785 P.2d 1332 (Kan. 1990), 62067, State v. McKessor

• Citation: 785 P.2d 1332, 246 Kan. 1
• Party Name: STATE of Kansas, Appellee, v. Dennis D. McKESSOR, Appellant.
• Attorney: [6] Thomas Jacquinot, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant. Tom Bath, assistant district attorney, argued the cause, and Robin A. Lewis, assistant district attorney, Paul J. Morrison, district attor...
• Case Date: January 19, 1990
• Court: Kansas Supreme Court

Page 1332

785 P.2d 1332 (Kan. 1990)

246 Kan. 1

STATE of Kansas, Appellee,

v.

Dennis D. McKESSOR, Appellant.

No. 62067.

Supreme Court of Kansas

January 19, 1990

Page 1333

Syllabus by the Court

1. Where law enforcement officers have probable cause to believe that an individual has committed a felony or that a warrant for the individual's arrest has been issued and there is a realistic expectation that any delay in arresting the individual would result in destruction of evidence, there is no Fourth Amendment violation when they arrest the individual. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976).

2. Certain situations pose a threat to the public safety which outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. Police officers should not be

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placed in the untenable position of having to consider, often in a manner of seconds, whether it best serves society for them to ask the necessary questions with the Miranda warning in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting [246 Kan. 2] them. New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).

3. A law enforcement officer may arrest a person if the officer has probable cause to believe that a warrant for the person's arrest has been issued in this state or in another jurisdiction for a felony committed therein.

4. A suspect in a criminal case has no right to have counsel at a lineup conducted prior to the filing of formal criminal charges against him. This is not a critical stage of the proceeding which gives rise to the right to counsel. The Sixth Amendment guarantees attach only after the initiation of judicial criminal proceedings against an individual.

5. Pretrial identifications made in violation of the Sixth Amendment will not preclude in-court identifications if the prosecution can establish by clear and convincing evidence that the in-court identifications were based on observations of the suspect other than the lineup identification.

6. While a party has the right to represent himself or be represented by counsel, he does not have the right to a hybrid representation. Further, the defendant who accepts counsel has no right to conduct his own trial or dictate the procedural course of his representation by counsel.

7. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Tom Bath, argued the cause and Robin A. Lewis, Asst. Dist. Attys., Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

[246 Kan. 3] LOCKETT, Justice:

Dennis McKessor was convicted by a jury of two counts of aggravated robbery (K.S.A. 21-3427) and three counts of kidnapping (K.S.A. 21-3420). On appeal, McKessor claims the following errors: (1) the handgun found in his motel room should have been suppressed; (2) a victim's pretrial and in-court identifications of him should have been suppressed; (3) his kidnapping convictions were multiplicitous with his convictions for aggravated robbery; (4) the jury instruction on kidnapping was inadequate; (5) he should have been allowed to make a closing argument since he was allowed to represent himself at trial as co-counsel; and (6) certain remarks made during closing argument were so prejudicial as to warrant a new trial.

FACTS:

This case stems from two armed robberies which occurred in Johnson County on August 7, 1986. At approximately 3:00 p.m., a man entered the Leawood Cleaners, produced a chrome-plated handgun, and demanded money from Mary Headley, the clerk. While Ms. Headley was gathering money from the cash register, Lulu Karlson entered the building to drop off some cleaning. Once Ms. Karlson was inside, the armed robber ordered her to move behind the counter. After taking the money, the robber moved both women to the back of the building, forced them to lie face down on the floor, and told them to remain there because he would be back. When they were sure the robber had left, the women called the police.

In addition to giving the police a statement, Ms. Karlson helped to create a composite drawing of the robber. She was not satisfied with this drawing. Ms. Karlson also informed the police that she had observed a late model, red Ford Mustang parked in front of the cleaners. She stated that a man in this car appeared to be watching traffic and had watched her as

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she entered the cleaners. Ms. Karlson felt that he was also involved in the robbery.

Later that night, at approximately 8:30 p.m., a man entered Singleton's Liquor Store in Overland Park, produced a chrome-plated handgun, and demanded money from Jose Mendoza, the store clerk. After the robber removed money from the cash register, he moved Mr. Mendoza into a lavatory at the rear of the [246 Kan. 4] store and told him to remain there for 15 minutes or his partner would blow his head off. After the robber had departed, Mr. Mendoza waited a few minutes, then returned to the front of the store and called the police. On August 8, from a photo lineup, Mr. Mendoza identified McKessor as the man who had robbed the liquor store.

At 11:20 p.m. on August 10, a Lenexa police officer informed detectives that a Ford Mustang which matched the description given by Ms. Karlson was in a motel parking lot. After Detective Smith arrived at the motel and determined that the license plate which was on the Mustang was stolen, he showed a photograph of McKessor to the desk clerk. The clerk indicated that the man in the photograph had registered as Dennis Davis and was in room 345. Because McKessor was thought to be armed and the adjoining rooms were occupied, Smith was ordered to place the room under surveillance and wait for McKessor to leave. Other officers began the process of obtaining a search warrant for room 345.

At 8:03 the following morning, Detective Smith observed McKessor leave his room and smoke a cigarette on the public breezeway. Smith decided to immediately arrest McKessor and proceeded, with other officers, to the room. After McKessor had reentered the room but before he had completely closed the door, officers forced their way into the room. Smith ordered McKessor to his knees and asked him if anyone else was in the room and for the location of the gun. McKessor indicated that another man was in the bathroom and the gun was under the dresser. The gun was seized and McKessor and Robert Grist, the man in the bathroom, were arrested. McKessor was charged with the liquor store robbery.

Later on August 11, when Ms. Karlson was shown a photo lineup, she thought she recognized McKessor's and Grist's photographs and asked to see them in person. On August 20 at an in-person lineup, Ms. Karlson identified McKessor as the man who had robbed the cleaners and Grist as the man she had seen sitting in the Mustang. The defendant was later charged with the robbery of the cleaners. At trial, McKessor was positively identified by Ms. Headley, Ms. Karlson, and Mr. Mendoza.

[246 Kan. 5] The Admissibility of the Gun

McKessor claims the trial court erred in denying his motion to suppress the pistol found in his motel room. He first argues that the weapon was seized as the result of an illegal, warrantless arrest. McKessor claims there was no exigency since: (1) his room had been under surveillance for several hours; (2) the evidence would not have been lost if the officers had obtained a search warrant prior to entering the room; and (3) the police had intentionally allowed him to return to the room before arresting him. The State argues that the warrantless arrest was proper on two grounds: (1) Detective Smith had probable cause to believe that a warrant had been issued for McKessor's arrest; and (2) exigent circumstances justified the arrest.

A law enforcement officer may arrest a person if the officer has probable cause to believe that a warrant for the person's arrest has been issued in this state or in another jurisdiction for a felony committed therein. K.S.A. 22-2401(b). The seizure of an individual occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of the person. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Generally, a search of a detained person which is conducted without the benefit of a search warrant is illegal. However, there are exceptions to this general rule. State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984). The Fourth Amendment to the United States Constitution protects

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the person and the person's home from unreasonable police intrusion. For Fourth Amendment purposes, a person's motel room is treated the same as his home. United States v. Jeffers, 342 U.S. 48, 51-52, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951).

At the suppression hearing, officers testified that rior to arresting the defendant they had been informed by other officers that a warrant for McKessor's arrest had been issued in Overland Park. The detective who had obtained the warrant for the defendant's arrest did not testify at the suppression hearing. In denying McKessor's motion to suppress the gun, the trial court correctly noted there was no evidence to contradict the arresting officer's belief that a warrant for McKessor's arrest had been issued in this state.

[246 Kan. 6] The State claims the present case is also analogous to United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). In Santana, an undercover narcotics officer arranged to buy heroin from...