State v. Fleury
| Decision Date | 17 July 1969 |
| Docket Number | No. 45446,45446 |
| Citation | 457 P.2d 44,203 Kan. 888 |
| Parties | STATE of Kansas, Appellee, v. Norris R. FLEURY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. As a general rule venue is a question of fact to be determined by the jury in the trial of the case in chief. Venue may be established by proof of facts and circumstances introduced in evidence from which venue may be fairly and reasonably inferred.
2. In applying the Kansas harmless-error rule (K.S.A. 60-261 and K.S.A. 62-1718) to a federal constitutional error a court must be able to declare the federal constitutional error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. (Following Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)
3. Under circumstances set forth in the opinion the harmless-error rule declared in 2 of the syllabus is applied to statements of a defendant made before he was advised if indigent he had a right to the presence of appointed counsel.
4. In an appeal from a conviction for forcible rape the record is examined and it is held: (1) The evidence was sufficient to sustain a conviction, (2) Venue of the action was properly laid, (3) The admission in evidence of defendant's statememt was harmless error and (4) It was not made to appear that claimed misconduct of counsel in closing argument constituted reversible error.
Stephen K. Lester, Wichita, argued the cause and Ralph E. Gilchrist and Carl L. Buck, Wichita, were with him on the brief for appellant.
Donald Foster, Deputy County Atty., argued the cause and Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.
Norris R. Fleury was tried and convicted by a jury of impersonating a highway patrolman (K.S.A. 21-1617) and of forcible rape (K.S.A. 21-424). He was tried and found not guilty of first degree kidnapping.
This is a direct appeal from the judgment and sentence for forcible rape. Defendant does not appeal from the charge of impersonating a highway patrolman. He was sentenced as an habitual criminal on the charge of forcible rape to not less than 10 nor more than 42 years as a second offender.
He specifies four errors. First, he questions the sufficiency of the evidence to establish forcible rape. Defendant admitted having sexual intercourse with the complainant on this occasion but testified it was complished with the woman's consent and cooperation. His testimony was in sharp conflict with the evidence introduced by the state.
In reviewing the sufficiency of the evidence the function of an appellate court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (See State v. Helm, 200 Kan. 147, 151, 434 P.2d 796 and cases cited therein.)
The complainant, Mrs. Connie Wedel, testified generally as follows: On May 5, 1967, she accompanied her husband and a friend to a Wichita tavern, the Green Onion. The three of them were in the Green Onion from 9:30 p. m. until shortly after midnight. An argument between Mr. and Mrs. Wedel erupted over their beer and Mrs. Wedel, who was seventeen years of age, left the table for the purpose of calling her parents to have them come and get her. She was using a telephon. The defendant Fleury appeared, reached out, depressed the receiver and disconnected the line. He introduced himself as a Kansas highway patrol officer and offered to help. Mrs. Wedel had been crying. When she told him of her argument with her husband he seemed sympathetic and offered to take her home. At first she refused. In her presence he called her parents and told them he was Lieutenant Nick Satino of the Kansas Highway Patrol. He explained the situation to her parents and told them he was bringing their daughter home. Mrs. Wedel was concerned about his identity, so he produced his billfold which had a badge imprint on it. The defendant then talked with her husband. The husband asked the wife if she wanted to go to her parents' home. When she said she did the husband told defendant to be sure and take her right home. The defendant told the husband not to make any trouble or follow them for he had a shotgun in his car.
Mrs. Wedel further testified the defendant drove north toward Benton, Kansas, where Mrs. Wedel's parents lived, then he turned and drove south into the country. Mrs. Wedel became suspicious and asked to use a restroom. Defendant stopped his car beside the road. When she got back in the car he began to make improper advances. She resisted. Finally she feigned illness and got out of the car. The defendant got out of the car a little later and pushed her back into the car. He advised her to give in to his advances or walk. She got out of the car and walked down the road with the defendant following in the car. She reversed her direction and the defendant backed his car. She left the road and started to cross into an open field. The defendant left the car and forcibly returned her to the front seat and proceeded to rape her. Defendant drove Mrs. Wedel back to the outskirts of Wichita and let her out of the car. She called her parents and then waited at a nearby house.
The house was at 47th and Seneca in Wichita, Kansas. Mrs Strandberg testified she was awakened early in the morning by a knock on the door. Mrs. Wedel asked Mrs Strandberg if she might stay there until her parents came to get her. Mrs. Wedel was crying and shaking. Her hair and clothing were disheveled. She had mud on her shoes and clothing.
Mrs. Wedel's parents and the police arrived at 3:30 a. m. Mrs. Wedel was taken to a physician for examination. Although the doctor found no marks of violence on her body, a pelvic examination was completed and revealed male sperm cells in her vagina.
The complaint's husband and the friend who was with them at the Green Onion corroborated Mrs. Wedel's testimony as to defendant's impersonation of an officer. Tnis corroboration included the reference to the shotgun in defendant's car. Mrs. Wedel's father confirmed the conversations with his daughter on the telephone. He testified as to her disheveled appearance and hysterical condition when he arrived to take her home.
There can be no doubt that there was a basis in the evidence for a reasonable inference of guilt. The state's evidence, if believed by the jury, was sufficient to sustain the charge of forcible rape.
Defendant next contends that the state failed to prove that venue was properly laid in Sedgwick county.
As a general rule venue is a question of fact to be determined by the jury in the trial of the case in chief. (In re Stilwell, 135 Kan. 206, 10 P.2d 15.) Venue may be established by proof of facts and circumstances introduced in evidence from which venue may be fairly and reasonably inferred. (State v. Little, 201 Kan. 101, 439 P.2d 383.)
The evidence introduced by the state established that Mrs. Wedel was picked up by defendant in the city of Wichita, taken into the county near Haysville, raped and returned to the city of Wichita. Mrs. Wedel testified the crime was committed in a rural area shortly after passing through Haysville.
K.S.A. 60-409 in part provides:
'(b) Judicial notice may be taken without request by a party, of * * *
'(3) such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute * * *.'
Judicial notice may be taken that both Wichita and Haysville are located within the boundaries of Sedgwick county by more than six miles. Although the complainant did not specifically testify the rape occurred in Sedgwick county, there is a basis in her testimony for a reasonable inference the crime was committed in Sedgwick county. Haysville is located therein.
The question of venue was properly submitted to the jury and their determination will not be disturbed by this court.
The defendant next specifies error based upon failure of a detective to give a full and complete Miranda warning. Defendant was not advised that if he was indigent he was entitled to the presence of court appointed counsel before being questioned.
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the high court specified the extent of the advice of rights required to protect the constitutional rights of an accused as follows:
* * *' (384 U.S. 444, 86 S.Ct. 1612, 16 L.Ed.2d 706, 707.)
The Court in Miranda spelled out the extent and purpose of advising an indigent of his right to appointed counsel as follows:
(384 U.S. 473...
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