Court of Appeals of Kansas.
STATE of Kansas, Appellee,
v.
Herbert PERRY, Appellant.
No. 97,052.
Aug. 8, 2008.
Before McANANY, P.J., HILL J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Herbert Perry appeals his convictions for theft of a tractor-trailer and its load of Nike shoes. He claims that since the State did not present proof he removed the parked tractor-trailer from a truck terminal lot in Kansas City, Missouri, there was no evidence he exerted unauthorized control over the property. Also, Perry argues that because he merely intended to help a friend by moving the tractor-trailer for him, there was no evidence he intended to commit a theft.
Our review of the evidence, in the light most favorable to the State, convinces us that a rational factfinder could have found Perry guilty beyond a reasonable doubt. The record reveals that after the police saw Perry driving the tractor-trailer in a residential neighborhood in Kansas City, Kansas, he sped up and tried to elude them when they began to follow. Perry raced through an intersection, weaved between lanes, and then scrambled from the cab and ran away on foot without setting the brakes. With such evidence, any rational jury could find Perry guilty.
In addition, we deal with other issues in the case. Perry contends the trial court should have given the jury an instruction on theft of property with a value less than $100,000. He claims the true owners of the shoes did not testify, so any estimate given by the transit company is suspect. And because most of the shoes were recovered and one of the victims asked for only $4,400 for missing shoes, the $100,000 property value is too high. We hold that for purposes of criminal law, the shipping company was an owner of the shoes and could offer evidence about their value, and since the value of the property taken still exceeds $100,000, even after the recovery of most of the shoes, we hold there was no need for the court to give the jury an instruction on a lesser form of felony theft. Further, Perry argues the court erred when it refused his personal discovery request. We find the error harmless because the information Perry requested simply described the contents of the police car video, which Perry saw with his lawyer before trial. Finally, under Supreme Court precedent, we vacate the district court’s order for attorney fees and remand for a new fee determination.
The police chase a tractor-trailer through a residential neighborhood.
Around midnight of October 28 or early October 29, 2005, Kansas City, Kansas, Police Officers Greg Dorsett and Travis Toms received a report about a possible stolen tractor-trailer sighted near their location. A few minutes later, the officers spotted a red Volvo tractor-trailer driving through a residential neighborhood on a street marked with “No Trucks” signs. In their marked police cars, the officers followed; Officer Dorsett drove the front patrol car behind the truck, Officer Toms followed.
During the pursuit, Officer Dorsett saw the tractor-trailer moving back and forth from lane to lane while it was going up the street and then straddling the center dividing line. Concerned by the erratic driving, Officer Dorsett activated his siren and overhead lights. But, instead of stopping, the driver of the tractor-trailer sped up. As they approached an intersection, Officer Dorsett turned off his emergency equipment for public safety reasons. The tractor-trailer, however, continued through the intersection, running through the stop sign. Then, while turning left, the tractor-trailer stopped, blocking the entire street. Once the tractor-trailer slowed almost to a stop, the driver jumped out of the tractor and ran from the scene. The semi rolled backwards until the cab of the tractor jammed against the trailer and could roll no further. Officer Toms drove around the tractor-trailer and later caught the driver in some nearby woods. Officer Dorsett stayed with the abandoned tractor-trailer. Herbert Perry was the runaway driver.
The recovered Volvo tractor was the same tractor that Beaver Express had reported stolen on October 27, 2005. Terminal Consolidation Company (Terminal Consolidation) owned the trailer. On October 28, 2005, employees of Terminal Consolidation realized one of their trailers, storing a container of Nike shoes, was missing. Surveillance video showed a red tractor enter the lot, hook onto the trailer, and drive off with it, which was all done without permission. Earlier in October, Terminal Consolidation had picked up the Nike shoes off a freight train and then stored them in the trailer on its lot until the scheduled delivery to Foot Locker in Junction City on November 2. The cargo seals on the trailer were broken.
The jury heard Perry’s version of the events.
In defense of his actions, Perry testified at his jury trial. In support of his claim that he did not know the tractor-trailer was stolen, Perry asserted that Tyrone Franks offered him $200 to move the tractor-trailer from 34th and Haskell to 55th and Kansas Avenue. After accepting Franks’ offer, Perry stated that his friend Eugene Thomas dropped him off at the tractor-trailer. Perry explained that Franks left the keys in the tractor for him. As he drove the tractor-trailer to the named location, Perry admitted he heard the police siren and realized the officers were trying to pull him over. But Perry asserted that he elected not to stop until he could find a safe place, and when he did stop, he ran only because he was driving on a suspended license which meant, if arrested, he would face 180 days in jail. Perry admitted that he did not try to contact Franks or Thomas after his arrest. Neither Franks nor Thomas testified at Perry’s trial.
Before closing arguments, the court held a jury instruction conference. During the jury instruction conference, Perry only requested the lesser included instruction of criminal deprivation of property be given. After the district court agreed to issue that instruction, Perry did not object to the remaining instructions. Specifically, Perry stated: “We have no objection to the instructions as they exist now, your Honor.”
From this evidence, the jury found Perry guilty of all three counts, two counts of felony theft and one count of felony fleeing and eluding a police officer. Perry was sentenced to 49 months in prison for his primary offense, with his other sentences to run concurrently, and ordered to pay attorney fees of $1,510.
On appeal, Perry raises four issues. First, he attacks his felony theft convictions by arguing the State failed to present enough evidence at trial for the jury to convict him of felony theft. Second, for the first time, Perry claims two errors with the reliability of the evidence valuating the load of Nike shoes. He contends that since Foot Locker and Nike owned the shoes and the terminal company did not, the terminal company could not testify about their value. His second claim of error relies on the sentencing transcript which states that 30 cases of shoes may have been missing from the container on the night of its recovery, and therefore, Perry questions the value of the loss. Third, Perry claims the district court erred when it denied his request to review personally any recordings of his traffic stop, the police reports, and any statements made by Detectives Owen and Jenkins about the traffic stop. He also wanted a copy of the traffic citations issued by Officers Dorsett and Toms on October 29, 2005, and the affidavit presented to the court to get the arrest warrant. Fourth, Perry challenges the trial court’s assessment of BIDS attorney fees under K.S.A. 22-4513, citing State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). The State concedes this matter, so we remand the case for proceedings consistent with the holding in Robinson.We address the issues in the order in which they were argued in the brief.
We list our rules about appellate arguments on evidence sufficiency and review some basic principles of the law of theft.
When a defendant challenges the sufficiency of the evidence in a criminal case, the applicable standard of review is whether, after review of all the evidence viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008).
K.S.A. 21-3701(a) lists all the elements of theft:
“(a) Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:
“(1) Obtaining or exerting unauthorized control over property;
“(2) obtaining by deception control over property;
“(3) obtaining by threat control over property; or
“(4) obtaining control over stolen property knowing the property to have been stolen by another.”
In this case, the court told the jury that to prove felony theft under K.S.A. 21-3701(a)(1), the State had to prove five things: (1) Beaver Express and Terminal Consolidation were the owners of the tractor-trailer; (2) Perry obtained or exerted unauthorized control over the property; (3) Perry intended to deprive the owners permanently of the use or benefit of the property; (4) the value of the property; and (5) the act occurred on October 29, 2005, in Wyandotte County, Kansas. In his challenge on this issue, Perry contends that there was not enough proof of elements two and three.
We took at elements two and three of the theft statute.
On element two, Perry asserts the evidence failed to prove that Perry removed the tractor from the lot of Beaver Express and the trailer from Terminal Consolidation. Without such evidence, Perry claims his later possession of the tractor-trailer did not amount to obtaining or exerting unauthorized control over that property as considered in K.S.A. 21-3701(a)(1). We note the district court did not instruct the jury by defining the phrase “obtained or exerted unauthorized control” and Perry did not request such an instruction.
Our Kansas Supreme Court has determined the “control” considered by K.S.A. 21-3701 is more than innocent handling. The statute includes the concept of “dominion.” See State v. Knowles, 209 Kan. 676, 498 P.2d 40 (1972).
“While ‘control’ may conceivably be exercised in a manner not amounting to ‘possession,’ generally speaking each term connotes something of the other when they are used in the context of criminal law, and each connotes the exercise of some degree of ‘dominion’ over the property in question.”209 Kan. at 678.
K.S.A. 21-3110(12), which relates to K.S.A. 21-3701(a)(1), defines the phrase “obtains or exerts control.” See State v. Myers, 6 Kan.App.2d 906, 908, 636 P.2d 213 (1981). It states: “ ‘Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.”
Here, Perry testified that he was hired to drive the trailer-tractor; that he took possession of the tractor-trailer at 34th and Haskell; and that he, alone, drove the tractor-trailer. Neither Beaver Express nor Terminal Consolidation gave Perry permission to control their tractor-trailer. Thus, this evidence clearly shows that Perry’s control over the tractor-trailer was more than mere possession. By solely driving the tractor-trailer for payment, Perry exercised dominion over the property without the consent of the owners. We think the State presented enough evidence for the jury to find that Perry obtained or exerted unauthorized control over the tractor-trailer.
We must also point out something fundamental. Theft under the present statute, unlike ‘larceny’ under the old, needs no asportation to complete the crime. All that is needed is the control (here unauthorized), coupled with the intent to deprive the owner permanently of his possession. State v. Knowles, 209 Kan. at 678.
Turning then to element three of the theft statue, Perry contends the only direct evidence on his intent came from his own testimony. Perry stated he moved the tractor-trailer as a favor for Franks. Thus, because his intent was to help a friend and not to permanently deprive Beaver Express or Terminal Consolidation of their property, Perry claims the State failed to provide sufficient evidence to prove this element.
The State is not limited to proving intent by direct proof only. Specific intent for felony theft is a question of fact for the jury which may be proved by acts, circumstances, and inferences. State v. Mitchell, 262 Kan. 434, Syl. ¶ 2, 439, 939 P.2d 879 (1997).K.S.A. 21-3110(6) defines what it means to “deprive permanently.” It provides that “[t]o ‘deprive permanently’ means to: (a) Take from the owner the possession, use or benefit of property, without the intent to restore the same.”We note the court did instruct the jury on this definition.
Here, the evidence shows that Perry not only declined to pull over when Officer Dorsett activated his siren and overhead lights but that he also sped up and ran a stop sign. Also, once Perry stopped the tractor, the evidence reveals he jumped out of the tractor without setting the parking brake and immediately fled the scene. This evidence clearly shows the jury that Perry’s version of the events is less credible. In his cross-examination, the State elicited admissions from Perry that Perry never asked his defense attorney to find Franks or Thomas and that Perry never contacted Thomas even though he knew where Thomas’ lived. Thus, viewing all the evidence in the light most favorable to the prosecution, there was sufficient evidence to prove that Perry intended to permanently deprive the owners of the use or benefit of their property.
We examine the question of value.
Perry asserts the district court erred in not instructing the jury on theft of a lesser amount. Perry claims error with the reliability of the proof of value of the load of Nike shoes. First, Perry challenges Terminal Consolidation’s value because Foot Locker and Nike-not the trucking company-were the owners of the load of Nike shoes. Second, Perry questions the value of the load of Nike shoes, relying on the sentencing transcript which points out that 30 cases of shoes may have been missing from the container on the night of recovery.
Naturally, we begin with the proper statute. K.S.A. 21-3701(b) states:
“(1) Theft of property of the value of $100,000 or more is a severity level 5, nonperson felony.
“(2) Theft of property of the value of at least $25,000 but less than $100,000 is a severity level 7, nonperson felony.
“(3) Theft of property of the value of at least $1,000 but less than $25,000 is a severity level 9, nonperson felony.”
Obviously, punishment increases with the value of the property taken.
An owner is qualified to render an opinion on the value of items stolen.State v. Thomas, 24 Kan.App. 734, 736, 953 P.2d 1034 (1998). Under the criminal code, an “owner” is defined as “a person who has any interest in property.”K.S.A. 21-3110(13). This includes shippers.
In this case, Terminal Consolidation was hired to pick up the load of Nike shoes from the railroad and store it on the lot until they could deliver them to Foot Locker. The owner of Terminal Consolidation, David Nickell, stated the load of Nike shoes was worth $123,000. Nickell also said his company is ultimately responsible for items taken off the lot or taken out of a truck during delivery. Thus, if there were any missing Nike shoes in the load, Nickell said that Nike or Foot Locker would file a claim with Terminal Consolidation. Perry did not challenge Nickell’s testimony. Under Kansas law, Nickell could testify about the value of the shoes because his company was an owner of the shoes, at least for the period of time that they were responsible for them.
Soon after Nickell’s company recovered the trailer and contents, it delivered the items to Foot Locker. On receipt, Nickell stated that neither Nike nor Foot Locker filed a claim for any missing items from the trailer. At sentencing, though, it was revealed that 30 cases of shoes were thought to be missing from the trailer. Expecting a claim from Nike for the 30 cases, Terminal Consolidation asked for $4,400 as restitution.
Perry misinterprets Terminal Consolidation’s compensation request to mean the load of Nike shoes did not equal $123,000. This argument is misplaced. First, following Terminal Consolidation’s restitution request, the district court declined to include the $4,400 in Perry’s restitution due to the absence of documentation supporting that value. Second, since sentencing, no evidence has been provided in the record on appeal to show there were items missing from the trailer. Third, even if this court assumes the value of the contents has been decreased by $4,400, the total value of the property stolen remains well over the felony limit of $100,000.
Our court has held that it is unnecessary to give a lesser degree instruction where the value of the stolen goods is over the felony limit and where there is no evidence of a value less than the felony limit. State v. Bryant, 22 Kan.App.2d 732, 738, 922 P.2d 1118,rev. denied260 Kan. 996 (1996). The burden is on the appellant to provide a record that affirmatively shows prejudicial error occurred in the trial court. State v. Crum, 286 Kan. —-, 184 P.3d 222 (2008).
In this case, no evidence has been presented to show that the value of the contents and trailer are less than the felony limit. Thus, the district court did not err in failing to give the lesser included instructions to the lesser degrees of theft.
The defendant’s personal discovery requests are examined.
Next, Perry argues the court should not have denied his request to review personally (1) any recordings of his traffic stop; (2) police reports and statements made by Detectives Owen and Jenkins about the traffic stop; (3) copies of the traffic citations issued by Officers Dorsett and Toms on October 29, 2005; and (4) the affidavit seeking an arrest warrant.
Discovery or inspection of reports, memorandums, or other internal government documents made by officers about the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses, other than the defendant, are discoverable under K.S.A. 22-3213. See K.S.A. 22-3212(b); State v. Nuessen, 23 Kan.App.2d 456, 460, 933 P.2d 155 (1997).K.S.A. 22-3213, which covers demands for production of statements and reports of witnesses, states:
“(1) In any criminal prosecution brought by the state of Kansas, no statement or report in the possession of the prosecution which was made by a state witness or prospective state witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination at the preliminary hearing or in the trial of the case.
“(2) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.
….
“(4) The term ‘statement,’ as used in subsections (2) and (3) of this section in relation to any witness called by the prosecution means-
(a) a written statement made by said witness and signed or otherwise adopted or approved by him; or
(b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.”
When dealing with discoverable materials under K.S.A. 22-3213(2), our courts have applied an abuse of discretion standard. See State v. Moore, 229 Kan. 73, 81-82, 622 P.2d 631 (1981) (finding the district court did not abuse its discretion under K.S.A. 22-3213[l] in denying the defendant discovery of a codefendant’s statement or confession when the codefendant did not testify); State v. Wilkins, 220 Kan. 735, 741-42, 556 P.2d 424 (1976) (noting the federal act in which K.S.A. 22-3213 was patterned after entrusts governing the act to the sound discretion of the trial judge); State v. Mans, 213 Kan. 36, 40, 515 P.2d 810 (1973) (recognizing the granting or refusal of an accused’s request for production of a writing for the purpose of cross-examining lies within the discretion of the trial court, but under the provisions of K.S.A. 22-3213(3), on motion of the defendant the production of a statement is mandatory).
We now look at the different classes of items for which Perry asked.
Any other recordings of his traffic stop
Here, the record on appeal does not disclose the presence of other recordings of the stop besides the police car video. Perry had the opportunity to review personally the police car video with his lawyer. Therefore, since the burden is on the appellant to provide a record that affirmatively shows prejudicial error occurred in the trial court, we find no error with the district court’s denial of this request. See Crum, 286 Kan. at —-.
Detectives Owen and Jenkins’ police reports and statements
Our court, in applying K.S.A. 22-3213(1), determined that a “written report made by a police officer, who is a prospective witness for the State in a criminal prosecution, is not discoverable until after the officer has testified on direct examination or at the preliminary hearing or in the trial of the case.” (Emphasis added.) Nuessen, 23 Kan.App.2d at 461; see also State v. Humphrey, 217 Kan. 352, 357, 537 P.2d 155 (1975) (noting that K.S.A. 22-3213 is more restrictive “in that the right to statements and reports of witnesses does not come into play until a state witness has testified on direct examination”).
Here, the record shows that Detectives Owen and Jenkins did not testify at the preliminary hearing or at trial. Therefore, the State was under no duty to provide Perry with a personal copy of their reports and statements. See Nuessen, 23 Kan.App.2d at 461.
Copy of the traffic citations issued by Officers Dorsett and Toms on October 29, 2005
On this point, the record on appeal shows that at the preliminary hearing and at trial, both Officer Dorsett and Toms testified. Thus, the issue becomes whether the district court erred in declining to allow Perry the opportunity to review personally this material even though his counsel had seen the requested documents. Significantly, the traffic citations have not been included in the record on appeal for this court’s review.
Our courts have recognized that K.S.A. 22-3213 has many purposes. One purpose behind K.S.A. 22-3213 is to protect the constitutional confrontation rights of a criminal defendant by affording the defense an opportunity to impeach a witness who has testified. State v. Stafford, 213 Kan. 152, 157-58, 515 P.2d 769 (1973); State v. Tunstall, 8 Kan.App.2d 76, ¶ 2, 78-79, 651 P.2d 19 (1982).“[T]he right of confrontation of witnesses means more than being allowed to confront the witness physically; it also includes the right to effectively cross-examine the witness, to explore his credibility and aid in determining the weight to be given his testimony.”Tunstall, 8 Kan.App.2d at 78.
Another purpose of K.S.A, 22-3213 is to preserve the confidentiality of witnesses, other than the defendant’s, until after the witnesses have testified. State v. Kelly, 216 Kan. 31, 35, 531 P.2d 60 (1975).
It has also been recognized that K.S.A. 22-3213 is patterned after the Federal Jencks Act (18 U.S.C. § 3500 [1969] ).Stafford, 213 Kan. 158-59. Under the Jencks Act, a clearly legitimate and congressionally recognized purpose for disclosure is to further the fair and just administration of criminal justice by requiring disclosure of all statements for use in impeaching witnesses. Goldberg v. U.S., 425 U.S. 94, 107, 47 L.Ed.2d 603, 96 S.Ct. 1338(1976).
In this case, all the purposes of K.S.A. 22-3213 listed above were satisfied when the State provided Perry’s counsel access to the material. The circumstances here especially warrant such a finding since Perry did not use the traffic citations to impeach the police officers. Besides, at the motion hearing, it was clear to the district court that Perry’s counsel did not intend to use the traffic citations in his cross-examination of the officers. Perry’s counsel stated: “If the Court would, in fact, allow me to show those items to my client, I would be happy to order the items from Kinko’s, but up until that point I think it’s a waste of time and money.” (Emphasis added.) Therefore, for these reasons, the district court did not abuse its discretion when it denied Perry’s request for this material.
The affidavit for the arrest warrant
Although they are not cited by either party, the following statutes are relevant to this point. First, K.S.A. 22-2302(2) concerns the affidavit during preliminary proceedings. K.S.A. 22-2302(2) states:
“Affidavits or sworn testimony in support of the probable cause requirement of this section shall not be made available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel for such disposition as either may desire ” (Emphasis added.)
Second, K.S.A. 22-2502(c) refers to the availability of affidavits.K.S.A. 22-2502(c) provides:
“Affidavits or sworn testimony in support of the probable cause requirement of this section shall not be available for examination without a written order of the court, except that such affidavits or testimony when requested shall be made available to the defendant or the defendant’s counsel for such disposition as either may desire .” (Emphasis added.)
In State v. Thomas, 273 Kan. 750, 750-51, 755, 46 P.3d 543 (2002), the Supreme Court examined these statutes. In Thomas, following his conviction, the defendant filed a motion to compel production seeking a copy of the affidavits or sworn testimony that supported his arrest and search warrants. The trial court denied his request, stating that “ ‘[a]ny request for documentation must be made through counsel, as counsel may have access to the requested information.’ “ 273 Kan. at 751. After examining both statutes, the court in Thomas determined the “or” should be interpreted as a disjunctive. As a result, the court in Thomas held that “[t]he plain wording of the statute requires a construction that both a defendant and his or her counsel were intended to have access to the requested documents,” and reversed and remanded with instructions to make the requested documents available upon receipt of the necessary fee for such production. 273 Kan. at 754-55. In failing to comply with K.S.A. 22-2302(2) and K.S.A. 22-2502(c), it is clear the district court abused its discretion denying Perry’s request for the affidavit.
But, for this error to require reversal, such an error must affirmatively cause prejudice to the substantial rights of the defendant. See State v. Francis, 282 Kan. 120, 137, 145 P.3d 48 (2006). Also, an exercise of discretion which results in an error of constitutional magnitude is serious and may not be held to be harmless unless the court is willing to declare a belief that it was harmless beyond a reasonable doubt. State v. McCarty, 271 Kan. 510, 518, 23 P.3d 829 (2001) (quoting Saucedo v. Winger, 252 Kan. 718, 732, 850 P.2d 908 [1993] ).
“To determine whether trial errors are harmless error or prejudicial error, each case must be scrutinized and viewed in the light of the trial record as a whole.”State v. Garcia, 282 Kan. 252, 270, 144 P.3d 684 (2006).
On this matter, Perry argues that his constitutional right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution was violated when he was denied personal access to the affidavit. By not being informed of the affidavit’s contents, Perry asserts he could not identify issues for his counsel to argue. Thus, without being given the ability to meaningfully participate in his own defense, Perry claims the district court’s actions formed reversible error. For support, Perry likens his situation to State v. Calderon, 270 Kan. 241, 13 P.3d 871 (2000).
In Calderon, the Kansas Supreme Court addressed the issue of whether harmless error could prevent reversal once a defendant’s constitutional right to be present during a critical stage of the proceeding had been violated. 270 Kan. at 248-54. The defendant’s constitutional right to be present under the Confrontation Clause of the Sixth Amendment was found to be violated when the trial court ordered the interpreter not to translate closing arguments for the defendant. 270 Kan. at 245-47. In reversing the defendant’s conviction, Calderon concluded the failure to translate the closing arguments involved a basic consideration of fairness and that a harmless error analysis was inappropriate under the circumstances. 270 Kan. at 253.
Here, Perry’s situation does not rise to the level of reversible error in Calderon, The facts show that Perry’s request for the affidavit applied only to count III, felony fleeing and eluding a police officer. Perry’s demand specifically stated; “And the Affidavit for the Application for Warrant, in relation to Count (3) of the Amended Complaint in the above named Captioned Case.”At the motion hearing, Perry’s counsel reaffirmed that Perry’s request for the affidavit was limited to Count III: “And then he is requesting also an affidavit for the application of a warrant in relationship to Count III, which was of the Amended Information which had to do with running from the police officers and so forth, eluding, et cetera.”
A review of the content of the affidavit on count III shows the information accurately described the incident seen in the police car video. The relevant part of the affidavit states:
“3. This affidavit and application is based on the following facts:
“Officer G.A. Dorsett attempted to stop a red Volvo tractor-trailer at N. 27th and Longwood Ave, Kansas City, KS, Wyandotte County, on 10/19.2005 at 0043. The driver did not stop until Farrow Ave. where the driver stopped the unit in the middle of the road and exited and attempted to run. The suspect, Herbert Perry, was quickly apprehended by Officer Toms, who was also at the scene. The tractor trailer began rolling south of N 27th Street and finally came to a rest when it jack-knifed itself. There were no other individuals in the vehicle.”
As noted by Perry’s counsel, Perry viewed the police car video with his counsel. Therefore, because the information in the affidavit about count III did not set forth additional information which could not be obtained from the police car video, we find the district court’s failure in providing Perry personal access to the affidavit was harmless beyond a reasonable doubt.
BIDS issue conceded
The sentencing court ordered Perry to pay BIDS attorney fees in the amount of $ 1,510. In making this ruling, the sentencing court failed to follow the procedure outlined in Robinson.We must vacate that judgment and remand for further proceedings.
Affirmed in part, attorney fee award vacated, and remanded to district court.
