Opinion
111,037.
02-06-2015
STATE of Kansas, Appellee, v. Areale N. HANKS, Appellant.
Bobby J. Hiebert, Jr., of Law Office of Bobby J. Hiebert, Jr., of Salina, for appellant. Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Bobby J. Hiebert, Jr., of Law Office of Bobby J. Hiebert, Jr., of Salina, for appellant.
Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Areale N. Hanks appeals from her jury convictions for aggravated burglary, aggravated robbery, and kidnapping. Initially, Hanks contends that the district court erred by denying her request for a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). However, she failed to attach a sworn statement to her motion, which would have allowed the district court to determine whether a Franks hearing was appropriate. Hanks also contends that the district court erred by preventing her from providing alibi testimony. But she failed to give the State timely notice and offered no explanation to the district court for her failure to do so. Thus, we affirm.
Facts
On December 6, 2011, Michael Layne and Reyna Youdath discussed who they might be able to steal from so Layne could repay a debt. After being contacted by Layne, Hanks joined the discussion and it was decided that they would rob Nicole Autrey. Evidently, they believed there were drugs located in a lockbox at Autrey's apartment. Layne, who was familiar with Autrey's apartment, explained its layout to Youdath and Hanks. In addition, Layne, Youdath, and Hanks discussed the order in which they would enter the apartment to rob Autrey and what they would wear—black clothing, bandanas, beanies, and gloves. Layne also told Youdath and Hanks that he would bring a gun.
After they dressed as planned, Layne, Youdath, and Hanks loaded into Hanks' minivan, and Hanks drove them to Autrey's apartment. Once they arrived, Hanks parked the minivan behind the home, and the three walked around the building to the basement door leading to Autrey's apartment. Layne was armed with an “assault style” rifle, and Hanks carried a pocketknife.
Youdath went to the door of Autrey's apartment and knocked. Autrey answered the door holding a machete. Layne then came to the door, pointed the gun at Autrey, and told her to get on the ground. After Hanks entered the apartment, Layne and Youdath followed. Youdath tied Autrey's hands with a shoelace and her hands to her feet with an Ethernet cord. Layne placed a sock in her mouth, and Youdath secured it with a shoestring around her head. As Autrey was crying, Layne held the rifle to her head and told her that he would shoot her if she did not remain quiet.
For about 15 to 20 minutes, Hanks and Layne went from room to room in Autrey's apartment searching for a lockbox and other things of value. They also unwrapped presents from beneath Autrey's Christmas tree. When they left the apartment, Layne, Youdath, and Hanks took Autrey's cell phone, two laptops, an Xbox, tattoo equipment, a lockbox, and several other items. After the goods were loaded into Hank's minivan, Hanks drove them back to Layne's house to divide the stolen property. After they opened Autrey's lockbox, they discovered that it did not contain drugs.
Subsequently, the police questioned Youdath in regards to a separate burglary. Not only did Youdath confess to her participation in the robbery, she also identified Hanks and Layne as her accomplices. The police obtained search warrants for Hanks' home, her minivan, and her cell phone. In executing the search warrants, the police found a laptop computer belonging to Autrey, a stereo amplifier, two bandanas, and dark clothing.
On December 7, 2011, Hanks was arrested and charged with one count each of aggravated robbery, aggravated burglary, kidnapping, and theft. Prior to trial, Hanks filed motions to suppress the search of her cell phone, minivan, and residence. In her motions, Hanks alleged that the police officer who signed the search warrant affidavits intentionally misrepresented statements made by Youdath. She did not, however, attach to her motions a sworn statement in support of her allegation.
At a hearing on the motions to suppress, Hanks admitted that she failed to attach an affidavit but stated that she was unable to do so because no one who could testify in regards to the information in the search warrants. Although the district court construed Hanks' motions to suppress, in part, as a request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, the judge refused to “jump to the conclusion that there [had] been some type of deliberate falsehoods made or some type of reckless disregard for the truth” without a verified statement. Therefore, the court denied Hanks' motions.
At a 2–day jury trial held in July 2012, Autrey, Youdath, and several police officers testified on behalf of the State. At some point during the trial, the State became aware that Hanks might seek to have her mother provide alibi testimony. Since it had received no prior notice of an alibi, the State filed a motion in limine after the first day of trial to prevent the presentation of such testimony. Before the second day of the trial, the district court reviewed the proffered testimony of Hanks' mother and found it to be tantamount to alibi testimony. Accordingly, the district court granted the motion in limine.
The jury ultimately found Hanks guilty of aggravated robbery, aggravated burglary, and kidnapping, and not guilty of conspiracy to commit aggravated robbery. She was sentenced to serve 72 months in the custody of the Secretary of Corrections, with her sentences for aggravated robbery and aggravated burglary running concurrent to her sentence for kidnapping. Thereafter, she timely appealed to this court.
Analysis
Denial of a Franks Hearing
On appeal, Hanks contends that the district court erred in denying her motions to suppress. Specifically, she argues that the district court should have conducted an evidentiary hearing because the supporting affidavit used to obtain the warrants to search her minivan, residence, and cell phone contained intentional misrepresentations. In response, the State contends that the district court properly denied an evidentiary hearing because the motions contained nothing more than allegations of intentional misrepresentations and failed to include a sworn statement to support those allegations.
The general rule is that a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit. See State v. Jacques, 225 Kan. 38, 42, 587 P.2d 861 (1978). Under Franks v. Delaware, however, a district court must conduct an evidentiary hearing if a defendant shows by a sworn statement that the affidavit in support of a search warrant is unreliable in that it: “(1) contains statements that are material to the issuance of the search warrant because the statements were necessary to find probable cause and (2) the material statements (a) were a deliberate falsehood, (b) were made in reckless disregard for the truth, or (c) deliberately omitted a material fact. [Citations omitted].” State v. Adams, 294 Kan. 171, 179, 273 P.3d 718 (2012). “The challenger has a duty to specifically point out the portion of the warrant affidavit that is claimed to be false, and a statement of supporting reasons should accompany the motion to suppress.” Jacques, 225 Kan. at 44, 587 P.2d 861. Otherwise, courts must presume that an affidavit in support of a search warrant is valid. Adams, 294 Kan. at 178–79, 273 P.3d 718.
Both Hanks and the State argue that the same bifurcated standard of review that applies to motions to suppress applies in the present case. However, the Kansas Supreme Court has held that when the trial court does not conduct a Franks evidentiary hearing, the standard of review is the same as what generally applies to undisputed facts set forth in an application for a search warrant. Adams, 294 Kan. at 180, 273 P.3d 718. This standard is whether “ ‘the affidavit provided a substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched.’ “ State v. Hensley, 298 Kan. 422, 428, 313 P.3d 814 (2013). In the present case, the district court never held an evidentiary hearing, so the substantial basis standard applies.
Initially, the State argues that Hanks failed to preserve this issue for appeal. But a review of the record reflects that after voir dire and before the presentation of the evidence, Hanks' attorney stated, “[S]ince the motion[s] to suppress were denied, I would ask this Court to give me a running objection as to the admissibility of the evidence coming in under those so that we don't delay the trial with going through that formality.” Although the district court granted the request, Hanks' attorney stated that he had no objection when the State sought to introduce evidence obtained as a result of the search warrants. As such, the State argues that Hanks waived her earlier objection.
Generally, a party must preserve a pretrial objection to admission of evidence by contemporaneously objecting at trial, which can be accomplished through a continuing objection. See K.S.A. 60–404 ; State v. Holman, 295 Kan. 116, 127, 284 P.3d 251 (2012). Here, the district court clearly granted Hanks a continuing objection regarding those items obtained from the execution of the search warrants before the evidence was introduced. Thus, although it would have been better for Hanks' attorney to remain silent once his continuing objection was granted, we find that the issue was adequately preserved for appellate review.
Nevertheless, Hanks has not offered any proof—much less the type of proof required by Franks —to make a prima facie showing that the affidavits submitted in support of the search warrants were unreliable. Essentially, Hanks' argument is that she was not required to comply with Franks because there are some mistakes in the affidavits. For example, Hanks' minivan was described as a Chevy Lumina instead of a Ford Windstar. But as the district court noted, such mistakes are not necessarily deliberate or reckless—especially in an unfolding, dynamic investigation. As the United States Supreme Court noted in Franks, information set forth in an affidavit submitted in support of a search warrant “sometimes must be garnered hastily.” 438 U.S. at 165. Thus, without at least a sworn allegation in support of the motions to suppress, it was appropriate for the district court to deny a Franks hearing in this case.
Late Notice of Alibi Witness
Hanks also contends that the district court erred in not allowing her mother to testify as an alibi witness. In response, the State contends that the district court did not abuse its discretion when it granted an order in limine excluding this alibi testimony because Hanks failed to comply with statutory notice requirements. Specifically, the State points out that K.S.A. 22–3218(2) requires the defendant to give the prosecuting attorney notice that he or she intends to call an alibi witness at least 7 days prior to trial, which was not done in this case.
“The exclusion of alibi testimony because of noncompliance with the notice requirements of K.S.A. 22–3218 is within the trial court's discretion.” State v. Gibson, 30 Kan.App.2d 937, 951, 52 P.3d 339 (citing State v. Claiborne, 262 Kan. 416, 423, 940 P.2d 27 [1997] ), rev. denied 274 Kan. 1115 (2002). Judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). The party asserting that the district court abused its discretion bears the burden of establishing such abuse. State v. Rojas–Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
Hanks contends that the district court should have considered the factors set forth in State v. Bright, 229 Kan. 185, 194, 623 P.2d 917 (1981). She relies on Claiborne, 262 Kan. 416, 940 P.2d 27, and State v. Douglas, 234 Kan. 605, 607–08, 675 P.2d 358 (1984), to argue that the Bright factors should apply in this case. However, as this court has previously held, the Bright factors apply when a defendant seeks to endorse an additional alibi witness—not when there has been a complete failure to give the statutorily required notice. See Gibson, 30 Kan.App.2d at 951–52, 52 P.3d 339 ; State v. Rucker, No. 109,678, 2014 WL 4231234, at *7 (Kan.App.2014) (unpublished opinion); State v. Zimmerman, No. 106,857, 2013 WL 1010293, at *3 (Kan.App.2013) (unpublished opinion); State v. Thomas, No. 89,014, 2003 WL 23018228, at *5 (Kan.App.2003) (unpublished opinion), rev. denied 211 Kan. 927, 508 P.2d 849 (2003). Furthermore, even though the Kansas Supreme Court reiterated the Bright factors in Claiborne, it did not apply them because the defendant in that case was not seeking to add an additional alibi witnesses. Claiborne, 262 Kan at. 424 (“It must be noted that Douglas involved the endorsement of additional alibi witnesses after adequate notice under K.S.A. 22–3218 had been given.”); see also Douglas, 234 Kan. at 608, 675 P.2d 358 (“A review of the whole record in this case shows that the defendant gave the State notice that he intended to rely upon the defense of alibi some fifty days prior to trial, and the names of three witnesses were then disclosed.”). Accordingly, we find no merit in Hanks' contention that she was denied an alibi defense because she made no attempt to comply with the notice requirements set forth in K.S.A. 22–3218.
Although the State had apparently interviewed Hanks' mother before trial, Hanks was still required to give notice at least 7 days in advance of trial if she wanted to call her as an alibi witness. And it is fair to assume that because the witness was her own mother, Hanks should have been able to locate her well in advance of trial. See Rucker, 2014 WL 4231234, at *7 (“[I]t is reasonable to presume that a defendant should be able to obtain his relatives' addresses with ease.”). Moreover, a review of the record indicates that Hanks did not offer any justification for her belated request to call an alibi witness. Thus, the district court did not abuse its discretion when it granted the State's motion.
Affirmed.