State v. Gammill

• Decision Date: 03 November 1978
• Docket Number: No. 49592,49592
• Citation: 585 P.2d 1074,2 Kan.App.2d 627
• Parties: STATE of Kansas, Appellee, v. Gary GAMMILL, Appellant.
• Court: Kansas Court of Appeals

Page 1074

585 P.2d 1074

2 Kan.App.2d 627

STATE of Kansas, Appellee, v. Gary GAMMILL, Appellant.

No. 49592.

Court of Appeals of Kansas.

Nov. 3, 1978.

Syllabus by the Court

1. Extracting pubic hair by the roots is as much a bodily intrusion as withdrawing blood. However, hair follicles, unlike blood, cannot be seized as evidence under a claim of exigent circumstances; the composition of the follicles will not quickly change. Thus, a search warrant or other appropriate court order should be sought when such evidence is desired.

2. It is error for the court to permit the reporter to read back the testimony of a witness to the jury in the absence of court, counsel, and the defendant. It is within the court's discretion to grant the read-back of certain testimony, but it must be done in the presence of the court as well as in the presence of the parties and their counsel.

3. It is error for the prosecution to refer to the defendant as an "animal" in closing argument.

4. It is error for a prosecutor to comment on testimony properly objected to and excluded by the court. Such a statement strongly implies there was substantial proper proof of the defendant's guilt that the trial court would not allow into evidence.

5. It is error for the prosecutor in closing argument to expound on the credibility of witnesses to the point that he states he knows their testimony to be true; such statements lead the jury to believe the prosecutor has facts which they do not possess.

Richard D. Loffswold, Jr., Girard, for appellant.

Vernon D. Grassie, Asst. County Atty., Michael McCurdy, County Atty., and Curt T. Schneider, Atty. Gen., for appellee.

Before FOTH, C. J., and SPENCER and MEYER, JJ.

MEYER, Judge:

The appellant, Gary Gammill (defendant), was taken into custody February 2, 1977, in Galena, Kansas, and subsequently transported to Crawford County and placed in detention in the Children's Court Center in Pittsburg, Kansas. While going through intake procedures at the center, the Crawford County sheriff seized certain pubic hairs from the defendant by plucking them from his body and also took a wristwatch. On February 8, 1977, the defendant was ordered by the district court to be tried as an adult under authority of K.S.A. 38-808. Subsequent thereto, a complaint and information were filed charging the defendant with violations of K.S.A. 21-3502 and K.S.A. 21-3426, the crimes of rape and robbery, Class C felonies. Defendant was found guilty of both charges.

The defendant contends that the taking of pubic hair by plucking it from his body and the seizure of his wristwatch constituted error. He complains that the items were not seized pursuant to a valid search warrant or incident to a lawful arrest, and that the seizure was unreasonable and in violation of his federal and state constitutional rights.

For a period of six days, as noted above, the defendant was a juvenile and entitled to treatment as such. His parents were not notified at the time he was taken into custody nor were they present when the hair was extracted from defendant. A juvenile is entitled to have his parents present as soon after his detention as possible, and is not to be treated as a criminal defendant. The evidence discloses that some 20-25 hairs were "plucked" or " yanked" from the defendant's body. Not only would a much fewer number have sufficed, the manner of extraction was a needless indignity visited upon the defendant. Thus, collection of the hair samples in the manner employed here, without the consent of defendant's parents, and without his permission, cannot be justified as a seizure "incident to a lawful arrest." Neither can it be claimed that the warrantless seizure was necessary because of exigent circumstances. Pubic hairs may be expected to remain where they are for a considerable period of time certainly long enough to obtain a valid search warrant or court order. There is no reason, for example, that the sample could not have been taken after the defendant had been certified to be tried as an adult. Furthermore, provisions could have been made for a physician or medical technician to obtain the sample under circumstances which would afford the defendant the dignity to which every person is entitled under his presumption of innocence.

We are cognizant of the case law authorizing the taking of blood samples from a defendant without his consent and without a court order. Warrantless extraction of blood, however, is permitted because the defendant is suspected of having ingested drugs or alcohol. Any incriminating substance present in the defendant's blood at the time of arrest might well dissipate before a court order could be obtained. As we have said above, no such need for haste appears in the instant case.

The following quote from Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), sets forth the principle with which we are here concerned:

"Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body's surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.

"Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search 'be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' (Citations omitted.) The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great." 384 U.S. at 769-770, 86 S.Ct. at 1835.

Courts have, of course, upheld seizure of pubic hair samples as evidence; however, in all such cases that we have seen, the hair samples were cut or snipped and not plucked out by the roots. For example, in Commonwealth v. Tarver, 369 Mass. 302, 345 N.E.2d 671 (1975), the court says "In concluding that the taking of the hair samples was not unreasonable within the meaning of the Fourth Amendment, we consider, in addition to the existence of probable cause, that the taking of the hair samples was not an unreasonable bodily intrusion, if it was a bodily intrusion at all." Tarver, 345 N.E.2d at 676.

We conclude that plucking out pubic hair, which removes the hair follicle from beneath the surface of the skin, is a bodily intrusion. We do Not hold that procuring such a sample pursuant to a valid search warrant is improper. No great burden would have been placed on the sheriff either to obtain a search warrant or court order requesting that a doctor extract the sample, or to cut, rather than pluck, the hairs.

The seizure of the wristwatch, on the other hand, we deem to be proper. Anyone taken into custody, whether juvenile detention or temporary imprisonment under charge for a crime, is subject to an inventory search and recording of the property upon his person. We find no reason, under all the circumstances of this case, why seizure of the wristwatch was improper.

Defendant's next contention is that there is insufficient evidence to support his conviction of robbery under K.S.A. 21:3426. The statute, in pertinent part, reads as follows:

"Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force."

The facts of this case support a reasonable inference that the complaining witness was under a threat of bodily harm to her person. The victim's purse was on a table in the dining room. The dining room was between the bedroom where the victim lay and her only avenue of escape to the outside. There was also evidence that the defendant on several occasions opened the door to the bedroom to threaten the complainant again. However, because the purloined wallet was taken from the dining room table while the complainant was in the bedroom, we would ordinarily feel an instruction on theft should have been given to the jury, were it not for an additional fact. The evidence revealed that after the defendant had stolen the wallet from the victim's purse, he returned, broke in the door, and took the Purse from the immediate presence of the complaining witness. Whether the wallet was stolen from the victim's presence and whether she was in fear of bodily harm when the Wallet was taken becomes moot. Under these circumstances, we see no error in refusing to give an instruction on a lesser included offense of theft.

Defendant next alleges that the trial court erred in allowing the court reporter to read back a portion of the testimony of the prosecution's expert witness in the jury room. Neither the defendant nor his...