Opinion
No. 109,152.
2013-11-15
STATE of Kansas, Appellant, v. Dwone C. HEARD, Appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge. Jason E. Geier, assistant district attorney Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellant. Jennifer C. Roth, assistant district defender, Third Judicial District Public Defender Office, for appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Jason E. Geier, assistant district attorney Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellant. Jennifer C. Roth, assistant district defender, Third Judicial District Public Defender Office, for appellee.
Before BRUNS, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dwone C. Heard, the passenger in a car that led Kansas Highway Patrol troopers on a 51–mile chase, fled after the chase finally ended. Based on this, he was charged with felony interference with law enforcement and bound over for trial. Heard moved to dismiss, arguing that under the facts the proper charge was misdemeanor interference. After hearing arguments on the motion, the district court found that Heard could not have committed interference at all and dismissed the charge entirely. The State appeals, contending that the district court's dismissal was in error. For the reasons set forth below, we find the district court abused its discretion in dismissing the complaint because it relied on an error of law and failed to address the issues the parties raised. In addition, the court erred in finding that, as a matter of law, Heard could not be convicted of interference of a law enforcement officer because a passenger has an unfettered right to leave the scene. We reverse and remand.
Factual and Procedural History
At approximately 1:15 a.m. on March 29, 2012, Trooper Kale Collins of the Kansas Highway Patrol was pulling off the shoulder of Highway I–35 in Lyon County, Kansas, when a speeding car passed him. As Collins watched, the car continued to speed away, and he ultimately measured the car's speed to be 101 miles per hour in a 75–mile–per–hour zone. Collins activated his lights and siren in an attempt to pull the car over, but the driver failed to yield. Collins pursued the car and, within the first mile of driving, the driver committed at least five traffic infractions, including failure to signal, failure to yield to an emergency vehicle, and failure to maintain a single lane of driving. The pursuit continued for approximately 51 miles, during which the driver continued to violate traffic laws and reached a top speed of 108 miles per hour. After the car crossed into Shawnee County, another member of the Kansas Highway Patrol deployed stop sticks. Although the driver attempted to avoid the stop sticks, both the tires on the left-hand side of the car blew out. The driver finally stopped approximately 2 miles north of where the tires blew.
At that time, both the driver and passenger—later identified as Heard—exited the car and ran. Heard ran in front of Collins' patrol car and up a hill toward a nearby trailer park. The driver also ran up the hill. It had been raining, and the road was damp in places. Two patrol cars were on scene, with their lights and sirens blaring. Collins was a little slow to get out of his patrol car because he was trying to see if the two fleeing individuals had any weapons. As he followed Heard up the hill, Collins deployed his Taser gun to stop Heard but was unsuccessful. Collins could not recall if he gave Heard a verbal command because “[t]here was a lot going on, sirens and all that,” but he came within a few feet of Heard. Because of some sort of physical problem, Collins was not able to give much of a foot chase, and Heard got away. Later that morning at approximately 7 a.m., Heard was apprehended a short distance from where the pursuit ended.
Based on his behavior immediately after the car chase, Heard was charged in the Shawnee County District Court with felony interference with law enforcement, a severity level 9 nonperson felony. At the preliminary hearing, the district court found that there was probable cause to support the charge and bound Heard over for trial.
A few weeks after the preliminary hearing, Heard filed a motion to dismiss, essentially arguing that he could not be charged with felony interference with law enforcement because the offense being investigated by Collins—speeding—was not in itself a felony as required by the statute. Importantly, he did not argue in his motion that the facts did not support an obstruction charge but focused his argument solely on whether it was felony or misdemeanor obstruction.
During arguments on the motion, the State provided evidence indicating that at the time Heard left the car and fled law enforcement, the offense Collins was investigating was felony-level fleeing or attempting to elude a police officer. The State conceded that at the time the driver sped away Collins was simply investigating a speeding violation, so the driver could only be charged with misdemeanor obstruction. However, at the time the car was stopped and Heard fled, Collins was investigating a felony fleeing and eluding charge, making Heard's actions felony obstruction. Heard, however, argued that when the chase began, Collins was only investigating a traffic infraction and that Heard could only have committed misdemeanor interference. Heard also contended that, at the point that he ran, he was nothing more than a passenger in a car. However, Heard ultimately acknowledged that “we believe that this is a—properly a misdemeanor.” The district court took the motion under advisement at that time.
Approximately 1 month later, the district court filed a written decision wholly dismissing the complaint against Heard. The court redefined the issue in the case and stated that it was “whether Heard committed any crime by leaving the scene.” The district court went on to say:
“Clearly, there was probable cause to detain the driver.... However, law enforcement had no reason to detain Heard as anything other than a witness to [the driver's] wrongdoing. Heard obviously was not interested in a voluntary encounter with law enforcement. Because of his Fourth Amendment right against unreasonable searches and seizures, Heard was free to go, and he did.”
The district court then dismissed the charge in its entirety. The State timely appealed.
Analysis
The State appeals the district court's dismissal of the complaint, arguing that the district court abused its discretion by relying on the wrong version of the statute in reaching its decision and that the State provided sufficient evidence to sustain the charge of felony interference with law enforcement. Heard, however, contends that the dismissal was proper because the facts did not support the offense charged and, even if they supported some form of interference, they did not support the specific crime with which Heard was charged—felony interference.
The procedural posture of this case is certainly unique. Heard was bound over after a preliminary hearing on a charge of felony obstruction. At the conclusion of the hearing, Heard argued that he could not be guilty of felony obstruction, only misdemeanor obstruction. The court rejected this argument and found that “the evidence has established probable cause to show that the felony was committed as charged in the complaint, and that the defendant committed the felony.” A few weeks later, Heard moved to dismiss the charge, again claiming that the facts did not support a charge of felony obstruction, only misdemeanor obstruction. After a hearing, the court dismissed the complaint in its entirety. The court did not address the issue of felony versus misdemeanor obstruction, which was the only issue argued by the parties, but instead concluded that evidence was insufficient to support any obstruction at all by Heard, who was merely the passenger in the car.
The State may appeal the district court's dismissal of a complaint. K.S.A.2012 Supp. 22–3602(b)(l). On appeal, “[a] district court's ruling on a defendant's motion to dismiss criminal charges with prejudice is reviewed under an abuse of discretion standard.” State v. Ralston, 43 Kan.App.2d 353, 357, 225 P.3d 741 (2010), rev. denied 291 Kan. 916 (2011). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). The court abused its discretion by basing its decision on an error of law.
At the time Heard was alleged to have committed his offense, K.S.A.2011 Supp. 21–5904(a)(2) provided in pertinent part that interference with law enforcement was “knowingly obstructing, resisting or opposing any person authorized by law ... in the discharge of any official duty.” In the 2012 version of the statute, this section became K.S.A.2012 Supp. 21–5904(a)(3). The complaint correctly stated the statutory cite and related language from the statute in effect at the time of the offense, K.S.A.2011 Supp. 21–5904(a)(2). However, in the district court's decision, the court cited the wrong 2012 subsection, K.S.A.2012 Supp. 21–5904(a)(2), which provides that interference with a law enforcement officer is “concealing, destroying or materially altering evidence with the intent to prevent or hinder the apprehension or prosecution of any person.” Clearly there is no evidence that Heard concealed, destroyed, or materially altered evidence, nor did the State ever allege he did. The court did not just inadvertently cite the wrong statute, but it cited the wrong language as well and appears to have based its decision on that language. Accordingly, we find that the district court abused its discretion by basing its decision on an error of law. The district court failed to address the sole issue raised by the parties.
Interference with law enforcement is a “felony in the case of a felony,” K.S.A.2011 Supp. 21–5904(b)(2)(A), and a “misdemeanor in the case of a misdemeanor.” K.S.A.2011 Supp. 21–5904(b)(2)(B). Our Supreme Court has interpreted “ ‘in the case of a felony’ “ to require that at the time of the interference, there must either be felony charges filed or a felony committed. State v. Seabury, 267 Kan. 431, 437, 985 P.2d 1162 (1999). Statutes concerning interfering with or obstructing law enforcement are construed broadly in Kansas. See State v. Lee, 242 Kan. 38, 40, 744 P.2d 845 (1987).
The facts of this case are not in dispute. When Collins started following the car in which Heard was a passenger, he was only investigating a traffic infraction—speeding. He had no reason to suspect Heard of anything. Under our Supreme Court's decision in State v. Hudson, 261 Kan. 535, 931 P.2d 679 (1997), which involved a driver running a stop sign and then fleeing the police, the court held that the term “ ‘official duty’ “ under K.S.A. 21–3808(a) was dependent on the officer's knowledge and intent:
“The touchstone for the classification of the offense is the reason for the officer's approaching the defendant who then flees or otherwise resists, and not the status of the defendant. Thus, the trial court correctly held that the classification under K.SA. 21–3808 depends on what the officer believed his duty to be as he discharged it.” 261 Kan. at 538–39.
Because the officer, at all times, was attempting to stop the defendant for a traffic violation—even though he abandoned his vehicle and proceeded on foot—the obstruction of official duty was a misdemeanor. 261 Kan. at 539.
But in Hudson, the only charge for which the officer chased Hudson was running a stop sign. In this case, by the time the car was forced to stop, it had committed at least five traffic infractions and attempted to drive around tire deflating devices that had been placed by a police officer, which meets the definition of felony eluding a police officer. See K.S.A.2011 Supp. 8–1568(b)(1), (c)(4). So the act of the occupants running from the car did not simply prevent an investigation for speeding (running a stop sign or misdemeanor eluding as in Hudson ), it prevented an investigation of felony eluding.
Unfortunately, the district court never reached this issue. Instead, it reached a conclusion that the parties never put forth nor were given a chance to argue, i.e., that Heard's acts did not constitute interference at all. In essence, it found that a passenger has an unfettered right to leave the scene of a traffic stop. But neither party argued that Heard's actions were not interference, only whether it was felony or misdemeanor interference. The parties never argued the propriety of Heard's act of leaving the scene of the traffic stop. As such, given the argument presented to it, the district court's ultimate decision was arbitrary and unreasonable. Accordingly, we find the district court abused its discretion.
A passenger's flight from a vehicle may be sufficient to support a charge of interference with law enforcement, and in this case there was sufficient evidence to avoid a motion to dismiss the charge as a matter of law.
So we next turn to the basis upon which the court did reach its decision—whether Heard's flight from the car as a passenger was enough to constitute interference with a law enforcement officer in the discharge of his official duty as a matter of law.
“In appeals by the prosecution from an order discharging the defendant for lack of probable cause, the reviewing court follows the same standard for weighing the evidence as the [trial court] in the preliminary examination.” State v. Bockert, 257 Kan. 488, 491, 893 P.2d 832 (1995). A preliminary examination requires probable cause or “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.” 257 Kan. at 492. At preliminary examination, the court's function is not “to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent.” 257 Kan. at 492. In addition, the evidence “need not prove guilt beyond a reasonable doubt, only probable cause.” 257 Kan. at 492. By dismissing the charges on the basis that Heard could not be guilty of obstruction, the district court erred in applying the wrong standard. In essence, it found that the charges should be dismissed because the possibility of a conviction was nonexistent under these facts—a standard different than it had applied just 2 weeks earlier when the court bound Heard over after a preliminary hearing.
We next examine the applicable law as it applies to the evidence presented against Heard. Both this court and our Supreme Court have parsed the meaning of “obstruction”—as it was referred to under prior versions of the statute—in many situations. In the leading case on obstruction, State v. Merrifield, 180 Kan. 267, 270, 303 P.2d 155 (1956), our Supreme Court held that the offense encompasses any “willful acts of obstruction or opposition” that “hinder, impede or in any manner interrupt or prevent” a law enforcement officer from discharging his or her official duty. The court further stated that the offense included “any passive, indirect or circuitous impediments” and could “be committed without the employment of actual violence or direct force.” 180 Kan. at 270–71.
Based on this definition, an individual's refusal to stay in a given location when ordered to do so by an officer may constitute obstruction. See State v. Logan, 8 Kan.App.2d 232, 235, 654 P .2d 492 (1982), rev. denied 232 Kan. 876 (1983). However, mere inaction—such as failing to unlock a door that the defendant did not lock—is not obstruction because it is not a willful act on the defendant's part. State v. Hatfield, 213 Kan. 832, 835, 518 P.2d 389 (1974). Regardless of what the act is, it must have “substantially hindered or increased the burden of the officer” in carrying out his or her official duties to constitute inference or obstruction. State v. Parker, 236 Kan. 353, 364, 690 P.2d 1353 (1984). Ultimately, whether an individual interfered with law enforcement is a question that depends on the facts of the case. 236 Kan. at 364.
Although several cases address the question of obstruction or inference in general, fewer consider whether flight or failure to come forward constitutes an offense. In Lee, the defendant concealed evidence of a shooting she had committed for approximately 12 hours before voluntarily appearing at the police station. At the time she concealed the evidence, she had neither come under investigation nor been charged with the crime in question. Our Supreme Court held that Lee could not have obstructed law enforcement's official duty because, at the time, “there was no officer whose official duty [Lee] could obstruct.” 242 Kan. at 42.
In contrast, in State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973), the defendant was arrested for aggravated assault but attempted to run from the arresting officer prior to being placed in the police car. Although the case primarily addressed the scope of the statute concerning escape from custody, our Supreme Court held that the obstruction statute was “broad enough to cover cases where a defendant escapes from custody prior to the filing of a formal written complaint, information or indictment.” 213 Kan. at 50. Similarly, in State v. Gasser, 223 Kan. 24, 574 P.2d 146 (1977), the defendant ran from an undercover federal agent after being told he was under arrest. Despite the fact that defendant argued that the obstruction statute did not apply on grounds unrelated to his flight, our Supreme Court nonetheless noted that running from the officer constituted obstruction. 223 Kan. at 30.
The district court's order of dismissal and Heard's brief both note that Heard was not the driver of the vehicle but rather the passenger and, as such, was not himself a suspect in the traffic offenses Collins observed. Although no Kansas case is directly on point, courts in other jurisdictions have addressed this issue. See Tuggle v. State, 236 Ga.App. 847, 849, 512 S.E.2d 650 (1999) (Although the passenger was initially “not under suspicion at the time of the traffic stop, and ... would have been free to leave,” his flight from that routine traffic stop rose to the level of reasonable suspicion, which allowed the officers to detain him.); State v. Reyes, No. COA07–693, 2007 WL 4393470, at *5 (N.C.App.2007) (unpublished opinion) (“Although defendant, as a passenger in the car, may not have had a choice when the car first drove off, his subsequent flight on foot further delayed or obstructed the officers' investigation in violation of [statute].”); State v. Hodges, 631 N.W.2d 206, 211 (S.D.2001) (probable cause to arrest a passenger for obstruction after she refused to show an officer her hands, fled a traffic stop despite repeated requests for her to stay, and later locked herself in a restroom); Coleman v. Com., No.2021–07–2, 2008 WL 4550514, at *5 (Va.App.2008) (unpublished opinion) (passenger obstructed officers by not only refusing to leave the car, but also by attempting to flee and resisting their efforts to subdue him); see also Illinois v. Wardlow, 528 U.S. 119, 124–125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (“Headlong flight-wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” There may be innocent reasons for the flight of an individual confronted by an officer, but the officer may detain the individual to resolve the ambiguity.). But see E.A.B. v. State, 964 So.2d 877, 879 (Fla.Dist.App.2007) (“[P]assengers ha[ve] the right to leave in the absence of a well-founded, articulable suspicion that they were involved in criminal activity.”).
In this case, neither party argues that Heard was unaware of Collins' status as a law enforcement officer or that Collins was not investigating an offense at the time Heard fled. Two police cars chased the vehicle Heard was in for 25 minutes for over 50 miles at speeds exceeding 100 miles per hour and deployed tire-deflating spikes in an effort to stop the vehicle. Lights and sirens were engaged. All the officers knew was that the car was registered to a rental car company. The officers had no idea who was driving and who was in the passenger seat. Although Collins acknowledges that he cannot remember whether he called out to Heard, he did pass within a few feet of Heard and he did deploy his Taser gun at Heard, albeit unsuccessfully. It is hard to believe after the events of those early morning hours that Heard did not know he was being pursued. When Heard immediately fled the scene, rather than remain—as one would expect of an innocent passenger, any reasonable officer's suspicions would be aroused. Collins certainly had a reasonable and articulable suspicion that Heard was intentionally obstructing his investigation of the crime of felony eluding a law enforcement officer.
We find this evidence is “sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.” See Brockert, 257 Kan. at 492. Accordingly, it was error for the district to dismiss the case prior to trial. Therefore, we reverse the district court's decision to dismiss the complaint against Heard and remand for further proceedings.
Reversed and remanded.