State v. Costa, 51410

• Citation: 228 Kan. 308,613 P.2d 1359
• Decision Date: 18 July 1980
• Docket Number: No. 51410,51410
• Parties: STATE of Kansas, Appellee, v. John COSTA, Jr., Appellant.
• Court: United States State Supreme Court of Kansas

Page 1359

613 P.2d 1359

228 Kan. 308

STATE of Kansas, Appellee, v. John COSTA, Jr., Appellant.

No. 51410.

Supreme Court of Kansas.

July 18, 1980.

Syllabus by the Court

1. Custodial interrogation is the questioning of a person by law enforcement officers which is initiated and conducted while such person is held in legal custody or is otherwise deprived of his freedom of action in any significant way.

2. Investigatory interrogation is the questioning of a person by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such person is not in legal custody or deprived of his freedom of action in any significant way.

3. An accused may effectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel's absence.

4. The endorsement of additional witnesses on an information is a matter of judicial discretion and will not be the basis for reversal absent proof of an abuse of discretion. The test of abuse of the exercise of that discretion is whether or not the rights of the defendant were unfairly prejudiced by the endorsement.

5. The purpose of the endorsement requirement is to prevent surprise to the defendant and to give him an opportunity to interview and examine the witnesses for the prosecution in advance of trial.

6. When instructions are given to the jury it is not necessary to define the words "reasonable doubt." It is to be presumed the jury understood what the words "reasonable doubt" meant. The idea intended to be expressed by these words can scarcely be expressed so truly or so clearly by any other words in the English language.

7. A proper instruction on "reasonable doubt" as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further on the probative force of circumstantial evidence is to invite the confusion of semantics.

Lee Hornbaker, of Harper & Hornbaker, Chartered, Junction City, argued the cause and was on the brief for appellant.

Wm. Rex Lorson, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for the appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding John Costa, Jr. (defendant-appellant) guilty of felony murder (K.S.A. 21-3401), attempted kidnapping (K.S.A. 21-3301; K.S.A. 21-3420), and attempted rape (K.S.A. 21-3301, K.S.A. 1979 Supp. 21-3502). The appellant asserts six issues on appeal.

Marilyn Butcher, a young girl from Abilene, Kansas, left work at Zale's Jewelers in the Mid-State Mall in Salina between 6:30 and 6:45 p. m. on the evening of Saturday, January 6, 1979, apparently heading for home.

At 7:00 p. m., William Stoddard, a truck driver with a regular Kansas City to Liberal route, drove his Navajo truck into the south rest area on I-70 near Solomon, Kansas. As Stoddard drove into the area he observed a blue car, similar to a car later identified as Marilyn Butcher's car, parked in the area for automobiles; he observed a truck in the truck lane. Stoddard parked his truck, exited and stretched his legs, and went into the restroom. When Stoddard returned from the restroom he noticed a second tractor-trailer had pulled in. As Stoddard crossed the median heading back to his truck he saw a man who was walking toward the restroom; they chit-chatted awhile. Stoddard identified the appellant as the man he spoke with that night in the rest area. Stoddard observed no one else in the rest area; he worked on his log book and left the area about 7:15 p. m.

Around 8:00 p. m., James Joyner, and his co-driver, Bobby Joe Kemp, pulled their tractor-trailer into the south Solomon rest area. Joyner observed a tractor-trailer rig parked in the truck lane and a blue car parked near the restroom. Joyner pulled his truck in directly behind the other truck. Joyner testified he saw some movement; something like an arm or a leg, tan in color. It appeared to Joyner that someone was getting in or out of the cab of the truck. The truck started to move just as Joyner stopped his truck. Joyner observed the truck rock back and forth, and from side-to-side. He saw a body on the ground and realized the front tandem wheels of the trailer had just run over the body. Joyner screamed, and Kemp, who had started to get out of their truck, turned and looked. Both men saw the back tandem wheels of the trailer pass directly over the body. The two men got a good look at the rear of the trailer pulling out and later gave the highway patrol a description of the trailer. Joyner ran over to the body, then went back to his truck and used the CB radio to call the departing truck driver. Joyner told the departing truck driver that he had run over the co-driver. An answer came back, "Oh, no, man I couldn't have. He's back here in the sleeper." Joyner responded, saying, "No, he's not. He's back here laying here on the ground." The departing driver then said, "Well, I'll go up to the 76 (truck stop) up here and turn around and come back." The truck and driver did not return. Joyner and Kemp later identified the appellant's truck as the one they saw at the rest area.

The Kansas Highway Patrol was called and Trooper Ricky Lee Affholder soon arrived at the rest area. After obtaining a description of the truck, Trooper Affholder conveyed the description to the Kansas Highway Patrol Dispatcher. A message was sent to area troopers to stop the truck. This message was received by Troopers William Kelley, Jerry Downie, and William McShane of the Kansas Highway Patrol, near Junction City, Kansas, at 8:20 p. m. At 8:36 p. m. Troopers McShane and Kelley stopped a tractor-trailer fitting the description, near Junction City. The appellant was driving the truck. The appellant exited his truck and was asked if he had been at the Solomon rest area. The appellant replied that he had been at the Solomon rest area about 30 minutes earlier. Trooper Kelley advised the appellant that his truck met the description of the one which was involved in an accident, and that he would have to wait until the troopers received further word on it. A few minutes later the troopers were advised by radio that the death might be a homicide, because the hands of the decedent were apparently tied behind her back. The appellant was then frisked, given the Miranda warnings, and was again asked if he had been at the Solomon rest area. The appellant again replied that he had been at the rest area about 30 minutes before he was stopped. Later that night the appellant was taken to the Geary County jail in Junction City, Kansas.

Examination of Marilyn Butcher's body showed that in addition to her hands being tied behind her back, her pants were unzipped, and her shoes and one stocking were gone. Tire marks on her body indicated that dual wheels had passed over her head and down the length of her body. The cause of death was established as being run over by a truck. Her shoes were later found near the exit from the rest area on to the highway. Her purse and one stocking were found in a culvert about five miles east of the rest area; her coat was found almost another mile farther down the road. Laboratory examination disclosed several spots of seminal fluid on the crotch of her slacks, as well as on a sleeping bag found in the sleeper of the appellant's truck.

Agent William Tucker of the Kansas Bureau of Investigation testified that the tire impressions left in the ice at the rest area, and the tire marks left on Marilyn Butcher's body, were caused by tires which were exactly the same or similar to those found on the appellant's truck. Human blood was located on one of the right rear tires of the appellant's truck.

On the morning of January 8, while being held in custody at the Saline County jail appellant told the jailer that he would like to talk to Captain Richard Hurley of the Saline County Sheriff's office. Captain Hurley took the appellant to his office where he had been talking to KBI agent Lanny Grosland. Grosland advised the appellant of his Miranda rights, and had the appellant read and sign a waiver of those rights.

The appellant told Hurley and Grosland that he had been traveling with three Monfort trucks and had stopped at the Solomon rest area to get a drink; when he found that the faucet was frozen, he worked on his log book about fifteen minutes. While the appellant was there, he saw an unknown car, a Navajo truck and a small car driven by an elderly gentleman. The appellant told the officers he then left and went to the Union 76 Truck Stop where he joined up with the three Monfort trucks he was traveling with when he was stopped by the Kansas Highway Patrol.

The appellant was charged with attempted rape, attempted kidnapping, and felony murder. He was tried and convicted on all three counts. Appeal has been duly perfected.

The appellant first contends his constitutional rights were violated when he was interrogated by Kansas Highway Patrol troopers at the time he was stopped and before he was given the Miranda warnings. According to the appellant he was subjected to custodial interrogation; the State claims it was investigatory interrogation.

We have defined custodial interrogation as the questioning of a person by law enforcement officers which is initiated and conducted while such person is held in legal custody or is otherwise deprived of his freedom of action in any significant way. State v. Frizzell, 207 Kan. 393, Syl. P 1, 485 P.2d 160 (1971). A person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency. State v. Bohanan, 220 Kan. 121, Syl. P 2, 551 P.2d 828 (1976). Investigatory interrogation is the...