State v. Copridge, 72761

• Decision Date: 31 May 1996
• Docket Number: No. 72761,72761
• Citation: 260 Kan. 19,918 P.2d 1247
• Parties: STATE of Kansas, Appellee, v. Alan Keith COPRIDGE, Appellant.
• Court: Kansas Supreme Court

Page 1247

918 P.2d 1247

260 Kan. 19

STATE of Kansas, Appellee, v. Alan Keith COPRIDGE, Appellant.

No. 72761.

Supreme Court of Kansas.

May 31, 1996.

Syllabus by the Court

1. Where a defendant has been taken into custody and his or her personal effects have been lawfully seized and retained for safekeeping, the defendant no longer has an expectation of privacy in the personal effects; officers may thereafter take a second look at the inventoried personal effects without a search warrant and remove any evidence. The test in this situation is not whether the items are in plain view or whether the police had probable cause to search, but whether the items were lawfully in their custody in the first place.

2. An accused, once having expressed his or her desire to be represented by counsel, is not subject to further interrogation until counsel has been made available, unless the accused initiates further communications. Even though an accused may be represented by counsel, any statements otherwise admissible given to officers as a result of the accused's initiation of further communication, are admissible.

3. K.S.A. 22-3423(1)(c) authorizes the district court to declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution. The declaration of a mistrial is within the discretion of the district court, and the court's decision will not be disturbed absent abuse of that discretion.

4. A motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will tend to prejudice the jury.

5. Alleged violations of an order in limine are evaluated through the use of a two-part test. First, there must be a determination of whether the order in limine was violated. Second, if the order was violated, there must be a determination of whether the testimony elicited in violation of the order substantially prejudiced the defendant. The burden is on the defendant to show that he or she was substantially prejudiced.

6. In order for the State to seek imposition of the hard 40 sentence, the prosecution must file written notice of such intent with the court and serve a copy on the defendant at the time of arraignment. K.S.A.1993 Supp. 21-4624(1). This notice requirement is mandatory, and where the State fails to follow the requirement, the hard 40 sentence cannot be imposed.

7. Under the facts of this case, the record establishes that the statutory notice requirement of K.S.A.1993 Supp. 21-4624(1) has been satisfied. The State filed the original and a copy of a written notice of intent to seek the hard 40 sentence with the court and served a copy on the defendant at the time of arraignment. Even though the court did not "note thereon the filing day and forthwith transmit [the notice] ... to the office of the clerk" in accordance with K.S.A. 60-205(e), the record establishes that the court accepted the notice for purposes of the filing requirement of K.S.A.1993 Supp. 21-4624(1).

Stephen Douglas Bonney, Special Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with him on the brief, for appellant.

Charles R. Reimer, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief, for appellee.

DAVIS, Justice:

This is a direct criminal appeal from convictions of felony murder, first-degree murder aggravated robbery, and aggravated kidnapping. The defendant, Alan Keith Copridge, claims that the trial court erred (1) in failing to grant his motion to suppress evidence, (2) in failing to grant his motion to suppress his pretrial statements, and (3) in failing to grant a mistrial. The defendant also appeals from the imposition of a hard 40 sentence, claiming that the State failed to comply with the statutory notice requirements.

On Monday, October 15, 1993, Damen Fuller, an employee of Victor's Auto Sound, found the owner and his employer, Harold Victor Williams, dead at Williams' duplex. The next day, John Stevens, a friend of the defendant, reported to the Wichita Police Department that the defendant had called him several times over the weekend, asking him to join him in a plan to steal stereo equipment. Stevens stated that the defendant told him he wanted to steal the equipment from the victim's truck and that the victim owned a stereo shop. Stevens also told the police that the defendant mentioned that the victim was someone he knew. When Stevens asked the defendant how he was going to rob someone he knew, who could be expected to identify him, the defendant stated that he had not figured out that part of the plan yet.

Earlier that same morning, the defendant had been arrested on an unrelated charge. After receiving Stevens' information, Detective Chisolm of the Wichita Police Department went to the jail and examined the defendant's personal effects which had been moved to the property room. Inside the defendant's wallet, Chisolm found a business card from Victor's Auto Sound. The defendant was still in the booking area while the search was being conducted. After the defendant was issued an orange jumpsuit, Chisolm examined the clothing the defendant had been wearing. He noticed what appeared to be bloodstains on the defendant's shoes.

On October 27, Chisolm obtained and executed a search warrant to collect blood and hair samples from the defendant. Chisolm testified that he knew he could not interview the defendant at the time because the defendant was represented by an attorney. As a result, he simply explained to the defendant that he needed blood and tissue samples in connection with a murder investigation. The defendant asked who the murder victim was and Chisolm gave him the name of the victim.

According to Chisolm, the defendant then told him he wanted to talk about the murder. Chisolm informed the defendant that he could not talk about the murder because the defendant was represented by counsel. The defendant insisted that he had only requested an attorney to represent him on the prior unrelated charge, not the murder charge, and that he wanted to talk. Finally, Chisolm and Officer Kenneth Landwehr took the defendant into an examination room and advised him of his Miranda rights. Chisolm stated that the defendant did not appear intoxicated or under the influence of medication.

The defendant told Chisolm and Landwehr that he was a friend of the deceased, Williams, andthat he and Williams were homosexual lovers. The defendant said that on the night of the murder, he and his friend Stacy Speed were at Williams' house watching television. When he came out of the bathroom he saw Speed stabbing Williams with a knife. The defendant tried to take the knife away from Speed and finally got Speed to stop stabbing Williams.

According to the defendant, Speed began to gather stereo equipment from the residence. Speed told the defendant to help him load the stereo equipment into the Pontiac that they had driven to the residence and also told the defendant to follow him in Williams' BMW. After leaving Williams' house, he and Speed went to Victor's Auto Sound, but Speed was unable to get into the shop. They then went to Speed's girlfriend's house.

After more questioning by the officers, the defendant admitted that he and Speed had planned to go to Williams' house with the intention of robbing him, but stated that he then told Speed he did not want to rob Williams. The defendant also told the officers that when he tried to stop Speed from stabbing Williams, his gun fell out of the waistband of his pants, and that Speed grabbed the gun and forced him to tape Williams' hands and feet together and to steal the stereo equipment.

The defendant was charged with felony murder, or in the alternative, first-degree murder, aggravated robbery, aggravated kidnapping, and criminal possession of a firearm, which was the unrelated charge on which the defendant had originally been arrested. The defendant pled guilty to criminal possession of a firearm and went to trial on the other charges.

Prior to trial, the defendant filed motions to suppress both the evidence obtained from a search of his personal items and his statements to the officers. Both motions were denied by the trial court. Also prior to trial, the defendant made a motion in limine to prohibit witnesses from talking about the defendant's previous incarceration. The trial court granted the motion and noted that the witnesses were not to talk about the defendant being in the penitentiary for prior wrongs, or the circumstances surrounding the defendant's stop on the unrelated charge, although the officer making the stop could testify as to why the defendant had been stopped.

In its opening statement, the State mentioned that at the time the search of the defendant's personal effects was made he was "in jail on an unrelated arrest." The defendant objected and moved for a mistrial on the grounds that the State had violated the motion in limine. The trial court denied the motion.

The defendant was convicted on all counts. He was sentenced to the hard 40 on his first-degree murder conviction, which was made consecutive to concurrent terms totalling 178 months.

(1) Suppression of Physical Evidence

The defendant argues that the district court erred in failing to suppress the evidence collected from a search of his personal effects and clothes which was conducted while he was being booked into jail on an unrelated charge. He contends that the search was unconstitutional in that Chisolm did not have probable cause to search or a search warrant.

We have held that where a defendant is taken into custody and his or her personal effects are lawfully...