State v. Whitehead ( 1979 )

The opinion of the court was delivered by

Schroeder, C.J.:

This is an appeal in a criminal action from a jury verdict which found Ronnie G. Whitehead (defendant-appellant) guilty of two counts of possession of heroin. (K.S.A. 1978 Supp. 65-4127a.)

The appellant contends the trial court erred in admitting certain testimony by Ms. Diane Presley; and in failing to give a limiting instruction concerning the use of that testimony.

On the evening of December 29, 1977, officers of the Wichita Police Department, armed with a search warrant, entered a residence at 1709 Looman, Wichita, Kansas, seeking heroin. The appellant, Diane Presley, and a young child were present during the search. Two balloons of heroin were found lying beneath some women’s clothing in a drawer of the bedroom dresser. A torn balloon was found on the floor of the bedroom closet, and a partial balloon was discovered at the bottom of a brown paper sack near the closet. Both the appellant and Diane Presley were arrested for possession of heroin.

The police officers testified that the appellant was dressed in pajamas when they searched the house. Evidence was presented that some male clothing in the closet belonged to the appellant, and that he may have been living with Ms. Presley on an irregular basis. The Looman address was Ms. Presley’s residence. Ms. Presley testified that the appellant is the father of one of her children.

Another search was conducted by Wichita police officers on January 21,1978. The search warrant was executed on a residence at 2422 East 20th Street, Wichita, Kansas. The officers were searching for heroin. Three persons were inside the residence; the appellant, Otis Goodwin and Marshall Bottoms. Upon entering the residence, police officers observed Marshall Bottoms run to the bathroom and close the door. They then heard the toilet flush. The appellant and Otis Goodwin were observed running to the bedroom, where they were found and searched. A gold compact containing eight balloons of heroin was found on the bed. Marshall Bottoms was searched and found to have $331 in his possession. Neither the appellant nor Otis Goodwin had any substantial amount of money with them. The appellant, Otis Goodwin, and Marshall Bottoms were arrested for possession of heroin.

During the trial the State called Detective Charles Herbel as a witness. Detective Herbel had participated in both searches. After describing the January search and arrest, Detective Herbel was asked on direct examination by the State, whether he was familiar with the narcotics term “buy bust?” The appellant objected, arguing that testimony about drug sales was irrelevant to the charges of possession. The trial court overruled appellant’s objection. Detective Herbel then described a “buy bust”; estimated the street value of the heroin found in the January search; and testified to the amounts of money found on the appellant, Goodwin, and Bottoms. Detective Herbel was also permitted to testify about the quantity of heroin normally used by an addict. He stated that the eight balloons of heroin in the gold compact would be more than a person would possess unless he was involved in selling drugs.

Diane Presley was the appellant’s first witness. She testified that approximately four months prior to the appellant’s trial she pled guilty to possession of the heroin confiscated during the December 1977 search of her residence. She further testified that the appellant had been at the residence only fifteen minutes before the officers initiated the search. She denied that any of the heroin belonged to the appellant.

On cross-examination, the State asked Ms. Presley from whom she had obtained the heroin. The appellant objected, claiming the question of sale was not relevant to the charges of possession. The court overruled the objection and ordered Ms. Presley to answer the question. She testified that she obtained the heroin from Marshall Bottoms. After further cross-examination the State asked Ms. Presley:

“Q. Did you make a statement during the lunch hour to Detective Herbal and Trainer and myself that they knew Ronnie Gene Whitehead was dealing dope and I knew it and you knew it and why was I going to ask you that question, why was I going to make you testify to it? Did you say that?

“A. Yes.”

The appellant’s counsel did not object to that question.

The appellant took the stand on his own behalf; denied knowledge of the heroin found in the December search; denied having any interest in the heroin. found during the January search; refuted much of the prosecution witnesses’ testimony; and testified to his own innocence on both counts of possession.

The State recalled Detective Steve Trainer on rebuttal. Detective Trainer was asked the following:

“Q. Did she [Ms. Presley] ever make any statements to you about whether Ronnie Gene Whitehead was dealing in heroin?

“A. Yes, she did.

“Q. Do you recall that statement?

“A. Well, during the course of the conversation, Diane said, ‘Well — ’ pointing to you, myself, and then Detective Herbal- — -‘You guys know that I’ve been using heroin, that Ronnie Gene deals heroin, so why have you got me down here messing with me? You already know it and you don’t need to be messing with me any more.’ ”

The jury returned guilty verdicts on both counts of possession of heroin.

The appellant first contends that the trial court erred in allowing Ms. Presley to testify that she knew the appellant was “dealing dope.” He argues that the admission of that testimony was contrary to K.S.A. 60-421 and 60-455. He further argues that the trial court abused its discretion in not weighing the prejudicial effect of that testimony against its relevancy and probative value.

The State contends that the absence of contemporaneous objection precludes consideration of the alleged erroneous admission of Ms. Presley’s testimony.

We have carefully examined the record and found no contemporaneous objection was made when the question was asked. Failure to make timely, specific objection to the admissibility of evidence will bar consideration of the admissibility question on appellate review. K.S.A. 60-404; State v. Phipps, 224 Kan. 158, 160, 578 P.2d 709 (1978); State v. Fisher, 222 Kan. 76, 83, 563 P.2d 1012 (1977); State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886 (1976).

Ms. Presley’s testimony, which followed Detective Herbel’s description of drug sale terminology and practices, was admissible for only limited use. Evidence of prior drug dealing tended to prove intent, knowledge and absence of mistake or accident under the provisions of K.S.A. 60-455. State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976). See also State v. Bullocks, 2 Kan. App. 2d 48, 574 P.2d 243, rev. denied 225 Kan. 846 (1978).

The appellant next contends that the trial court erred in not giving a limiting instruction concerning the use of Ms. Presley’s testimony about “dealing dope.” The appellant admits he did not request a limiting instruction, but contends the trial court was obligated to instruct by this court’s holding in State v. Roth, 200 Kan. 677, 438 P.2d 58 (1968). We agree.

The trial court has a duty to fairly present the law of the case on all salient features. When testimony of previous crimes is introduced under K.S.A. 60-455, its restriction to the purpose of that section becomes a salient feature in the case and failure to so instruct is error. State v. Roth, 200 Kan. at 680.

Generally, in every case where evidence of other crimes is admissible solely under the authority of 60-455 the trial court should give an instruction limiting the purpose for which evidence of the similar offense is to be considered. The failure to give a limiting instruction, regardless of request, is of such a prejudicial nature as to require the granting of a new trial. State v. Rambo, 208 Kan. 929, 930, 495 P.2d 101 (1972); State v. Roth, 200 Kan. at 680. See also State v. Bly, 215 Kan. 168,176, 523 P.2d 397 (1974).

The judgment of the lower court is reversed and the case is remanded for a new trial.

Fromme, J., not participating.