State v. Carson, 47593
| Decision Date | 05 April 1975 |
| Docket Number | No. 47593,47593 |
| Citation | 216 Kan. 711,533 P.2d 1342 |
| Parties | STATE of Kansas, Appellee, v. Ronald E. CARSON, Appellant. |
| Court | Kansas Supreme Court |
1. No exception to the hearsay rule exists with respect to a written report of the result of a laboratory blood test. In order to receive such report into evidence a foundation must be laid as to the identity of the report and the manner of examination.
2. A lawyer should not by subterfuge put before a jury matters which it cannot properly consider.
3. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
4. General on-the-scene questioning as to facts surrounding a crime or general questioning of citizens in the fact finding process does not constitute custodial interrogation requiring advice of rights.
5. Circumstances bearing on whether a person questioned was subjected to 'custodial interrogation' requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation and (5) the progress of the investigation at the time of interrogation.
6. The fact a suspect is the focus of an investigation, standing alone, does not trigger the need for a Miranda warning but it may be one of the determinative factors in arriving at a decision whether such a warning is needed.
7. In a prosecution for attempted burglary it is held: Certain statements elicited from defendant in the absence of a Miranda warning and testimony of a police officer concerning the result of a laboratory blood test in the absence of a proper foundation were improperly admitted into evidence; further, the combined effect of the two errors deprived defendant of a fair trial.
Michael D. Gragert, Wood & Gragert, Wichita, argued the cause and was on the brief for appellant.
Wallace Franklin Davis, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and John M. Jaworsky, former County Atty., were on the brief for appellee.
HARMAN, Commissioner:
Ronald E. Carson was convicted by a jury of the offense of attempted burglary. He now appeals from the judgment and sentence imposed.
Certain trial errors alleged required review of the prosecution's evidence. The property which was the subject of the offense was a building occupied by Pruitt's Pawnshop in Augusta. On June 15, 1973, at about 8:10 p. m., two Augusta police sergeants saw appellant standing in front of the pawnshop. He was observed to take something from his pocket with which he appeared to be prying on the hasp of the screen door. When appellant noticed the police officers watching him he entered an automobile and left the scene. Sometime after 9:00 p. m. that same evening a woman saw appellant standing inside the screen door of the pawnshop with what looked like a jack handle in his hand; it appeared he was trying to get the inside door open. The woman immediately notified the police, giving a description of appellant and his clothing. Two policemen arrived at the pawnshop at 9:20 p. m. They observed the door partially open; the lock had been torn from the screen door and a small window above the door knob on the inside door had been knocked out. A substance that appeared to be blood was on the sidewalk, the threshold, the door knob and on pieces of broken glass lying inside the door.
A few minutes later a police sergeant received a call that the suspect, Ronald Carson, had been located at the Augusta Recreation Center. Proceeding there the sergeant found appellant in the presence of three other police officers. He was bleeding from a laceration on his right index finger. The sergeant asked him how he cut his finger. Appellant replied he had locked himself out of his car and had cut his finger on the right door glass while trying to get the car door unlocked. The sergeant inspected appellant's vehicle and found that the right window glass on it was missing. The entire window was gone but there were no particles of broken glass to be found and there was dirt in the window track which indicated the window had not just been knocked out.
Appellant was taken to the police station where he was informed of his constitutional rights and arrested for burglary. Appellant's blue jeans which appeared to have blood stains on them were taken from him and these as well of pieces of glass, tools and scrapings from the door knob were all sent to the Wichita police forensic laboratory for examination.
Appellant's first specification of error derives from testimony respecting the examination of these articles. The officer who collected them testified that the glass and other articles appeared to have blood stains on them. The officer then testified twice upon direct examination he had sent them to the laboratory for the purpose of determining whether the stains on them were human blood and that the tests were made. He twice testified a report from the laboratory had been made and that he had seen the report. Then the following occurred:
The result of the laboratory tests was not otherwise put into evidence. Appellant's motion to strike the testimony quoted above as hearsay and for want of proper foundation was overruled. A statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible, with certain exceptions (K.S.A. 60-460). Had the sergeant testified the laboratory report stated the stains on the exhibits were blood his testimony would have been inadmissible. Instead the sergeant testified he had seen the report and that nothing had come to his attention to alter his conclusion the stains were blood. No exception to the hearsay rule exists with respect to a written report of the result of a laboratory blood test. In order to receive such a report into evidence a foundation must be laid as to the identity of the report and the manner of examination (State v. Foster, 198 Kan. 52, 422 P.2d 964). The testimony here circumvented these rules, deliberately it would appear, inasmuch as it was elicited twice in most instances as a result of leading questions put to the witness by the then county attorney. A lawyer should not by subterfuge put before a jury matters which it cannot properly consider (Code of Professional Responsibility, ABA, Ethical Consideration 7-25). Our conclusion is the trial court erred in permitting the challenged testimony to be considered by the jury.
Appellant also urges the trial court erred in admitting, over objection, the testimony of the other police sergeant concerning statements made by appellant as to how he had cut his hand, in the absence of any prior Miranda warning as to the right to remain silent, use of any statement made and right to the presence of an attorney. Elaborating the evidence already related, this sergeant was one of the two officers who earlier in the evening had observed appellant standing in front of the pawnshop apparently prying on the screen door. This officer also had later, after a police report and description of appellant had been broadcast, gone to the pawnshop where broken glass and bloodstains were plainly visible. He testified that at about 9:47 p. m. he received a radio meassage that 'the suspect, Ronald Carson' had been located at the recreation center; he then went to that location; . (Emphasis supplied.) The sergeant gave no Miranda warning prior to eliciting by direct questioning appellant's statements as to how he had cut his hand.
To continue reading
Request your trial
-
State v. Costa, 51410
...interrogation. State v. Edwards, 224 Kan. at 269, 579 P.2d 1209; State v. Bohanan, 220 Kan. at 128-29, 551 P.2d 828; State v. Carson, 216 Kan. 711, 715, 533 P.2d 1342 (1975); Annot., 31 A.L.R.3d 565. The fact a suspect is the focus of an investigation, standing alone, does not trigger the n......
-
State v. Lucas
...an interview would be clearly investigatory, as it had not yet been determined a crime had been committed. In State v. Carson, 216 Kan. 711, 715, 533 P.2d 1342 (1975), we listed five factors helpful in considering whether questioning constitutes custodial interrogation. Let us consider each......
-
State v. Roadenbaugh
...custody or deprived of their freedom of action in any significant way. (State v. Frizzell, 207 Kan. 393, 485 P.2d 160.) In State v. Carson, 216 Kan. 711, 533 P.2d 1342, Syl. 5, we suggested that circumstances bearing on whether a person questioned was subjected to 'custodial interrogation' ......
-
State v. Fritschen, 64225
...v. Porter, 201 Kan. 778, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805 (1969). In State v. Carson, 216 Kan. 711, 533 P.2d 1342 (1975), we set forth five factors to be used in analyzing whether an interrogation was custodial: " '(1) the nature of the interroga......