State v. Mustafa Abdulla Abu-Isba
685 P.2d 856
Kan.
1984
Check Treatment

*1 55,890 No. Kansas, Appellee,

State of Abu-Isba, Mustafa Abdulla

Appellant. 856) P.2d

(685 Opinion July 13, filed *2 Manhattan, Pottroff, argued Myers the L. and cause and Pottroff, Robert the on the for was brief cause, attorney argued Flory, deputy general, the and Robert T. Ste- James Diehl, attorney general, phan, attorney general, Frank D. assistant were on and appellee. the brief for the the was delivered opinion of court The appeal is an a criminal action from a Schroeder, C.J.: finding (defendant-ap- Mustafa Abdulla Abu-Isba verdict (K.S.A. communicating 21- pellant) guilty of terroristic threat 3419). (1) his was appellant contends arrest not based on The cause, (2) Attorney the General did not have probable Kansas action, (3) authority prosecute the court erred in the to (4) evidence, certain and comments made admission of argument during closing constituted reversible error. a Ph.D candidate in the School of Veteri- appellant The was Stanley Dennis, nary University. Medicine at Kansas State Dr. Department Pathology, appel- professor in the was KSU appellant program. The was dis- lant’s adviser for his Ph.D. program the fall graduate missed from subsequently applied for readmission. 18, 1982, May appellant

On went to see Dr. Dennis application. When Dr. Dennis in- concerning his readmission denied, application ap- appellant had been formed the Dennis, very destroy Dr. “I will pellant agitated became and told university. destroy Leipold, you leaving the I will Dr. destroy appellant Dr. asked Kruckenberg.” I will Dr. Dennis so, going campus was him. If he was to call the threatening if he appellant go campus said ahead and call police. The to so, appellant police. Dr. Dennis but the left his office before did investigated police campus police the matter arrived. The County Attorney. findings Riley and submitted their to day Dr. again went see Dennis the next appellant why program. not readmitted demanded know go Dr. appellant continued to Dennis’ office one three 27,1982. per day May appellant Dr. Dennis times until told day did keep up visits each until Dr. Dennis what he would his appellant wanted. appellant went see Dr. Dennis On about June application graduate program. his second for readmission to the appellant Dr. a letter informing Dennis handed him his application had The appellant been considered denied. took calmly Shortly the news and left the office. after this the ap- pellant Leipold, professor met Dr. Horst Depart- another in the Pathology, building. ment in a Leipold corridor of Dr. appellant him very testified told several times in a enraged voice, you.” going get “I am loud Dr. Dennis testified he believed was threatening May changed life and that the threat has his life. path He alters the he drives and keeps to work his house locked up. The threats with his teaching, interfered research and service work. He was under pressure problems medication for blood physically the time of trial. The has never attacked Dr. Dennis. Riley County Attorney

The conducted investigation an into prosecute. complaint case decided A not was then filed in the Riley County District Court an assistant Kansas Attorney charging appellant General with two counts of communicating a terroristic The prosecuted threat. case was attorneys district court assistant general. appel- two The lant guilty communicating was found of a terroristic threat Stanley guilty communicating Dennis not a terroristic Leipold. threat to Horst first complaint contends the State’s and the

supporting affidavit did not contain sufficient factual information support independent an probable determination that cause to arrest existed. may issued,

Before warrant for arrest or search there be must be a finding probable magis- cause a neutral and detached complaint supply magistrate trate. The should with sufficient factual support independent judgment information to that probable cause exists. Mere conclusions are not sufficient State, Wilbanks v. support finding. Syl. such a 66, 1, ¶¶ 224 Kan. 3, 579 P.2d 132 ground Probable cause is the reasonable specific, for belief that a crime has that been committed and committing defendant has committed or it. Under K.S.A. 1983 Supp. 22-2302(1) probable may cause information be set forth in separate complaint. affidavits filed with the Probable cause does require specific evidence of each element the offense as Probable cause exists support a conviction. be needed

would arresting within the officer’s if facts and circumstances trustworthy reasonably informa- he has knowledge and of which person warrant a reason- themselves to tion are sufficient in being has or is an offense been able to believe that caution 228 Kan. Weigel, v. committed. State (1980), therein. and cases cited Spinelli “two-pronged test” under refers to the 410, 637, States, 21 L.Ed.2d 89 S.Ct. 584 393 U.S.

v. United 723, Texas, 108, U.S. (1969); v. L.Ed.2d Aguilar validity (1964), of a warrant based to evaluate S.Ct. 1509 used hearsay. “two-pronged test” abandoned Gates, v. 462 U.S. Supreme Court in Illinois States United _, (1983), 76 L.Ed.2d 103 S.Ct. 2317 in favor of a “totality approach. In adopting totality of the circumstances” approach to circumstances ascertain whether based on all proba- is a in the affidavit there fair the circumstances set forth a crime will be found in a bility that or evidence of contraband Supreme place, States Court stated: particular the United practical, magistrate-is simply issuing to make common-sense “The task of the whether, given all the circumstances set forth the affidavit before decision knowledge’ persons supplying him, ‘veracity’ including the and ‘basis of information, probability hearsay is a fair that contraband evidence of there duty reviewing particular place. of a court in a And the crime will found simply magistrate . . . that a ‘substantial basis for con- to ensure at_, cludfing]’ probable U.S. 76 L.Ed.2d cause existed.” 462 the United States Su- Appeals Court of followed Kansas “two-pronged test” in State preme Court’s abandonment of Rose, rev. App. 2d 665 P.2d denied decision in State v. *4 (1983). approved 1077 This court Rose Walter, 78, 81-82, by judge the in instant case was issued

The arrest warrant the complaint is in upon supporting affidavits. The complaint 21-3419, the which defines offense of language similar to K.S.A. by an communicating supporting threat. A affidavit terroristic Winsor, agent attorney for the general states Don assistant investigated the incidents in- Investigation, of Kansas Bureau faculty the members. Winsor volving appellant the KSU including Drs. Dennis and witnesses interviewed numerous dealings appellant’s with the Leipold. recites the The affidavit attempt degree. his department obtain pathology 855 affidavit Dr. also relates Dennis’ version of alleged the threat appellant May 18, 1982, made the Dr. Leipold’s statements appellant about his encounter with on June supplies affidavit information the alleged of threats made appellant Drs. Leipold. Dennis and All sources of information in the affidavit are named and reliable. These sources include the victims of the alleged threats. The affidavit probable establishes cause to believe the appellant committed charged the crime against him within the totality of the circum- stances analysis of Gates.

The appellant next contends the Attorney Kansas General has authority prosecute no a case in the district court on his own initiative. The Riley maintains County Attorney only person power was with the to determine whether he prosecuted should be Attorney the Kansas General had no authority supersede appel- decision. For this reason the lant filed a motion to dismiss the trial At hearing court. Riley Attorney the trial County before court testified the fully investigated by matter was law enforcement authorities and investigation reports. he reviewed He declined file charges against he felt the because evidence was passed alleged weak and several months had without threats having been made He testified he never re- prosecute the case. quested attorney general to come in attorney that his However, general an assistant when told stated, county attorney complaint, file a going office was Thereupon, the trial court denied the fine with me.” “[T]hat’s motion to dismiss. Reynolds, Stephan v. P.2d

In State ex rel. attorney properly (1984), general the issue whether in criminal action before the district appeared as the attorney county the case file to the There the referred court. county attorney attorney himself was general’s office where prosecution. handling The court reviewed disqualified from attorney powers general: specific helpful, are but “The constitution and statutes of this state authority attorney general prosecute cases in the courts Likewise, spelled question reach out in detail. our earlier decisions do not attorney § designates us. the Constitution Kansas Article general is silent as as one the executive officers this state. The constitution *5 attorney general’s powers and duties. K.S.A. 75-702 makes incumbent the to prosecute defend, any appear attorney general State and or in upon to for the the may interested, court, the any in which the State when civil criminal matter or legislature’ ‘required by governor attorney or branch of the general the either is direction, requires legislative gubernatorial statute the or that so. to do Absent only attorney appear which are the general and defend those cases to imposes upon attorney general the Supreme the K.S.A.75-108 also Kansas Court. any duty protect action when such of the State in informed of to the interests [Emphasis governor. original.] in the action county attorneys appear duty upon imposes to in the a the “K.S.A. 19-702 prosecute respective of and or defend on behalf of their counties several courts state, criminal, arising suits, the this in which under laws of all civil or the state county provides respective 19-711 that when is interested. K.S.A. the state or the duty disabled, any appear attorney county court before whom it is his to is the county attorney. attorney may appoint K.S.A. 19-723 authorizes the act as to attorney county employ an to assist the additional commissioners board attorney. county duty attorney general imposes upon the to consult with 75-704 “K.S.A. them, pertaining county attorneys, requested in all matters when advise duty upon county attorneys imposes a K.S.A.41-1107 their official duties. neglects laws, county attorney intoxicating liquor and when the enforce so, attorney general.” imposes duty upon 234 Kan. at 576. that refuses to do prior which have dealt review decisions The court went on to attorney. authority attorney general county or a with the The court concluded: State, attorney general state. ex is the chief law enforcement officer of the “The designated by Rohleder, 193, 194, 490 rel., P.2d 374 He is also attorney attorneys. 22-2202(19) prosecuting When as of the State’s K.S.A. one court, by county attorney prosecute requested in general case is attorney may complaint prosecute general case its conclusion file a case, attorney general independent court order. Once the enters except prosecution may not be removed for cause. controls the attorney respondent holding judge erred in that “We that the conclude authority prosecute the facts general the case of v. Good under had no county attorney general, having been invited him. The then before case, attorney appearing properly legally was to handle court, prosecution.” legally entitled to

the trial and is continue under the facts and circumstances The issue here whether authority prosecute attorney general this case a case where in the district not criminal action court. county attorney attorney general disagreement are Here, instituted in the district court. proceeding over county prose- initiation attorney opposed to the attorney general. We therefore need not address cution *6 attorney general power the broad issue of whether has the to any any prosecute commence and criminal case under circum- state, any question a stance in district court of this which we County open. Riley Attorney In case the expressed leave no opposition attorney general’s to the decision to commence and prosecute against appellant, thereby this action acquiescing attorney general’s acquiescence in the decision. We view the equivalent attorney general herein as to an invitation to to action, prosecute the and the case falls within the rule set forth Reynolds. attorney Under the circumstances of this case the general properly prosecuted legally this action district court. appellant failing the trial give contends court erred in to a

limiting testimony Stowe, concerning given by instruction Bill friend of the Stowe testified he had talked with the 19, 1982, appellant August attempted on at which he time appellant considering option dissuade the from violence as an his problems appellant solve KSU. The had informed Stowe might something do violent being vindicate himself for program. dismissed from Ph.D Stowe testified the felt Dr. Dennis was the faculty foremost member of the KSU who destroyed had mistreated him and Stowe honor. also testified similar with the appellant August 21, conversations occurred on 1982, September 26, testimony trial court admitted this over defense counsel’s

objection, it holding appellant’s was relevant to the issue of the alleged intent at the time the threats were made to Dr. Dennis Leipold. Dr. proffered limiting defense instruction read, which in part: testimony considering “Dr. E. C. ‘Bill’ Stowe offered that defendant was August 19,1982. testimony

violence on or about was admitted into evidence pur-pose showing may thinking for the limited what defendant have been 18, May 25, 1982.” June given This instruction was not the trial court. The testimony irrelevant, contends Stowe’s confused the intent, on the issue of give limiting and the failure him fair instruction denied trial.

Relevant having tendency evidence evidence in reason prove any fact, relevancy material and the determination is a logic matter experience, Subject not a matter law. exclusionary of evidence lies within rules the admission certain Norman, court. of the trial the sound discretion 102, 108, (1982). K.S.A.21-3419 defines a terroristic 652 P.2d 683 “any communicated with threat to commit violence threat . . . All another circumstances sur intent terrorize communication, including relationship be rounding the determining must be whether parties, tween the considered Miller, in issue is a terroristic threat. State v. the communication 2d App. subsequent prior acts to establish On the use of evidence of § 2d, p. intent, Evidence states: 29 Am. Jur. may guilty charged with a criminal act which innocent or “Where one done, acts, conduct, according with which it was or statements of to the intent may proved intent, *7 in order to show such accused on other occasions be the conduct, acts, although proof or statements of the such cannot be extended naturally necessarily bear the issue to be accused which do not on estab- . . . lished. conduct, acts, subsequent, prior, of the of as well as or statements “Evidence respect bearing offense with on the his intent with to criminal accused issue of every charged may admissible. This does not render admissible which be accused, subsequent self-serving the act the but circumstances of the individ- of considered, being inquiry the in each instance whether the ual case must be any probative subsequent as mental state value evidence of the accused’s acts, so, alleged the if whether the state mind at the time of criminal unduly jury.” entangle issues and confuse the evidence would the 623; § 1 Criminal C.J.S., also 22A Criminal Law Wharton’s See 1972); States, (13th § 209 v. United 389 Evidence ed. Moorman 27, (5th 1968); Stoehr, 276, 196 F.2d Cir. United States v. F.2d (3d 1952). Cir. admissibility the The determination of relevance concerning possible appellant’s subsequent statements to Stowe Pathology Department against the members of the violence of the trial court. The KSU within the sound discretion was faculty against mem- contemplation of violence appellant’s by the court to August September was found trial be bers in alleged appellant’s intent when relevant to issue of May agree We with this him in threats were made June. addition, vests broad discretion in In K.S.A. 60-445 conclusion. against evidence probative trial value of court to balance Green, jury. may prejudicial have on State effect 123, presented 116, (1982). The evidence was 652 P.2d 697 deprive its prejudicial outweigh probative value so a fair trial. We find the trial court did not abuse allowing its in this evidence to be discretion admitted. jury

The was instructed that to find the guilty of communicating following terroristic threat the elements had to be established: “1. That the defendant threatened to commit violence. Stanley “2. That such threat was with communicated intent to terrorize M. day May, Riley

Dennis and act that this occurred or about the 18th in County, Kansas.” Crim. instruction follows PIK 2d 56.23 which approved v. Knight, (1976). 549 P.2d 1397 given setting instruction forth the required elements the crime present that the intent to terrorize be at the time the threat was predicated communicated. Error cannot on the give refusal to when its adequately instruction substance is covered other Motor, Inc., instructions. Black v. See Don Schmid refusing court did not err in give requested instruction

As his point appellant argues final a remark made prosecutor during closing argument constituted reversible error. testimony discussing After of another witness who overheard alleged Leipold, threat to Dr. stated: thought guarantee you gentlemen “She he was serious. And I these to whom he spoke seriously.” these words took him The trial court refused to admonish disregard remark. *8 appellant points to the well-established rule in this state prosecutor injects error is committed a when his or her

personal opinion closing argument. Williams, into See v. State 723, 732, (1980); Kan. P.2d State v. & McDaniel Owens, (1980); 228 Kan. 612 P.2d 1231 v. McClain, 602, 607-08, (1975); 533 P.2d 1277 DR 7- 106(C)(4)(232 clxxxviii). Although pros the remark complaint ecutor of improper, which is made was we do not believe it constituted reversible error. For such remarks to be error, reviewing harmless court must able to declare the be little, any, changed error had if result having likelihood of and the court must able to declare such belief beyond Johnson, reasonable doubt. State prosecutor Here the remark testimony than summation Dr. to no more

amounted he the threats Leipold. Dr. Dennis testified took and Dr. Dennis aspects changed of his life- “very seriously” has numerous possible appellant. style protect from a attack himself very upset by threat, appellant’s Leipold testified he was Dr. appellant, is still afraid of the and that that he felt threatened and protect by the precautions he himself from violence also took Nevertheless, Dr. not Dr. Dennis whether or seriously they and believed Leipold appellant’s threats took appel- is immaterial to the issue of the being threatened were primary issue is whether guilt or innocence. The lant’s the threats with the intent to appellant communicated terrorize victims, seriously the victims took the threats not whether Assuming jury actually felt threatened. followed the instructions, presented, as we must on the record here court’s during argument closing made would not have comment jury’s guilt innocence. We hold effect on the determination error. to be harmless judgment court is affirmed. of the lower Holmes, J., participating.

Lockett, J., concurring dissenting part. agree I part in appellant except that I on all issues raised with court grant the trial court a new trial to the because would prose- disregard remarks refused to admonish the opin- injected personal closing argument which cutor’s final ion into the trial. discussing the portion closing argument, after

In his final alleged testimony threat witness who overheard of another Leipold, stated: Dr. And I you gentlemen thought guarantee whom these “She he was serious.

spoke seriously.” words him these took completion immediately object. Upon appellant did not attorney asked to closing argument, final the defense the State’s occurred: approach following the bench. The conversation argument during stop the middle of his “Mr. I didn’t counsel POTTROFF: problem. guarantees compound Personal I want to because didn’t Supreme credibility post And Court is ex facto reversible error. our of witness said that. has *9 personal— give I didn’t “Mr. Diehl: He I would ask read back record if Court sáid and Pottroff: “Mr. it, guarantee any question these men felt terrorized. it down about I I wrote has said, guarantee. personal that is when it you requesting a Are mistrial? “The Court: mistrial, requesting admonition, requesting a I’m I’m an Pottroff: “Mr. part prosecutor any personal strong of the is not an that beliefs on admonition personally anything that he has said which indicates that he in this case issue give way disregarded them. I or should be could believes one another from— point personal guarantee case, where a as to the there is Kansas case up Supreme credibility of the Kansas in a witness came Court State of they ground. that an times have done it reversed on It’s the few that one of note, law head I improper that is criminal believe statement counsel under note, just argued this case in front sure of exact head but I have 1136.I’m not and I’m convinced that that’s law. I would ask court Abilene of a different effect. for an admonition that they telling my opinion as to “Mr. Diehl: It’s not their —whether were veracity any specific witness. truth mention or testimony testimony The not remember the not the Court does “The Court: question. you any argument argument in And do have idea where in the but the place that it Mr. Pottroff? took Honor, Yes, halfway through it was—would have been “Mr. Pottroff: Your argument. talking, as we’re the last five or ten minutes of this the second I mean rebuttal.” prosecu- reporter the court read back the

The court had statement. tor’s Well, things, that seem to two number one would Court “The Court: jury only emphasize point in time this error. The admonition to the at this would that it reversible familiar with the case would make error. Court Court not certainly prosecution is their cases where the not to invoke familiar with the personal opinion personal what are in the case and or statements of their beliefs contempora- probably improper argument, that but it seems to me no this is time, objection time have to it at the that is the that it should neous was made that it have been cured. To further do made that—at the time should

been only emphasize anything it was and absent it now or if done about would chance, you showing authority think I realize haven’t had much but I of the my opinion get along. frankly, thing And that’s not we need to moved other, sway jury way going make no or the so Court will one and the will be retired for deliberation. admonition “(Thereupon, proceedings con- hearing jury.)” tinued in for a correctly it is error majority determined closing argument. opinion her into inject personal his or Standards, ARA a fair trial that the rule is so essential (b) (1971) provide: § 5.8 Function Prosecution *10 unprofessional express personal “It is conduct for belief opinion falsity any testimony guilt or as to the truth or or evidence or the of the defendant.” 501, Our Rule Code Responsibility, No. of Professional DR 7-106(C)(4), clxxxviii, 232 Kan. states: appearing professional capacity tribunal, lawyer

“In in his a shall not: personal justness cause, opinion credibility “Assert his as to the as to the witness, culpability litigant, guilt as a civil to the or as to the or innocence of accused; may argue, analysis evidence, any position an but he on his for respect conclusion with to the matter stated herein.” majority opinion Williams, cites State v. 228 Kan. 621 (1980); Owens, P.2d 423 State v. & McDaniel 228 Kan. 612 (1980); McClain, P.2d 1231 and State v. 533 P.2d (1975). cited, In each of these cases there was no contem- poraneous objection improper argument; to the the court was not requested jury disregard improper admonish state- ment; nor was the issue raised until closing argument after jury. been made That is not what occurred in this case. Here, appellant’s attorney, after portion the State’s final closing argument, raised the requesting judge issue the trial jury disregard to admonish the prosecutor’s improper remark. judge acknowledged The trial the remark improper but jury requested by refused to admonish the judge’s The trial refusal to admonish disregard im- proper remarks compounded original prosecutor, error thereby denying a fair trial. majority have in effect overruled the cases cited in the

majority opinion and dissent. Each of those cases cited deter- general mined the apply rule did not because the defendant had timely object failed to at the trial. appellant, prior Here the to the jury being court, properly instructed the trial raised the issue. Furthermore, majority now state that judge when a trial acknowledges improper remark closing argu- was made in ment, may ignore timely objection improper to the remark request and refuse the jury. to admonish the The trial court’s jury required any prejudice admonishment to cure result- ing improper from admission of statement or evidence would be longer required. Mick, no 157, Syl. 3, ¶ 621 P.2d (1981); Thompson, State v. approved not be judge should by a trial conduct Such proper. fair nor is neither rule Such court. trial. a new deserves dissenting concurring foregoing J., Prager, joins the opinion.