State v. Brown

• Decision Date: 08 April 1967
• Docket Number: No. 44068,44068
• Citation: 426 P.2d 129,198 Kan. 473
• Parties: STATE of Kansas, Appellee, v. LeRoy St. Clair BROWN, Jr., Appellant.
• Court: Kansas Supreme Court

Page 129

426 P.2d 129

198 Kan. 473

STATE of Kansas, Appellee, v. LeRoy St. Clair BROWN, Jr., Appellant.

No. 44068.

Supreme Court of Kansas.

April 8, 1967.

Rehearing Denied May 1, 1967.

Syllabus by the Court

1. Where there is substantial, competent evidence supporting the district court's finding that an accused's confession of guilt was freely and voluntarily made without force or coercion, and is therefore admissible, such finding will not be disturbed on appeal.

2. An accused's confession made during pretrial interrogation by law enforcement officers is not rendered inadmissible solely because it was made at a time when the accused did not have counsel.

3. A search without a warrant is permissible if incident to a lawful arrest. An arrest without a warrant, to support an incidental search, must be made with probable cause. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man's believing that a crime has been committed at or before the time of arrest. (Following State v. Blood, 190 Kan. 812, 378 P.2d 548, and State v. Wood, 190 Kan. 778, 378 P.2d 536.)

4. The fruits of a crime, when in plain view of an officer lawfully on the premises or in a public place, may furnish probable cause to make an arrest without a warrant under all the surrounding circumstances; and upon the lawful arrest of the person having possession of the same, the officer may legally seize the property and also make an additional search as long as it is incidental to the lawful arrest. (Following State v. Hunt, 198 Kan. 222, 424 P.2d 571.)

5. The record on a direct appeal in a criminal action is examined, and for the reasons more fully set forth in the opinion, it is held: The trial court did not err in (1) admitting defendant's signed confession into evidence, (2) admitting evidence alleged to have been obtained by unlawful search and seizure; and it is further held, that defendant was not prejudiced by the fact the voir dire examination and closing argument were not recorded as part of the record of trial.

Frederick K. Cross, Kansas City, argued the cause, and was on the brief, for appellant.

Albert E. Grauberger, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Frank D. Menghini, County Atty., were with him on the brief, for appellee.

O'CONNOR, Justice.

This is a direct appeal in a criminal action wherein the defendant, LeRoy Saint Clair Brown, Jr., was convicted by a jury in March 1964 on two counts of first degree burglary (G.S.1949 (now K.S.A.) 21-513), two counts of first degree robbery (G.S.1949 (now K.S.A.) 21-527), and one count on forcible rape (G.S.1949 (now K.S.A.) 21-424). Having been convicted of felonies on two prior occasions in the state of Missouri, defendant was sentenced, under the habitual criminal act, to the Kansas State Penitentiary for terms of not less than fifteen years on each of the burglary and robbery charges, and life imprisonment on the charge of forcible rape. He was represented throughout trial by court-appointed counsel.

Following conviction, denial of a motion for new trial, and imposition of sentence, defendant filed notice of appeal and present counsel was appointed.

The factual background as indicated by the evidence, is that on the night of August 24, 1963, the defendant broke into a private dwelling in Kansas City and robbed a lady occupant of a blue and white record player valued at $149.50. A week later, defendant broke into another private dwelling in the city, forcibly raped the inhabitant, and robbed her of her purse, watch, a jewelry box, and costume jewelry. Defendant was arrested by two officers of the Wyandotte county sheriff's office in the early morning hours of August 31, shortly after the latter incident occurred. A search of the automobile in which defendant was sleeping at the time of his arrest produced not only the above-mentioned items but also several other articles, including identification and credit cards belonging to the woman he had attacked. Defendant was taken before a justice of the peace, then to the detective division in the county jail where, after being interrogated, he signed a confession that ultimately was introduced at his trial.

Defendant, through his counsel, advances four specific claims of alleged trial error, and we shall consider them in the order presented.

Defendant's first two contentions relate to the admission of his confession into evidence; specifically he asserts that (1) it was obtained by threats and physical abuse, and (2) at a time when he had not been advised by counsel.

The record discloses that the trial court, at defendant's request, held a hearing outside the presence of the jury to determine whether or not the statement had been voluntarily made. There was conflict in the evidence presented. Summarily, defendant's testimony was to the effect that acts of physical violence by the questioning officers were used in obtaining his signed statement; that after he had been questioned for some time and still refused to sign a statement, his arms were bent back, his legs were placed in an outstretched position on a chair opposite him, and one of the officers then 'bounced up and down on them;' that one officer then suggested to and demonstrated on the defendant the manner in which defendant had put his hands around his victim's neck when he attacked her; and that the officer then strucke the defendant, causing his lower lip to bleed. Defendant acknowledged his relatives had been present during the early portion of the officers' questioning but were not present at the time he signed the statement.

Detectives Scherzer and Baska, who took the statement, testified that the defendant was advised of his rights at the beginning of each session of questioning; that he was advised he had a right to an attorney, but that he stated he did not want or need one, he wanted to give a statement; that he was further advised that anything he said might be used against him in event of trial; that no threats or promises were made to him, nor was he physically mistreated; and that the statement was obtained after at least two sessions of interrogation-8:00 a. m. to noon, and 4:30 p. m. to 6:30 or 7:00 p. m.-on August 31.

From the evidence presented, the court found that the defendant had been fully advised of his constitutional rights; that the statement was freely and voluntarily given without the use of force or threats; and that it was admissible. The statement which is part of the record, appears to be a complete confession of guilt by the defendant of the crimes with which he was charged.

We note with approval that before admitting the confession, the trial court, in full compliance with K.S.A. 60-408, heard evidence outside the presence of the jury and determined as a preliminary matter that the defendant was first fully advised of his rights, and his confession was freely and voluntarily made without force or coercion. (State v. McCarther, 197 Kan. 279, 416 P.2d 290; State v. Seward, 163 Kan. 136, 181 P.2d 478.) The evidence on the issue of voluntariness was sharply conflicting. This, like any other question of fact, however, was a matter to be resolved by the trial court; and its finding being supported by substantial, competent evidence, will not be disturbed on appeal. (State v. Stubbs, 195 Kan. 396, 407 P.2d 215.) Further, the finding meets the requirements for the admission of a confession as set forth in K.S.A. 60-460(f). (See State v. Jones, 198 Kan. 30, 422 P.2d 888, and State v. Eldridge, 197 Kan. 694, 421 P.2d 170.)

In support of his claim that his confession was inadmissible because he had not been advised by counsel, defendant relies entirely on the interrogational guidelines announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and further amplified in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Defendant overlooks the fact that those decisions affect only cases in which trial began after June 22, 1964 (Escobedo) and June 13, 1966 (Miranda). (Johnson v. State of...