State v. Daigle, 48045
| Decision Date | 06 November 1976 |
| Docket Number | No. 48045,48045 |
| Citation | 556 P.2d 400,220 Kan. 639 |
| Parties | STATE of Kansas, Appellee, v. Lawrence K. DAIGLE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record on appeal is examined in a criminal action in which the defendant was convicted of possession of heroin and it is held that the district court did not err (1) in refusing to allow the defendant to withdraw his waiver of jury trial, (2) in refusing to grant a continuance, or (3) in permitting the prosecution to introduce evidence of a scientific test made after the trial had commenced.
Edgar W. Dwire, Malone, Dwire, Glover & Hobbs, Wichita, argued the cause, and was on the brief for appellant.
Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.
This is a direct appeal in a criminal action in which the defendant-appellant, Lawrence L. Daigle, was convicted after a trial to the court of possession of heroin in violation of K.S.A.1973 Supp. 65-4127a. The facts as disclosed at the trial were essentially as follows: During the morning hours of July 31, 1973, the defendant Daigle drove his motor vehicle to the home of a friend in Wichita. While there he entered the garage for the purpose of picking up certain personal property. The defendant was observed on the property by Beverly Beadles, a neighbor, who with good intentions called the police to report a suspicious person in the block. Beadles gave the police a description of defendant's automobile. The defendant left the premises and drove to the intersection of Washington and Pawnee Streets where he was stopped by Patrolman Ryder who was on the lookout for the described automobile. At Ryder's direction defendant drove off the street into the driveway of a furniture store adjacent to the intersection. Ryder suggested to defendant that he return to the home of his friend in order to clear up the prowler report. Defendant did so, and after a short discussion there he was released. Not long thereafter Patrolman Ryder was approached by Raymond Calvin at the intersection of Washington and Pawnee. Calvin informed Ryder that he had observed the defendant's car as it pulled into the driveway and saw a brown-paper bag flying from the direction of defendant's car and landing on the grass near the area where Ryder had previously stopped the defendant's vehicle. Upon investigation Ryder discovered the paper sack on the ground and upon opening it found inside a syringe, five individually wrapped Trojan brand prophylanctics, a torn piece of prophylactic wrapper, and a Trojan brand prophylactic box. Ryder opened the box and found one prophylactic containing a cinnamon-colored substance which was determined to be heroin. Ryder then observed the defendant in the vicinity of this same intersection. He proceeded to place the defendant under arrest for possession of heroin. A search of defendant's person by Patrolman Ryder yielded $670 in cash, two silver measuring spoons, a billfold, and several individually wrapped Trojan brand prophylactics. Later that same day the defendant consented to a search of his car and his house. A search of defendant's house produced still more Trojan brand prophylactics, printed directions, another torn piece of prophylactic wrapper, and two syringes.
On December 18, 1973, an information was filed in the Sedgwick county district court charging defendant with possession of heroin. Thereafter the case eventually was tried four times. The first trial was befoure a jury in February of 1974 and resulted in a mistrial when the jury could not agree on a verdict. The second trial was before a jury in May 1974, and again the jury was unable to agree. On August 6, 1974, the defendant appeared in district court with his counsel at a jury trial docket call and voluntarily waived his right to a jury trial. The district administrative judge accepted the waiver and placed the case on the nonjury trial docket for September 3, 1974. The defendant failed to appeal for trial on the date set. His bond was forfeited and a warrant for his arrest was issued.
Eight months later on May 1, 1975, the defendant was arrested. The district administrative judge by mistake placed the defendant's case on the May 12 jury trial dockey. When the case was called on that date, the defendant requested a continuance until June 2. At that time the prosecutor reminded the court of the defendant's prior waiver of jury trial. The court then ordered the case to be set on the nonjury trial docket and continued until May 27. On May 12 the defendant did not object to removing the case from the jury trial docket nor did he request that he be allowed to withdraw his prior jury waiver Two days later on May 14, 1975, the defendant filed a motion to withdraw his waiver of trial by jury and requested a jury trial. The motion was not heard until May 23 because of compliance with supreme court notice rules and Sedgwick district court procedures. At the hearing on his motion the defendant offered no specific reasons for seeking to withdraw his waiver. The state objected thereto on the grounds that substantial delay would result if the motion was granted. The prosecutor pointed out that some witnesses would not be available in June. The district administrative judge stated that the case had been set on the jury docket by mistake. The judge concluded that the trial would be substantially delayed if not commenced on the day when it was scheduled for nonjury trial and denied the motion.
The case was called on the nonjury docket on May 27, 1975, and trial commenced the day. On May 28 a mistrial was declared before the conclusion of the evidence, and the case was set for a nonjury trial on the following morning. At the conclusion of the fourth trial the district court found the defendant guilty of possession of heroin and this appeal followed.
The only real issue to be determined at any of the trials was whether the defendant had possession of the brown-paper sack and the heroin contained therein prior to the time it was discovered by the police officer on the ground near the place where defendant was stopped by Patrolman Ryder. At the two jury trials the evidence was disputed. Mr. Calvin testified on behalf of the state that he observed officer Ryder directing defendant to pull into the driveway near the intersection and that as the defendant did so a brown-paper sack flew from the direction of the defendant's car and landed in the grass near the street. In his defense the defendant offered the testimony of Mr. and Mrs. Jack Hanson, who at that time resided in Lawton, Oklahoma. They testified in substance that during the midmorning hours of July 31, 1973, at the intersection of Washington Street and Pawnee Street in Wichita, they observed two young men pitch what appeared to be a brown-paper sack in the grassy area near the intersection. The testimony of the Hansons raised a bona fide issue for the jury as to whether the defendant Daigle had ever had possession of the sack.
At the fourth trial, in which the defendant was convicted, the state at the last minute came up with some evidence which was extremely damaging to the defense. During the fourth trial the assistant district attorney, James E. Rumsey, noticed a similarity between the torn edge of the piece of prophylactic wrapper found in the sack containing the heroin and the edge of the piece of prophylactic wrapper found at the defendant's house when it was searched on the same day. At Rumsey's request the two pieces of wrapper were examined during the lunch hour under a comparison microscope by Linda Voss, a police forensic chemist. Following the noon recess Mrs. Voss testified that she had compared the two pieces of prophylactic wrapper and that the torn edges matched perfectly, leading to the inescapable conclusion that they had previously been a part of the same piece of paper. Mrs. Voss also identified two photographs which demonstrated the matching of the two pieces of paper, and they were admitted into evidence by the trial...
To continue reading
Request your trial
-
State v. Gentry
...defendant's choice to wait until after seeing the State's report to find an expert. 277 Kan. at 389, 85 P.3d 1200.In State v. Daigle , 220 Kan. 639, 556 P.2d 400 (1976), the district court denied the defendant's motion for a continuance when he argued that he needed more time to secure two ......
-
Marquez v. State
...N.Y.S.2d at 432. Earlier Kansas Supreme Court cases also take this position in conflict with more recent precedent. State v. Daigle, 220 Kan. 639, 556 P.2d 400, 403 (1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). State v. Blanton, 203 Kan. 81, 453 P.2d 30, 32-33 (1......
-
People v. Miller
...[Fla., 1980]; Leggett v. State, 184 Ga.App. 398, 361 S.E.2d 546 [1987]; Jones v. State, 518 N.E.2d 479 [Ind., 1988]; State v. Daigle, 220 Kan. 639, 556 P.2d 400 [1976]; State v. Toomer, 395 So.2d 1320 [La., 1981]; State v. Bleyl, 435 A.2d 1349 [Me., 1981]; Comm. v. Collins, 11 Mass.App. 126......
-
State v. Cloud
...v. Colton, 92 Cal.App.2d 704, 207 P.2d 890, 891 (1949); Williams v. State, 280 So.2d 516, 516 (Fla.App.1973); State v. Daigle, 220 Kan. 639, 556 P.2d 400, 403-04 (1976), cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 We note with approval the Louisiana Supreme Court's suggestion ......