State v. Buckner

Decision Date22 November 1977
Docket NumberNo. 48609,48609
Citation574 P.2d 918,223 Kan. 138
PartiesSTATE of Kansas, Appellee, v. Carl A. BUCKNER, a/k/a Carl Phillips, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. Collective information of police officers and law enforcement personnel involved in an arrest can form the basis for probable cause, even though that information is not all within the personal knowledge of the arresting officer. When such collective information is sufficient to establish a reasonable ground for belief that an offense has been or is being committed, and that the defendant committed or is committing it, probable cause exists.

2. When a consent to search and seizure is challenged as involuntary the prosecution must establish the fact of voluntariness by a preponderance of the evidence, and not by clear and positive evidence or evidence beyond a reasonable doubt.

3. The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of attendant circumstances by the trier of the facts and will not be overturned on appeal unless clearly erroneous.

4. Where an incriminating statement of a third person is made in the presence and hearing of the accused and he remains silent, although he has full liberty to speak, the statements of the third party are admissible in evidence as an exception to the hearsay rule under K.S.A. 60-460(h )(2) as the adoptive statement of the accused.

5. No issue arises under the confrontation clause of the federal and state constitutions where it is the accused's adoptive statement which is being used against him rather than a statement dependent upon the credit of some third person not in court.

6. When a sentence is fixed by the trial court, within permissible limits of the applicable statutes, the sentence is not erroneous and in the absence of special circumstances showing an abuse of judicial discretion will not be disturbed on appeal.

7. The judicial discretion with which a court is vested is one to be exercised not arbitrarily, but soundly, and with due regard to what is right and equitable under the circumstances and the law. (Following State v. Collins, 195 Kan. 695, 408 P.2d 639.)

8. Under the particular facts and circumstances of this case, the imposition of three thirty-year-to-life consecutive sentences, though within the limits of the statutes, constituted an abuse of judicial discretion and such sentence must be set aside and the case remanded for resentencing in accordance with the directions in the opinion.

9. When the sentence imposed by the trial court exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the sentencing court has abused its discretion.

Michael C. Helbert of Atherton, Hurt & Sanderson, Emporia, argued the cause and was on the brief for appellant.

Michael G. Patton, County Atty., argued the cause and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

HOLMES, Justice:

This is an appeal by defendant-appellant Carl A. Buckner from his conviction by a jury of three counts of aggravated robbery. (K.S.A. 21-3427.) Appellant was sentenced, under the Habitual Criminal Act, to three consecutive terms of thirty years to life.

Due to the number and nature of the points on appeal, a rather detailed statement of the facts is deemed necessary.

On September 17, 1975, the Maverick Club, a private class B club located in Lyon County, Kansas, and two of its patrons, Lewis Baker and Charles Stroud, were robbed by two men. Kathy Gibson and Sheryl York were also present in the club and testified at the trial. The victims and witnesses testified one of the robbers was a tall black man, the other a white man who carried a shotgun, and both wore hats, mesh hose and bandannas over their faces. After the robbery, a small four-cylinder car was seen leaving the Maverick Club.

Later the same day, in a field near the edge of a road five miles southeast of Emporia, the following items were found: three checks taken in the robbery, rolls of coins, two pairs of nylon stockings, two handkerchiefs, a man's navy blue utility cap with the initials "B.D.C." toward the rear of the cap, a Levi cap, a brown paper bag, a black silk or nylon-type tee shirt, a pair of blue jeans and a purple tee shirt.

On September 19, 1975, the appellant, while he was a passenger in a car driven by Bobby D. Coe, was stopped by J. Vernon Humphrey, an agent of the Kansas Bureau of Investigation. The car was ostensibly stopped for a traffic violation although no citation was issued to the driver, Coe. Both men were asked to go to the Emporia Police Department, which they did, and the appellant was interviewed as to his identification. He told officers that his name was Carl Phillips but was unable to produce any identification.

Appellant was interviewed by K.B.I. Agent Humphrey. Humphrey stated he was investigating the armed robbery at the Maverick Club and that appellant and Coe fit the description of the two people who had committed the robbery. Appellant was read the Miranda rights and then questioned as to his whereabouts the night of the robbery. During this questioning a sample of appellant's hair was obtained. The evidence is conflicting as to whether appellant consented to the taking of hair samples by Agent Humphrey. After questioning by the police, appellant and Coe left the police station. Agent Humphrey delivered the hair samples taken from appellant plus all the items found along the side of the field, except the checks, to the Kansas Bureau of Investigation for analysis by Ken Knight, a forensic chemist.

On September 21, 1975, Agent Humphrey received a telephone call from Ness County authorities to the effect that a local parolee, Steve Dimitt, and his wife, Virginia, might have information about the robbery of the Maverick Club. Agent Humphrey and Lyon County Sheriff Daniel Andrews drove to Ness City to interview the Dimitts. During the interview Agent Humphrey was told that the appellant, Bobby D. Coe, and two women had come to the Dimitt's house in Ness County and that Coe had indicated to the Dimitts that they were implicated in the robbery.

After interviewing the Dimitts, Humphrey called Ken Knight at the K.B.I. laboratory and received an oral report that a great number of similarities existed between the hair found on some of the items recovered by the law enforcement officers and the hair from the head of the appellant.

On September 22, 1975, Humphrey and other law enforcement officers arrested appellant and Bobby D. Coe at the Dimitt residence. After the arrest Coe and Buckner were advised of their rights and transported back to Emporia.

Once back in Emporia appellant was again advised of his rights and questioned by Agent Humphrey about the robbery. During this interview appellant allegedly made certain incriminating statements relative to what had happened to the shotgun used in the robbery and other items connected with the robbery.

Additional facts will be set forth in connection with the various points on appeal.

As his points on appeal, appellant sets forth the following:

1. The court erred in overruling defendant's motion, pursuant to K.S.A. 22-3215, to suppress as evidence any and all statements given by defendant and obtained incident to his illegal arrest.

2. The court erred in overruling defendant's motion, pursuant to K.S.A. 22-3216, to suppress as evidence certain hair samples.

3. The court erred in failing to require the state to prove by clear and positive evidence that consent was given by defendant to the taking of a hair sample.

4. The court erred in permitting Steven Dimitt and Virginia Dimitt to testify as to statements made to them by Bobby D. Coe in that such testimony was hearsay and deprived the defendant of his constitutional right of confrontation; and that said testimony substantially prejudiced the rights of defendant.

5. It was improper to permit the state in its closing argument to state or imply that the presumption of innocence is unfair.

6. The court erred in allowing evidence to be presented indicating the guilt of Bobby D. Coe and that said evidence substantially prejudiced the rights of defendant.

7. The court abused its discretion in imposing sentence.

As to the first point it is the appellant's position that the court erred in overruling his motion to suppress as evidence any and all statements given by appellant on the grounds that they were obtained as a result of an illegal arrest. Appellant argues that as no warrant had been issued for his arrest, Agent Humphrey did not have probable cause for the arrest on September 22, 1975, at the Dimitt home in Ness County. K.S.A. 22-2401(c )(1) provides that a law enforcement officer may arrest a person without a warrant when he has probable cause to believe that the person has committed a felony.

Probable cause for an arrest is an evasive concept and its existence must be measured by the facts and circumstances of each particular case. (State v. Curtis, 217 Kan. 717, 538 P.2d 1383 (1975).) The United States Supreme Court has stated that " '(t)he substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' " (Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).)

In defining the term the Kansas Court has said:

"Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." (State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275, 287 (1972); State v. Morin, 217 Kan. 646, 538 P.2d 684 (1975).)

"Probable...

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  • State v. McDaniel
    • United States
    • Kansas Supreme Court
    • 14 Junio 1980
    ...State v. Goering, 225 Kan. 755, 761, 594 P.2d 194 (1979); State v. Coe, 223 Kan. 153, 167, 574 P.2d 929 (1977); State v. Buckner, 223 Kan. 138, 150, 574 P.2d 918 (1977); State v. Steward, 219 Kan. at 256, 547 P.2d 773. Trial judges must articulate the facts and factors considered by the cou......
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