stanton, Assistant County Attorney, argued the cause, Julie McKenna, County Attorney, Carla J. Stovall, Attorney General, on the brief, for appellant.

Roger D. Struble, of Blackwell, Blackwell & Struble, Chtd., Salina, on the brief, for appellee.

SIX, Justice:

This criminal case concerns a preliminary examination probable cause determination. Defendant Joe Donald Whittington was charged with aggravated battery against his wife. The district court, reasoning that the State failed to present sufficient evidence to bind Whittington over for trial, dismissed the complaint. The State appeals. Our jurisdiction is under K.S.A. 22-3602(b)(1) (State's appeal from order dismissing complaint).

Our standard of review is de novo. See State v. Garza, 259 Kan. 826, 827, 916 P.2d 9 (1996). We find probable cause and reverse.

FACTS

Whittington and his brother hosted a July 4th barbecue at the Whittington residence. Judy, Whittington's wife, arrived home, saw "a couple of girls" in the garage she did not know, and became angry. She screamed at Whittington, who responded by climbing inside his Chevy Blazer, which was parked on the grass next to the driveway. Judy followed Whittington and stood behind the Blazer. Whittington started the engine. Other guests told Judy to move. She did. The Blazer backed up. She then went to the driver's side, slammed a glass mug against the vehicle door, and stood in front of theBlazer. Whittington drove forward, knocking her to the ground. Her wrist was broken. Judy testified that her husband got out to help her, she screamed at him to leave her alone, and he drove away.

Officer Jennings, of the Salina Police Department, spoke with Judy and others who were attending the barbecue. Jennings' impression was that Judy did not want to say anything against her husband. Whittington told Jennings that he and Judy had had a "domestic" dispute, and she told him maybe he should pack his bags and leave. He went into the house for clothes, came back out, and got into the Blazer. As he was attempting to leave, Judy stepped in front of the Blazer, and he drove forward to scare her.

The State charged Whittington with aggravated battery under K.S.A. 21-3414(a)(1)(C) (intentionally causing physical contact) or, in the alternative, aggravated battery under K.S.A. 21-3414(a)(2)(B) (recklessly causing bodily harm). At the preliminary examination, the State called Judy, Officer Jennings, Debra Knight, and Harold Schweitzer, a cousin of Whittington's. Judy testified that the Blazer was on wet grass and skidded when it hit her. According to Judy, Whittington had tried to stop before he slid into her. She told the police she did not feel Whittington intentionally struck her with the Blazer.

Debra Knight was sitting in the garage about 6 to 7 feet from the Blazer at the time of the incident. She saw Whittington getting into the Blazer to leave. She then saw Judy standing with her back against the rear of the Blazer and then hitting the Blazer with a mug. Debra heard the Blazer go into gear and told Jody, Judy's daughter, to "please go get your mother." Judy moved, and Whittington backed up the Blazer. The rear wheels were over the curb in the street. Judy was standing about 3 feet in front of the Blazer. Whittington drove the Blazer forward, striking Judy, who fell backward. Debra thought Whittington was just trying to scare Judy. Debra did not see or hear anything to indicate that Whittington put on the brakes. After Judy was hit, Whittington left. Debra did not see him get out of the Blazer. Judy was taken inside the house.

According to Schweitzer, who witnessed the knockdown, Whittington backed out the Blazer and was coming forward on the grass as if to talk to Judy when she ran in front of the Blazer as Whittington hit the brakes. The Blazer slid about a foot as it struck Judy. Schweitzer did not think Whittington deliberately hit Judy. He described the striking as a "freak deal."

After both sides presented their evidence, the district judge recalled Judy and asked her if she was "not real" excited about having her husband charged with a felony. She answered that she was not. The judge also inquired how long the couple had been married and if there was any history of domestic violence. She said they had been married 17 years with no history of domestic violence. At the close of the State's argument urging a bind over, the district judge said:

"I think the issue is deeper than that, Mr. Stanton [State's counsel]. If that was two strangers or two acquaintances, even that logic and argument would certainly be appropriate, but I don't think the State's got any business disrupting a marital relationship where the parties don't want the State to intervene in that marital relationship. These people, apparently under questioning, have been perhaps not happily, but certainly married for 17 years. There's been no history of domestic violence.

This is a domestic situation which they need to handle between them. A felony prosecution under circumstances of this could have a very disruptive effect on a marital relationship and the State has just the opposite interest in a marital relationship. You need to encourage the parties, rather than to disrupt those relationships. (Emphasis added.)"

DISCUSSION

Probable Cause

If, from the evidence presented at the preliminary examination, 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). "The evidence need not prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw the inferences favorable to the prosecution from the evidence presented at the preliminary examination." State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). "Probable cause at a preliminary [examination] signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt." State v. Puckett, 240 Kan. 393, Syl. p 1, 729 P.2d 458 (1986).

We have commented on the magistrate's limited view from the bench by observing:

"It is not the function of the magistrate at a preliminary examination to determine the wisdom of the prosecuting attorney's decision to file and pursue the charges against a defendant. Neither is it the function of the magistrate to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. [Citation omitted.]" State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995).

Aggravated Battery

K.S.A. 21-3414(a), the statute under which Whittington was charged, provides in part:

"Aggravated battery is:

"(1) ... (C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or

"(2) ... (B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted."

In considering the elements of K.S.A. 21-3414(a)(1)(C), we first inquire, was there probable cause that Whittington intentionally caused physical contact with Judy? Whittington struck Judy with the Blazer with sufficient force to knock her backwards, causing her to fall and break her wrist. All the witnesses, including Judy, indicated that they thought Whittington only intended to scare her. Whittington admitted his intent to scare to Officer Jennings. However, according to Knight, Judy had to be warned to move out from behind the Blazer when Whittington started in reverse. After Whittington backed the Blazer's rear wheels over the curb, Judy stood 3 feet in front of the Blazer, apparently on the grass. Whittington could have continued to back up into the street, away from Judy. Instead, he drove the Blazer forward on the grass, striking Judy. Judy's and Schweitzer's testimony suggested Judy may have jumped in front of the Blazer as Whittington was attempting to drive off. However, Knight was...