Opinion
No. 108,040.
2013-08-9
STATE of Kansas, Appellee, v. Donna GARNER, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant, and Donna R. Gamer, appellant pro se. Cheryl A. Marquardt, assistant county attorney, Todd L. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant, and Donna R. Gamer, appellant pro se. Cheryl A. Marquardt, assistant county attorney, Todd L. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Donna Garner of traffic in contraband in a correctional institution, possession with the intent to distribute heroin, and possession with the intent to distribute marijuana. On appeal, she contends that the State failed to preserve evidence in bad faith. Garner also contends that she was entitled to a Franks hearing due to inaccurate information in a probable cause affidavit, and she challenges the district court's failure to give nonexclusive possession and spoliation of evidence instructions. Because we find none of her contentions to be persuasive, we affirm.
Facts
On November 15, 2009, Garner entered Lansing Correctional Facility to visit her husband, an inmate at the prison. Officer Jeffrey Carroll, a canine officer at the prison, monitored the visitors' entrance that morning with his dog, Bart, who he trained to detect the odor of marijuana. When Garner approached Bart, he immediately alerted on her. As a result, Officer Carroll told Garner to take a seat.
After sitting down, Garner began fidgeting and appeared to be trying to reach inside her clothes. Officer Carroll then asked Officer Adrian McKee to keep an eye on Garner. As he did so, Officer McKee saw Garner remove something from her blouse, get up quickly, toss something into a nearby trash can, and return to her seat. A security camera recorded these events.
After being told by Officer McKee about what he had observed, Officer Carroll led Bart to the trash can and the dog alerted. According to Officer Carroll's testimony at trial, Bart did not alert on the trash can at any other point in the day. Moreover, Officer Carroll testified that, as is his routine, Bart had inspected the area prior to the arrival of visitors and had not alerted.
Officer Carroll removed the trash bag, which contained a few pieces of trash, from the trash can and gave it to Officer McKee to inspect. Officer McKee took the trash bag to a different room to inspect it because he did not want to risk spreading drug odor around the area that Bart continued to monitor. Although he searched the bag in front of a security camera, Officer McKee was not sure if security monitored the camera or if it recorded video of his inspection. Inside the trash bag, Officer McKee found balloons wrapped in a napkin containing substances that later tested positive for marijuana and heroin. Law enforcement arrived and arrested Garner, booked her into jail, and a magistrate released her 2 days later prior to the State filing charges.
On January 5, 2010, the State charged Garner with possession with the intent to distribute a depressant (later amended to possession with the intent to distribute opiates) and traffic in contraband in a correctional institution. The county attorney presented a probable cause affidavit in support of an application for an arrest warrant to the district court on the same day. Although the probable cause affidavit accurately set forth an account of most of the relevant events, it incorrectly stated that the trash bag contained only drugs. Instead of issuing an arrest warrant, the district court ordered that Garner be sent a notice to appear by the county attorney. The county attorney sent Garner a notice to appear in which he advised her that if she failed to appear a warrant might be issued for her arrest. Garner appeared, and the district court never issued an arrest warrant.
Prior to trial, Garner filed a motion for a Franks hearing challenging the probable cause affidavit because there were items in the trash bag other than drugs. After holding multiple hearings, the district court ultimately denied the motion. In particular, the district court found that a Franks hearing was not necessary because no arrest warrant was ever issued and Garner was never arrested based on the probable cause affidavit.
While the State preserved an unedited 40–minute security recording of the incident, it did not possess a recording of the routine canine search of the room prior to the arrival of visitors. Also, the State did not possess a recording of Officer McKee searching the trash bag, nor did it possess the other pieces of trash found in the trash bag. As a result, Garner filed a motion to dismiss the case against her, claiming the failure to preserve this evidence violated her right to a fair trial. After conducting a hearing, the district court denied the motion to dismiss because there was no evidence of bad faith on the part of the State.
The case against Garner proceeded to a jury trial on September 26 and 27, 2011. At the conclusion of the trial, the jury found Garner guilty of trafficking in contraband in a correctional institution, of possessing heroin with the intent to distribute, and of possessing marijuana with the intent to distribute. The district court sentenced Garner to 32 months' imprisonment for trafficking in contraband, 15 months for possession with intent to distribute heroin, and 15 months for possession with intent to distribute marijuana. The 15–month sentences were to run concurrent with one another but consecutive to the 32–month sentence. Notwithstanding, the district court suspended the sentences and placed Garner on probation for a term of 36 months, along with a 60–day jail sentence that she had the option to serve on weekends.
Analysis
Preservation of Evidence
On appeal, Garner contends that the district court erred in denying her motion to dismiss because of the State's failure to preserve evidence. “The standard of review for denial of a motion to dismiss depends on the grounds on which dismissal was sought.” State v. Johnson, 297 Kan. 210, ––––, 301 P.3d 287, 293 (2013). Here, the district court denied Garner's motion to dismiss, finding no due process violation because the State did not act in bad faith.
Whether an officer exercised bad faith in losing or destroying evidence is a question of fact that we review under a substantial competent evidence standard. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012) (Evidence is substantial and competent when it is legal and relevant such that a reasonable person could accept it as adequate support for a conclusion.). If we find substantial competent evidence to support the district court's decision, we must then determine whether its factual findings were sufficient to support its conclusions of law. Johnson, 297 Kan. at –––– (301 P.3d at 293).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution guarantees access to certain exculpatory evidence. See California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Yet, there is no duty to preserve all evidence that might conceivably be evidentiary significant. See State v. LaMae, 268 Kan. 544, 550, 998 P.2d 106 (2000). On the one hand, evidence that is irreplaceable and known to be exculpatory must be preserved and provided to a defendant. Trombetta, 467 U.S. at 488–89. On the other hand, evidence that has only the potential to be exculpatory cannot be destroyed in bad faith. Johnson, 297 Kan. at (301 P.3d at 294); see Arizona v. Youngblood, 488 U.S. 51, 57–58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).
At the outset, this court must determine about which type of evidence Garner complains. Evidence is exculpatory if it “ ‘tends to disprove a fact in issue which is material to guilt’ “ or materially affects the credibility of a key prosecution witness. State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997), overruled on other grounds State v. Warrior, 294 Kan. 484, 277 P .3d 1111 (2012); State v. Francis, 282 Kan. 120, 149, 145 P.3d 48 (2006). Here, Garner complains about three pieces of evidence: (1) the other pieces of trash in the trash bag that contained the drugs, (2) a video recording of Officer McKee searching the trash bag, and (3) a video recording of the drug dog searching the room in the morning before visitors arrived.
Garner does not explain how any of this unpreserved evidence would have tended to disprove a material fact relating to her guilt. Moreover, Garner does not explain how the evidence materially affects the credibility of the witnesses who testified against her at trial. At most, she suggests that the unpreserved evidence may potentially be exculpatory. Thus, we find that the State did not have an absolute duty to retain and preserve the evidence of which Garner complains.
Because the evidence in question is only potentially exculpatory, Garner bears the burden to show that the State acted in bad faith in failing to preserve such evidence. See Johnson, 297 Kan. at –––– (301 P.3d at 294–95). “The determination of bad faith turns on the ‘officers' knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” ‘ Johnson, 297 Kan. at –––– (301 P.3d at 294). Moreover, whether an officer acted in bad faith is a question of fact. LaMae, 268 Kan. 544, Syl. ¶ 2.
Based on our review of the record, we find that Garner has not come forward with any evidence to establish that the officers acted in bad faith in failing to preserve the other items of trash or the video recordings. In addition, we find substantial competent evidence to support the district court's conclusion that the officers did not act in bad faith. For example, a Senior Special Agent at the Lansing Correctional Facility testified that security videos are routinely recorded over every 30 to 45 days. So, by the time Garner sent a subpoena to the prison in October 2010, any recording from November 15, 2009, would have already been deleted as a matter of routine—not in bad faith. See LaMae, 268 Kan. at 551 (noting that the destruction of evidence as a matter of procedure indicates a lack of bad faith).
In summary, there is nothing in the record to show that the State knew that the other items of trash or the recordings from the security cameras—other than those taken during the time Garner entered the prison and put something in the trash can—contained exculpatory evidence. Similarly, there is nothing in the record to show that prison officials destroyed or neglected to preserve evidence in bad faith. Thus, we conclude that the district court did not err in denying Garner's motion to dismiss for failure to preserve evidence.
Nonexclusive Possession and Spoliation Instructions
Garner contends that the district court erred in failing to give the PIK Crim.3d 67.13–D nonexclusive possession instruction and a spoliation of evidence instruction to the jury. Because she did not request either instruction nor did she object to their omission at trial, we review this issue under a clearly erroneous standard. See K.S.A. 22–3414(3). We must first determine as a matter of law whether it was error for the district court not to give one or both of the instructions. See State v. Williams, 295 Kan. 506, Syl. ¶¶ 3, 4, 286 P.3d 195 (2012). If we find error, we must then determine whether we are firmly convinced that the jury would have reached a different verdict had one or both of these instructions been given. 295 Kan. 506, Syl. ¶ 5.
The State persuasively argues that it was not legally appropriate to give the PIK Crim.3d 67.13–D instruction on nonexclusive possession based on the facts of this case. In 2009, the Kansas Legislature amended the definitions related to controlled substances. Compare K.S.A.2008 Supp. 65–4150 (containing no definition for “possession”) with K.S.A.2009 Supp. 21–36a01(p) (creating statutory definition for “possession”). Importantly, as of July 1, 2009, the legislature enacted a new statutory definition of possession:
“ ‘Possession’ means having joint or exclusive control over an item with knowledge of an intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” K.S.A.2009 Supp. 21–36a01(p).
PIK Crim.3d 67.13–D notes the statutory definition, and it specifically advises courts to use the statutory definition, whenever appropriate, rather than the PIK definition for cases of nonexclusive possession any time after July 1, 2009. Here, the incident for which a jury convicted Garner occurred on November 15, 2009. As such, it would not have been legally appropriate for the district court to give the PIK Crim.3d 67.13–D instruction on nonexclusive possession as Garner suggests. Furthermore, the district court did not err even if PIK Crim.3d 67.13–D were applicable because the facts of the case did not support a finding of nonexclusive possession.
The State charged Garner with possessing both heroin and marijuana and for sneaking the drugs into the Lansing Correctional Facility. The State based its case against Garner on her exclusive possession of the drugs, arguing that Garner took drugs into a correctional facility drugs and threw them into a trash can after a drug dog alerted on her. Under the circumstances presented, Garner was either exclusively in possession of the drugs and threw them in the trash can or she was innocent.
In other words, as opposed to a residence or a vehicle, Garner was not in nonexclusive possession of the secured and monitored correctional facility. See e.g., State v. Beaver, 41 Kan.App.2d 124, 129–30, 200 P.3d 490 (2009) (discussing nonexclusive possession of drugs found in residences and vehicles). Under the facts of this case, there was simply no basis to infer that Garner had a measure of control over the contraband if she was not the one that actually put the contraband into the trash can. If the jury believed someone else put the drugs in the trash can prior to Garner's arrival, then Garner would have been innocent. Hence, the facts do not support the giving of a nonexclusive possession instruction in this case.
Garner also argues that the district court should have given the jury an adverse inference or “spoliation” instruction, which is not a PIK instruction. According to Garner, a spoliation instruction should have advised the jury that it could infer that the evidence the State failed to preserve—video recordings and other trash found in the trash bag—would have been adverse to the State. A panel of this court has held that a district court has the authority to give a spoliation instruction “when the State has destroyed evidence in bad faith.” See State v. Romero, No. 89,899, 2004 WL 1086967, at *4 (Kan.App.2004) (unpublished opinion). As previously discussed, however, Garner has failed to establish that the State destroyed evidence in bad faith. Thus, we conclude that the district court did not err in failing to instruct the jury on spoliation.
Franks v. Delaware
Garner also contends that she was entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Generally, a defendant is entitled to a Franks hearing if it is shown that an affidavit supporting either a search or an arrest warrant (1) deliberately omitted a material fact or (2) contained material information that was deliberately or recklessly false. Franks, 438 U.S. at 171–72;State v. Adams, 294 Kan. 171, 179, 273 P.3d 718 (2012); State v. Breazeale, 238 Kan. 714, 725–26, 714 P.2d 1356 (finding Franks applicable to arrest warrants in addition to search warrants), cert. denied479 U.S. 846 (1986). Here, Garner requested a Franks hearing, arguing that the probable cause affidavit provided by Officer Scott Crawford of the Lansing Police Department in support of an arrest warrant contained deliberately false and misleading information.
Ultimately, the district court found that Franks was not applicable in this case because it never relied on the affidavit to issue an arrest warrant. Instead, the district court ordered that the county attorney serve a notice to appear on Garner, who law enforcement had already arrested. Because Garner appeared in response to the notice, there was never a need for the district court to issue an arrest warrant. Nevertheless, Garner argues on appeal that Franks applies even when no arrest or search warrant is issued as a result of a probable cause affidavit.
Normally, we review rulings under Franks similarly to other motions to suppress evidence. Adams, 294 Kan. at 179–80. But here, the district court concluded that Franks did not apply, which raises a question of law subject to unlimited review. See Johnson v. Brooks, 281 Kan. 1212, 1213, 135 P.3d 1203 (2006) (noting that application of precedent is a question of law subject to unlimited review).
We note that Garner cites no authority applying Franks when, as was the case here, a district court does not rely on the probable cause affidavit to issue an arrest or search warrant. Failure to support a point with pertinent authority or otherwise show why the argument is sound absent that authority results in abandonment of the point. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
Notwithstanding the lack of authority supporting her position, Garner requests that we remand this case to the district court for a Franks hearing. Yet it is unclear what the actual remedy would be even if a Franks hearing is held. The usual remedy for a Franks violation is suppression of the evidence derived from the imprudently granted warrant. See, e.g., Breazeale, 238 Kan. at 725;State v. Hendricks, 31 Kan.App.2d 138, 141–45, 61 P.3d 722 (2003). But the probable cause affidavit did not lead to Garner's arrest or any search. Accordingly, because the State did not obtain any evidence or discernible benefit from the affidavit, we find that there is nothing to suppress even if she could prove the information in the affidavit was deliberately false.
Moreover, it does not appear Franks would provide relief even if it was applicable to her case. “If probable cause can be found without the excised statement, no evidentiary hearing is required.” Adams, 294 Kan. at 179. On review of a probable cause affidavit, this court must determine if there was a substantial basis to conclude that probable cause existed. 294 Kan. at 180. Garner claims that if (1) the statement about the empty trash can were removed, and (2) the time of the incident were added, then the affidavit would not provide a substantial basis to conclude that probable cause existed to send her a notice to appear. We disagree.
Even correcting the information about which Garner complains, the affidavit would still provide a substantial basis to find probable cause for the crimes charged. The affidavit still alleged that Garner entered the prison about an hour after it opened for visitors; that the drug dog alerted on her; that she quickly moved to the trash can; that she dropped something inside the trash can; and that drugs were then found inside the trash can. Accordingly, the affidavit—even with Garner's modifications—was sufficient for a probable cause finding. See Adams, 294 Kan. at 180.
Cumulative Error
Finally, Garner contends that cumulative errors denied her a fair trial. When the totality of cumulative trial errors substantially prejudiced a defendant, effectively denying the defendant a fair trial, reversal of a conviction is appropriate. See Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). But because Garner has failed to establish any errors, we conclude that there is no cumulative error.
Affirmed.