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State v. Hobbs7/11/2003
erious crimes require serious investigation. We've got none here. If you have a concern at all about any of these issues about this investigation, then you've got to have reasonable doubt in this case . . . . This was slapped together. They wrapped up their investigation the day of the accident, the day after . . . it happened, . . . ou need to remember Detective Pearce, the chief investigating officer, the lead man for the police, the lead witness for the State of Kansas. The guy they saved to the end. He walked away from here saying, 'I wasn't fair to Patrick Hobbs. I wasn't fair in the way I conducted my investigation.' And if he wasn't fair, nothing after that can be fair, and I ask you to find him not guilty."
In the rebuttal portion of his closing argument, the prosecuting attorney stated:
"Why didn't they check the brakes? Why didn't they check the accelerator? Why didn't they check some of these things? Well, they asked Sergeant Todd, 'Did you check this thing, did you pull this thing,' and I asked him, 'Do you normally do this?' He says, 'well, we don't normally do this unless we have reason to believe that something else caused it.' That's what he said. They had no reason to believe. Now, there was a recall on Firestone tires . Everybody has seen that in the news, but how do you explain somebody flying down the side of the road going very, very fast, swerving over and he just happened to be drunk? What about malfunctions? There's no evidence that there was any malfunction. There hasn't been any evidence presented to you that there was a malfunction. You'd have to believe that the brakes stopped working, that the accelerator stuck, that the tires popped, all at the same time. That everything malfunctioned all at once. Not plausible."
Hobbs asserts that these comments "could only have been construed by the jury to mean that there was no evidence of malfunction presented by the defense." And he relies on cases involving comment on defendant's failure to testify in arguing that the State's remarks shifted the burden of proof and require reversal of his convictions.
Hobbs' argument bears no relation to the actual circumstances. The State's remarks were in direct response to defense counsel's cross-examination about investigation of the Firestone tires and, in particular, to defense counsel's closing argument that the investigation was not fair to Hobbs because the tires had not been checked. The State, by directing the jurors' attention to the evidence, properly responded to defense counsel's attempt to divert the jurors' attention to matters outside the evidence with his suggestions of malfunction and unfairness. The prosecutor's observation that there was no evidence of a malfunction was a direct and proper response to defense counsel's argument and did not shift the burden of proof.
As to his sentencing, Hobbs contends the district court improperly classified him based on his criminal history.
Hobbs had three felony convictions before he was charged with the offenses in the present casetwo residential burglaries and attempted possession of marijuana with intent to sell. This issue arises because in Case No. 94JV2481, the complaint charging the first residential burglary states that the offense is "a severity level 7 non-person felony" rather than a severity level 7 person felony, which is the statutory classification of the offense. The complaint states that on October 20, 1994, Hobbs "did then and there unlawfully, willfully, feloniously, knowingly and without authority enter into a building, to-wit: house owned by Cynthia Britt, which is a dwelling with the intent to commit a theft, a severity level 7 non-person felony, therein
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