State v. Anderson, 46604
| Decision Date | 20 January 1973 |
| Docket Number | No. 46604,46604 |
| Citation | 211 Kan. 148,505 P.2d 691 |
| Parties | The STATE of Kansas, Appellee, v. Solomon L. ANDERSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A photographic identification by witnesses prior to the filing of criminal charges is not a critical stage of the proceedings requiring the presence of defense counsel to satisfy the requirements of the Sixth Amendment to the United States Constitution.
2. The record is examined in an action wherein the defendant was convicted of aggravated robbery and for reasons set forth in the opinion it is held that the trial court did not err (1) in admitting evidence of identification of the defendant through the use of photographs; (2) in overruling defendant's motion for discharge at the close of the state's evidence; and (3) in denying defendant's motion for a new trial based on newly discovered evidence.
Robert M. Brown, Topeka, argued the cause, and was on the brief for appellant.
Gene M. Olander, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
The defendant, Solomon L. Anderson, was convicted on two counts of aggravated robbery under K.S.A.1971 Supp. 21-3427. This is a direct appeal from that conviction. We will refer to the parties respectively as state and defendant or Anderson. Count one concerned the armed robbery of the Blaylock Drug Store in Topeka on July 14, 1970. The clerk was held up by a man whom she later identified as the defendant. The clerk, Judy Newberry, described the robbery in some detail and testified that she had been unable to identify the defendant as the robber from a series of photographs but did in fact identify the defendant at a lineup at a later time. She also identified him at the time of trial. The only issue was the identity of the defendant as the robber.
Count two concerned the robbery of the Jaquith Drug Store which occurred on August 10, 1970. The only issue under count two was the identity of the robber. After defendant was arrested three store employees who were present at the time of the robbery were shown photographs of Anderson. They all indicated that the defendant Anderson could very possibly be the armed robber but they were not certain. At the lineup which was held on August 12, 1970, Anderson was positively identified as the robber by two of the employees, Mina Trout and Christine Ann Steele. As to both counts Anderson relied primarily upon the defense of alibi and called several witnesses in support of that defense.
The defendant raises three points on this appeal. The thrust of his first point is that he was denied his constitutional right to counsel since he was in custody and without counsel at the time the series of photographs were shown to the witnesses. He relies upon United States v. Zeiler, 427 F.2d 1305 (3rd Cir. 1970) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Zeiler was overruled in 1972 by the United States Court of Appeals for the Third Circuit in United States ex rel. Reed v. Anderson, 461 F.2d 739. In Reed it was held that a photographic identification by witnesses prior to the filing of criminal charges is not a critical stage of the proceedings requiring the presence of defense counsel to satisfy the requirements of the Sixth Amendment to the United States Constitution. In the more recent case of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, the Supreme Court of the United States held that the right to counsel does not arise until criminal charges are formally made against an accused and that a lineup after arrest and before the initiation of adversary criminal proceedings is not a critical stage of the proceedings requiring defense counsel as a matter of constitutional right. In the case at bar the defendant made no objection at the trial to the identification procedure. Likewise there is nothing in the record which shows any abuse in the method by which the photographs were used in making the initial identification. We hold that the defendant was not denied any constitutional right to counsel at the time he was identified by the witnesses from an examination of photographs.
Defendant next contends that the court erred in overruling his motion for discharge at the conclusion of the state's evidence. Defendant argues that the evidence of his identification as the robber was not sufficient as a matter of law to make a prima facie case. It is clear from the record that defendant was positively identified by one of the clerks...
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State v. Bristor
...against him. These are not to be considered critical stages of the proceeding which give rise to a right to counsel. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; and State v. McCollum, 211 Kan. 631, 507 P.2d 196.) The Sixth Amendment guarantees attach only after the initiation of judicia......
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State v. Armstrong
...902 [1971].) The credibility of the evidence offered in support of the motion is for the trial court's consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691 [1973]; State v. Larkin, [212 Kan. 158, 510 P.2d 123 [1973]].) The burden of proof is on defendant to show the alleged newly d......
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State v. Bristor
...Jackson, 212 Kan. 473, 473-74, 510 P.2d 1219 (1973); State v. McCollum, 211 Kan. 631, 637-38, 507 P.2d 196 (1973); State v. Anderson, 211 Kan. 148, 149, 505 P.2d 691 (1973); State v. McConico, 4 Kan.App.2d 420, 426, 607 P.2d 93 (1980). The Court of Appeals in this case relied on the use of ......
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State v. Ransom, 58369
...902 [1971].) The credibility of the evidence offered in support of the motion is for the trial court's consideration. (State v. Anderson, 211 Kan. 148, 505 P.2d 691 [1973]; State v. Larkin, [212 Kan. 158, 510 P.2d 123].) The burden of proof is on defendant to show the alleged newly discover......