State v. Hammond
Decision Date | 25 April 1980 |
Docket Number | No. 50605,50605 |
Citation | 4 Kan.App.2d 643,609 P.2d 1171 |
Parties | STATE of Kansas, Appellee, v. Jesse HAMMOND, Appellant. |
Court | Kansas Court of Appeals |
Syllabus by the Court
1. Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate.
2. A verified complaint couched in the language of the criminal statute, standing alone, is not sufficient to support a finding of probable cause. A complaint should contain sufficient factual information to enable the magistrate to make an impartial and detached finding of probable cause before a warrant is issued.
3. A defendant cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction.
4. As more fully set out in the opinion, the effect of Wilbanks, Giordenello and Whiteley is to preclude the use of evidence seized incident to an illegal arrest. They do not stand for the proposition that a defendant cannot be prosecuted.
5. The vice of duplicity is that the jury is unable to convict of one offense and acquit of another offense where both are contained in the same count.
6. An indictment or information charging two separate offenses in a single count is duplicitous, but this is not fatal, and does not require dismissal of the count. The proper remedy is to require the government to elect upon which charge contained in the count it will rely, and defendant is not harmed if the proof is limited to only one of the charges in the duplicitous count.
7. Where, as here, the information is amended so that the jury has before it only one offense and would not be faced with the dilemma of being unable to convict of one offense and acquit of another, the duplicity is no longer present.
8. No specific time limit can be set before an Allen instruction may properly be given. Where, as here, the case was not a simple one, the court abused its discretion in giving such an instruction after the jury had deliberated for only 3 hours and 27 minutes. However, the giving of such an instruction must be considered in conjunction with the procedure of the entire trial to determine if the giving of such instruction is grounds for reversal. Under all the facts and circumstances of this case, we hold it is not.
Steven L. Opat, Public Defender, Junction City, for appellant.
Keith D. Hoffman, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before ABBOTT, P. J., and SWINEHART and MEYER, JJ.
This is an appeal from a criminal conviction by a jury of robbery (K.S.A. 21-3426), and unlawful restraint (K.S.A. 21-3424).
Jesse Hammond (appellant) and an unknown individual went to a rural residence the morning of October 25, 1977. The two State's witnesses testified that they were held at gunpoint. Gary D. Riekeman was robbed of a certain amount of cash at two different times, once by the appellant and once by the accomplice. The State's witnesses further testified that they were taken from the residence at gunpoint, and one was confined in a cellar located a few feet to the north of the residence.
Appellant testified that he was at the residence but denied any involvement in a robbery or in any other criminal activity. He admitted that the other individual was armed with a pistol, but denied that he was in any way involved.
Appellant was arrested and charged with aggravated robbery, kidnapping, aggravated battery, aggravated assault and aggravated burglary. The aggravated assault charge was dismissed for being multiplicitous.
Appellant filed two motions to dismiss on the basis that the complaint was conclusory and did not give sufficient facts for the magistrate judge to make an independent finding of probable cause. The motions were denied.
At trial, appellant moved to dismiss the robbery count as being duplicitous as two offenses were charged in one count. This motion was also denied.
Appellant first complains that the court committed error in refusing to grant his motion to dismiss for failure of the complaint to provide underlying facts and circumstances so that the magistrate could find probable cause for issuance of the arrest warrant.
Appellant filed two motions to dismiss. The first motion was heard and denied by the district magistrate judge immediately prior to appellant's preliminary hearing. Denial of this motion was before Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), was handed down. His second motion to dismiss was filed after Wilbanks was handed down. This motion was denied by the district judge.
The holding in Wilbanks, insofar as applicable here, was as follows:
"Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate." 224 Kan. 66, Syl. P 1, 579 P.2d 132.
And further,
224 Kan. 66, Syl. P 4, 579 P.2d 132.
Our Supreme Court in Wilbanks followed the precedent set by the United States Supreme Court in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).
Appellant's argument is that the illegal arrest was sufficient justification for dismissal of the charges against him, but we find no case which would support this conclusion. None of the cases above stand for the proposition that an illegal arrest and detention vitiates a subsequent conviction. See United States v. Crews, --- U.S. ----, ----, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980), (citing from Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975)), where the court said:
It is not the illegal arrest and restraint, per se, which causes a conviction in violation of the above cases to be set aside, although same might well give rise to a valid writ in habeas corpus. The effect of Giordenello and Whiteley are that these cases preclude the use of evidence seized incident to such an illegal arrest. Thus, these cases hold that evidence seized at the time of an unlawful arrest is inadmissible as evidence. They do not, as aforesaid, stand for the proposition that the defendant cannot be prosecuted.
The arrest warrant of the appellant herein was admittedly based upon a complaint couched in the terms of the statute and the judge issuing such warrant lacked sufficient information to make an independent determination of probable cause. However, it is not contended that any evidence was seized or brought to light by reason of the arrest. Furthermore, the preliminary hearing was held immediately following the motion to dismiss and a finding of probable cause at that hearing made appellant's continued detention legal.
In State v. Addington, 205 Kan. 640, 644, 472 P.2d 225, 229 (1970), the court said:
"The law is well settled that jurisdiction of a court to try a person accused of a crime is not divested by the fact he may have been unlawfully arrested."
Again, in State v. Kearns, 211 Kan. 158, 162, 505 P.2d 676, 679 (1973), the court said:
"Whatever its deficiencies, the complaint had spent its force when a preliminary hearing was held and the magistrate made the necessary findings to bind appellant over for trial."
It is true that our Supreme Court in Wilbanks stated, "To whatever extent those cases are inconsistent with the views hereafter expressed, they are disapproved." 224 Kan. at 75, 579 P.2d at 139. One of the cases there referred to was Addington ; however, Wilbanks was clearly not intended to overrule Addington other than as it related to the proposition that a conclusory affidavit was sufficient for a finding of probable cause. We do not interpret Wilbanks as overruling the rule regarding jurisdiction to try a defendant.
We commend the granting of an immediate probable cause hearing to prevent further illegal detention, because it is obvious that until the time probable cause was determined the defendant was not properly in custody. Since the court did have jurisdiction to try the defendant, the court did not err in refusing to dismiss the charges.
For the reasons stated above, we conclude there is no merit to appellant's first issue.
Appellant next claims the court erred in denying his motion to dismiss the aggravated robbery count on the grounds that it was duplicitous.
In State v. Campbell, 217 Kan. 756, 778, 539 P.2d 329 (1975), the court said "The vice of duplicity is that the jury is unable to convict of one offense and acquit of another offense where both are contained in the same count."
The remedy for duplicity was discussed in 1 Wright, Federal Practice and Procedure: Criminal § 145 (1969), p. 335:
Appellant's argument is that he was charged with the robbery of $52, whereas the proof indicated that an accomplice took $12 from the victim at one time and later appellant took $40. Thus, he was charged with two...
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