State v. Ames

• Decision Date: 09 April 1977
• Docket Number: No. 48366,48366
• Citation: 222 Kan. 88,563 P.2d 1034
• Parties: STATE of Kansas, Appellee, v. Roy Eugene AMES, Appellant.
• Court: Kansas Supreme Court

Page 1034

563 P.2d 1034

222 Kan. 88

STATE of Kansas, Appellee, v. Roy Eugene AMES, Appellant.

No. 48366.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the persons or property to be seized is to prevent general searches and preclude the seizure of items at the discretion of the officer executing the warrant.

2. Searches conducted under the authority of warrants are preferred to warrantless searches. Hence, warrants and their supporting affidavits are interpreted in a commonsense rather than a hypertechnical fashion so as not to discourage police officers from submitting their evidence to a judicial officer before acting. Search warrants and their supporting affidavits are presumed valid, and one attacking their validity carries the burden of persuasion.

3. A search warrant shall not be quashed nor evidence suppressed because of technical irregularities in the warrant's execution unless the defendant demonstrates prejudice from the procedural violation.

4. In passing on a motion for judgment of acquittal, the district court must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion. (Following State v. Gustin, 212 Kan. 475, Syl. 3, 510 P.2d 1290.)

5. On appellate review, the question is not whether the evidence established guilt beyond a reasonable doubt, but whether the evidence was sufficient to form the basis for a reasonable inference of guilt. In making this determination, the evidence is viewed in the light most favorable to the state.

6. A party who shows a judge is prejudiced against him has a right to have his case tried before some other judge-either a judge in some other division or district, or a judge pro tem. But failure to timely file an affidavit alleging prejudice as required by statute (K.S.A. 20-311d and 311f) may bar the movant's obtaining a change of judge.

7. A defendant has a constitutional right of self-representation and may defend himself without counsel when he voluntarily and intelligently elects to do so. An indigent defendant also has a constitutional right to court-appointed counsel. But a defendant cannot simultaneously assert both rights.

8. When a defendant chooses to have counsel, the conduct of the defense of the case rests with the attorney. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions to make, and all other strategic and tactical decisions are the exclusive province of the attorney after consultation with his client.

9. The right of a defendant recognized as co-counsel to participate in the conduct of his defense is within the sound discretion of the district court as is the ruling on an indigent defendant's motion for change of appointed counsel.

10. Statements of points which are neither briefed nor argued on appeal are considered abandoned.

11. The record on appeal from a conviction for the offense of unlawful possession of a firearm is examined, and, as more fully set forth in the opinion, it is held: (1) the district court did not err (a) in admitting into evidence a gun and holster seized under a search warrant, (b) in denying the appellant's motion for discharge and for directed verdict, (c) in denying the appellant's pro se motion for appointment of a judge pro tem, (d) in limiting the appellant's participation at trial and in allowing appointed counsel the exclusive province over strategic and tactical decisions in the conduct of the defense, (e) in denying the appellant's motion for an order designating the Menninger Foundation to conduct a psychiatric examination of the appellant, and (f) in sentencing the appellant under the Habitual Criminal Act (K.S.A. 21- 4504); (2) the evidence was sufficient to form a reasonable inference of guilt.

Thomas A. Valentine, of Sloan, Listrom, Elsenbarth, Sloan & Glassman, topeka, argued the cause and was on the brief for appellant; and Roy E. Ames was on the appellant's brief pro se.

Thomas D. Haney, Jr., Asst. Dist. Atty., argued the cause and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for appellee.

FATZER, Chief Justice:

This is an appeal by defendant Roy E. Ames from a conviction by jury trial of the offense of unlawful possession of a firearm (K.S.A. 21-4204(1)(b)).

On April 2, 1974, a search warrant for a gun and holster at the downstairs apartment of 1616 Polk in Topeka was issued. The appellant's wife lived at this address; the appellant was in the Shawnee County Jail at the time. Officers found a revolver in a holster with the belt wrapped around the holster. Ammunition was in the belt, and live rounds were in the gun. All were seized. On August 28, 1974, an information was filed charging the appellant with the unlawful possession of a firearm with a barrel less than twelve inches long, within five years after conviction for the felony offense of burglary, in the district court of Shawnee County, Kansas. A jury trial was commenced on December 9, 1974. During noon recess on that day, jurors observed the appellant in handcuffs. A mistrial was granted. The second jury trial commenced on February 3, 1975. The state's evidence showed that on September 21, 1973, the appellant and his wife met Mary Lou Potter at Wild Willie's South in Topeka. The appellant pointed out the revolver he wanted and gave Mary the necessary cash. She bought the gun and gave it to the appellant. The evidence showed that subsequent to the purchase, the appellant used the gun for target practice and frequently practiced fast-drawing the gun in front of a mirror. Both the appellant and his wife referred to the gun as his. On February 5, 1975, the jury returned its verdict, finding the appellant guilty as charged. Following a number of post-trial motions which ultimately resulted in the district court's denying the appellant's motion for new trial, the appellant was sentenced under the Habitual Criminal Act on September 30, 1975. This appeal followed.

The appellant's first three points on appeal deal with the admission into evidence of the gun and holster seized under the search warrant. He first contends such admission was error because the affidavit in support of the search warrant was fatally defective in that it was based in part on hearsay and such fact was not disclosed to the issuing magistrate.

The affiant was one Dena Christian. She had been living with the appellant's wife until they each moved to a new address only a few days before she made her sworn statement. In preparing her affidavit at the district attorney's office, Dena was not certain of the address to which the appellant's wife had moved. She consulted the classified section in the newspaper and called the listing she thought the appellant's wife had taken. The landlady told her that the appellant's wife had rented the downstairs apartment at that address. All the statements in Dena's affidavit are based on her personal observation except the address at which she stated the appellant's wife was residing. The hearsay nature of the latter statement was not disclosed to the issuing magistrate.

In State v. Hart, 200 Kan. 153, 434 P.2d 999, this court, relying on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, set out he requirements for the valid issuance of a warrant:

'. . . (b)efore a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; . . . while an affidavit may be based on hearsay, there must be sufficient affirmative allegations as to the affiant's personal knowledge or his knowledge concerning his informant, or as to the informant's personal knowledge of the things about which the informant spoke, to provide a rational basis upon which the magistrate can make a judicious determination of probable cause.' 200 Kan. at 162, 434 P.2d at 1007.

See State v. Hubbard, 215 Kan. 42, 523 P.2d 387.

The point appellant now raises was raised at the suppression hearing before trial. In its ruling on the motion to suppress, the district court stated that if the warrant had been issued on a finding of probable cause, based on material written statements under oath that were later shown to be untrue, items seized should be suppressed. Evidence at the suppression hearing, however, showed the sworn statement was true. Should the items seized be suppressed anyway because hearsay was involved and there was no finding based upon the two-pronged test of Aquilar? The district court answered this question in the negative. It reasoned that warrants may be based on hearsay, and where the hearsay statements are true and are of the nature of the statements in this case the evidence seized should not be suppressed. We agree with the district court. The hearsay involved in this case did not affect the magistrate's probable cause determination. Failure to comply with the Aguilar requirement does not mandate suppression under the instant facts.

The appellant next contends admitting the holster into evidence was error because the warrant authorized the seizure of only the gun and not the holster.

The search warrant provided in pertinent part:

'. . . I find there is probable cause to believe that an offense against the laws of the State of Kansas has been committed and that certain items, to-wit: One pearl...