Opinion
111,693.
07-31-2015
STATE of Kansas, Appellee, v. Jason PETERSON, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., HILL and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Jacob Peterson appeals his conviction for felony possession of marijuana, claiming two errors deprived him of a fair jury trial in Reno County District Court. First, Peterson contends the State's case was built on impermissible inferences drawn from entirely ambiguous events. The evidence, though circumstantial, sufficiently supported the guilty verdict without resort to conjecture or speculation. Second, Peterson says a police officer improperly testified at trial that he invoked his constitutional right to silence in response to the officer's questions. He is correct about the constitutional error, but it was not preserved for review with a contemporaneous objection. We, therefore, affirm.
On August 29, 2013, Hutchinson Police Officers Jessica Kelly and Adam Weishaar were at the morning session of Hutchinson Municipal Court as potential witnesses. The officers recognized Peterson as he stood in the hallway with his lawyer. A detective had informed them and other members of the department that Peterson should be arrested if spotted based on probable cause to suspect him of specific criminal conduct.
Acting on that information, Officer Kelly and Officer Weishaar approached Peterson to arrest him. As Officer Weishaar later described the situation, Peterson moved away from him and attempted to enter the courtroom. Officer Weishaar hailed Peterson, telling him to put his hands behind his back. Peterson instead thrust his hands into his pockets and continued moving away. At the courthouse door, Officer Weishaar reached out to grab Peterson's arm and apply a set of handcuffs. Peterson jerked his shoulder, and Officer Weishaar dropped the handcuffs. At trial, Officer Weishaar testified that Peterson seemed to be struggling to pull something from his pocket. Officer Weishaar wrestled Peterson's arms behind his back and using a backup set of handcuffs managed to restrain him.
Officer Kelly testified she was in the immediate vicinity as Officer Weishaar tried to halt and cuff Peterson. Keen of auditory perceptiveness, Officer Kelly heard something strike the floor of the courthouse foyer with a “clink” or glassy sound followed almost immediately by the metallic “thud” of the handcuffs coming to rest on the floor. As Officer Weishaar moved Peterson away, Officer Kelly saw on the floor next to the handcuffs a pipe of the sort often used to smoke marijuana. As Officer Kelly described the scene, the pipe would have been at Peterson's feet when she heard the telltale sounds. She said the entire encounter with Peterson lasted about half a minute. And while other people were outside the courtroom, Officer Kelly said no one other than Peterson had been in the immediate area. She recalled Peterson's lawyer being across the hall. Officer Kelly secured the pipe in an evidence bag, and Officer Weishaar secured Peterson in the police department's booking room.
The Kansas Bureau of Investigation's forensics lab tested the pipe and found traces of THC consistent with marijuana. The lab was not asked to and did not look for fingerprints or DNA on the pipe. Based on the presence of marijuana residue in the pipe, the Reno County District Attorney's Office charged Peterson with felony possession, as a repeat offender.
The jury heard evidence on January 6, 2014. The two officers and a KBI lab technician testified for the State. Peterson did not testify in his own defense but called the municipal court supervisor. The supervisor told the jurors 12 defendants and 17 witnesses had been scheduled to appear in municipal court the morning of August 29, 2013. The jury convicted Peterson, and the district court later imposed a 34–month prison sentence. Peterson has timely appealed.
For his first point on appeal, Peterson challenges the sufficiency of the evidence to convict. He contends the conviction depends on the impermissible stacking of inferences or the idea that the jurors had to rely on speculation rather than evidence to conclude he had possession of the pipe found on the floor outside the municipal courtroom. See State v. Rice, 261 Kan. 567, 587, 932 P.2d 981 (1997). The Rice court offered several iterations of the prohibition on inference stacking, including this one:
“ ‘ “Another way, perhaps, of verbalizing the rule prohibiting an inference on an inference and a presumption on a presumption is the rule, as stated by some courts, that where reliance is placed upon circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.” ‘ “ 261 Kan. at 587 (quoting State v. Williams, 229 Kan. 646, 649, 630 P.2d 694 [1981] ) (quoting 1 Wharton's Criminal Evidence § 91, pp. 150–51 [13th ed.1972] ).
Conversely, of course, the State need not produce direct evidence to prove a criminal case. State v. Lowrance, 298 Kan. 274, 297, 312 P.3d 328 (2013) ( “[A] conviction for even the gravest offense may be sustained by circumstantial evidence.”). So the prosecutor did not need to produce a witness who actually saw Peterson with the pipe. Circumstantial evidence alone, if convincing to the jurors, would be legally sufficient.
In reviewing a sufficiency challenge, we construe the evidence in a light most favorable to the party prevailing below, here the State, and in support of the jury's verdict. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014) ; State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
Under that standard, we must credit the testimony of Officer Kelly and Officer Weishaar. In some cases, the line between minimally sufficient circumstantial evidence supporting a verdict and impermissible inference stacking undermining a verdict might be difficult to draw. This is not one of those cases.
Crediting the trial testimony, we have evidence showing that Officer Kelly heard two objects hit the floor in quick succession. The first made a sound consistent with something made of glass, and the second a sound of something metallic. She knew where Officer Weishaar and Peterson were standing when she heard the sounds. She immediately stepped to that spot and saw the glassy marijuana pipe and the metal handcuffs. According to Officer Kelly, Peterson would have been standing over the pipe. Nobody else (besides Officer Weishaar) was in that spot during the quite short time between when Officer Kelly heard the clinking sound and saw the pipe. Accepting those circumstances as accurate, the rather obvious and logical conclusion must be that Peterson dropped the pipe as he tried to evade Officer Weishaar's handcuffs.
The evidence, thus, presented an entirely proper—and sufficient—circumstantial case in which the facts supported the conclusion of guilt without resort to inferences dependent on nothing more than other inferences. Once the jurors found Officer Kelly to be credible—and we must assume they did—the guilty verdict reflected a reasoned deduction flowing from the evidence. It could not be characterized as something so unharnessed from the evidence as to be floating freely in a thin atmosphere reserved for guess-and-by-gosh conclusions. The defense argument that there were many people in and around the municipal court that morning doesn't undermine the circumstantial evidence establishing the pipe wound up on the floor in a particular place at a time when only Peterson and Officer Weishaar were there.
The conviction was amply grounded in the evidence, even though the witnesses could not say they saw Peterson drop the pipe. And it bears a fair similarity to the law school chestnut illustrating the power of circumstantial evidence:
A farmer awakens to a freshly fallen snow and takes a look at the hollow log just outside his backdoor. He sees rabbit tracks leading up to one side of the log and only unbroken snow on the other side. May he deduce beyond a reasonable doubt that a rabbit has sought refuge in the log?
The law would say so.
We find there was sufficient evidence to support Peterson's conviction.
For his second point, Peterson contends Officer Weishaar violated his right to remain silent and against self-incrimination protected in the Fifth Amendment to the United States Constitution. In responding to a question from the prosecutor about what happened when he took Peterson to the booking room, Officer Weishaar told the jurors: “He didn't want to talk to us.” Peterson's lawyer lodged no objection to the answer.
The answer amounted to a violation of Peterson's Fifth Amendment rights. As the United States Supreme Court has explained, “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.” Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In turn, “[t]he prosecution may not, therefore, use at trial the fact that [the defendant] stood mute or claimed his privilege in the face of accusation.” 384 U.S. at 468 n. 37 ; see Clarke v. Spencer, 582 F.3d 135, 140 (1st Cir.2009) ; Coleman v. State, 434 Md. 320, 333, 75 A.3d 916 (2013).
But, as we have indicated, the error was not preserved for appellate review in the absence of a contemporaneous objection from Peterson's lawyer. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (consistent with contemporaneous objection rule in K.S.A. 60–404, appellate court will not review propriety of prosecutor's question and witness' answer in absence of timely objection). In King, the court applied the rule to bar appellate review of a prosecutor's questioning of a defendant that arguably violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), governing a related Fifth Amendment matter. King, 288 Kan. at 349–50. Without an objection here, the district court was not in a position to remedy the violation either by instructing the jurors to disregard Officer Weishaar's answer or through some other appropriate means. Peterson cannot now seek to void his conviction based on the Fifth Amendment violation, since he did not ask the district court for less drastic relief when the violation arose.
We, therefore, decline to consider the point further.
Affirmed.