Opinion
No. 106,568.
2012-06-8
STATE of Kansas, Appellant, v. Fred Stephen SCHMIDT, Jr., Appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge. Tamara S. Hicks and Seth Lowry, assistant county attorneys, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. Lydia Krebs and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Tamara S. Hicks and Seth Lowry, assistant county attorneys, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. Lydia Krebs and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is an interlocutory appeal by the State of Kansas from an order of the district court finding insufficient evidence at the preliminary hearing to support charges of felony murder and aggravated robbery. The legal basis for the district court's ruling was that the State's evidence failed to establish probable cause that Fred Stephen Schmidt, Jr., committed the crime of aggravated robbery, the inherently dangerous felony essential to support the felony-murder charge. We note that upon the evidence presented the district court decided sua sponte to bind Schmidt over on a charge of second-degree murder. Schmidt was also bound over on three felony drug offenses. In order to proceed with an interlocutory appeal, the State did dismiss the charge of second-degree murder and the three felony drug offenses without prejudice.
The State's theory at the preliminary hearing was that Schmidt took drugs or money from the person or presence of Jeffrey Nichols during the commission of an aggravated robbery. At the conclusion of the preliminary hearing, the district court found the State's evidence was insufficient to establish probable cause that there had been a taking of drugs or money. As a result, the district court dismissed the charges of felony murder and aggravated robbery.
We reverse the decision of the district court and remand with directions that Schmidt is to be bound over and arraigned on the charges of felony murder and aggravated robbery.
The evidence presented at preliminary hearing
On March 28, 2011, at approximately 5:45 p.m., Schmidt went to Jeffrey Nichols' apartment in Garden City, Kansas, to buy some televisions from Nichols. The televisions had not yet arrived, so Schmidt decided to wait with Nichols for the delivery. Nichols and Schmidt drank beer and smoked marijuana while they waited.
Shortly after midnight, Nichols got up, walked to the kitchen, and returned to the living room with a butcher knife. Schmidt told officers that Nichols had taken some pills and “ ‘went crazy.’ “ After sustaining cuts to his right finger and left thumb, Schmidt was able get the knife from Nichols and stabbed Nichols multiple times. At some point he lost control of the butcher knife, reached for his pocket knife, and used it to slit Nichols' neck at least twice.
While Nichols was lying on the floor, Schmidt bandaged the wound on his hand with duct tape and paper towels. As he was doing this, Nichols got up and ran out the front door. Schmidt ran to his van, called 911, and drove to the emergency room at St. Catherine's Hospital. Police found Nichols at 1838 Koster in Garden City, one-half of a block south of his apartment, and he was pronounced dead at the scene. Nichols' autopsy revealed that he died from multiple stabs and incised wounds.
Early in the morning on March 29, 2011, Officers Bill Powers and Omar Mora spoke with Schmidt at the hospital. Schmidt told Mora that he had money in his wallet, and a search revealed $370. He also told Mora that he had money in his van; he had received $2,100 from an insurance check and had taken the $2,100 to Nichols' house to buy televisions. Schmidt's van was towed to a body shop, and the next day the police searched the van and found $1,400 in Schmidt's glove compartment. The officers also found an unlabeled prescription drug bottle containing 11 Hydrocodone and 71–1/2 Alprazolam, the generic form of Xanax located behind the van's center console.
The State's investigation revealed that Nichols had previously purchased Hydrocodone and Xanax from Schmidt and that a prescription bottle containing these pills was seen in Nichols' apartment 3 days before his death. The pills were not found during a search of Nichols' home following his death. The State also discovered that Nichols was known to keep cash in his home, but no cash was found during the search of his home.
The State charged Schmidt with felony murder, aggravated robbery based on the taking of money or prescription drugs, two counts of possession of controlled substances, and use of a communication facility for drug transactions. As we have explained, after the preliminary hearing, the district court found that there was insufficient evidence to bind Schmidt over on the aggravated robbery charge. Because the felony-murder charge was based on aggravated robbery as the underlying felony, the district court also concluded that there was insufficient evidence to bind Schmidt over on the original count of first-degree felony murder and bound Schmidt over on the lesser charge of second-degree murder. The State dismissed the charges upon which Schmidt was bound over and filed a timely appeal. We conclude this court has jurisdiction pursuant to K.S.A. 22–3602(b)(1).
We will provide additional evidence presented at the preliminary hearing in our discussion of the specific issues that have been raised.
The standard of proof the district court must consider and the standard of review on appeal
K.S.A. 22–2902(3) provides that the district court shall bind the defendant over for trial if from evidence presented at the preliminary hearing it appears that (1) a felony has been committed and (2) there is probable cause to believe that a felony has been committed by the defendant. See State v. Washington, 293 Kan. 732, 733, 268 P.3d 475 (2012). “The evidence need not prove guilt beyond a reasonable doubt, only probable cause.” 293 Kan. at 733–34 (citing State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 [1983] ). Probable cause at a preliminary hearing is “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt .” State v. Berg, 270 Kan. 237, Syl. ¶ 2, 13 P.3d 914 (2000).
In making a probable cause determination, the district court must draw inferences favorable to the prosecution from the evidence presented and should be unconcerned if the possibility of conviction is remote or virtually nonexistent. Berg, 270 Kan. 237, Syl. ¶ 2. “Where the evidence tends to disclose that the offense charged was committed and the defendant committed it, the question is one for the jury to decide, even though the evidence is weak. [Citation omitted.]” 270 Kan. at 238.
An appellate court follows the same standard for weighing the evidence as the district court at the preliminary hearing. Examination of the evidence is de novo, putting the appellate court in the same position as the district court in deciding whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. Berg, 270 Kan. at 238.
There was sufficient evidence presented at the preliminary hearing to bind Schmidt over on charges of aggravated robbery and felony murder
The State argues that the district court erred in failing to bind Schmidt over for trial on the charges of aggravated robbery and, therefore, felony murder, because there was sufficient evidence presented at the preliminary hearing to show that Schmidt took property—either money or prescription drugs—from Nichols in violation of K.S.A. 21–3427.
Aggravated robbery is defined as a robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21–3427. A robbery is defined as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21–3426.
Felony murder is the killing of a human being in the commission of, attempt to commit, or flight from an inherently dangerous felony. K.S.A. 21–3401(b). Aggravated robbery is an inherently dangerous felony. K.S.A.2010 Supp. 21–3436(a)(4).
To establish probable cause that these crimes had been committed, the State presented evidence of two theories of aggravated robbery; one based on the taking of money, the other based on the taking of prescription drugs. See State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999) (“The aggravated robbery charge was based on the taking of Ayon's car and certain belongings in the car.”); State v. Stephens, 263 Kan. 658, 661, 953 P.2d 1373 (1998) (“The theory of prosecution in the present case is that the stolen property is the cashier's check.”).
In dismissing the aggravated robbery and felony-murder charges against Schmidt, the district court found that there was insufficient evidence to support probable cause that Schmidt took property from Nichols. The court found that there was “definitely evidence that this was an intentional killing”; however, the court found that there was not sufficient evidence that Schmidt took money or prescription drugs from Nichols. From these findings, it is clear that the court found, under either theory of aggravated robbery presented by the State, if there was a robbery, it was an aggravated robbery.
Also, at this stage of the proceedings, the question of whether the property was in Nichols' “person or presence,” an element of aggravated robbery, does not preclude Schmidt from being bound over on the aggravated robbery charge, because drawing reasonable inferences in favor of the prosecution, if money or prescription drugs were taken, they were taken from Nichols' person or presence. See State v. Evans, 251 Kan. 132, 137, 834 P.2d 335 (1992) (money taken from one room was within “presence” of victim who was tied up in another room); State v. Glymph, 222 Kan. 73, 74–75, 563 P.2d 422 (1977) (recognizing that crime of robbery occurs when perpetrator uses force to remove person from location of property and then takes property). (1) There was sufficient evidence to support probable cause that Schmidt took money from Nichols' person or presence
To establish probable cause that Schmidt took money from Nichols' person or presence, the prosecution presented Nichols' bank records from January–March 2011, indicating that when Nichols deposited his paychecks every 2 weeks, he would withhold money from the check, normally at least $500, and on March 21, 2011, Nichols withheld $1,100 from his paycheck. The State also presented evidence that Nichols kept cash in a drawer of his computer desk and behind a picture in his home. When Nichols' home was searched, however, no money was recovered except for change. Further, during Nichols' autopsy, $8 was found in his wallet located in the cargo pocket of his jeans, and no other money was recovered.
Schmidt's glove compartment contained $1,400, and a portion of the money was stained with Schmidt's blood. During the fight with Nichols, Schmidt was cut on his right finger and stabbed on his left thumb. He told the officers that his wound would not stop bleeding, and he had wrapped the wound in paper towels and duct tape to cut the circulation.
Nichols' autopsy revealed a transfer stain on the inside right pocket of Nichols' jeans. The transfer stain contained a mixture of blood from Nichols and Schmidt. Kansas Bureau of Investigation forensic scientist Eric Moore testified that a transfer stain is when blood or liquid on one object comes into contact with another object, leaving blood behind on the second object. He testified that assuming the pocket was not turned inside out; something had to go inside the pocket to come into contact with the area where the transfer stain was located. The State presented photographs depicting the right front pocket of the jeans, where the lining of the pocket was sticking out of the pocket slightly. Schmidt points out that the pocket of Nichols' pants was partially out, and therefore, it was not reasonable for the district court to infer that Schmidt had placed his hand inside Nichols' pocket. The determination of how the blood got on the inside of the pocket, however, is a fact question for the jury to decide, and drawing reasonable inferences in favor of the State, this evidence could lead a jury to find that Schmidt reached into Nichols' front pocket. Nevertheless, we do recognize that at the preliminary hearing there was no evidence presented that money was located in Nichols' front pocket, and his wallet was found in his cargo pocket.
The State argues that the district court, after drawing reasonable inferences in favor of the State, should have found that the State presented sufficient evidence to establish probable cause that Schmidt took money from Nichols. Schmidt counters that the State's argument only focuses on the district court's requirement to draw inferences favorable to the prosecution and overlooks that the district court's inferences must be based on the evidence presented.
Regarding the taking of money, the district judge found:
“When we get to the cash, I'm not certain, after it is all said and done, I'm not certain what the testimony was about the pocket. I hear an argument that, ‘I'm not saying that the cash was in there .’ And then we're saying, ‘Well, it is a reasonable inference that the cash was in there and he took it out’ I don't—it just doesn't make any sense to me.
“We don't know what kind of cash was in that house. There is evidence that, eight days prior, he cashed a check for a certain amount of money or deposited a paycheck and took out $1100 from it. That was eight days prior. I have no idea where that money from this automobile came from.
“It is obvious that both parties were dealing in things they shouldn't be dealing in, which also requires a lot of cash, and that is usually seen in this court.
“I don't know whose cash that was. It has the defendant's blood on it, so we know that the defendant did handle it. But I don't know how we connect this cash to the apartment other than speculation that it was his custom to take money out of the bank. But that was eight days before.”
Here, Schmidt was in possession of money, some of which was stained with his blood, and the question is whether there is sufficient evidence linking the money to Nichols to allow a probable cause finding that Schmidt stole the money in his possession from Nichols. Schmidt argues that Nichols' last deposit was 8 days before his death, and there are multiple alternative explanations concerning the disposition of the money withheld from Nichols' checks as well as for the money located in Schmidt's van. At the preliminary hearing stage of the proceeding, however, the district court must draw inferences favorable to the prosecution from the evidence presented and should be unconcerned if the possibility of conviction is remote or virtually nonexistent. Berg, 270 Kan. 237, Syl. ¶ 2. Here, an inference could be drawn that the cash Nichols withheld from his paychecks was located in his apartment or on his person on March 29, 2011, and Schmidt took the cash from Nichols.
In State v. Johnson, 255 Kan. 140, 871 P.2d 1246 (1994), Johnson challenged his aggravated robbery conviction, arguing that the State failed to prove that he exercised control over the victim's money, wallet, or jacket and failed to show that the property was present on the person of victim on the date in question. The Supreme Court found that sufficient evidence supported the conviction, stating:
“The evidence, viewed in the light most favorable to the prosecution, was that Caldwell [the victim] bled to death from knife wounds. On the night of her murder, Johnson was scratched and covered with blood, he was driving her car, and he had a wad of bloody money. Caldwell customarily kept her money in a small purse in her jacket pocket. When her car was found the day following her death, Caldwell's jacket and empty purse were found in it. From this evidence, a rational factfinder could have found Johnson guilty beyond a reasonable doubt of aggravated robbery.” 255 Kan. at 143.
In this case, on the night of Nichols death, $1,400 was found in the glove compartment of Schmidt's van, and $260 of the money had Schmidt's blood stains on it. The State's evidence showed that during the fight with Nichols, Schmidt was cut, and Johnson supports a finding that this evidence adds to probable cause. See 255 Kan. at 143; see also 2 Fishman, Jones on Evidence § 13:39 (7th ed.1994) (discussing admissibility of criminal defendant's possession of money in robbery prosecution). In Johnson, the testimony about the bloody money came from an eyewitness who saw the money. There was no evidence presented regarding whose blood was on the money. In this case, the money had Schmidt's blood stains on it, which adds to probable cause that the money was handled in close proximity to the fight with Nichols; however, the evidence is less probative than if Nichols' blood was on the money.
In Johnson, the evidence regarding the victim's money and her practice of keeping the money in her jacket and wallet were well developed, and Johnson was found in possession of these items. Here, Schmidt was found in possession of money, however, there was no container owned by Nichols that the money was found in. Further, in Johnson, the testimony provided that the witness had seen the money 3 days before the victim's death. Here, the State presented Nichols' girlfriend's testimony that Nichols stored cash away and that she had seen cash in a drawer of his computer desk once. The State also presented testimony from Nichols' friend that Nichols “[k]ept a lot of cash” and that he had heard Nichols “mention something about a drawer.” There was no testimony, however, that money was seen in Nichols' apartment shortly before the alleged robbery.
Clearly, the evidence here is weaker than the evidence in Johnson; however, this is a probable cause determination, not a challenge to the sufficiency of the evidence necessary to support a conviction as was the case in Johnson. In State v. Robinson, 267 Kan. 734, 738, 987 P.2d 1052 (1999), our Supreme Court discussed the quantum of proof required to bind the defendant over for trial on the charge of reckless aggravated battery and found that the State does not have to prove recklessness at the preliminary hearing; rather, the State must present some evidence of recklessness to support the charge. Similarly, here, the State does not have to prove that Schmidt took money from Nichols; rather, the State must present some evidence to establish a taking of money from the person or presence of Nichols.
Drawing inferences in favor of the prosecution, there was evidence that Nichols withheld cash from his paychecks and kept cash in his home. The blood-stained money found in Schmidt's glove compartment provides evidence that Schmidt handled the money while he was bleeding from the cuts he suffered at Nichols' apartment. Further, Schmidt had money in his wallet and in his glove compartment; so it could be inferred that he hid the victim's money in the glove compartment after the robbery. Also, the amount of money Schmidt told the police he took to Nichols' apartment—$2,100—did not match the amount of money found in his wallet and van, a total of $1,770. Finally, the transfer stain inside Nichols' pocket provides support for the theory that Schmidt intended to take property from Nichols.
We conclude the evidence presented at the preliminary hearing was sufficient to support probable cause to believe Schmidt committed aggravated robbery by taking money from Nichols by force and inflicting bodily harm. (2) There was sufficient evidence to support probable cause that Schmidt took prescription drugs from Nichols' person or presence
To establish probable cause, the State presented evidence that Nichols had previously purchased Hydrocodone and Xanax from Schmidt. Through cell phone records, the State presented evidence supporting a finding that on March 21, 2011, 8 days before Nichols' death, Nichols bought 40 Hydrocodone and 90 Xanax from Schmidt. In Nichols' cell phone, Schmidt's phone number was saved under the name “ ‘Pills Freddy.’ “ Michael Roth, a coworker and friend of Nichols, also testified that Nichols bought Hydrocodone and Xanax from a man known as “Freddy Pills” and testified that “Freddy Pills” was Schmidt. Tanya Lopez, Nichols' girlfriend, also testified that Nichols bought prescription drugs from a person named “Freddy Pills” and that the drugs were usually on Nichols' counter by the sink.
Lopez also testified that on March 25, 2011, she saw in Nichols' apartment an amber prescription bottle that was missing the instruction label and had red and orange warning signs affixed to it. Lopez described the pills in the bottle, and her description was consistent with the description of Hydrocodone and Xanax given by Detective Larry Watson. During the search of Nichols' apartment, no Hydrocodone or Xanax was found.
In Schmidt's van, police found a prescription bottle containing 11 Hydrocodone and 71–1/2 Alprazolam, the generic form of Xanax. The bottle was amber-colored, was missing the instruction label, and had warning labels affixed to it.
Regarding the prescription drugs, the district judge found:
“Well, Counsel, I don't know that any witness actually identified the bottle in Fred Schmidt's car as being the bottle that might have been in the house. It simply was not there in the evidence.
....
“There has been no identification of those bottles of pills. I've got a picture of it here. The lady who spoke about some pills being in the victim's house didn't even testify from the picture that that may have been the same thing. We don't know—she told us what the pills generally looked like; I don't know if that is the pills she saw in the house earlier or not.
“I do know that officers have testified that that is the type of pills that Freddy Pill would sell. I don't know whether it is the pills that Freddy Pill had sold and taken back or if Freddy Pill hadn't sold them yet. I don't know. I don't know where those are.
“For me to say that that was stolen from that house on the basis of this evidence is speculation. We all know the difference. As lawyers, we know the difference between reasonable inference and speculation.”
The district court's findings, however, fail to draw reasonable inferences in the State's favor. Here, the State presented evidence that on March 25, 2011, 3 days before his death, Nichols had a bottle of Hydrocodone and Xanax in a prescription bottle in his apartment. The bottle was missing the instruction label but had warning labels affixed to it. See Johnson, 255 Kan. at 142 (discussing evidence that victim had money in her purse 3 days before the robbery). When Nichols' apartment was searched, a bottle of Hydrocodone and Xanax was not found. When Schmidt's van was searched, a bottle of Hydrocodone and Xanax was found in a bottle missing the instruction label with warning labels affixed to it.
Although the district court correctly points out that it is unclear whether the pills in Schmidt's van were the same pills located in Nichols' apartment, this was a question for the jury to decide, even though the evidence was weak. See Berg, 270 Kan. at 238. Drawing inferences favorable to the prosecution, the State presented sufficient evidence to bind Schmidt over for trial on this theory.
Conclusion
Our decision to reverse the district court is not one that has been taken lightly. Not only was the evidence less than overwhelming, the experienced trial judge demonstrated thoughtful reasoning in deciding that Schmidt should not have been bound over on the two charges. However, we conclude under the evidentiary standard to be applied at a preliminary hearing and after de novo review of the evidence which was presented that the district court failed to draw from the evidence all inferences favorable to the State to support probable cause to believe Schmidt committed aggravated robbery by taking property—either money or prescription drugs—from Nichols. Accordingly, Schmidt should have also been bound over to stand trial on the charges of aggravated robbery and felony murder.
Reversed and remanded with directions to bind Schmidt over for trial on aggravated robbery and felony murder.