State v. Hazelwood, 46574
| Decision Date | 10 June 1972 |
| Docket Number | No. 46574,46574 |
| Citation | 498 P.2d 607,209 Kan. 649 |
| Parties | STATE of Kansas, Appellee, v. Sylvester Dale HAZELWOOD, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The record in a criminal action, wherein the defendant was convicted of third degree burglary and larceny, is examined on appeal and it is held: The trial court did not err (a) in overruling the defendant's motion to suppress evidence obtained as a result of a search and seizure prior to arrest; (b) in admitting the testimony of an expert witness; (c) in refusing to permit court-appointed counsel to withdraw because of a 'conflict of interest;' and (d) in imposing sentence under the habitual criminal act.
2. Where police officers on routine patrol in the early morning hours before dawn, after working a couple of burglaries, spot an individual displaying furtive behavior, their subsequent apprehension of the subject and frisking which yields four screwdrivers, a knife, a flashlight, and a money bag with small change, is proper; and the seizure of such items is lawful. Under these circumstances the search and seizure is reasonable and a subsequent motion to suppress such evidence is unavailing.
3. The competency of an expert witness to give an opinion concerning matters of expertise lies largely within the trial court's discretion, and its ruling will not be set aside on appeal in the absence of a clear showing of abuse.
4. An attack by an indigent defendant upon his court-appointed counsel in the trial of a criminal action and a subsequent attempt by court-appointed counsel to withdraw on the ground of 'conflict of interest' are unavailing, where the record discloses court-appointed counsel competently represented the defendant in the criminal action, and there was no actual conflict of interest.
5. In post conviction proceedings statements made by the accused in a criminal action, in disregard of his court-appointed counsel's advice, may be considered admissions regarding prior convictions and used against him in sentencing him pursuant to the habitual criminal act.
6. Failure of court-appointed counsel on appeal to comply with Rule No. 6(e) of the Supreme Court in presenting an abbreviated record on appeal may in the future require the court to impose costs upon the offending attorney or attorneys.
John Q. Royce, Salina, argued the cause and was on the brief for appellant.
Bill Crews, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
This is an appeal by the defendant in a criminal action from a conviction of third degree burglary as defined by K.S.A. 21-520 and larceny as defined by K.S.A. 21-524. Sentences of not less than fifteen years on each count were imposed to run concurrently.
Various points, including trial errors, are asserted on appeal for reversal of the judgment of the trial court.
The Sid Oil Company, located at 159 South Fourth Street in Salina, Kansas, was burglarized sometime between Saturday evening, May 9, 1970, and Sunday evening, May 10, 1970. Entry to the building was gained by removing the plate glass window from a side door and then reaching inside to open the door. To remove the plate glass in one piece, as was done, it was necessary to pry off the molding surrounding the plate glass.
Sid Danderand, owner of the Sid Oil Company, testified approximately $15 to $17 had been taken from the cigarette and pop machines at his place of business, although he conceded the amount could range from $12 to $25.
Mr. Danderand also noticed a long black-handled screwdriver missing. The screwdriver was distinctive in that it had dots of blue paint on the handle.
In the course of investigation the Salina police gathered several pieces of the wood molding which bore marks or gouges on the underside and made Koflex impressions of other marks on the cigarette machine. The pieces of wood and the Koflex impressions were later sent to the Kansas Bureau of Investigation laboratory for examination.
At approximately 4:10 a. m., Monday, May 11, 1970, two Junction City, Kansas, police officers while cruising in their patrol car noticed the appellant when he 'ducked into an alley.' They had just finished working two burglaries and were 'looking for possible suspects in the area,' and therefore accelerated the speed and pulled their patrol car into the alley.
By the time the officers reached the alley the appellant had 'gotten down behind some vehicles.' After spotting him behind the vehicles, both officers got out of the patrol car, one circling around behind the appellant and the other approaching from the front.
The appellant was ordered to come out from behind the vehicles with his hands up, and directed to come to the patrol car and place his hands on top of the patrol car, to back up, and to spread his legs. He promptly complied.
At the time the appellant raised his hands in response to the officer's command, the front of his jacket spread open and the officer observed a blue bag suspended beneath his arm.
A search of the appellant by the officers then proceeded. As one officer approached the appellant from the rear and placed his left hand on the appellant's back, he felt an object under the appellant's jacket in the back of his waist. Upon raising the jacket, the officer saw a large screwdriver along with three other screwdrivers, a knife variously described as a 'small paring knife' or a 'steak knife,' and a flashlight, stuck in the back of the appellant's waist. With his left hand still on the appellant's back, the officer removed these items from appellant's possession, and as he 'pulled them off of the subject' he 'laid them directly to the rear of where (the officer) was standing in the alleyway.' The officer then removed appellant's jacket and the bag (which was found to be a blue money bag) from around the appellant's arm. These also were placed on the ground next to the other items.
Up to this point in the confrontation between the Junction City police officers and the appellant there had been no conversation of any kind between them, except for the commands given by the officer. The appellant had not been told that he was being arrested for anything, nor even that he was being detained on suspicion of any offense.
Before any inquiry was directed to the appellant, the officer in charge recited the standard Miranda warning to him, and having done so, he testified:
The officer then informed the appellant he was under arrest for vagrancy.
Thereafter, the appellant was handcuffed and placed in the rear seat of the patrol car. The officers picked up the four screwdrivers, the paring knife, the flashlight, appellant's jacket and money bag and placed them in the patrol car. They then drove to the police station and booked the appellant.
The items which had been taken from the appellant were recorded on appellant's personal property sheet at the police station and placed in the personal property locker.
At approximately 10:00 a. m. on May 11, 1970, Detective Huff and Detective Landers of the Salina police department arrived at the police station in Junction City. Before seeing the appellant a detective of the Junction City police department delivered to Detective Huff a long black-handled screwdriver, a short black-handled screwdriver, two screwdrivers with yellow handles, a flashlight, a paring knife, and a money bag containing $15.51, of which $6.75 was in quarters; $1.10 in nickles; $6.10 in dimes; and $1.56 in pennies.
Having examined the screwdrivers and the money bag, together with its contents, Huff and Landers then interrogated the appellant. Before asking him any questions, Detective Huff again recited to the appellant the Miranda warning. The appellant was also told he was suspected of a burglary in Salina, and asked if he wanted to talk about it. Detective Landers testified 'he said, yes, he would talk about it but he didn't know anything about it; that he had committed no burglary in Salina.' He did admit, however, that he had been in Salina; that he had arrived in Salina on May 8 and had stayed there May 8 and 9 and left on May 10 at about 12:30 p. m. on a bus bound for Junction City. He was asked about the long black-handled screwdriver, and he said he had found it in Salina in front of the A & G Cafe.
Detective Huff retained the appellant's personal property, which had been delivered to him by the Junction City police, and transported it with him to Salina. Upon his return to Salina, Detective Huff marked all of those items as evidence, and mailed them to the K.B.I. laboratory.
Following the return of Detectives Huff and Landers to Salina, the Saline County attorney executed an affidavit of complaint against Sylvester Dale Hazelwood for breaking and entering the building of the Sid Oil Company, and taking and carrying away approximately $15 in United States coins with intent to convert them to his own use. The complaint was filed in the magistrate court of Saline County, Kansas, and a warrant was issued for the appellant's arrest.
The warrant was executed by arresting Hazelwood at Junction City on May 13, 1970. On that same day he was brought before the magistrate court of Saline County, bond was fixed, the time for preliminary hearing was set, and upon a showing of indigency, counsel was appointed.
On June 3, 1970, a preliminary hearing was had in the magistrate court, and the appellant was bound over to the district court of Saline County for trial.
At the time of trial the appellant filed a motion to suppress the evidence obtained as a result of the search and seizure by the Junction City police officers, and to suppress any admissions made by the appellant to the Salina detectives during their interrogation of him in Junction City. The trial...
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