State v. Galloway, 55370

• Decision Date: 24 March 1984
• Docket Number: No. 55370,55370
• Parties: STATE of Kansas, Appellant, v. Sherman L. GALLOWAY, Appellee.
• Court: Kansas Supreme Court

Page 268

680 P.2d 268

235 Kan. 70

STATE of Kansas, Appellant, v. Sherman L. GALLOWAY, Appellee.

No. 55370.

Supreme Court of Kansas.

March 24, 1984.

Syllabus by the Court

1. Under K.S.A. 22-3603, pretrial orders of a district court which exclude State's evidence so as substantially to impair the State's ability to prosecute the case may be appealed by the State by interlocutory appeal. Following State v. Newman, 680 P.2d 257 (this day decided).

2. Where jurisdiction of an interlocutory appeal in a criminal case is challenged on the basis the appealed from orders are temporary rather than final in nature, the orders are reviewed and held to be final orders.

3. Evidence of an Identi-Kit composite prepared at the direction of an eyewitness is not inadmissible hearsay. Rather than substantive evidence, it is evidence of an extrajudicial identification. Testimony of the identifying witness concerning the composite is admissible in corroboration of testimony of the same witness identifying the accused at trial.

4. Where a photo lineup identification is challenged on the grounds of improper police procedures, the totality of the circumstances is analyzed to determine whether an identification is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification.

5. The statutory marital privilege between husband and wife does not extend to all observations of the acts of one spouse by the other. The marital privilege is limited to spoken or written statements or nonverbal signs or gestures seeking to transmit information from one spouse to another. Following State v. Newman, 680 P.2d 257 (this day decided).

6. In an interlocutory appeal by the State in a criminal action from pretrial orders excluding evidence, the record is examined and it is held: (1) the two challenges to this court's jurisdiction are without merit; and (2) the district court erred in excluding evidence of (a) the composite, (b) the extrajudicial photographic lineup identification, (c) observations by the accused's wife as to certain keys.

Robin Fowler, Asst. Dist. Atty., argued the cause, and Mary D. Prewitt, Asst. Dist. Atty., Jerry L. Harper, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the briefs, for appellant.

Jeffrey O. Heeb, Lawrence, argued the cause and was on the brief, for appellee.

McFARLAND, Justice:

This is an interlocutory appeal by the State pursuant to K.S.A. 22-3603 from an order of the district court suppressing and excluding evidence. The Court of Appeals dismissed this interlocutory appeal on the basis the order appealed from was not final. This court granted the State's petition for review.

Defendant Sherman L. Galloway is charged with rape (K.S.A. 21-3502); aggravated sodomy (K.S.A. 21-3506); aggravated robbery (K.S.A. 21-3427); and kidnapping (K.S.A. 21-3420). This is not the first time this case has been before this court on an interlocutory appeal by the State. (State v. Galloway, 232 Kan. 87, 652 P.2d 673 [1982], hereinafter referred to as Galloway I.)

The complex factual situation underlying this case was stated in Galloway I as follows:

"On May 12, 1981, at approximately 12:30 a.m., Ms. G, a Kansas University (KU) graduate student, was attacked by a black male as she walked home. The man forced her into his car and drove her to Clinton Park in Lawrence where he raped her and sodomized her. He then left the park taking with him Ms. G's clothing, a set of keys to KU buildings issued to her, a backpack containing a textbook with the victim's name in it, a swim cap, a coin purse and other items. Ms. G went to her apartment immediately after the incident and reported it to the police, who came and took her statement that night. The next day she aided the police in assembling a composite of her assailant and notified them of the items of personal property taken from her by the rapist.

"On July 8, 1981, at approximately 10:20 p.m., Ms. R was jogging on the KU campus when she was attacked from behind by a black male wearing a sleeveless tank top shirt. He threatened Ms. R with a knife and dragged her down a hill into a bushy area where he raped and sodomized her. Ms. R managed to struggle free and run to a nearby street where she received a ride from a passing motorist. She notified the KU police, who went to the area and found a billfold containing the driver's license of Sherman L. Galloway. The next day officers of the KU police department (KUPD) submitted to Ms. R a photographic lineup of eight black males. From the photographs she identified Sherman L. Galloway.

"During the afternoon of July 9, 1981, a warrant for the arrest of Sherman L. Galloway was issued charging him with the rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506) of Ms. R. The same day Lt. Detective Vic Strnad of the KU police department obtained a search warrant for the residence of Sherman Galloway. The officers were authorized to seize 'one (1) sleeveless tank top shirt appearing to be brown in color with horizontal stripes and one (1) knife with a curved blade approximately 3/4 inch wide and approximately three to four inches long.'

"KU Detectives Strnad and Mike Riner and Lawrence police Detective Mike Hall executed the warrants during the evening of July 9, 1981. Detective Hall found a knife, which he seized, in the drawer of a nightstand. Next to the knife he observed a ring with KU keys on it. Detective Hall showed the keys to Detective Riner who also recognized them as KU keys. The officers then seized the keys. Other property taken in the search included drug paraphernalia and a portable food warmer marked 'Property of Domino's Pizza. If found return to Domino's for reward.'

"On July 14, 1981, Detective Hall contacted Ms. G and showed her a ring of KU keys. She identified the keys as those taken from her by the person who sexually assaulted her on May 12. She later identified Galloway as her assailant from a photographic lineup.

"On July 22, 1981, Detective Hall obtained a warrant authorizing another search of Galloway's residence, along with his automobile. Property listed on this search warrant included most of the things taken from Ms. G when she was attacked. During this search officers found and seized Ms. G's backpack, textbook, class notes and swim cap.

"On July 24, 1981, an amended complaint was filed charging Galloway with rape and aggravated oral sodomy concerning Ms. R and kidnapping (K.S.A. 21-3420), aggravated robbery (K.S.A. 21-3427), rape and aggravated oral sodomy concerning Ms. G. The Ms. R charges were later severed from the Ms. G charges.

"On September 25, 1981, Galloway filed a motion to suppress the KU keys seized from his residence on July 9, 1981. The trial court granted the motion and the State took an interlocutory appeal. The Court of Appeals, in an unpublished opinion, upheld the trial court. This court then granted the State's petition for review." 232 Kan. at 87-89, 652 P.2d 673.

This court in Galloway I reversed the district court's suppression of the seized keys and the Court of Appeal's affirmance thereof and remanded the case for further proceedings. The issue in Galloway I focused upon the State's right to seize the ring of keys during the execution of the search warrant. As indicated in the statement of facts, the charges relative to victims Ms. R and Ms. G, while contained in one complaint, had been severed. Defendant has been convicted of the charges relative to victim Ms. R and the conviction has been affirmed by this court in an unpublished opinion. (State v. Galloway, 661 P.2d 401 (1983). The issues herein solely relate to the charges pending relative to victim Ms. G.

After the case was remanded to the district court for further proceedings, certain evidentiary motions were heard. The district court sustained defendant's motions: (1) to suppress a composite photograph of a completed "Identi-Kit"; and (2) the photographic lineup identification of the defendant by the victim. Additionally, the district court held, on the State's motion in limine, the State would not be permitted to introduce any evidence relative to observation of the keys by defendant's wife. (Whether these rulings were temporary or final is one of the issues on appeal and the facts relative thereto will be set forth in detail in the discussion of that issue.) The State then filed this interlocutory appeal pursuant to K.S.A. 22-3603 as to all three adverse rulings.

I. JURISDICTIONAL ISSUES

The first jurisdictional issue is whether the evidentiary rulings herein are the proper subjects for an interlocutory appeal pursuant to K.S.A. 22-3603. It should be noted the district court did not base any of the complained-of rulings on violation of defendant's constitutional rights. K.S.A. 22-3603 provides:

"Interlocutory appeals by the state. When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal." (Emphasis supplied.)

Defendant, in reliance on State v. Boling, 5 Kan.App.2d 371, 617 P.2d 102 (1980), contends K.S.A. 22-3603 authorizes an interlocutory appeal by the State from orders of suppression only when the evidence is suppressed as having been obtained in violation of a defendant's constitutional rights. The Court of Appeals, in Boling, held the statute did not authorize interlocutory appeals by the State from rulings excluding evidence predicated upon statutory rules of evidence.

The State argues the Court of Appeals' construction of K.S.A. 22-3603, as expressed in Boling, is too narrow and the statute authorizes interlocutory appeals in any situation where the...