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State v. Scott

February 22, 2008; as amended February 27, 2008

STATE OF KANSAS, APPELLEE,
v.
MICHAEL W. SCOTT, APPELLANT.



Appeal from Atchison District Court; MARTIN J. ASHER, judge.

SYLLABUS BY THE COURT

1. When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court must consider all of the evidence in a light most favorable to the prosecution and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. It is for the jury to decide the credibility of witnesses and to resolve inconsistencies in the evidence. An appellate court does not weigh conflicting evidence or pass on the credibility of witnesses. An appellate court resolves all questions of credibility in favor of the State.

3. An appellate court's first consideration when reviewing a trial court's decision concerning the admission of evidence is whether the evidence is relevant. Once relevance is established, an appellate court must apply the evidentiary rules governing the admission and exclusion of evidence as a matter of law or in the exercise of the trial court's discretion, depending on the contours of the evidentiary rule question. When an issue involves the adequacy of the legal basis for the trial court's decision, the issue is reviewed using a de novo standard.

4. Bias, interest, or improper motives of a witness may always be shown in order to place a witness' testimony in proper perspective. A cross-examiner should have wide latitude in establishing partiality, bias, motive, or interest. Because matters of inquiry on this issue are not considered collateral, the cross-examiner may introduce extrinsic evidence unless the witness admits the fact or event.

5. Evidence of bias or prejudice of a witness is relevant and may be shown on cross-examination or in rebuttal or by other witnesses or evidence.

6. Generally, unadjudicated criminal offenses may not be used to impeach a witness in a criminal case. Nevertheless, evidence of pending charges against the witness is admissible for the limited purpose of showing bias, prejudice, interest, and motive of the witness in testifying as he or she did.

7. Although the extent of cross-examination of a witness is generally in the discretion of the trial court, a more searching examination is to be allowed of a witness who is a party principal. Moreover, where the determination of the main issue of fact must largely depend upon the credence to be given the testimony of a litigant witness, a wider range of cross-examination should be allowed than is usually permitted in the cross-examination of witnesses in general.

8. When determining whether a trial court's refusal to allow cross-examination of a witness about possible bias or motivation for testifying was harmless, an appellate court considers the following factors: (1) the importance of the witness' testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of the cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case.

9. Under the facts of this case, evidence that the principal witness was being criminally investigated for forging the defendant's checks was relevant and admissible to show the witness' bias and motive for testifying against the defendant. The failure to admit such evidence constituted reversible error in this case.

The opinion of the court was delivered by: Green, J.

Reversed and remanded with directions.

Before MARQUARDT, P.J., GREEN and LEBEN, JJ.

Michael Scott appeals from his jury trial convictions and his sentences for two counts of the sale of cocaine within 1,000 feet of a school in violation of K.S.A. 2004 Supp. 65-4161(d) and K.S.A. 65-4107(b)(5). First, Scott contends that there was insufficient evidence for the jury to convict him of the two counts of sale of cocaine. Nevertheless, after reviewing the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to convict Scott of the charges. Next, Scott argues that the trial court erred by refusing to admit testimony at trial that the principal witness in the case was being criminally investigated for forging Scott's checks. We determine that such evidence was relevant and admissible to show the witness' bias and motive for testifying against Scott. Under the circumstances of this case, the failure to admit such evidence did not constitute harmless error. Because we are reversing Scott's convictions and remanding for a new trial, the remaining issues raised by Scott are moot and will not be addressed in this opinion. Accordingly, we reverse and remand for a new trial.

In August 2004, Nicky Soden approached Officer Terry Kelley about becoming an informant for the Atchison Police Department. Soden admitted that he had a problem with drugs but said that he wanted to "clean himself up." Soden told Kelley that if he became an informant, no one would want to deal with him, and he would get off of drugs. During his first interview with Kelley, Soden mentioned several names of people involved in selling drugs but did not mention Scott's name.

Over the next four months, Soden worked as an informant in several undercover drug buys. Soden agreed not to use any controlled substances during his period of association with the police department. Nevertheless, Soden showed up intoxicated with what Kelley believed was alcohol one time, and Kelley had to send him home. Soden also admitted that he used drugs a couple of times while working with Kelley. During the 4 months he worked as an informant, Kelley gave Soden approximately $470 for expenses such as groceries. Soden was provided with free housing and subsidized utilities while he was working as an informant. In addition, Scott presented evidence that an arrest warrant, which was issued for Soden in November 2004, was cleared in February 2005.

Soden first mentioned Scott's name around the end of September 2004. On October 12, 2004, Soden contacted Kelley and said that he was going to try to buy drugs from Scott. Kelley met with Soden, searched him and fit him with a listening device, gave him $40 to buy crack cocaine, and dropped him off in front of a school near Scott's house. Kelley watched Soden walk up a hill towards Scott's house. It was dark outside, and Kelley could not see Soden when he arrived at Scott's house. Over the listening device, Kelley heard Soden knock on a door and say "Mike" when the door was answered. Kelley could hear Soden and another man talking.

Soden testified that when he arrived at Scott's house, he asked Scott to get him some crack cocaine. According to Soden, Scott said he needed to make a phone call. After Scott told Soden it would be about 30 minutes, Soden returned to Kelley's car. Kelley took Soden to the police station and searched him. Soden told Kelley that Scott and Scott's girlfriend were the only ...


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