State v. Littlies

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NOT DESIGNATED FOR PUBLICATION

No. 116,003

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TOMMIE LITTLIES,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed August 18, 2017.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Tommie Littlies was convicted after a jury found him guilty of
distribution of methamphetamine, no drug tax stamp, and illegal use of a communication
facility or device. Littlies moved for a new trial, alleging the State suppressed
information favorable to his defense in violation of the mandate requiring disclosure of
such information set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963). Although the district court noted the State should have disclosed the
information to the defense prior to trial, the court found failing to disclose it did not
constitute a Brady violation as alleged by Littlies. As a result, the court denied Littlies'
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motion for a new trial. For the reasons stated below, we affirm the decision of the district
court.

FACTS

Sometime in the summer of 2015, Littlies, his fiancée, and a friend went to
Emporia, Kansas, to visit Brandy Works, who was a friend of a friend. While there, the
group used methamphetamine, which was provided by Littlies. Littlies sold some of his
remaining drugs at the end of the evening.

Littlies testified at trial that Works used methamphetamine with the group and that
she purchased a small amount from him that evening because he needed money. Littlies
said Works asked at the time whether he would sell more methamphetamine to her.
Littlies testified that he did not sell to her again until the incident in question. Works
testified, however, that she did not use methamphetamine with Littlies while he was in
Emporia during the summer of 2015 because she was sober at that time. Works said she
did view Littlies as an "open door" to sell to her after that night though.

On October 24, 2015, Littlies and Works exchanged some text messages that
ultimately led to the sale of methamphetamine later that evening. The following text
messages were introduced as evidence at trial:

"[Works:] hi how r ya? u good?
"[Littlies:] What up
"[Works:] burnin whole n my pocket :)
"[Littlies:] where are u
"[Works:] at home
"[Littlies:] How big of a hole lol
"[Works:] let me see[.]"

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Littlies testified that when Works asked "'[u] good,'" he thought she was asking
whether he had any drugs for sale. Works' testimony was consistent with Littlies'
understanding. Works said that "'burning a hole in my pocket'" meant she had money to
purchase drugs. She further explained that when Littlies asked "'how big of a hole,'" she
thought he was asking Works how much money she had to purchase drugs.

After Works and Littlies began exchanging texts, Works contacted Deputy Heath
Samuels of the Lyon County Sheriff Department and Narcotics Task Force, with whom
she previously had worked as a confidential informant, and asked if he was interested in
setting up a controlled purchase of drugs. Samuels informed her he was interested. Works
and Littlies continued to exchange text messages to set up an exchange:

"[Littlies:] Don't take long or I'm thinking it's setup lol really
"[Works:] just give me just one min hubby counting money too
"[Works:] him n I got 300
. . . .
"[Works:] . . . is there a special going on today or no
"[Littlies:] Not really girl people have been tight what u need for that
. . . .
"[Works:] id like one full ticket then if ya could a smidge more if not that's ok and I
have no lic. I could get ride . . . .
"[Littlies:] My bad girl ticket meaning 2 Lil girlfriends my bad don't know the term
"[Works:] game of pool
. . . .
"[Littlies:] all is well hold them ends no more holes being burned lol
. . . .
"[Works:] hubby says come on down we take the small box steaks if u can be here by
9 . . . ."

Works said she told Littlies she had $300 and wanted to purchase an "eight ball"
or a little more if he could give her a better deal. She initially used the term "ticket" to
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indicate eight ball, but Littlies did not appear to understand the term, so she used the term
"game of pool" to clarify. An eight ball is slang for 3.5 grams of methamphetamine. She
testified that when she later told him that she only wanted the "'small box of steaks,'" she
meant she only wanted half an eight ball instead of the whole thing. Works said that
when Littlies told her to "'hold them ends, no more holes being burned,'" she understood
him to mean that she should not give her cash to anyone else. Littlies and Works
ultimately agreed to meet at a Hardee's in Emporia.

Works informed Deputy Samuels that the price would be $180 for 2 grams of
methamphetamine. Works described the seller as a heavy set, black male from Topeka
named Tommie. Samuels picked up Works prior to the exchange and strip searched her
to confirm she had no contraband, drugs, or money on her person. Officer Dominick
Vortherms of the Emporia Police Department and Narcotics Task Force equipped Works
with a wire so her conversation could be monitored and, after recording the serial
numbers of the bills so he could later track the money, gave her $180 of Emporia Police
Department Imprest Fund money. Vortherms then drove Works to the designated
Hardee's in an undercover police vehicle, dropped her off, and parked in a location across
the street where he could observe one side of the building. Deputy Samuels parked at a
gas station adjacent to the Hardee's, where he could see the other side of the building.

Littlies arrived at the entrance of the Hardee's and Works got into his van. Works
told Littlies that she had $180 for half an eight ball, and Littlies replied that he had "all of
it," which Works said she understood to mean an entire eight ball. Works responded that
she could tell her husband to bring additional money. She called Deputy Samuels and,
pretending he was her husband, asked him to bring more money. Works handed her
phone to Littlies, and he and Samuels arranged for Littlies to wait for Samuels to bring
more money. Samuels retrieved an additional $120 from the Lyon County Sheriff's
Office Imprest Fund and recorded the serial numbers on the bills. He returned to the
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Hardee's, pretending to be Works' husband. The sale of methamphetamine was completed
directly in the presence of Samuels.

After the transaction was complete, Officer Vortherms followed Littlies and
Deputy Tyler Pettigrew of the Lyon County Sheriff's Department pulled Littlies over.
Pettigrew identified the driver as Littlies. Vortherms searched Littlies and found a large
amount of money in his pocket. The money on Littlies matched the serial numbers from
the law enforcement money recorded prior to the transaction. Deputy Pettigrew arrested
Littlies and transported him to the Lyon County Jail. The substance recovered from the
sale field-tested positive for methamphetamine. Works was compensated for her
cooperation in the case.

At his February 22-23, 2016, trial, Littlies did not dispute he sold
methamphetamine to Works on October 24, 2015. Rather, he defended against the charge
by claiming he was entrapped, or lured, into committing a crime he otherwise would not
have committed. Littlies testified that Works initiated the drug transaction and, although
he did not want to sell methamphetamine to her, he felt obligated to help her. Littlies
admitted on cross-examination, however, that he previously had distributed drugs in
Emporia. When Works testified, she indicated that she had been sober for 9 months prior
to the incident at Hardee's and that she was motivated to initiate contact with Deputy
Samuels because she wanted to stay clean and she therefore did not want a "major
supplier" like Littlies in her life. The district court gave the jury an instruction on
entrapment. The jury found Littlies guilty as charged.

Before sentencing, Littlies filed a motion requesting a new trial. In support of his
request, Littlies alleged the State failed to inform the defense that law enforcement had
contact with Works a few days before Littlies' jury trial. Three days prior to trial, Works'
ex-husband informed Officer Vortherms and Deputy Samuels that he was concerned
Works was using methamphetamine and that a man named Rodney Kindle likely was the
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individual selling drugs to her. The officers observed Kindle's vehicle at Works' house
and began investigating Kindle. On February 17 or 18, 2016, Deputy Samuels stopped
Kindle's car and arrested him for failing to update his address with the Division of Motor
Vehicles. A search of his car uncovered a methamphetamine pipe, which Kindle claimed
belonged to Works.

At around 4 p.m. on the day of Kindle's arrest, Deputy Samuels searched Works'
house for drugs or paraphernalia in connection with the investigation of Kindle. Samuels
recovered a small amount of marijuana rolled in a cigarette, a used methamphetamine
pipe with residue, and small empty baggies, which based on Samuels' experience, were
the kind usually used to store and sell methamphetamine. Deputy Samuels secured the
items as evidence and assigned it a case number associated with Works. Samuels reported
that Works admitted to possession of marijuana due to a relapse. The evidence collected
from the search of Works' house was not used in the case against Kindle.

Littlies argued that he was entitled to a new trial under the legal principles set
forth in Brady because the State failed to disclose new evidence that was material to his
defense of entrapment. Specifically, Littlies alleged he should have been able to use the
new evidence to impeach Works' testimony regarding her alleged sobriety and her
motivation for assisting law enforcement.

The district court held that the new evidence did not require a new trial. Although
it found the State should have disclosed the evidence to the defense, the court informed
the parties that it would have deemed the evidence inadmissible at trial because the
information was not relevant to the State's charges against Littlies or to his theory of
defense claiming entrapment. More specifically, the court determined Works' credibility
was not essential to a conviction in this case because the jury did not have to rely on her
testimony; the sale of drugs occurred in the physical presence of Deputy Samuels, who
testified at trial, and the negotiations for the sale were recorded and shown to the jury in
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the form of text messages. The court also noted the jury heard evidence that Works
previously had worked with law enforcement to avoid prosecution on other occasions and
that she had a drug addiction; so, the new evidence would not have added anything of
substance for the jury to consider.

As to Littlies' defense, the district court explained that entrapment focuses on the
defendant's state of mind and requires a showing that the defendant would not have
otherwise committed the criminal act. In this case, however, Littlies conceded in his
testimony at trial that he previously had distributed drugs in Emporia. As a result, the
court found Works' testimony was not essential on this issue. The court also rejected
Littlies argument that Works' trial testimony was false, noting the transaction upon which
the criminal charges were based happened in October; therefore, evidence of a relapse 4
months later was irrelevant except to show she was incapacitated at the time she testified,
an issue that was not raised by Littlies.

After denying his motion for a new trial, the district court sentenced Littlies to 68
months' imprisonment and 36 months' postrelease supervision.

ANALYSIS

On appeal, Littlies claims the district court should have granted him a new trial
because the State's failure to disclose new evidence violated his due process rights under
the legal principles set forth in Brady. Specifically, he claims the State suppressed
information reflecting that law enforcement discovered evidence of drugs and
paraphernalia in Works' house just a few days before Littlies' trial. Littlies further claims
suppression of this information constitutes a Brady violation because it deprived him of
the opportunity to impeach Works about (1) false statements she had made at trial
regarding her sobriety and (2) false statements she had made at trial regarding her motive
to assist law enforcement. Littlies argues that both the State's case against him and his
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theory of defense hinged entirely on whether the jury believed Works' testimony.
Because the evidence at issue went directly to Works' credibility, Littlies claims he was
prejudiced in his ability to defend against the charges and is entitled to a new trial.

A district court's decision regarding whether a Brady violation has occurred is
reviewed de novo with deference to the court's findings of fact, but the court's denial of
the defendant's motion for a new trial is reviewed under an abuse of discretion standard.
State v. Warrior, 294 Kan. 484, Syl. ¶ 13, 277 P.3d 1111 (2012). A district court abuses
its discretion when it applies an incorrect legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact. State v. Ward, 292 Kan. 541, 550,
256 P.3d 801 (2011).

Prosecutors have a duty to disclose evidence favorable to the accused when the
evidence is material either to guilt or punishment, regardless of the good faith or bad faith
of the prosecution. Brady, 373 U.S. at 87. There are three elements of a Brady violation
claim: (1) The evidence at issue must be favorable to the accused, either because it is
exculpatory or impeaching; (2) the evidence must have been suppressed by the State,
either willfully or inadvertently; and (3) the evidence must be material so as to establish
prejudice. Warrior, 294 Kan. 484, Syl. ¶ 10.

Impeachment: sobriety

Had it been disclosed before trial, Littlies argues he could have used the fact that
the police discovered evidence of drugs and paraphernalia in Works' house a few days
before Littlies' trial as evidence to impeach Works' testimony. Littlies asserts this
evidence would have shown Works was lying at trial when she testified that she was
sober for the 9 months prior to the controlled sale of drugs. Littlies also asserts this
evidence would have permitted his attorney to question the credibility of Officer
Vortherms and Deputy Samuels because they were in the courtroom and aware that
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Works was providing false testimony about her sobriety in the 9 months prior to the
controlled sale.

As noted by Littlies, Works testified at trial that at the time of the controlled drug
sale, she had been sober for 9 months. Contrary to Littlies' assertion, however, the fact
that drugs and paraphernalia were discovered by law enforcement in Works' house in
February 2016 does not contradict the testimony provided by Works that when the
controlled sale occurred in October 2015, she had been sober for 9 months. In other
words, even if Works had relapsed and was in possession of drugs and paraphernalia at
the time of Littlies' trial in February 2016, that evidence would not contradict her
testimony that she had been sober for 9 months as of October 2015, when the drug
transaction took place. Because the newly discovered evidence could not have impeached
Works' testimony about her sobriety at trial, it fails to meet the first element of a Brady
violation claim. See Brady, 373 U.S. at 87 (first element of Brady violation claim is that
evidence at issue must be favorable to accused, either because it is exculpatory or
impeaching).

Impeachment: motivation to help the police

Littlies also argues that if he would have had access to the newly discovered
information he could have shown Works falsely testified at trial that she was motivated to
assist law enforcement as a confidential informant because she wanted to eliminate
temptations that could be a threat to her continued sobriety. Specifically, Littlies claims
the information suppressed—that law enforcement found drugs and paraphernalia in
Works' house shortly before she testified on the State's behalf in Littlies' trial—supports a
finding that Works was motivated to continue helping law enforcement as a means to
avoid prosecution for continued drug use, not as a means to stay sober.

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At the hearing on Littlies' motion for a new trial, Deputy Samuels testified
regarding potential charges against Works as follows:

"Q: Okay. Did you indicate to her that she would be charged?
"A: I did not indicate to her whether she would or would not be charged.
"Q: Did you ask her to cooperate or continue to cooperate?
"A: I don't recall asking her, but I think that's a—it's an understanding. I may have told
her to keep the information coming. She's been a great informant in the past.
"Q: Okay. But you indicated to her that she would not necessarily be charged in this
case or with the evidence that you secured if she were to continue to cooperate?
"A: I don't make anybody any promises. I've got, I think, five years to file charges with
the—or file an affidavit, but I think she probably understood that if she continued
giving me information that there was a possibility of that."

The State argues neither this testimony nor any other evidence in the record
suggests that any benefit was given to Works for testifying; therefore, the fact that law
enforcement found drugs and paraphernalia in Works' house shortly before she testified
on the State's behalf is not proper impeachment evidence of Works' credibility. But
Deputy Samuels' testimony reflects he and Works had an "understanding" that if she
continued to provide information to law enforcement, she could avoid charges related to
her own illegal drug activity. "Bias, interest, or improper motives of a witness may
always be shown in order to place a witness' testimony in proper perspective. A cross-
examiner should have wide latitude in establishing partiality, bias, motive, or interest."
State v. Scott, 39 Kan. App. 2d 49, Syl. ¶ 4, 177 P.3d 972 (2008). An understanding
between Works and law enforcement at the time of trial that Works could avoid charges
by acting as an informant is information relevant to Works' bias, interest, and motive for
testifying on behalf of the State. See State v. Davis, 237 Kan. 155, 158, 697 P.2d 1321
(1985) ("[I]nquiry into whether the witness was offered any 'arrangement or deal' by the
State in exchange for his [or her] testimony is crucial."). The evidence should have been
disclosed for this purpose.
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But the fact that the State suppressed evidence that Works may have bias, interest,
and motive for testifying on behalf of the State is not enough to establish a Brady
violation. Littlies also must establish that the evidence was material to the case and its
suppression caused Littlies to suffer prejudice. See Brady, 373 U.S. at 87 (third element
of Brady violation claim is that evidence suppressed must be material so as to establish
prejudice). Evidence is material if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Warrior, 294 Kan. 484, Syl. ¶ 11.

Littlies argues that the new evidence is material to his entrapment defense because
it supports a finding that Works was motivated to help the police in order to avoid
prosecution, instead of to help her stay sober as she testified at trial. Littlies claims the
evidence could have successfully impeached Works on this issue, which in turn could
have made the jury less likely to believe Works' testimony on other issues. In support of
his argument, Littlies cites Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed.
2d 104 (1972), a case in which new evidence discovered by the defendant after trial
indicated that the government failed to disclose a promise made to its key witness that he
would not be prosecuted if he testified for the government. The witness testified at trial
that no such arrangement had been made. The United States Supreme Court ultimately
held that credibility evidence may be a material issue when the prosecution's case rests
almost entirely on the testimony of a key witness. 405 U.S. at 154-55. Littlies argues that,
just like in Giglio, the credibility evidence was material in this case because his theory of
defense—entrapment—rested entirely on whether the jury believed the testimony
provided by Works, a key witness. Specifically, Littlies claims the success of his
entrapment defense turned on whether the jury believed Works when she testified that he
initiated the sale or whether the jury believed Littlies when he testified that Works
initiated the sale.

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But here, unlike in Giglio, the prosecution's case did not rely solely, or even in
large part, on Works' testimony to prove its case against Littlies. As the district court
noted, Deputy Samuels was physically present for the sale and he testified as a key
witness at trial. In proving its case to the jury, the State also relied heavily on the text
messages exchanged between Works and Littlies.

More importantly, however, is the fact that entrapment is not a viable defense
given the facts presented in this case, regardless of who the jury believed initiated the sale
at issue here. The defense of entrapment applies when a law enforcement officer or an
officer's agent generates the original intent to commit a crime in the mind of a person
who is innocent of any criminal purpose and who had not contemplated or would not
have committed a crime but for the inducement of law enforcement. See K.S.A. 2016
Supp. 21-5208; State v. Van Winkle, 254 Kan. 214, 215, 864 P.2d 729 (1993). The
defense does not apply where the evidence establishes the defendant had a previous
intention or predisposition to commit the crime and the officer merely afforded an
opportunity to complete it. State v. Jones, 271 Kan. 201, 204, 21 P.3d 569 (2001); Van
Winkle, 254 Kan. at 215-16; State v. Williamson, 210 Kan. 501, 506, 502 P.2d 777
(1972). In the analysis of entrapment cases, the extent of law enforcement's solicitation is
weighed against the defendant's willingness to comply and other evidence of
predisposition to determine whether the defendant originated the criminal purpose or was
entrapped. State v. Ralston, 43 Kan. App. 2d 353, 367, 225 P.3d 741 (2010).

Littlies argues that the success of his entrapment defense turned on whether the
jury believed Works when she testified that he initiated the sale or whether the jury
believed him when he testified that Works "enticed" him to make the sale. But the crux of
an entrapment defense is the intent and predisposition of the defendant. State v.
Bagemehl, 213 Kan. 210, 213, 515 P.2d 1104 (1973). As the district court pointed out,
Littlies provided evidence of his predisposition to commit the crime by admitting at trial
that he previously had distributed methamphetamine while he was at Works' house in
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Emporia. Further, the text messages are evidence of a straightforward drug transaction:
Littlies asked Works how much money she had, what product she wanted, and negotiated
the means of completing the exchange. "[R]eady compliance by the defendant is
generally, if not universally, accepted as evidence of predisposition." State v. Fitzgibbon,
211 Kan. 553, 555, 507 P.2d 313 (1973).

For the reasons stated above, we conclude the State's failure to disclose the
evidence at issue does not constitute a Brady violation as alleged by Littlies. As a result,
we affirm the district court's decision to deny Littlies' motion for a new trial.

Affirmed.