Opinion
No. 106,511.
2013-12-27
STATE of Kansas, Appellee, v. David TRAMMELL, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge, retired.
MEMORANDUM OPINION
PER CURIAM.
David Trammell appeals his convictions for two counts of nondwelling burglary and two counts of felony theft. The major issue raised by Trammell is the trial court's denial of his motion to suppress the evidence obtained after an alleged unlawful detention and arrest. He also raises a Miranda issue concerning his interrogation, the unlawful release of his van after impoundment, and prosecutorial misconduct in the State's closing argument. We affirm.
In February 2009, police officers in the Kansas City metro area were aware of several recent burglaries. One occurred at Nerds to Go in Overland Park, and the other at Aaron Rents in Shawnee. Electronic equipment was stolen from both business, and security cameras captured evidence of the burglaries. At the beginning of their night shift on February 24, 2009, Officers Curtis Rice and John Freeman of the Leawood Police Department also received a briefing and surveillance pictures concerning another burglary, this one at Reno Yamaha in Kansas City, Missouri.
While on patrol that night, Officers Rice and Freeman came upon a white Chrysler van that matched the description of the vehicle in the briefing—a white minivan with two windows on the passenger side, only one window on the driver's side, and a missing hubcap. They stopped the minivan at approximately 2:40 a.m. because its license plate was obstructed and a taillight malfunctioned. The minivan stopped on a bridge.
Officer Rice approached the driver and asked for identification. Officer Freeman approached on the passenger side. Both officers testified the driver looked like the man from the Reno Yamaha burglary surveillance pictures. Trammell's license and insurance were in order. However, dispatch informed the officers that Trammell was on probation and had a criminal history that included convictions for homicide, burglary, weapons violations, and illegal drugs. Officer Rice testified he was aware the tag number of the minivan and the name Robert Simms from the crime bulletin did not match the vehicle or person they had stopped.
The officers were concerned for their safety. Officer Freeman had Trammell get out of the van. He performed a patdown search, and Officer Rice conducted a field interview contact due to Trammell's probation status. Other police officers responded to the scene and looked over the van as Officer Rice obtained additional contact information from Trammell. The other officers took pictures of the minivan and Trammell. Officer Rice asked Trammell if he was the owner and driver of the minivan and if other people drove it. Trammell responded he was the owner and only driver of the minivan.
Officer Freeman testified there were footprints on the roof of the van that appeared to match the footprints he had seen on the minivan in the criminal bulletin. Officer Freeman saw brown jersey gloves and a black stocking hat on the passenger side. Officers also saw a cuticle pusher—which can be used as a cocaine spoon for drugs—sitting on the passenger seat.
Officer James Herman testified that his drug dog “Duke” alerted to an illegal drug odor on the driver's door handle. The drug dog sniff of the vehicle occurred sometime before 3:30 a.m. Based on the cuticle pusher and the drug dog alert, the officers searched the vehicle and located the cuticle pusher, a copper Chore Boy pad cut into pieces, and copper mesh. Officers testified that all of these materials are common with crack or methamphetamine use. Officer Herman testified they did not find any drugs in the minivan. Officer Herman also testified that Duke sniffed the interior of the minivan at approximately 3:27 a.m., but he did not alert to anything inside the car.
Trammell was given another patdown search and handcuffed at 3:30 a.m. because he began to look like a flight risk. Officer Rice put Trammell in the back of his patrol car. The officers inventoried everything in the minivan at the scene. The only evidence they took into possession was that related to the possible drug charges. They did not take any of the tools that were in the minivan into evidence. The minivan was towed to a storage lot.
Officer Rob Laubenstein of the Leawood Police Department testified he quickly arrived at the scene. Officer Laubenstein observed through the minivan windows and saw several tools, pry bars, sledge hammers, and blankets in the back of the minivan. He also observed mail on the dash board. He ran the name and address on the mail through the computer because the name on the mail did not match Trammell's.
Detective Joe Langer of the Leawood Police Department heard the call over dispatch about Trammell's vehicle and immediately contacted Sergeant John Cesipro from Kansas City, Missouri Police Department (KCMOPD), and the two met at the scene. Detective Langer testified that when he saw Trammell at the scene Trammell was a match to the man in the Reno Yamaha video. Detective Langer later met with Trammell at the police department. He stated that detectives from the Shawnee, Kansas, Police Department and the Kansas City, Missouri, Police Department, spoke with Trammell at the station.
Sgt. Cesipro arrived on the scene at 3:10 a.m. He testified that from all the information and video he had from the Reno Yamaha burglary, Trammell appeared to be the perpetrator. However, Sgt. Cesipro stated that since they were in Kansas, the Leawood authorities would have to hold Trammell until the KCMOPD could get a warrant. Later that morning, Sgt. Cesipro ruled out Simms as the perpetrator of the burglaries. He followed up on the address on the mail found in Trammell's minivan. At that address, Sgt. Cesipro discovered a van with a ladder rack and wheel and a pinkish stripe down the side. These were the characteristics of the van that had been used in the Aaron Rents and Nerds To Go burglaries. The van was registered to Trammel. Sgt. Cesipro contacted the Leawood Police Department.
Trammell was transported to the Leawood Police Station at 4:42 a.m. and was put in a holding cell. Detective Steve Morgan from the KCMOPD spoke with Trammell at the police station around 6 a.m. Det. Morgan testified he gave Trammell a Miranda warning, and Trammell agreed to talk with him and another detective. Trammell told Det. Morgan that he owned the white minivan that he was stopped in that morning and he also owned a 1992 Chevy conversion van with faded brown stripes, a ladder, and a spare tire on the back. The conversion van was located in Kansas City, Kansas. When Det. Morgan showed Trammell the video surveillance pictures, Trammell said, “I think I need an attorney.” No additional questions were asked of Trammell. Trammell's parole officer, Joe Perry, was contacted and at approximately 9 a.m., Perry issued an arrest and detain order on the violation that Trammell had been arrested for possible burglary. Det. Morgan testified the KCMOPD did not get a warrant for Trammell until sometime later in March.
Det. Morgan testified that after the interview with Trammell ended, he received a call from Sgt. Cesipro to come to the address on the mail discovered in Trammell's van for possible evidence of the other burglaries. The officers searched the van located at the residence and the inside the residence. They discovered property that was verified as stolen from multiple burglaries in Kansas City, Missouri; Gladstone, Missouri; Blue Springs, Missouri; and Shawnee, Kansas.
Officer Rice never issued any traffic citations to Trammell. However, the State later charged Trammell with separate counts of burglary and felony theft for the burglaries at Aaron Rents and Nerds to Go based on evidence discovered at the address discovered on the mail in Trammell's minivan. Trammell sought to suppress all the evidence seized by officers based on his constitutional rights to be free from unreasonable searches and seizures. After a lengthy hearing on the motion to suppress, the trial court entered a thorough memorandum decision denying the motion, except for the evidence obtained from Trammell's cell phone without a warrant.
A jury convicted Trammell on all counts. The trial court sentenced Trammell to consecutive terms of 34 months of incarceration on the primary burglary conviction, 13 months of incarceration on the second burglary conviction, and 7 months of incarceration on each of the theft convictions. Trammell appeals.
Trammell first argues the district court erred in denying his motion to suppress the evidence obtained after the stop of his vehicle. He challenges the constitutionality of the actions of the police officers at numerous points during his detention and arrest. He insists we should suppress all the information the officers learned during his detention, including the appearance of his van, his appearance, the contents of the van, the statements to the officers, the clothes he wore, the mail in the van, and the evidence discovered at the address on the mail.
When reviewing a district court's ruling on a motion to suppress, an appellate court applies a mixed standard of review. Any findings of facts by the district court are adopted if they are supported by substantial competent evidence. The ultimate legal conclusion regarding suppression, however, is a question of law subject to unlimited appellate review. State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2011).
Under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, the government is forbidden from conducting unreasonable searches and seizures of a person. Whether government intrusion is reasonable rests upon a balance between the State's interest in the intrusion and the individual's interest in remaining free from unwarranted government interference. State v. Marx, 289 Kan. 657, 661, 215 P.3d 601 (2009). A traffic stop of a vehicle on a public roadway constitutes a seizure of the vehicle's occupants. See State v. Gilbert, 292 Kan. 428, 434, 254 P.3d 1271 (2011). Consequently, law enforcement officers must possess specific and articulable facts supporting the officer's reasonable suspicion that the defendant is violating the law. Reasonable suspicion represents a minimal level of objective justification based upon the totality of the circumstances from the perspective of a trained law enforcement officer. Reasonable suspicion does not demand proof equivalent to probable cause but must be more than an unparticularized hunch. State v. Moore, 283 Kan. 344, 354, 154 P.3d 1 (2007).
The district court held that Trammell had been legally detained throughout the investigation and the detention up to the time Trammell was taken to the Leawood police station was legal as an investigative stop. We will break down the district court's decision into general principles of our Fourth Amendment jurisprudence.
The Stop of Trammell's Minivan was Legal.
Trammel does not challenge the legality of the actual stop, even if the officers were acting on a hunch that the van was the same van from the police crime bulletin. The defendant in Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), was stopped for a minor traffic violation for which officers had sufficient probable cause. But their real interest was to search the occupants and the vehicle for illegal drugs. The Court found no constitutional violation because the stop was based on genuine probable cause, although the officers had an ulterior objective. 517 U.S. at 812–13.
K.S.A. 22–2402(1) provides: “Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand ... the name [and] address of such suspect and an explanation of such suspect's actions.” See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, Officer Rice testified that he stopped Trammel's van due to an obstructed license plate (covered by heavy dirt) and a malfunctioning tail light. The stop of Trammell's minivan was constitutional.
There Was Reasonable Suspicion of Criminal Activity to Extend the Stop
Trammell argues there was a lack of reasonable suspicion that would have allowed an extension of the brief detention for the traffic violation. We disagree.
A police officer may, during a routine traffic stop, detain a driver and conduct further questioning if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or is occurring. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010).
“Reasonable suspicion is a less demanding standard than probable cause, not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors, quantity and quality, are considered in the totality of the circumstances that must be taken into account when evaluating whether reasonable suspicion exists.” State v. Morris, 276 Kan. 11, Syl. ¶ 6, 72 P.3d 570 (2003).
Trammell argues the extension of his detention for the purposes of a field interview was unlawful. He contends any justification for the field interview due to his probation status was a ruse. He cites the cases of State v. Anderson, 281 Kan. 896, 136 P.3d 406 (2006), and State v. Sullivan, 17 Kan.App.2d 771, 773, 844 P.2d 741 (1993), where the courts held that a violation of conditional release is not a crime of any type under the Kansas Criminal Code. Anderson and Sullivan provide that probable cause to believe that a person is a conditional release violator cannot support a warrantless arrest of that person. We are not presented with such facts.
Trammell also argues that his van was illegally impounded and later illegally searched. He argues that because the van was impounded based on his illegal detention and arrest, its contents were the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He also argues the parole warrant did not justify or ratify the detention because that information did not arise until he had already been detained for hours and transported to the Leawood Police Department.
In addition to the obstructed license plate and the malfunctioning taillight, Officers Rice and Freeman noticed that the white minivan matched the description of the vehicle in the crime bulletins from the Reno Yamaha Burglary—only one window on the drivers' side, two windows on the passenger side, and the missing hubcap. As the officers approached the vehicle, they both identified Trammell as the person from the Reno Yamaha burglary video, who had been standing on the hood of the van with the sledge hammer. Things were quickly starting to add up for the officers based on things they observed. Officer Laubenstein testified that through the minivan windows he observed what he thought were several tools, pry bars, sledge hammers, and blankets in the back of the minivan.
The plain view doctrine provides additional reasonable suspicion of criminal activity of Trammell as the possible burglary suspect, but also drug activity. Normally police officers need a search warrant to seize property. Under the plain view doctrine, “ ‘if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. [Citations omitted.]’ “ State v. Wonders, 263 Kan. 582, 590, 952 P.2d 1351 (1998) (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 [1993] ). Plain view is not an independent exception to the Fourth Amendment, but an extension of whatever the prior justification for an officer's access to the object may be. State v. Reno, 260 Kan. 117, 122, 918 P.2d 1235 (1996) (quoting Texas v. Brown, 460 U.S. 730, 738–39, 103 S.Ct. 1535, 75 L.Ed.2d 502 [1983] ).
Trammell argues the plain view of the cuticle pusher and the drug dog “hitting” on the car door handle were insufficient justification to extend the detention. He argues the cuticle pusher is an everyday item with a legitimate purpose, but it can be used to ingest illegal substances. He states that although the dog “hit” on the outside of the car, the dog did not hit on the cuticle pusher or anything inside the car. He argues the officers lacked probable cause to conduct that second search and the fruits of the search should be suppressed. Although the search of the minivan yielded no controlled substances, officers discovered a burglar's tools of the trade.
The Leawood police officers were not required to have reasonable suspicion before requesting the narcotics detection dog to assist with the stop. See Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.) The combination of the “hit” by the drug dog and the plain view of the cuticle pusher, the police had probable cause to search the van for evidence. This search may have not revealed illegal drugs, but it provided a clearer picture of Trammell as the potential perpetrator of the burglaries. Reasonable suspicion that Trammell was the burglar in the Reno Yamaha burglary was evident.
The Trial Court Was Correct that the Leawood Officers Could Detain Trammell based on Evidence of a Crime Committed in Another Jurisdiction.
The trial court held that the Leawood police officers can investigate crimes—wherever they are committed—when evidence or information is found in Leawood. The trial court stated that the ability to investigate crimes outside of Leawood would include the authority to lawfully detain a suspect where they have a reasonable suspicion the suspect has committed a serious crime.
Trammel contends the only way to justify his detention is under United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). In Hensley, the Court upheld a traffic stop of a defendant who was the subject of a “wanted” flyer issued by another police department. The Court found that the investigatory stop in reliance on the flyer was valid but recognized that the precise limits on investigatory stops to investigate past criminal activity are more difficult to define than the limits of investigatory stops based on crimes that are imminent or ongoing.
The Hensley Court stated that the same reasonable suspicion test would be applied to investigatory stops based on past crimes as for crimes that are imminent or ongoing but noted that the factors being balanced may be somewhat different because the governmental interests and the nature of the intrusions involved are different. An investigative stop to investigate a past crime is not required by exigent circumstances which necessitate that an officer step in before a crime is committed or completed. It also does not further the interests of crime prevention and detection. Additionally, the public safety may be less threatened by a suspect of a past crime than it is by a suspect who is currently in the process of violating the law and the officers may have greater discretion to “choose the time and circumstances of the stop.” 469 U.S. at 228–29. The Court did find that stops to investigate past crimes were permissible and noted that “[pjarticularly in the context of felonies or crimes involving a threat to public safety, it is in the public interest that the crime be solved and the suspect detained as promptly as possible.” 469 U.S. at 229.
Trammell argues his case falls outside the lines of Hensley. There was no “wanted” flyer here or request to detain or even arrest a suspect. The subject of the crime bulletin was Robert Simms and gave a different tag number than Trammell's van. He contends that an objective reading of this information would not lead an experienced officer to conclude that Trammell was wanted for questioning or investigation in Kansas City, Missouri.
Hensley provided authority to allow Officers Rice and Freeman to extend the detention in this case based on the crime bulletin and the reasonable suspicion that can appear when the officers started to put the pieces together that they had a repeat burglar in their midst. The State cites United States v. Whitley, 680 F.3d 1227, 1234 (10th Cir.2012), and the court's reliance on Hensley, for the court's statement that “an officer with reasonable suspicion may instruct another officer to make a Terry stop without communicating the basis for the stop, so long as the communicating officer has reasonable suspicion to make the stop himself.” Trammell quotes extensively from Hensley and we rely on his quote in Hensley's conclusion that “the stop that occurred was reasonable in objective reliance on the flyer and was not significantly more intrusive than would have been permitted the St. Bernard police.” 469 U.S. at 236. We do not believe the stop in the present case was any more intrusive than would have been permitted to the Kansas City, Missouri, police had Trammel been stopped in Missouri.
The Detention Was Not Excessive
Trammell argues that even if his detention was authorized, the length of the detention exceeded the bounds of a Terry stop and Hensley. The reasonableness of an investigative detention involves a two-part test: (1) whether the officer's stop was justified at its inception, and (2) whether the officer's actions during the detention were reasonably related in scope to the circumstances justifying the initial interference. State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998). We have established that the officers' stop in this case was constitutional at its inception. The question is whether the State meets the second factor in Mitchell. We agree with the trial court that it does.
Trammell argues that by applying Hensley, the Leawood police could have detained him long enough to ascertain his name, whether he had a warrant out for the Yamaha burglary, and if he wished to speak to the KCMOPD. We believe Trammell's argument does not give credit to the Leawood officers' expanding possession of reasonable suspicion that Trammel was the perpetrator in the burglary videos. Hensley also makes clear that officers have the duty to help solve past crimes for which they have been briefed.
The trial court found:
“[T]he detention of the defendant while the police investigated his involvement in the burglary in Missouri, and then the continued detention during the drug investigation, and continuing detention while they investigated the burglaries in Shawnee and Overland Park were based on sufficient reasonable suspicion. The detention was lengthy, but the police acted with diligence as the situation developed. It would be difficult to imagine or understand letting the defendant go on his way considering all of the information developed which pointed to the defendant as the burglar.”
We agree with the trial court's findings of fact and conclusions of law that the detention in this case was not excessive. There is no evidence to contradict the trial court's finding that the police acted with diligence as the situation developed. The complexity of this situation is obviously compounded based on the ramifications of a multijurisdictional crime spree. The evidence supports the trial court's finding that within 30 minutes of the initial stop the officers had developed information to support their reasonable suspicion that Trammell was the burglar in the Reno Yamaha crime and possibly connected to other Kansas burglaries. Officers from several jurisdictions and another state converged in Leawood based on the information they had developed and shared.
Next, Trammell argues the questioning that occurred during his stop and detention was a custodial interrogation and he should have been informed of his Miranda rights. Trammell contends the trial court erred in denying his motion to suppress his statements because Officer Rice did not read him the Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The only questions challenged on appeal are when Officer Rice asked Trammell whether he was the sole owner of the van and whether anyone else drove it.
Law enforcement officers are required to read the Miranda warnings to persons subject to custodial interrogations. But the courts have consistently held that routine traffic stops do not amount to custodial interrogations, given their brief duration on public streets—a marked contrast to police questioning of a suspect who has been arrested and placed behind the closed doors of a stationhouse interrogation room. Berkemer v. McCarty, 468 U.S. 420, 439–40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 516–18, 242 P.3d 1179 (2010) (discussing Berkemer and noting that general on-the-scene questioning does not require a Miranda warning). This court recently acknowledged the general rule that “traffic stops are generally exempt from the typical Miranda rules, and police are allowed to ask a moderate number of questions to confirm identities and to confirm or dispel suspicions related to the scope of the stop .” State v. Goff, 44 Kan.App.2d 536, 541–42, 239 P.3d 467 (2010), rev. denied 292 Kan. 967 (2011).
At the suppression hearing, Officer Rice testified that shortly after they stopped Trammell's van, he asked Trammell if he was the owner of the van and also if other people had driven it. Trammell responded that he was the only owner and driver of the van. Later at trial, Det. Morgan testified he gave Trammell a Miranda warning during the interview at the station and Trammell again confirmed that he was the registered owner of the van and that no one else drove the van. We find that the statements given to both Officer Rice and Det. Morgan were admissible.
Here, Trammell first made an incriminating statement during the investigative detention. Once at the station, Det. Morgan read Trammell his Miranda rights before any questioning. Trammell waived his Miranda rights and provided the same answer as before that he was the owner of the van and no one else had driven it. Even if Trammell's first statement was not admissible, the second statement was not tainted by the earlier pre- Miranda statement and should be allowed to come into evidence. Two cases support the admissibility of both statements.
In State v. Dang, 267 Kan. 198, 978 P.2d 277 (1999), Dang argued that coercive tactics were used against him. Our Supreme Court stated that “there is nothing about the time, length, or physical setting that offends principles of fairness or due process. 267 Kan. at 207. In Dang, our Supreme Court held that “[a]bsent coercion or improper tactics by the officers in obtaining the initial statements, there is no presumption of compulsion as to the subsequent post- Miranda statements.” 267 Kan. at 205.
In State v. Jones, 283 Kan. 186, 151 P.3d 22 (2007), disapproved in part on other grounds State v. Nelson, 291 Kan. 475, 243 P.3d 343 (2010), our Supreme Court addressed the issue of whether a post- Miranda statement is tainted by an earlier un- Mirandized statement. Our Supreme Court held that the trial court did not err in admitting Jones' post- Miranda statement. Jones, 283 Kan. at 203. In Jones, our Supreme Court stated:
“Although the same officers conducted the post-Miranda interrogations of Jones, those interrogations were conducted at the police station, i.e., a different location than the initial questioning. At the station, Jones was aware that he was now being questioned as a suspect. The questions became more detailed in that the officers wanted to know the identity of Jones' accomplice and the details of the crimes. A reasonable person could have seen the police station questioning as a new and distinct experience from the earlier questioning in the conference room at the district attorney's office.” 283 Kan. at 202–03.
Based on the Jones and Dang cases, we find that substantial competent evidence supports the trial court's denial of Trammell's motion to suppress based on Miranda. Like Jones, the questions became more pointed once Trammell was at the police station, and a reasonable person could have seen the police station questioning as a “new and distinct experience” from Trammell's earlier questioning at the initial stop. Moreover, because Officer Rice did not use any coercive or improper tactics to obtain Trammell's first statement, his post- Miranda statements to Det. Morgan were properly admitted as well.
Next, Trammell argues the State violated his rights to due process and to present a defense by releasing the white minivan without notice or court approval. Trammell raised this issue in a pretrial motion to exclude evidence. In denying Trammell's motion, the trial court held that Trammell actually had access to the vehicle through power of attorney given to someone to act on his behalf and that the person actually used the power of attorney to clean out the minivan and could have taken the minivan if they would have paid the storage fee. The court also found that prior to the sale of the minivan, the tow company gave notice to Trammell using an address provided by the Department of Revenue, but the notice was returned. The court held that Trammell knew where the van was during this time period and could have picked it up at any time.
Where the State fails to preserve evidentiary material, the results of which might have exonerated the defendant, there is no due process violation unless the defendant shows bad faith on the part of the State. See, e.g., State v. LaMae, 268 Kan. 544, Syl. ¶ 1, 998 P.2d 106 (2000). The determination of whether the State acted in bad faith is one of fact and turns on whether the officers possessed knowledge of the exculpatory value of the evidence at the time the evidence was lost or destroyed. 268 Kan. at 551. An appellate court reviews such findings of fact to determine whether they are supported by substantial competent evidence in the record and whether they are sufficient to support the trial court's conclusions of law. State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002).
As Trammell notes, K.S.A.2012 Supp. 22–2512(1) prescribes the proper method of retaining and disposing of property seized. Specifically, property seized “shall be safely kept by the officer seizing the same unless otherwise directed by the magistrate, and shall be kept so long as long as necessary for the purpose of being produced as evidence on any trial.” The proper disposition of the property, when it is no longer required as evidence, depends upon the nature of the property. For instance, property that was obtained unlawfully from the owner thereof must be restored to the owner. K.S.A.2012 Supp. 22–2512(3)(a). The statute contains a catch-all provision that directs property to “be disposed of in such manner as the court in its sound discretion shall direct.” K.S.A.2012 Supp. 22–2512(3)(g).
The record reveals the officers processed the minivan by taking photographs and collecting evidence after the minivan was towed to Dale's Tow Service on February 25, 2009. The record also reveals that Trammell knew where the vehicle was being stored and it could have been released to him through the power of attorney if he would have paid the storage fee to the tow lot. There is no evidence that Trammell was ever denied access to the vehicle.
In Taylor v. State, 251 Kan. 272, 834 P.2d 1325 (1992), disapproved on other grounds State v. Rice, 261 Kan. 567, 932 P.2d 981 (1997), the victim's car was released to the lienholder after it was processed and dusted for fingerprints and its contents were inventoried. Taylor became aware of the car's release and filed a written objection with the county attorney but did not raise the issue on direct appeal. Addressing the issue in Taylor's K.S.A. 60–1507 motion, the Kansas Supreme Court held that Taylor failed to show that the officers acted in bad faith or that he was prejudiced by the officers' release of the car. In doing so, the court commented:
“[T]he State's discretion in determining whether evidence should be released or retained for trial is not unlimited. In the absence of a showing that the returned items were clearly exculpatory or that defendants were clearly prejudiced by the failure to have access to the property, the good faith release by the prosecution of property seized in a criminal investigation to the owners thereof does not warrant a reversal of the convictions or a dismissal of the charges against the defendants. [Citation omitted.]” 251 Kan. at 278.
Further, the Taylor court acknowledged the absence of a court order regarding the disposition of the car, as required by K.S.A. 22–2512(2) (now K.S.A.2012 Supp. 22–2512[3] ), but determined the error was harmless due to the lack of bad faith or prejudice. 251 Kan. at 279.
Here, substantial competent evidence exists to support the trial court's finding that the officers' release of the minivan was not done in bad faith. To this end, and contrary to Trammell's assertion, there is simply nothing in the record to indicate the officers attempted to destroy or prevent Trammell from collecting evidence from the minivan or that their actions substantially prejudiced his defense.
As previously noted, in the absence of bad faith, the State's failure to preserve potentially useful evidence does not violate a defendant's due process rights. LaMae, 268 Kan. 544, Syl. ¶ 1;Taylor, 251 Kan. at 278. We conclude the trial court did not err in denying Trammell's motion to exclude evidence of the minivan based upon release of the minivan from the tow lot.
Last, Trammell argues the State committed prosecutorial misconduct in closing argument by stating the burglaries had Trammell's “signature” on them. He argues the statements contradicted the jury instructions and the State's repeating of the statement after defense counsel objected demonstrated ill-will on part of the prosecutor.
Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we decide whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. Second, if misconduct is found, we must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011). In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P .3d 1268 (2012).
Further, none of these three factors is individually controlling and before the third factor can override the first two factors, the court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), have been met. See State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011). Additionally, the basic test asks whether the error affected the defendant's substantial rights, i.e., whether the error affected the outcome of the trial. State v. Smith, 296 Kan. 111, 130, 293 P.3d 669 (2012).
Jury Instruction No. 15 stated:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.”
Trammell objects to the following statements by the prosecutor during closing argument:
“MS. DIEHL [PROSECUTOR]: Thank you. The biggest issue here is, obviously, the State doesn't have a confession. Told you that at the beginning. But what the State does have, the State would submit is tantamount to an admission. It's a signature. We have
“MS. KECK [DEFENSE COUNSEL]: I'm going to object to any—trying to use one crime against the other when the instruction has been given she can't do that.
“THE COURT: Talk about the evidence of each crime.
“MS. DIEHL: [Prosecutor talked about the similarities of Trammell's van to the van in the surveillance videos]....
....
“Very important piece here. You have the same jacket. You have-I would submit to you that the yellow in his waist band is actually these tools. We have the same photo of Mr. Trammell at the car stop. He's got growth, some growth. His hair is not exceedingly long, but does stick out beneath the cap. And if you look at the video carefully, you will see the hair is actually blond. You have the flaps over as well as the dark collar. That's his signature. This is Trammell. State's evidence shows beyond a reasonable doubt that that is the man.”
The Kansas Supreme Court has upheld the admission of prior burglaries to a charged burglary on several occasions. In State v.. Howard, 220 Kan. 117, 551 P.2d 835 (1976), the defendant was charged with burglary, and the trial court admitted evidence of a single burglary 2 years earlier. The court concluded that the evidence raised “a reasonable inference that the defendant committed both offenses” because both convictions were for burglary, both burglaries involved a television set, both were in the same area near the defendant's house, entry was gained by forcing open a door, and no one was home during either burglary. 220 Kan at 120.
In State v. Jackson, 222 Kan. 424, 428, 565 P.2d 278 (1977), the court upheld the admission of a prior crime to show the defendant committed the charged burglary where both offenses involved thefts and unlawful entry of a business, both offenses were committed after the defendant became familiar with the premises, and in both cases the defendant kept taking money until he was caught. The court concluded: “These facts are sufficient to demonstrate a pattern of similarity which was relevant to the issue of identity and the plan of operation.” 222 Kan. at 428.
In the present case, we are not dealing with prior bad acts and K .S.A. 60–455 evidence as was the case in both Howard and Jackson, where the court even allowed the evidence. Here, the prosecutor was describing the similarities of the multiple burglary charges filed against Trammell—thence the reason for Jury Instruction No. 15. However, the purpose of the multicount jury instruction in this case, patterned after PIK Crim.3d 68.07 (now PIK Crim. 4th 68.060), was to prevent the jury from being misled into believing that a finding of guilty on one count mandates a finding of guilty on the others. State v. Gould, 271 Kan. 394, 401, 23 P.3d 801 (2001). We do not find the prosecutor's comments constituted misconduct in this case. Rather, the prosecutor was describing the similarities of the two burglary crimes charged against Trammell. The jury still had the duty to decide whether it was Trammell in one, both, or none of the burglaries.
Affirmed.