State v. Adams

• Decision Date: 24 January 1976
• Docket Number: 47815,Nos. 47359,s. 47359
• Citation: 545 P.2d 1134,218 Kan. 495
• Parties: STATE of Kansas, Appellee, v. Willie R. ADAMS, Jr., Appellant.
• Court: Kansas Supreme Court

Page 1134

545 P.2d 1134

218 Kan. 495

STATE of Kansas, Appellee, v. Willie R. ADAMS, Jr., Appellant.

Nos. 47359, 47815.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

In a prosecution for aggravated kidnapping; rape; kidnapping; aggravated burglary; and battery, the record is examined and it is held:

1. The trial court did not commit reversible error in overruling defendant's motion to remand for further preliminary hearing.

2. Rape of the victim constitutes 'bodily harm' under K.S.A. 21-3421 so as to make a kidnapping aggravated kidnapping.

3. Our kidnapping statutes K.S.A. 21-3420 and 21-3421 are not void for vagueness.

4. The trial court exercised its discretion as to probation or suspension of sentence under K.S.A. 21-4603.

5. The granting of probation is exclusively a function of the trial court and a decision of the court denying probation is not subject to review by an appellate court.

6. The trial court did not err in denying defedant's motion for severance.

7. The results of a lie detector test, because of their unreliability, are inadmissible as evidence.

8. The results of truth serum (sodium pentothal) tests are inadmissible to prove the truth of the matters asserted by a defendant in defense of the offenses charged.

Stephen Jones, Oklahoma City, Okl., argued the cause, and Van Delhotal of Weigand, Curfman, Brainerd, Harris & Kaufman, Wichita, was with him on the brief for appellant.

Robert L. Kennedy, Jr., Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

KAUL, Justice:

The defendant-appellant (Willie R. Adams, Jr.) appeals from convictions by a jury of three counts of aggravated burglary and one count each of kidnapping, battery, aggravated kidnapping, and rape. At the time of the alleged offenses defendant was a Wichita police officer. The charges stem from three separate incidents and involved the residences and persons of two Wichita housewives and a young single person, who resided with her parents, but is now married. The three were complaining witnesses to the charges filed concerning each respective incident. The complaining witnesses will be identified by initial in this opinion.

Each of the three incidents involved an alleged forcible entry with the display of a handgun. The first incident occurred on Feburary 14, 1973, the other two, one week later, on February 21, 1973.

On the date of the first incident, Mrs. G, a Wichita housewife, was at her home in Wichita. In the front yard there was a sign indicating a house for sale. Mrs. G's home wan not for sale, but the sign had been placed there because it was more visible to traffic. The sign pointed to a house down the street which was on the market. Mrs. G testified that the defendant came to her door at approximately 1:30 p. m. on the day in question inquiring about the house for sale. She directed defendant to the other house and closed the door as he left. Shortly thereafter, defendant returned to her door, stating that he was having trouble locating the house. Mrs. G partially closed the front door and left defendant standing on the porch while she went to the kitchen to telephone her neighbors who were showing the house. As she dialed, Mrs. G testified she heard someone say 'Put it down,' and turned to see defendant standing in her house pointing a gun at her, she put the receiver down. The defendant forced her at gunpoint to go to a bedroom. Once in the bedroom, defendant made her take off her sweater and brassiere and forced her to lie on the bed, whereupon he sucked her breasts. Mrs. G positively identified defendant as her assailant and identified the gun taken from defendant, as well as his jacket and trousers.

After defendant finished caressing Mrs. G he made her get into a closet saying, 'You're not going to know when I leave and I will shoot you if you come out of there.' Mrs. G waited in the closet for some time until her telephone rang. She came out and answered the phone and then promptly called her husband. He called the police.

With respect to this incident, defendant admitted going by the residence in question to inquire about the house for sale on another day, but denied that he returned to Mrs. G's house, or that he ever entered her home. He said that on the day in question, February 14, 1973, he had been at the National Bank of Wichita from 1:25 p. m. and waited there for his wife until about 3:00 p. m The first three counts of the information were based on the first incident. The charges were aggravated burglary (K.S.A. 21-3716); kidnapping (K.S.A. 21-3420); and battery, a class B misdemeanor under K.S.A. 21-3412. Defendant was convicted on each of the three counts.

The second incident occurred a week later, on February 21, 1973. Miss D was a co-worker with defendant's wife at the National Bank of Wichita and knew defendant through this association. She resided with her parents in Wichita.

At approximately 11:30 a. m. on February 21, Miss D left the bank for lunch and went to her home to eat. While she was eating, she heard the front door open, thinking it was her mother arriving for lunch, she went to the front door to meet her. She testified that a man came through the door, pointing a pistol at her, and walked toward her. She recognized this man as the defendant. Defendant grabbed a sandwich from her hand and stood staring at her body, particularly her pelvis and breasts. When defendant finally looked at Miss D's face she testified he had a startled expression, that his eyes 'got kind of big, as if he knew me or something.' She asked the defendant what he was doing there. He said he had seen her drive home from work and decided to follow her home to say 'hi.' Miss D then walked over and opened the front door to let defendant out. He followed and told her he was trying to teach her a lesson about keeping her doors locked. At this point, Miss D's mother drove up. Defendant instructed Miss D not to tell his wife that he had been there and not to tell her mother about this. He then walked quickly to his black over maroon Thunderbird automobile and drove away.

Miss D told her mother that the man was a policeman and the husband of a coworker at the bank, but neglected to mention anything about the gun or the individual's stare. She returned to work and waited until after work to tell her father about the gun-related incident. Her father immediately called the police.

On the second incident defendant was charged in count seven with aggravated burglary under K.S.A. 21-3716.

At approximately 2:00 p. m. on the same day Mrs. C was returning to her home in West Wichita with two of her three children. She had just returned from errands at the National Bank of Wichita and a grocery store. On the way home, Mrs. C observed a maroon Thunderbird automobile. with a black top parked near her home. She saw a man sitting in the automobile. When she got home, she called her husband to discuss a trip they were planning. While on the telephone, she observed the man from the Thunderbird walking up toward her house. She hung up the receiver so that she could answer the doorbell. As she started to open the front door, the man identified by Mrs. C as the defendant put his foot in the opening and forced his way into the house. While trying to push defendant out of her house, Mrs. C's hand fell on his gun and she jumped back. Defendant then came into the house and closed the door behind him. He asked her to get rid of the children so she ordered then to go to the basement, closing the basement door after them.

She testified that the defendant held the pistol to her back and ushered her into the master bedroom; forced her to undress; and ordered her to lie down on the bed. Defendant put the pistol in his coat pocket, unzipped his trousers and got on top of Mrs. C. Although defendant's penis was flaccid the only time Mrs. C saw it, she testified that he used his hands to insert it into her vagina and that she felt penetration. She further testified that defendant was upon her for about ten minutes and then told her to put her robe on and forced her at gunpoint to go to the basement. Defendant then ran out of the house. Mrs. C saw the defendant leave in the Thunderbird with the black vinyl top. She promptly called her husband, who called the police and then came home to see her. Meanwhile, a police dispatcher called Mrs. C and got the description of the assailant and his automobile.

Defendant was subsequently apprehended in his Thunderbird automobile after a high speed chase with police in pursuit through the streets of Wichita.

Defendant testified that he came to Mrs. C's door to get directions; that once inside she made a pass at him; that he never did have an erection, never entered her, had a premature ejaculation; and then got up, leaving Mrs. C angry with him. As evidenced by its verdict the jury did not believe his version of the ordeal.

As a result of this last incident, defendant was charged in counts four, five and six with aggravated burglary (K.S.A. 21-3716); aggravated kidnapping (K.S.A. 21-3421); and rape (K.S.A. 21-3502).

Following the preliminary hearing and prior to trial, defendant filed numerous motions-ten in all-which were heard and disposed of by the administrative judge of the district court. The motions and rulings thereon, which are pertinent to points on appeal, will be discussed in the course of this opinion.

Defendant briefs six points on appeal which will be considered in the order presented.

Defendant first claims error by the administrative judge in overruling his motion to remand for further preliminary hearing. Defendant devotes a major portion of his brief on appeal to his arguments on this point. Before discussing the arguments presented by defendant it should be noted that at the hearing on the motion below, the administrative judge recessed the hearing and read...