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No. 96,804¹

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

TICIA M. WATKINS,

Appellant.

SYLLABUS BY THE COURT

1. Under K.S.A. 2003 Supp. 21-3106(11), the filing of a criminal complaint and the delivery of the warrant to law enforcement for arrest commences prosecution and begins tolling the statute of limitations so long as the warrant is executed without unreasonable delay.

2. The key to analyzing the reasonableness of a warrant execution is to look at what the State did, not what it did not do. Reasonableness must be determined on each case's own facts and circumstances.

3. The warrant in this case was executed without unreasonable delay when the sheriff alerted area detectives to watch for the defendant, entered the defendant's name into the NCIC computer system, asked other law-enforcement officers for assistance in locating the defendant, rechecked the NCIC system for new information, obtained information about specific events that the defendant might attend, and obtained information about the defendant's residence in various motels while following up to try to locate her at some of them. In addition, the defendant was stopped in a traffic stop while the warrant for her arrest was active, but she avoided arrest only by using her sister's identity.

4. A limited delay in executing a warrant to allow continued use of a confidential informant can be reasonable.

5. A party generally may not raise an objection to the admission of evidence for the first time on appeal. Although constitutional grounds for reversal may sometimes be heard when they involve only a question of law arising on admitted facts or when necessary to prevent the denial of fundamental rights, such claims are not heard when the testimony complained of was brought forward by the defendant's attorney.

6. In State v. Sherry, 233 Kan. 920, 929, 667 P.2d 367 (1983), the Kansas Supreme Court held that the confrontation right is a trial right that does not apply at a preliminary hearing. Sherry remains good law after the United States Supreme Court's ruling in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed October 5, 2007. Affirmed.

Carl Folsom, III, of Kansas Appellate Defender Office, for appellant.

James R. Watts, assistant county attorney, and Paul J. Morrison, attorney general, for appellee.

Before McANANY, P.J., LEBEN, J., and BUKATY, S.J.

LEBEN, J.: Ticia Watkins committed six felonies related to the sale of cocaine: three counts of sale of cocaine and three counts of failure to have a drug-tax stamp. We know that she committed these offenses because she has been convicted and on appeal she does not suggest any inadequacy in the evidence used to convict her. Rather, the primary question she presents to us is whether it was proper to try her at all. She contends that the statute of limitations expired in this case before she was arrested--and her argument is valid unless the warrant was executed "without unreasonable delay." Here, law-enforcement officers took several steps to execute the warrant, and they would have succeeded well within the limitation period had Watkins not lied about her identity when she was stopped for a traffic violation. We find no unreasonable delay in execution of the warrant here and no other reason to overturn her convictions.

At the time Watkins committed these offenses in February and March 2003, K.S.A. 2003 Supp. 21-3106(8) provided that prosecution for these crimes "must be commenced within two years after it is committed." The statute of limitations "starts to run on the day after the offense is committed." K.S.A. 2003 Supp. 21-3106(10).

Two rules that can stop the running of the statute of limitations are of significance here. First, the filing of a criminal complaint and the delivery of the warrant to law enforcement for arrest of the defendant "commences" prosecution, thus tolling the statute of limitations, unless "the warrant . . . is not executed without unreasonable delay." K.S.A. 2003 Supp. 21-3106(11). If an unreasonable delay occurs in executing the warrant (i.e., arresting the defendant), then it "shall be included in computing the period within which a prosecution must be commenced." State v. Washington, 12 Kan. App. 2d 634, 637, 752 P.2d 1084, rev. denied 243 Kan. 781 (1988). Second, the statute does not run for any period during which "the accused is concealed within the state so that process cannot be served" upon her. K.S.A. 2003 Supp. 21-3106(9)(b).

Prosecutors filed a complaint against Watkins on April 22, 2003; the complaint alleged criminal acts between February 25, 2003, and March 19, 2003. Watkins was not arrested on the warrant until May 6, 2005. Thus, her arrest came more than 2 years after the offenses were committed. So unless one of the two rules we've mentioned that stop the running of the statute of limitations applies, Watkins is right that the charges against her should have been dismissed.

The district court held a pretrial evidentiary hearing to consider Watkins' motion to dismiss based on the statute of limitations. On review of a pretrial ruling made after an evidentiary hearing, we review the factual basis for the district court's ruling under the substantial-evidence standard but review the interpretation of the applicable statutes de novo. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006); State v. Beard, 273 Kan. 789, 807, 46 P.3d 1185 (2002).

Officers initially delayed filing charges against Watkins for 2 to 3 months to protect a confidential informant who was still providing useful information in other investigations. After the charges were filed on April 22, 2003, officers next alerted detectives to be on the lookout for Watkins in the area of Douglass, Kansas, a small community in Butler County where Watkins had family. On February 23, 2004, police entered the warrant for Watkins into a national computer database available to law enforcement, the National Crime Information Center (NCIC). Entry in the NCIC database usually facilitates the arrest of person on a warrant registered in the database when the person is stopped by police for a traffic violation. Only 6 days after the NCIC entry was made, Watkins was stopped in Wichita in a traffic stop. She was not arrested on the warrant, however, because she told officers that she was Amber Allen, who is Watkins' sister. Although Watkins' passenger was arrested on an outstanding warrant, Watkins was not arrested on her outstanding warrant thanks to her successful deception about her identity.

Watkins--claiming to be Allen--had told the officer that she worked at the Butler County Detention Center; Allen does work there. The officer later contacted the detention center to report Allen's behavior. Based on that call and later investigation, the officer learned that it had been Watkins, not Allen, whom he had stopped. A new charge was lodged against Watkins for felony obstruction.

In March 2004, Butler County officers sent a memo to officers in neighboring Sedgwick County that asked for their assistance in locating and arresting Watkins on the warrant. A detective received information about Watkins living in various motels and had information suggesting her residence at a specific motel in summer or early fall 2004. In addition, that detective again alerted officers in the Douglass area in summer 2004 that Watkins might be present for her sister's baby shower. Ultimately, though, these efforts did not result in Watkins' arrest, and it was not until May 6, 2005, that she was arrested. There is at least some indication in the evidence that she may have been stopped and claimed to have been Amber Allen on other occasions; there were 45 inquiries in the national crime computer database either for Watkins or Allen between March 2003 and May 2005.

A puzzling aspect of Watkins' interactions with law-enforcement personnel after the NCIC entry of the warrant was made is that Watkins was arrested by police in Wichita on July 5, 2004, and on May 5, 2005, but she was not held for the Butler County warrant on those dates. The district court did not make a specific finding explaining this, and the evidence does not clearly provide one.

The district court concluded that though it was "not willing to say that Butler County made the most energetic and thorough search and continual investigation in the case," it could not "say that Butler County acted unreasonably under the circumstances." The court distinguished this case from Washington, 12 Kan. App. 2d at 636-37, a case in which charges had been dismissed because of unreasonable delay in serving the arrest warrant, because Watkins had engaged in active deception of police when she had been stopped by Wichita police in February 2004. The district court also concluded that Watkins had given her sister's name to other law-enforcement agencies. Based upon these findings, the district court denied Watkins' motion to dismiss the case based on the statute of limitations.

"The key to analyzing the reasonableness of the warrant execution is to look at what the State did, not what it did not do." State v. Long, 276 Kan. 297, Syl. ¶ 3, 75 P.3d 1217 (2003). Each case must be determined on its own facts given all the circumstances. 276 Kan. 297, Syl. ¶ 4. Here, the actions taken by the State were substantial: