State v. Clark

• Decision Date: 24 January 1976
• Docket Number: No. 47912,47912
• Citation: 544 P.2d 1372,218 Kan. 726
• Parties: STATE of Kansas, Appellee, v. Harold CLARK, Jr., Appellant.
• Court: Kansas Supreme Court

Page 1372

544 P.2d 1372

218 Kan. 726

STATE of Kansas, Appellee, v.Harold CLARK, Jr., Appellant.

No. 47912.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1.Rules relating to search and seizure incident to a warrantless arrest are stated and applied.

2.Collective information of police officers and law enforcement officers involved in an arrest can form the basis for probable cause, even though that information is not within the knowledge of the arresting officer.The knowledge or information of the arresting officer at the time of arrest is relevant only where an arrest is predicated on that officer's personal observations and information concerning the criminal act.In other situations the correct test is whether a warrant if sought could have been obtained by law enforcement agency application which disclosed its corporate information, not whether any one particular officer could have obtained it on the information he individually possessed.

3.The information upon which a determination to arrest without a warrant is made must be reasonably reliable, and the chain of communication through which facts known to the police are received must be constructed with reliable links from its source to the resulting arrest; this chain of communication must be reliably cohesive from a reliable source to the resulting arrest.There is no requirement that the arresting officer have sufficient firsthand knowledge to constitute probable cause.It is enough that the police officer initiating the chain of communication either had firsthand knowledge or received his information from some person-normally the putative victim or an eyewitness-who it seems reasonable to believe is telling the truth.

4.In a cooperative investigation by many police officers, the knowledge of one officer is the knowledge of all in determining probable cause for an arrest, provided there has been communication between the individual officers.

5.An arresting officer who does not have in his possession sufficient information to constitute probable cause may make a valid warrantless arrest if (1) it is shown that he acted upon the direction or as a result of a communication from another police department and (2) it is shown that the police, as a whole, were in possession of information sufficient to constitute probable cause.

6.The seriousness of an alleged offense and the exigency of the situation, as where an immediate arrest seems desirable because a suspect is likely to flee the jurisdiction or is thought to be in possession of vital evidence of the crime, are factors to be considered in assessing probable cause for a warrantless arrest.

7.There is no constitutional right to counsel at a photographic display conducted by police for the purpose of allowing a witness to attempt identification of an offender.

8.Lineups that are unnecessarily suggestive or conducive to irreparable mistaken identification are forbidden by the due process clauses of the federal constitution.

9.In an appeal from a conviction of rape and possession of marihuana, it is held: (1) The evidence of commission of rape sufficiently presented a case for jury determination; (2) officers arresting appellant had probable cause to believe he had committed a felony and his warrantless arrest was not unreasonable under the circumstances, and (3) a police photographic lineup was not unnecessarily suggestive and was properly conducted.

Edward G. Collister, Jr., Lawrence, argued the cause and was on the brief for appellant.

David Berkowitz, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Gregory Justis, legal intern, were with him on the brief for appellee.

HARMAN, Commissioner:

Harold Clark, Jr., was charged with the crimes of burglary, aggravated sodomy, rape and possession of marihuana with intent to sell.He was convicted by a jury of rape and simple possession of marihuana and acquitted of the burglary charge.The jury failed to agree on the sodomy charge and mistrial was declared as to it.Clark appeals from the sentences imposed for the rape and marihuana offenses.

Appellant, a nineteen year old black male weighing about 270 pounds, is a former student at Kansas University who resided in Columbia, South Carolina, in April, 1974.In the forepart of that month he traveled with two other persons to Lawrence in a sky-blue Continental Mark IV.On April 9, 1974, the trio visited friends at Ellsworth dormitory at least twice, including one time between 11:00 p. m. and midnight when they signed in as guests of a person named Bernside.After that visit they left the dorm with a friend and went to a party at a private apartment.

The victim of the rape, a white girl who was five feet two inches tall and weighed 105 pounds, lived alone on the tenth floor of Ellsworth Hall.On April 10, 1974, she went to bed at about 1:00 a. m. without locking the door.Meanwhile, at about 3:00 a. m., appellant entered the room of a young woman who lived down the hall from the rape victim.A conversation ensued which frightened her.Appellant left her room and went in the direction of the victim's room.This woman saw appellant's car leave at about 3:30 a. m. the same morning.At about 3:15 a. m. the victim was awakened when her door was opened.She noticed the hand of a black male on the doorknob but thought it was her boyfriend, who was black and lived in another wing of the dormitory.She arose and upon fully opening the door was confronted by appellant who blocked her exit, pushed her aside and entered the room.The room was dark except for light filtering in through the venetian blinds but she did get a good look at appellant while he was standing under the hall light.Appellant had a silver colored pistol in his hand which he cocked and pointed at the victim.He told her she had better please him or he would use the gun.Appellant first told her to perform fellatio upon him, which she did.Appellant then raped her and left the room.

At this point in the narrative it may be well to consider one complaint raised upon appeal.Appellant asserts a submissible case of rape was not presented by reason of certain admissions made by the victim.She testified that after appellant had demanded that sodomy be committed she asked if he wasn't going to rape her first; her reason for this statement was that the acthe wanted performed on him was disgusting to her and she believed 'if he was going to rape me that I would rather he got it over with, that I didn't have to do anything else'.She further testified he still had the gun pointed at her at this time, he had threatened to kill her, she was afraid, did not want to be raped and did not consent to it but preferred rape to the other act; she did not scream or struggle because she feared appellant would kill her with the gun.

Rape is an act of sexual intercourse committed by a man with a woman not his wife without her consent and when the woman's resistance has been overcome by force or fear (K.S.A. 21-3502).Here a cocked handgun was pointed at the victim with explicit threats of harm if the assailant's demands were not met.She testified the intercourse occurred without her consent and at a time when she feared for her life.She did make immediate complaint after appellant left.Under these circumstances the victim's statement concerning rape cannot be held as a matter of law to imply consent on her part.The evidence clearly presented a submissible case for jury determination (seeState v. Hampton, 215 Kan. 907, 529 P.2d 127).

Immediately after the incident the victim telephoned her boyfriend.He arrived at her room in two or three minutes.The two then went to the resident dorm director and reported the incident.Lieutenant Welliver and Officer Skeet, members of the university traffic and security department, came to the dorm and talked to the victim and to dorm personnel.The victim described her assailant as a black man, about five feet eight inches tall, over 200 pounds, very heavy, with a short or medium Afro haircut and a beard along the jawline (later she was not positive about the beard since she had no recollection of it scratching her face).The victim then went to the hospital for examination.A doorman at the dorm told the officers that a person fitting the general description of the assailant had recently left the dorm and entered a blue Continental automobile.Officer Skeet knew that appellant had been driving a blue Continental and that he matched the description of the assailant.Lt. Welliver then relayed to the university security dispatcher information of the incident, including the significance of the blue Continental.He described the assailant as a heavy-set black male with a full beard and approximately five feet eight inches or five feet ten inches tall, and asked that appellant and the car be picked up and held.The dispatcher in turn informed Sergeant Monroe, a university security investigator, of the situation.Lt. Welliver also discussed the case over the radio with Sgt. Monroe.Monroe went to the hospital and interviewed the victim.She described her assailant.Sgt. Monroe had previously known appellant and knew he was in Lawrence driving a blue Continental with South Carolina license plates.Appellant had at that time been under surveillance by both university and city police for possible drug trafficking.Monroe regarded appellant as a suspect in the rape incident since he fit the description given, and he notified the Lawrence police dispatcher he wanted appellant located and held on a pickup order for questioning.

The Lawrence police dispatcher promptly broadcast the pickup request for a black male, five feet eight inches to five feet ten inches in height, weighing approximately 260 pounds and driving a light blue Continental bearing South Carolina tag AHN203.A Lawrence patrolman on duty that night, Officer Fitzpatrick, heard the broadcast and radioed his...