State v. Aldridge, 45536

• Decision Date: 24 January 1970
• Docket Number: No. 45536,45536
• Citation: 204 Kan. 599,464 P.2d 8
• Parties: STATE of Kansas, Appellee, v. James L. ALDRIDGE, Appellant.
• Court: Kansas Supreme Court

Page 8

464 P.2d 8

204 Kan. 599

STATE of Kansas, Appellee, v. James L. ALDRIDGE, Appellant.

No. 45536.

Supreme Court of Kansas.

Jan. 24, 1970.

Syllabus by the Court

The record is examined in an appeal from a conviction for burglary and larceny and it is held: (1) A pre-trial identification of defendant's companion under circumstances set forth in the opinion did not violate defendant's constitutional rights; (2) The trial court did not abuse its discretion in permitting defendant to be cross-examined, and (3) No error is shown.

Joseph Anderson, Mission, argued the cause and was on the brief for appellant.

R. Michael Latimer, County Atty., argued the cause and Kent Frizzell, Atty. Gen., on the brief, for appellee.

FROMME, Justice.

The appellant, James L. Aldridge, was convicted by a jury and sentenced for second degree burglary (K.S.A. 21-520) and larceny in connection therewith (K.S.A. 21-524) as an habitual criminal (K.S.A. 21-107a). On direct appeal he now seeks to have the sentence set aside because of alleged trial errors.

All errors specified on appeal relate to the admission of evidence and may be compressed into two categories, those which relate to the pre-trial identification and those which relate to the cross-examination of the appellant. Although appellant does not contend his conviction was based upon insufficient evidence a summary of the evidence is necessary to understand the questions presented.

The Huffman Grocery Store in Lane, Kansas, was burglarized the evening of April 5, 1968. The town of Lane is located in a rural community with a population of 300. Mr. Huffman closed and locked his store at 6:00 o'clock p. m., his usual closing time. At 9:00 p. m. Mr. Willey, a local townsman, was walking past the Huffman store building when he heard something fall inside the building. The inside of the building was illuminated by a light burning in the store and by a street light close to the front of the building. Mr. Willey looked inside and saw a stranger standing beside a bread display rack. He continued to watch this man as he walked along in front of the Huffman store. As Mr. Willey approached the far corner of the building the stranger noticed him and fell to the floor. Mr. Willey ran and notified the Huffman family. They called the sheriff and notified him there was a burglary in progress. in response to the sheriff's radio communications law enforcement officers from all four surrounding counties converged on the town of Lane.

As one of the officers approached the town he came upon a pickup truck travelling north and bearing a Missouri license. It was going away from the town of Lane. The officer stopped the truck at 9:15 p. m. two and a half miles north of the town. marvin G. Brown was riding in the truck which was owned and driven by the appellant. Shortly thereafter other law enforcement officers arrived. The appellant and Brown were given the full 'Miranda' warning of their constitutional rights and they were searched. Small coins totalling $9.55 were taken from the pockets of the appellant. The appellant's companion had $16.85 in small coins on his person. Three packages of 'Rolaids' were removed from the glove compartment of the truck.

One of the officers who had been making an investigation of the burglary at the Huffman Grocery Store brought Mr. Willey to where the suspects were being held in the country. Mr. Willey there identified Marvin G. Brown as the man he had surprised in the grocery store one hour earlier.

A further investigation revealed that the store had been entered by prying open a back window. Fourteen boxes of groceries had been removed from the grocery shelves. The boxes were found by the back door which led into the alley. Four boxes were found in the alley near a gas meter. A coin operated 'pop' machine was broken open and coins were missing. A carton of 'Rolaids' in the store had been opened and some of the packages had been removed. Footprints were discovered in the alley. They led through an area of tall grass, down a railroad right-of-way and to a field driveway. Two distinct paths were visible in the tall grass which was wet from a heavy dew. Pickup tire tracks were apparent in the mud of the driveway where the footprints ended. Plaster casts of these tire tracks matched the tread on the tires of appellanths truck. The packages of 'Rolaids' taken from appellant's truck bore special identification similar to those which remained in the broken carton in the Huffman store.

During the trial counsel for appellant strenuously objected to evidence of the pre-trial identification of Marvin G. Brown which tended to link the appellant to the burglary by association. Appellant specifies it was error to permit Mr. Willey to testify that he identified Marvin G. Brown as the stranger he observed in the Huffman store the night of the burglary. His testimony at the trial was that he identified Brown with the burglary when he saw the appellant and Brown in handcuffs standing beside the pickup along the highway north of Lane, Kansas.

Appellant contends this pre-trial identification constituted an illegal 'line-up' in violation of his constitutional rights as set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and State v. Sanders, 202 Kan. 551, 451 P.2d 148.

We believe the appellant misconstrues and misapplies what was said in Wade, Gilbert and Sanders. The constitutional rights sought to be protected in Wade and Gilbert were not violated in the present case.

In Wade and Gilbert the high court was concerned with the accused's right's to counsel under the Sixth Amendment. In each of those cases the accused was under indictment for a crime and was represented by counsel. The accused in each of those cases was required to participate in a stationhouse lineup without notice to his counsel....