State v. Chiles

• Decision Date: 09 June 1979
• Docket Number: No. 50408,50408
• Citation: 226 Kan. 140,595 P.2d 1130
• Parties: STATE of Kansas, Appellee, v. Anthony D. CHILES, Appellant.
• Court: Kansas Supreme Court

Page 1130

595 P.2d 1130

226 Kan. 140

STATE of Kansas, Appellee, v. Anthony D. CHILES, Appellant.

No. 50408.

Supreme Court of Kansas.

June 9, 1979.

Syllabus by the Court

1. The provisions of K.S.A. 21-4204 do not offend against the constitutional guarantee of equal protection of the laws because the classifications found in the statute are honestly designed to protect the public from evils which may otherwise arise and are not unreasonable, arbitrary or oppressive.

2. Inability to read does not automatically abrogate the validity of a consent to search.

3. The protection against unreasonable search and seizure extends to all constitutionally protected areas which includes motel rooms in proper instances.

4. When the search of the motel room occurs during the rental period, the defendant has standing to object to an unauthorized search of the premises unless prior to the search he has abandoned the premises and thereby forfeited his right to occupancy and privacy.

5. The test for abandonment is whether the complaining party retains a reasonable expectation of privacy in the premises.

Antonio L. Ortega, of Blase & Blase, Wichita, argued the cause and was on brief, for appellant.

Marvin R. Cook, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., were with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict which found Anthony D. Chiles (defendant-appellant) guilty of one count of aggravated robbery (K.S.A. 21-3427); one count of unlawful possession of a firearm (K.S.A. 21-4204); and one count of aggravated battery (K.S.A. 21-3414). The appellant asserts numerous trial errors on appeal.

Briefly summarized, on the evening of April 9, 1978, the appellant and a companion registered at Hill's Texaco Motel, a combination service station and motel, located at 5403 North Broadway in Wichita, Kansas. The establishment was owned and operated by Melvin L. McDaniel. The appellant was given Room 21.

Ella Jeynette Richardson, a fourteen-year-old girl, testified she was the appellant's companion. She stated that shortly after arriving at the motel she and the appellant checked out and returned the key to the manager, Mr. Lake. She said the appellant told her they were going to rob the adjoining service station.

Mr. McDaniel testified that at approximately 12:15 a. m. on April 10, 1978, he and his common-law wife, Mrs. Glenda Hugg, were working in the station. He stated the appellant, whom he had previously identified from photographic mug shots, and a female accomplice entered the station through a side door, demanded the money from his cash register, and attempted to rob him.

Apparently a struggle then ensued between Mr. McDaniel and the appellant, and the witness was shot in his left shoulder. Thereafter the couple fled with the money in a 1965 or 1966 metallic green Plymouth Fury. Richard Stinnett, a customer at the station, witnessed the robbery and also testified at the trial. His description of the get-away car was similar.

Approximately one hour later, officers of the Wichita Police Department stopped the appellant at the intersection of 8th and Cleveland. He was driving a car which matched the description of the suspect vehicle.

Detective Leo Willey of the Sedgwick County Sheriff's Department soon arrived at the scene. He testified he advised the appellant of his Miranda rights, and the appellant acknowledged he understood the same. The appellant then told Detective Willey his whereabouts the preceding evening and voluntarily gave a written waiver to search the car. Detective Willey ordered the car sealed and impounded, however, until a search warrant could be obtained. He did search the appellant and took two live .38 caliber cartridges from the appellant's coat pocket.

At approximately 3:00 a. m. officers of the sheriff's department searched Room 21 of the motel with the consent of the management. The room was empty.

The search warrant was subsequently issued at 10:05 a. m. on Tuesday, April 11, 1978, and executed later that day. Officers found a .38 caliber pistol loaded with six shells in the car.

The appellant was then charged with aggravated robbery and unlawful possession of a firearm. The information was later amended to include the additional count of aggravated battery.

Prior to the trial the appellant unsuccessfully moved to dismiss Counts II and III of the amended information; to suppress evidence of his photographic identification; and to suppress evidence recovered from the search of his automobile. The appellant testified on his own behalf. He denied committing the robbery and offered an alibi. His motions for judgment of acquittal, mistrial, and new trial were overruled. He has duly perfected this appeal.

The appellant first contends the trial court erred in failing to sustain his motion to dismiss Count II of the amended information. Count II charged him with unlawful possession of a firearm under K.S.A. 21-4204. The appellant contends the statute draws an invidious discrimination between felons and misdemeanants and the distinction regarding prohibition of the possession of firearms less than twelve inches long as compared to possession greater than twelve inches long bears no rational relationship to any state interest. These arguments must fail.

This court previously considered the equal protection argument in State v. Weathers, 205 Kan. 329, 469 P.2d 292 (1970). There we upheld K.S.A. 21-2611 (Corrick), the forerunner to K.S.A. 21-4204, stating the statute was not unreasonable in its relation to the evil sought to be cured. While K.S.A. 21-4204 eliminates the extensive list of crimes found in K.S.A. 21-2611, the rationale for the distinction between felons and nonfelons remains the same. It is not unreasonable to restrict convicted felons from possessing handguns because the repetition of a crime by a previous offender who has armed himself with a pistol might well bring serious physical harm to the victim.

The appellant's contention that the distinction between firearms with a barrel length less than twelve inches from those with a barrel length more than twelve inches bears no rational relation to any state interest also lacks merit. In general the possession and use of dangerous weapons is a sufficient hazard to warrant prohibition except under special circumstances which may create justification. People v. Musselman, 69 Ill.App.2d 454, 217 N.E.2d 420 (1966). Statutes preventing concealed weapons, except under circumstances which give rise to justification, are aimed at keeping the public from going about secretly armed. Inescapable is the idea of notice. If a man knows another man is armed he would behave differently in the event of an affray than if he did not. People v. Cunningham, 20 Mich.App. 699, 174 N.W.2d 599 (1969). Thus, as the cases illustrate the reason for the distinction between the lengths of the barrel is that firearms with barrels less than twelve inches long are generally handguns which are easier to conceal and more often used to commit crimes. Therefore, we hold the provisions of K.S.A. 21-4204 do not offend against the constitutional guarantee of equal protection of the laws because the classifications found in the statute are honestly designed to protect the public from evils which may otherwise arise, and they are not unreasonable, arbitrary, or oppressive.

The appellant next claims the trial court erred in denying his motion to dismiss Count III of the amended information because it is duplicitous. Duplicity is defined as "the joining in a single count of two or more distinct and separate offenses." State v. Smith & Miller, 224 Kan. 662, 668, 585 P.2d 1006, 1012 (1978), Modified 225 Kan. 199, 588 P.2d 953 (1979). Duplicity does not depend upon whether the facts proved at trial are actually used to support the conviction of both offenses; rather, it turns upon whether the necessary elements of proof of the one crime are included in the other. State v. Thornton, 224 Kan. 127, 130, 577 P.2d 1190 (1978) and authority cited therein.

In the case at bar Count I of the information charged the appellant with aggravated robbery in the words of the statute, and Count III of the amended information charged the appellant with aggravated battery in the words of the statute. Each count contains only one offense. The elements of proof of the crimes of aggravated robbery and aggravated battery are different, and the appellant's argument must fail.

The appellant next argues the trial court erred in denying his pretrial motion to suppress reference to the photographic identification during the trial. He presents the novel argument that identification was suggestive because his photograph was not excluded from other "mug shots" gathered for presentation.

Certain general rules are applicable. A defendant does not have a constitutional right to have counsel present at a photographic display, either before or after charges have been filed. State v. Porter, 223 Kan. 114, Syl. P 3, 574 P.2d 187 (1977); State v. Hutchinson, 222 Kan. 365, 367, 564 P.2d 545 (1977), and cases cited therein. A pretrial identification of a defendant by use of photographs will be suppressed only if the identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Wilson, 221 Kan. 92, 95, 558 P.2d 141 (1976); State v. Mitchell, 220 Kan. 700, 556 P.2d 874 (1976); State v. Nesmith, 220 Kan. 146, 551 P.2d 896 (1976).

The appellant's argument must fail for several reasons. We note the appellant failed to object to the testimony concerning the photographic identification at the trial pursuant to K.S.A. 60-404. Failure to object to a reference during trial precludes assertion on appeal. State v. Hatch & Smith, 223 Kan. 783, 787, 576 P.2d 687 (1978); State v. Watie, Heard and Heard, 223 Kan....