Appeal from Douglas District Court; PAULA B. MARTIN, judge.
1. The rule of lenity provides that penal statutes are narrowly construed in favor of the criminal defendant. The rule is based upon the notion that people should have fair notice of conduct that is criminal. The rule of lenity has no application to a statute determining the steps that may be taken by law-enforcement officers to authorize other officers to take an action.
2. K.S.A. 2007 Supp. 75-5217 provides that a parole officer may authorize another law-enforcement officer to arrest a parolee by giving the other officer a written arrest-and-detain order. The parole officer is not required to personally deliver that written order to every officer who may be called upon to look for the parolee. When the parole officer gives the written order to one officer in a law-enforcement agency and that officer communicates receipt of the order to other officers within that agency, any of the officers within that agency has authority to arrest an individual who has violated parole.
3. To obtain a new trial based upon the discovery of new evidence after trial, the defendant must show (1) that the new evidence could not have been produced at trial with reasonable diligence and (2) that there is a reasonable probability that there would be a different result on retrial with the additional evidence.
4. The issue of the sufficiency of a charging document may be raised for the first time on appeal.
5. When a challenge to the sufficiency of a charging document is raised for the first time on appeal, the appellate court applies a common-sense rule under which the charging document is sufficient if it would be fair to require the defendant to defend on the stated charge, even if an essential element of the offense is missing from the document. In making this judgment, the appellate court looks at the entire record. No harm will be found from a technical defect in the charging document unless it prejudiced the defendant's ability to prepare a defense, impaired the defendant's ability to plead the conviction in some later proceeding, or limited the defendant's substantial rights to a fair trial.
6. When a jury instruction is given without objection, reversal based on error in that instruction is proper only if there is a real possibility that the jury would have returned a different verdict without the error.
7. Allegations of prosecutorial misconduct will be reviewed on appeal even though there was no timely objection at trial. Generally, a prosecutor is given wide latitude when discussing the evidence.
The opinion of the court was delivered by: Leben, J.
Before GREEN, P.J., GREENE and LEBEN, JJ.
Tyrone Edwards claims that statements he made to police officers should have been suppressed because they came after he was illegally arrested. He claims the arrest was illegal because the officers didn't have physical possession of his parole officer's written order that he be arrested. But other statutes that authorize arrests on a warrant do not require that the arresting officer have the warrant in physical possession, and we likewise do not find that the physical possession of the order is a requirement in the statute that allows parole officers to order an arrest.
Edwards separately raises several other challenges to his conviction for aiding a felon and possession of a firearm by a felon. He claims that a new trial should have been granted because evidence was discovered after trial that a key witness had drugs in her system that night; a new trial was not called for, however, since testimony had already indicated that the witness had used cocaine that night. He also raises three claims that he did not object about in the district court--that the charging document was insufficient, that the district court gave an inaccurate answer to a jury question, and that the prosecutor improperly commented on the credibility of a witness. We believe the charging document was sufficient, the trial judge's answer to the jury was appropriate, and the prosecutor's comment was within the bounds of appropriate conduct at trial. We affirm Edwards' convictions because we have found no substantial error in the trial and proceedings in the district court.
I. Edwards Was Properly Arrested Even Though the Arresting Officer Did Not Have Physical Possession of the Arrest Order
Lawrence police officers arrested Edwards based on a written arrest-and-detain order issued by his parole officer. The parole officer sent a copy of the order to the Lawrence police by facsimile. One detective received the fax and told another detective it had been received; that other detective then arrested Edwards. The arresting officer did not have the faxed copy in his personal possession at the time he arrested Edwards, and the officers did not have any original document signed by the parole officer because it had been sent by fax.
Edwards argues that because the arresting officer did not have physical possession of the arrest order, the arrest was not authorized under the statute governing arrest orders by parole officers. That statute, K.S.A. 2007 Supp. 75-5217(a), provides that a parole officer "may deputize any other [law enforcement] officer with power of arrest" over a parolee "by giving such officer a written arrest and detain order setting forth that the released inmate, in the judgment of the parole officer, has violated the conditions of the inmate's release." Edwards argues for a strict interpretation of the phrase "giving such officer a ...