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State of Kansas, Appellee, v. Paul M. Willis, Appellant

Kansas Court of Appeals1982-04-09No. No. 52,021
7 Kan. App. 2d 413643 P.2d 1112

Summary

Holding. The conviction is affirmed. The court upheld the admission of wiretap evidence despite late notice and minor clerical errors in the authorization documents, found no error in admitting co-conspirator statements, and determined the evidence was legally sufficient to support the conspiracy conviction.

Paul Willis appealed his jury conviction for conspiracy to sell cocaine, raising three trial errors. First, he challenged the admission of wiretap evidence based on a late mailing of the intercepts inventory notice and clerical errors in the wiretap application documents. The court found that federal law does not require suppression of wiretap evidence merely because post-interception notice requirements were not fully met, and that minor clerical errors in address information do not warrant suppression when the target telephone number was correctly identified throughout the documents. Willis also argued that evidence of an alleged prior illegal wiretap tainted the current wiretap through the fruit of the poisonous tree doctrine, but the court determined his evidence of any connection was too weak to establish taint as a matter of law.

Second, Willis objected to the admission of intercepted statements made by other alleged conspirators as hearsay. The court found that trial judges have considerable discretion in ruling on evidence admissibility in conspiracy cases and identified no legal error in allowing this testimony. Finally, Willis contended the evidence was insufficient to support conviction, characterizing it as improper inferences. The court concluded that circumstantial evidence can support convictions and that a rational jury could have found guilt beyond a reasonable doubt based on the record presented.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Wiretap evidence admissibility and post-interception notice compliance
  • Effect of clerical errors in wiretap authorization documents
  • Fruit of the poisonous tree doctrine in wiretap context
  • Admissibility of co-conspirator statements as hearsay in conspiracy prosecutions
  • Sufficiency of circumstantial evidence for conviction

Procedural posture

Defendant appealed from a jury conviction for conspiracy to sell cocaine, challenging the admission of wiretap evidence and the sufficiency of evidence at trial.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Rees, J.:

Defendant appeals from his conviction by a jury for conspiracy to sell cocaine (K.S.A. 21-3302; K.S.A. 65-4127a).

Title III of the Omnibus Crime Control and Safe Streets Act, codified in 18 U.S.C. § 2510 et seq., which preempts the field of electronic surveillance regulation, allows for concurrent state regulation, subject, at the minimum, to the federal regulatory requirements. In order to obtain a state wiretap warrant, there must be a state wiretap statute in effect. Although a state may adopt a wiretap statute with standards more stringent than the federal requirements, a state may not adopt a statute with more permissive standards. Wiretap evidence obtained under state statutory authorization more permissive than the federal act is inadmissible. State v. Farha, 218 Kan. 394, 399-400, 544 P.2d 341 (1975). Accordingly, where there are at issue provisions of a state wiretap statute which conform to their counterparts in the federal act, federal case authority has precedential value at least equivalent to state case authority, if any. Hence, federal case law in this area is generally, if not universally, treated as controlling authority.

The first of defendant’s three contentions of trial error is that wiretap evidence and its fruit were erroneously admitted. Three arguments are made in support of this contention.

The State mailed the intercepts inventory notice six days after the expiration of the time allowed. Defendant claims noncom pliance with K.S.A. 22-2516(7)(d) (Ensley) rendered the wiretap evidence inadmissible. He does not argue his ability to defend was prejudiced by the late mailing.

The three bases for wiretap evidence suppression expressed in K.S.A. 22-2516(9)(o) (Ensley), i.e., unlawful interception, order authorizing interception insufficient on its face, and interception not made in conformity with authorization order, do not concern post-intercept requirements. Post-intercept notice is to assure the community that wiretap interception is reasonably employed. United States v. Donovan, 429 U.S. 413, 438-439, 50 L.Ed.2d 652, 97 S.Ct. 658 (1977). The federal courts have not suppressed wiretap evidence solely because the inventory was not mailed, or was mailed late. United States v. Vento, 533 F.2d 838 (3d Cir. 1976); United States v. Civella, 533 F.2d 1395 (8th Cir. 1976); United States v. Rizzo, 492 F.2d 443 (2nd Cir.), cert. denied 417 U.S. 944 (1974). Defendant’s reliance upon State v. Dowdy, 222 Kan. 118, 563 P.2d 425 (1977), and, in turn, United States v. Eastman, 465 F.2d 1057 (3d Cir. 1972), is insufficient. Since Eastman, the issue has been addressed in United States v. Donovan, 429 U.S. 413, and United States v. Harrigan, 557 F.2d 879 (1st Cir. 1977). We find the state of the law to be that failure to fully comply with post-interception requirements, standing alone, does not require suppression. Such failure does not render the interceptions unlawful.

Next, defendant finds fault in the application for the wiretap authorization order, the supporting affidavit, the order and the amended order, where there was in multiple but not all instances a transposition of the last two digits of the house number at which the target telephone was located. In other words, there was misstatement of the address of the location of the telephone. Although this is true, where the target telephone number was stated some 22 times in the same documents, it was correctly listed; the telephone number was correctly set forth each and every time it appeared. The mistaken statements of the house number are apparent clerical error, immaterial variation and insubstantial variation that are insufficient to warrant suppression of the evidence. United States v. Doolittle, 507 F.2d 1368, 1370 (5th Cir. 1975); United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir.), cert. denied 423 U.S. 874 (1975).

Purported evidence of an illegal prior wiretap is claimed by defendant to have tainted and rendered inadmissible the subject wiretap evidence. The fruit of the poisonous tree doctrine is inapplicable where the connection between the illegal search and the challenged evidence does not taint the latter. Whether the connection taints the evidence is an issue of fact for determination by the trial court. State v. Childers, 222 Kan. 32, 40, 563 P.2d 999 (1970); State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975). Given the thin nature of defendant’s evidence of a connection in this case, we cannot hold the admission of the evidence was erroneous as a matter of law.

As his second contention of trial error, defendant complains intercepted statements of other alleged conspirators were erroneously admitted hearsay. The subject at hand was discussed in State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, 577 P.2d 803, rev. denied 225 Kan. 846 (1978), and in particular at pages 197-199 of that opinion. What is there said need not be repeated. We find no material variance in State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977), or subsequent decisions. The trial judge is afforded significant discretion and latitude in ruling upon admissibility of evidence in conspiracy cases. State v. Taylor, 2 Kan. App. 2d 532, 533, 583 P.2d 1033 (1978). We can find no error in the admission of the challenged testimony as a matter of law.

The last contention of trial error is that the evidence was insufficient to support the conviction. Our review of the record convinces us that what is referred to by defendant as inferences upon inferences actually involves circumstantial evidence. Convictions of even the gravest offenses can be founded on circumstantial evidence. State v. White & Stewart, 225 Kan. 87, 99, 587 P.2d 1259 (1978). We are convinced a rational factfinder could have found defendant guilty beyond a reasonable doubt. See State v. Voiles, 226 Kan. 469, 472-473, 601 P.2d 1121 (1979).

Affirmed.