State v. Greene
| Decision Date | 02 March 1974 |
| Docket Number | No. 47085,47085 |
| Citation | 519 P.2d 651,214 Kan. 78 |
| Parties | STATE of Kansas, Appellee, v. Malcolm E. GREENE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The requirement of the Fourth Amendment to the United States Constitution (Kans.Const. Bill of Rights, § 15) that no warrant shall issue but on probable cause supported by oath or affirmation is satisfied when issued pursuant to a complaint in which a crime is charged substantially in the language of the statute and sworn to under oath.
2. Absent circumstances which of themselves would tend to cast doubt as to the fairness of whatever judgment might be pronounced, the question of bias or prejudice on the part of the court rests within the conscience of the court itself.
3. Accused's prior inconsistent statements, inadmissible in prosecution's case in chief pursuant to Miranda requirements, can properly be used on rebuttal to impeach accused's credibility.
4. The record in this action wherein defendant was tried for aggravated robbery and aggravated battery of a law enforcement officer is examined and it is held: The trial court did not err (1) in denying defendant a hearing to determine whether probable cause existed for the issuance of the complaint and warrant for defendant's arrest; (2) in refusing to disqualify himself because of his kinship to a material witness against defendant; (3) in ruling defendant's prior inconsistent statements admissible; and (4) in refusing a limiting instruction on evidence of defendant's past crimes.
Oneil Davis, of Lewis & Davis, Wichita, argued the cause, and Chester I. Lewis, Wichita, was with him on the brief for appellant.
Clifford Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Wichita, were on the brief for appellee.
Defendant Malcolm Greene appeals from conviction of aggravated robbery (K.S.A.1970 Supp. 21-3427, now K.S.A. 1973 Supp. 21-3427) and aggravated battery of a law enforcement officer (K.S.A.1970 Supp. 21-3415, now K.S.A.1973 Supp. 21-3415).
On December 26, 1970, at 9:00 p. m., two black males walked into the Taco Kid restaurant at 2065 East Central in Wichita and ordered food. One of them pulled out a revolver and demanded money from John S. Dwyer, an employee. They were given more than one hundred dollars in a paper sack and they left the restaurant. Police Officer Herbert Kite observed the two black males in the Taco Kid and, being suspicious, stationed his patrol car one-half block north of the restaurant in an alley. He observed the two leave the restaurant. When they saw him they began running. He stopped them to question the contents of the sack and one of them shot him in the abdomen and chest. Officer Kite later identified his assailant from pictures as defendant Greene, and his companion as Arthur Rimmer, Jr. Complaints were filed against defendant on January 11, 1971, charging aggravated robbery and aggravated battery of a law enforcement officer.
The defendant is a resident of Kansas City, Missouri, and he was arrested there on January 12, 1971, following a highspeed car chase and an attempted escape on foot. He was booked by Kansas City, Missouri, authorities for failure to yield to emergency vehicles and carrying a concealed weapon. He was questioned about his whereabouts December 22, 1970, and he admitted he had been in Wichita on that date. He waived extradition.
On appeal, defendant contends he was improperly denied the right to determine whether probable cause existed for the issuance of the complaint and warrant by the preliminary judge, Daniel Dwyer, and was improperly denied such a hearing at the only time said hearing was relevant; i. e., at the preliminary stage of the case. The complaint as reproduced in the record was sufficient on its face, sworn to positively under oath before Magistrate Dwyer. When the crimes are charged substantially in the language of the statute, as these were, the requirements of the Fourth Amendment to the United States Constitution (Kans.Const. Bill of Rights, § 15), that no warrant shall be issued but on probable cause supported by oath or affirmation, are satisfied. (State v. Addington, 205 Kan. 640, 472 P.2d 255; Holton v. Bimrod, 61 Kan. 13, 58 P. 558.) We find no abuse of discretion in the court's denial of a hearing on probable cause.
The defendant next challenges his conviction on ground the preliminary hearing magistrate refused to disqualify himself because of his kinship to one of the complaining witnesses. Magistrate Dwyer and John S. Dwyer, the robbed Taco Kid employee, are second cousins. Defendant contends the setting of bond at $100,00 was unreasonable and proves Magistrate Dwyer's bias due to his kinship to the Robbery victim. He moved at the preliminary hearing to have Magistrate Dwyer disqualify himself and contends denial of this motion was prejudicial error. Absent circumstances which of themselves would tend to cast doubt as to the fairness of whatever judgment might be pronounced, the question of bias or prejudice on the part of a court rests largely within the conscience of the court itself. (Flannery v. Flannery, 203 Kan. 239, 452 P.2d 846.) We conclude the circumstances disclosed in this record do not justify a charge of bias or prejudice. It is interesting to note that the Rules Relating to Judicial Conduct, adopted January 1, 1974, require disqualification based upon kinship if counsel, party, or material witness in a proceeding is within the third degree of relationship calculated according to the civil law systme. (Kansas Supreme Court Rules, Rules Relating to Judicial Conduct, Canon 3, Subd. C, 213 Kan. ix.) A second counsin is not within the proscribed degree of relationship. We find the magistrate did not err in refusing to disqualify himself.
The defendant next contends he has been prejudiced at trial and on appeal by the lack of a transcript of his preliminary hearing. He requested a transcript of the preliminary hearing be furnished him at state expense and this request was granted. Defendant, however, was then forced by circumstances to choose between a speedy trial and a transcript since the reporter could not have the transcript ready by the trial date. Defendant was unwilling to delay trial and so continued to trial without the transcript. The record shows the defendant, in effect, waived his right to a transcript by failing to move for a continuance.
The defendant was subsequently informed the transcript of the preliminary hearing would not be available for either trial or appeal because the reporter was not certified at the time the preliminary hearing was held. He contends he was denied equal protection and was prejudiced in preparing for trial and on appeal by lack of the transcript. He cites Roberts v. Lavallee, 389 U.S. 40, 88 S.Ct. 194, 19...
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