State v. Armstrong

• Decision Date: 16 July 1971
• Docket Number: No. 45775,45775
• Citation: 207 Kan. 681,486 P.2d 1322
• Parties: The STATE of Kansas, Appellee, v. Richard ARMSTRONG, Appellant.
• Court: Kansas Supreme Court

Page 1322

486 P.2d 1322

207 Kan. 681

The STATE of Kansas, Appellee, v. Richard ARMSTRONG, Appellant.

No. 45775.

Supreme Court of Kansas.

July 16, 1971.

Syllabus by the Court

1. The waiver of a legal right is ordinarily an intentional and voluntary relinquishment of a right which is known, and the same must be given intelligently and understandingly before it can be said to be effective.

2. A reviewing court on appeal may determine for itself whether the in-court identification of an accused stemmed from a source independent of a pretrial lineup or confrontation, where the record is adequate to permit an informed judgment based thereon.

3. Under the provisions of K.S.A. 60-420, a witness may be examined by any party, including the party who called him, for the purpose of affecting his credibility.

4. K.S.A. 60-421 limits the extent to which a witness may be examined with respect to his prior convictions, and only those convictions for crimes which involve dishonesty or false statements are admissible to impair credibility.

5. It is the function of the jury, not the court, to pass upon questions relating to the credibility of witnesses.

6. It is only where trial error has adversely affected the substantial rights of a litigant that it may be said to amount to prejudicial error requiring reversal.

7. The record is examined in an action wherein the defendant was convicted of two charges of first-degree robbery and for reasons appearing in the opinion it is held that no error appears which prejudicially affected the substantial rights of the defendant.

Gerald W. Scott, Wichita, argued the cause and was on the brief for appellant.

Ted L. Peters, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, County Atty., and Reese Jones, Asst. County Atty., were with him on the brief for appellee.

FONTRON, Justice.

The defendant, Richard Armstrong, was charged in separate informations with two unconnected armed robberies, the first occurring at the Shopeze Market on November 9, 1968, and the second on November 14, 1968, at the Star Market. The charges were consolidated for trial and the defendant was convicted of both offenses. Motions for new trial were overruled and Mr. Armstrong was sentenced to terms of not less than ten nor more than twenty-one years on each charge, the sentences to run consecutively. This appeal followed.

A number of points are raised and will be discussed in order. Since no claim is made that the evidence was insufficient to support the verdicts, no attempt will be made at this time to summarize the testimony, although reference will later be made to such parts of the evidence as appear pertinent.

Much of the evidence against the defendant came from eyewitnesses, two of whom had attended two pretrial lineups, and the defendant's first claim of error is directed against the in-cort identification of these witnesses. The claim is based primarily on the recent cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178

The gist of those decisions is simply this: A pretrial lineup is a critical point in the accusatory process, and a stage at which an accused is entitled to be represented by counsel, absent an intelligent and voluntary waiver; where counsel was not present, and his presence was not waived, evidence of an out-of-court identification made at a lineup is not admissible to bolster a later in-court identification, nor is the in-court identification itself admissible unless it be shown to have had an independent source or origin. (See Pearson v. United States, 5 Cir., 389 F.2d 684.)

While this court has recognized the rule espoused by the Wade-Gilbert twins, we have not heretofore been confronted with the precise factual situation obtaining here.

Two lineups were held in this case, the first on November 15, the day after the second robbery, and the second lineup four days later, on November 19. The two eye-witnesses, Mr. Stone, manager of the Star Market, and Mr. Rhoten, operator of Shopeze, identified the defendant at the second lineup. The defendant objected to the identification testimony of both witnesses and requested out-of-court hearings thereon for the asserted reason that the lineups were illegal, in the absence of counsel. The objections were peremptorily overruled without argument, and both men identified Mr. Armstrong as being one of the robbers.

When the motion for new trial was heard, the defendant renewed his objections to the lineups, whereupon the state announced that counsel had been waived and a written waiver, signed by Armstrong, was thereupon introduced for the first time. The waiver contained no reference to the defendant having been advised concerning appointment of counsel should he be unable to provide his own, and the testimony of detective Shackelford, who secured the waiver, was ambiguous at best as to whether he was advised in such regard.

At the conclusion of Shackelford's testimony supporting the waiver, defense counsel advised the court that he wished to present his client's testimony to the effect he was not offered appointed counsel to assist him in the lineup but, to the contrary, was told he could not have counsel appointed. The trial court ruled that such testimony would be inadmissible, and rejected the defendant's offer of proof.

In our view, the proffered testimony was relevant on the issue of waiver. The instrument signed by Mr. Armstrong contained no mention of any right to appointed counsel at the lineup, a stage in the criminal process which both Wade and Gilbert declared to be critical. Moreover, an impartial appraisal of detective Shackelford's testimony tends to confirm the defendant's assertion that he was not advised in regard to appointment of counsel.

Under circumstances such as these, the defendant should have been permitted to testify. The issue before the court was whether Armstrong had waived his right to appointed counsel. This, in turn, depended on whether the written waiver had been intelligently and understandingly given. (Lloyd v. State, 197 Kan. 389, 416 P.2d 766; Robertson v. State, 206 Kan. 320, 478 P.2d 196.) In Berryhill v. Page, 349 F.2d 984, the Circuit Court of Appeals, 10th Circuit, said:

'* * * In order to effectuate a waiver of the right to counsel, the record must plainly show that the accused was offered the assistance of counsel but intelligently and understandingly rejected the offer. * * *' (p. 987.)

Where a legal right has not been made known to an accused, it can hardly be said that he has knowingly and understandingly waived the right. The federal Supreme Court, in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, put the rule in these words:

'* * * A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. * * *' (p. 464, 58 S.Ct. p. 1023)

(See, also, Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314.)

Thus, whether the defendant was advised of the right to appointed counsel at the lineup had a direct bearing on the voluntary character of his waiver. On this point the defendant himself was entitled to be heard and the trial court's refusal to permit him to testify taints its ruling with error.

Had the trial court held a full hearing on the issue of waiver, and had it then entered a finding, supported by evidence, that the waiver was intelligently, knowingly and voluntarily made, that would have ended the matter. Since the court, inexplicably, chose not to hear the defendant, we have this question: Should the case be remanded with directions to hear defendant's testimony as to the voluntary nature of his waiver? As we view this case, a remand for such purpose is not required.

The Wade opinion contains this language:

'On the record now before us we cannot make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination. That inquiry is most properly made in the District Court. We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error * * *' (388 U.S. p. 242, 87 S.Ct. p. 1940.) (Emphasis supplied.)

Similar language is found in Gilbert v. California, supra, where the court said:

'* * * However, as in Wade, the record does not permit an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. * * *' (388 U.S. p. 272, 87 S.Ct. p. 1956.)

There is recent federal authority, stemming largely from Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230,-and intimated in Wade and Gilbert-that a reviewing court on appeal may itself make a determination as to independent source where the record is sufficient for that purpose. In Hawkins v. United States, 137 U.S.App.D.C. 103, 420 F.2d 1306, the United States Circuit Court of Appeals, District of Columbia, held that it was 'at liberty to decide' for itself, in view of an adequate record, whether the in-court identification stemmed from an independent source.

In a subsequent case the same appellate court said in Cunningham v. United States, 133 U.S.App.D.C. 133, 409 F.2d 168:

'We have considered carefully the question of whether we may, as in Clemons, find in the record before us an independent source for the in-court identification, thereby dispensing with the need for a remand. * * *' (p. 169.)

The court thereupon proceeded to consider the circumstances surrounding the in-court identification of the accused by his victim and concluded there was no 'very substantial likelihood of irreparable misidentification'- , a phrase which was used by the Supreme Court in Simmons v. United States, ...