State v. Deffebaugh

77 P.3d 1277, 31 Kan. App. 2d 1030, 2003 Kan. App. LEXIS 887
CourtCourt of Appeals of Kansas
DecidedOctober 10, 2003
DocketNo. 89,355
StatusPublished
Cited by1 cases

This text of 77 P.3d 1277 (State v. Deffebaugh) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Deffebaugh, 77 P.3d 1277, 31 Kan. App. 2d 1030, 2003 Kan. App. LEXIS 887 (kanctapp 2003).

Opinions

Malone, J.:

Charles R. Deffebaugh, Jr., appeals his jury trial conviction for selling cocaine. The primaiy issue is whether the trial court erred by refusing to permit a defense witness to testify that Deffebaugh was not present during the drug transaction. The specific question before the court is; “Does the definition of alibi witness include one who would only testify the defendant was not at the scene of the crime?” We answer no and reverse.

On September 4, 2001, Detective Robson of the Coffeyville, Kansas, police department was investigating a house reported to be involved in drug trafficking. The house had been placed under surveillance prior to that date based on reports from neighbors. On this date, however, Robson arranged for an informant, Michelle Wilson, to attempt a controlled buy at the house. Wilson had been arrested for a DUI and had agreed to make controlled buys for the police department. She was considered credible by the police.

At 5 p.m., Wilson proceeded to the suspected drug house with two officers following. Wilson was “wired” so that her conversations could be audiotaped. After a brief conversation with several black males at curbside, one man left Wilson’s car and returned with two rocks of cocaine. Wilson bought the rocks for $30. She left the house and returned to the police station.

Upon police questioning, Wilson indicated the man she received the cocaine from was “Jimmie.” Robson attempted, but faded, to find anyone in the police department’s computer database with that street name. Wilson described Jimmie as being taller than any of the other black males at the buy. Based on that factor and other [1032]*1032physical attributes described by Wilson, Robson compiled two photo lineups, each composed of six photos. Wilson picked Deffebaugh out of the second lineup.

On September 5, 2001, Robson and several other police officers executed a search warrant at the house. There were 11 black males, including Deffebaugh, in the house at the time of the raid. Deffebaugh was the tallest. All of the men were in the bedroom when the police entered the house. There were money and dice on the floor. Cocaine, guns, and other money were found in the house. Deffebaugh had $167 on his person at the time of his arrest.

At trial, Wilson testified for the State. She identified Deffebaugh as the man at the house who sold her cocaine on September 4, 2001. The audiotape of the drug buy was admitted into evidence.

Deffebaugh did not testify at trial. However, he called Calvin Shobe as a witness. Shobe was one of the 11 males in the house when the search warrant was executed. Shobe testified that all the men, including Deffebaugh, were involved in a dice game prior to the execution of the search warrant. The defense attorney attempted to ask Shobe if he recognized Deffebaugh’s voice on the audiotape of the drug buy. At that point, the prosecutor objected and requested a bench conference. Shobe’s testimony was going to be that the voice on the audiotape was not Deffebaugh’s. Additionally, Shobe was prepared to testify that he was at the house during the drug buy on September 4, 2001, and Deffebaugh was not present at that time.

The prosecutor objected to Shobe’s testifying that Deffebaugh was not present at the drug buy on the grounds that Shobe was not listed as an “alibi” witness. The trial court sustained the objection. The court allowed Shobe to testify that the voice on the audiotape was not Deffebaugh’s. However, the trial court refused to permit Shobe to testify Deffebaugh was not present during the drug buy. The court categorized this as alibi testimony and refused to permit the testimony since the defense had failed to provide prior notice.

The jury convicted Deffebaugh of one count of sale of cocaine. The district court denied a motion for new trial and sentenced Deffebaugh to 22 months in prison. Deffebaugh brings this appeal.

[1033]*1033Deffebaugh argues Shobe’s statement should not have been considered alibi testimony. He explains that because Shobe would not have testified Deffebaugh was at some other specific place at the time of the crime, Shobe was not an alibi witness. The State contends Shobe was an alibi witness because by testifying Deffebaugh was not at the crime scene, the jury would “automatically conclude that he was somewhere else,” thus triggering the statutory notice requirement.

As a general rule, the trial court’s decision on the admission of evidence is reviewed under the abuse of discretion standard. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). However, this issue also involves statutory interpretation. An appellate court is not bound by the district court’s interpretation of a statute. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).

“The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” State v. Gonzales, 255 Kan. 243, Syl. ¶ 2, 874 P.2d 612 (1994). “In construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” Petty v. City of El Dorado, 270 Kan. 847, 852, 19 P.3d 167 (2001).

“Criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citation omitted.]” State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).

Notice of an alibi witness is required pursuant to K.S.A. 22-3218(1), which states:

“In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal pres[1034]*1034ence of the one who committed the crime, and the defendant proposes to offer evádeme to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.” (Emphasis added.)

The statute further provides that upon receipt of the defendant’s proposed alibi witnesses, the State shall file the names of witnesses known to the prosecuting attorney who will rebut the defendant’s alibi.

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Related

State v. Deffebaugh
89 P.3d 582 (Supreme Court of Kansas, 2004)

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Bluebook (online)
77 P.3d 1277, 31 Kan. App. 2d 1030, 2003 Kan. App. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-deffebaugh-kanctapp-2003.