State v. Black

• Citation: 221 Kan. 248,559 P.2d 784
• Decision Date: 07 January 1977
• Docket Number: No. 48312,48312
• Parties: STATE of Kansas, Appellee, v. James E. BLACK, Appellant.
• Court: Kansas Supreme Court

Page 784

559 P.2d 784

221 Kan. 248

STATE of Kansas, Appellee, v. James E. BLACK, Appellant.

No. 48312.

Supreme Court of Kansas.

Jan. 7, 1977.

Syllabus by the Court

In an appeal from a judgment of conviction of theft (knowingly receiving stolen property), it is held: The trial court did not err in (1) denying a requested change of venue; (2) refusing to hear defendant's motion to suppress made during the trial, or (3) admitting evidence of other offenses.

William D. Mize, District Public Defender, argued the cause and was on the brief for appellant.

James L. Sweet, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

HARMAN, Commissioner:

James E. Black was convicted by a jury of theft of property of a value of more than fifty dollars. His motion for new trial was denied, he was sentenced and now appeals.

Appellant Black does not challenge the sufficiency of the evidence to support his conviction but raises three trial errors. On August 30, 1974, the Kansas National Guard armory at Salina was burglarized and twenty automatic M-16 rifles and ten .45 caliber automatic pistols were taken. On September 30, 1974, the Salina police arrested Frank Gestl, his brother Steven Gestl, Joseph McDaniel and appellant's brother, Tommy Lee Black for their involvement in the crime and other recent burglaries in Salina. Subsequently appellant was arrested and charged with receiving the stolen armory guns, knowing them to have been stolen by Frank Gestl and Joseph McDaniel. At appellant's trial both the Gestls and McDaniel testified against appellant. They stated Frank Gestl and McDaniel committed the burglary, taking the weapons in question and hiding them at Tommy Black's house; later that night, appellant appeared and loaded the guns in his car, saying he had a place in Colorado to store them; appellant was upset that the burglary had occurred before he got there and that so few guns were obtained; he discussed price of the guns; the group had previously stolen guns in two burglaries of the Lee Hardware Store in Salina and had taken them to Denver for appellant to sell at which time appellant had participated in plans to burglarize the armory. One pistol, identified as one of those taken in the armory burglary, was recovered by the FBI in a search of appellant's bedroom closet in Denver.

Appellant contends the trial court erred in denying his motion for change of venue because of pretrial publicity which was shown to be prejudicial to his right to a fair trial. The record on appeal contains six articles published in the Salina Journal and one from the Kansas City Times respecting the various stages of judicial proceedings involving the gun burglaries and also burglary of a Salina bank. The articles featured the fact the two Gestls were members of a local merchant police and security business and Frank Gestl had recently been nominated for the office of sheriff of Saline county. The record also contains fourteen conclusory type affidavits, seven identical ones offered by appellant stating the affiant's opinion that because of the pretrial newspaper and sound media publicity appellant could not receive a fair trial in Saline county, and seven identical ones offered by the state giving the affiant's opinion, based upon what he had heard and not heard respecting the case, that appellant could receive a fair trial in Saline county. Appellant has demonstrated no plausible showing of prejudice. This burden is on him (State v. Hill, 211 Kan. 239, 244, 505 P.2d 704, 708). As stated in State v. Randol, 212 Kan. 461, 513 P.2d 248:

'The mere publication of newspaper articles does not establish prejudice per se that defendant cannot obtain a fair and impartial trial in the county.' (Syl. Para. 1.)

Here it appears thirty-six prospective jurors were questioned and none had formed or expressed an opinion about the case. None was challenged for cause. Of the six printed articles shown in the record, two did not mention appellant. Of the remaining four mentioning his name, only one made more than passing reference to his role in the crime. Applying familiar principles of law (State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255; State v. Hill, supra) we must hold the trial court did not abuse sound discretion in denying the requested change of venue.

Appellant asserts the trial court erred in refusing to hear his motion to suppress state's exhibit 9, the pistol seized in a warrantless search of appellant's bedroom in Denver. The motion was not made until the exhibit was offered into evidence by the state, which occurred after several witnesses had testified about the pistol, and after one prosecution witness, the resident lessee of the premises in which the pistol was found and who apparently had consented to the search, had been excused and departed from Kansas.

K.S.A. 22-3216(3) dealing with motions to suppress illegally obtained evidence provides:

'The motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.'

The import of the foregoing is that absent a motion to suppress the state does not have to assume the burden of defending a search and seizure; two exceptions are stated and the trial court may act at its discretion. In State v. Jackson, 213 Kan. 219, 515 P.2d 1108, we stated:

'. . . In other words, if a defendant fails to make the motion prior to trial and is unable to show lack of opportunity or unawareness he has lost his standing to challenge admissibility as a matter of right and becomes dependent upon the discretion of the trial court under the language of the last provision of subsection (3).' (p. 226, 515 P.2d p. 1114.)

Appellant argues no showing was made that he had pretrial knowledge which would provide grounds for a motion to suppress. According to Jackson appe...