State v. Barry, 47554

Citation533 P.2d 1308,216 Kan. 609
Decision Date05 April 1975
Docket NumberNo. 47554,47554
PartiesSTATE of Kansas, Appellee, v. Kenneth Warren BARRY, Appellant.
CourtUnited States State Supreme Court of Kansas
Syllabus by the Court

In a prosecution for aggravated kidnapping it is held:

1) Defendant's confession was properly admitted into evidence.

2) The arresting officers had probable cause to arrest the defendant and to search him and the automobile he was driving. Testimony derived from such searches was therefore properly admitted into evidence.

3) The victim of the kidnapping and rape was a competent witness and alleged deficiencies in her testimony went to its weight rather than its admissiblity.

4) The evidence at the preliminary hearing was sufficient to bind the defendant over for trial.

5) It was not reversible error to admit testimony describing defendant's theft at gunpoint of the car he used in the kidnapping.

6) The trial court did not commit reversible error in various evidentiary rulings involving the scope of cross-examination, the admission and exclusion of opinions or conclusions, or the use of leading questions.

7) Rape of the victim constitutes 'bodily harm' under K.S.A. 21-3421 (Weeks 1974) so as to make a kidnapping aggravated kidnapping.

8) Where a kidnapper rapes his victim it is a reasonable inference that he intended to do so at the time he abducted her.

9) Defendant was not prejudiced by the trial court's refusal to make specific findings of fact.

10) Any deficiencies in the issuance of the arrest warrant did not vitiate the subsequent trial and conviction.

11) Appointment of counsel at defendant's first appearance before a magistrate in this state afforded defendant his right to counsel at every stage of the proceedings.

12) The information was sufficient, and the trial court did not abuse its discretion in failing to require the state to furnish a bill of particulars.

13) Our kidnapping statutes, K.S.A. 21-3420 and 21-3421 (Weeks 1974), are not void for vagueness.

14) The trial court properly applied the M'Naghten test of criminal responsibility as applied to both a claim of intoxication and a claim of insanity.

15) Even if a different test had been applied, the evidence would not have justified a finding of either intoxication or insanity.

Kenneth E. Peery, Concordia, argued the cause and was on the brief for appellant.

William J. Walsh, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

FOTH, Commissioner:

After a trial to the court Kenneth Warren Barry was convicted of aggravated kidnapping and sentenced to life imprisonment. He appeals, designating twenty-two points on appeal. Several of these encompass more than one claim, so that in all he alleges sixty-seven trial errors. In particular he complains of allegedly illegal searches and of the use of his confession. We have examined each of defendant's allegations and find none which warrants reversal, either singly or in combination.

The charge against defendant stemmed from the abduction from Concordia and subsequent rape of a twelve year old girl on May 31, 1972. (The victim is termed 'Miss K.' throughout the record and briefs, and we shall also employ that pseudonym.) The defense was aimed first at destroying the state's evidence identifying Barry as the perpetrator of the crime, and second at showing lack of responsibility because of insanity or diminished responsibility because of intoxication. At the conclusion of the trial the trial court, in addition to a general finding of guilt, specifically found that defendant was sane at the time the crime was committed and was not voluntarily or involuntarily intoxicated, 'at least not to the extent defendant was incapable of knowing or understanding the wrongfulness of his conduct or of conforming his conduct to the requirements of law.'

The evidence, which was contested in some instances on grounds of admissibility but was not otherwise disputed, established the following sequence of events:

On the evening of May 30, 1972, John R. Wilson checked into a motel in Riverside, Missouri, a suburb of Kansas City. He was a college student who had just arrived for a summer job in Kansas City, and had virtually all his belongings with him. Shortly after his arrival at the motel he was engaged in conversation by his next door neighbor, a man he described as 50 to 55 years old. Shortly after that the neighbor robbed him at gunpoint. After tying Wilson up his assailant relieved him of his billfold and his car keys. In a little bit Wilson heard him drive away in his car.

The car was a 1969 Chevrolet Caprice, yellow with a black vinyl top, bearing 1972 Missouri tags K4M-950. The front tires were brand new 'Colts.' Across the back seat was a travel rod from which hung fifteen or twenty shirts, trousers and sport coats. The trunk contained a vacuum cleaner, a footlocker, baseball bats and gloves, fishing tackle, and a rifle.

The next day, May 31, at about 10:00 a. m., Miss K. was accosted on the street in Concordia by a man who wanted her to do some modeling-he assured her she could clear it with her mother. She got in his car and he drove to the outskirts of Concordia. There he produced a pistol and told her to get down on the floorboard or he would put a bullet through her head; she complied. He then drove north out of town on U.S. highway 81 and, after crossing the Republican River, onto a country road. There he raped her for the first time in the front seat of the car. It hurt and she bled.

He drove on for a time on dirt roads and then stopped again. He tied Miss K.' § hands with her pantyhose and put her in the trunk, where she observed among other things a vacuum cleaner, a footlocker, a baseball bat and a rifle. He then returned to the highway and continued north into Nebraska. There he removed Miss K. from the trunk and had her ride again in the front seat. At one point he again turned off the highway and again raped her, this time on the grassy ground. After that he drove down the highway again and eventually turned off into an abandoned farmstead. There he put her into an empty shed or corn crib, typing her hands behind her with a torn-up shirt. She was tied in a sitting position, with her hands fastened to a brace wire. He left, and she remained there for, in her estimate, an hour or two.

Eventually her shouts attracted the attention of a farmer who had been cultivating corn in a nearby field. He investigated, found Miss K. tied to the wall of the shed, and promptly called the sheriff's office in Geneva, Nebraska. His call was received at 3:30 p. m.

Sheriff Olson and a deputy proceeded to the scene, arriving 15 minutes later. The farmstead is some 10 miles north of Geneva, the Fillmore county seat, and about 2 miles north of Fairmont. The shed was 150 to 200 feet from U.S. 81. The officers first photographed Miss K. and then released her. They also photographed the only set of automobile tire tracks found in the farmyard, and determined that the automobile which made them had turned north on highway 81. They then took Miss K. to a doctor in Geneva, who in turn took her to the county hospital where he examined her.

In the meantime, on highway 81 just three miles north of Fairmont and just one mile north of the shed, Trooper Albert Wise of the Nebraska state patrol was operating a traffic speed check. At about 2:00 p. m. he clocked a car going north at 72.6 miles per hour in the 65 mile zone. He promptly gave chase with red light and siren in full operation. The car accelerated, and there followed a chase of about 14 miles at speeds up to 110 miles per hour. The pursued car took first to the center and then to the left side of the road, putting oncoming traffic into the ditches.

Trooper Wise radioed for help, and eventually secured the services of two officers from the York county sheriff's office. These officers met the two vehicles involved in the chase just south of York. Having no time to establish a roadblock, they pulled their car over and stood out in the highway. The lead car began to slide, turned broadside, and went off the road to the left or west side into the ditch.

Trooper Wise pulled up behind the car, jumped out and went around to the righthand side and covered the driver with his gun. The two deputies came up on the driver's side with their guns drawn and pulled the driver from the car. As they turned him Trooper Wise saw a pistol in his belt. The officers immediately threw him to the ground, removed the pistol, and handcuffed him. They then searched him and placed him in the patrol car.

Trooper Wise then conducted a search of the prisoner's car. In the front he observed several items of ladies' clothing-pantyhose, a bra, a shoe. In the back there was clothing hanging up. In the trunk was a rifle, a baseball bat, and a trunk. The license was a 1972 Missouri tag, K4M-950.

The prisoner refused to reveal his name or say where he was going or what he was doing, but complained of his head hurting him. The driver's license in his billfold bore the name 'John R. Wilson,' the victim of the previous night's robbery.

Two of the officers transported the prisoner to the sheriff's office in York, arriving around 2:30 to 2:45. The third officer stayed with the car and supervised its towing to a locked garage in York. At the sheriff's office the suspect went down on his knees and wouldn't get up, so the officers carried him into the office. After talking to the county attorney Trooper Wise read the suspect his constitutional rights. He ignored the officers' questions, his only response being to complain of his head and pain.

After some 45 minutes, on the advice of the county attorney, the officers secured an ambulance and had the suspect taken to a medical clinic. There he was stripped to his shorts, and in his clothes was found an application for a Missouri driver's license with the name 'Kenneth Barry' on it. This led in time to the...

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