State v. Irving

• Decision Date: 08 May 1982
• Docket Number: No. 52508,52508
• Citation: 644 P.2d 389,231 Kan. 258
• Parties: STATE of Kansas, Appellee, v. Chester IRVING, Appellant.
• Court: Kansas Supreme Court

Page 389

644 P.2d 389

231 Kan. 258

STATE of Kansas, Appellee, v. Chester IRVING, Appellant.

No. 52508.

Supreme Court of Kansas.

May 8, 1982.

Syllabus by the Court

1. Where an undercover agent testifies, under the circumstances related in the opinion, it is within the discretionary power of the trial court whether to compel the witness to reveal his present identification and address as a participant in the Federal Witness Reidentification Program.

2. The right to counsel under the Sixth Amendment to the United States Constitution does not attach prior to the initiation of adversary judicial proceedings against an accused.

3. A taped conversation between an undercover agent and another person at a time when that person had not yet been charged with a crime is not inadmissible because of a claimed violation of DR 7-104(A)(1) of the Code of Professional Responsibility.

4. The prohibitions against the wiretapping of a telephone conversation contained in K.S.A. 22-2514 et seq. are not applicable where the person who made the tape recording was an undercover agent and one of the parties to the conversation.

5. The record is examined in a criminal action and it is held that the district court did not err (1) in restricting defense counsel in the cross-examination of prosecution witnesses; (2) in admitting into evidence a taped conversation between defendant and an undercover agent; (3) in refusing to permit defense counsel to withdraw and to permit defendant to proceed pro se ; (4) in its instructions to the jury; or (5) in the sentences imposed.

Kiehl Rathbun, Wichita, argued the cause and was on the brief for appellant. Chester Irving, pro se, was on the supplemental brief.

Roger C. Kidd, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice:

This is a direct appeal from convictions of aggravated burglary (K.S.A. 21-3716), two counts of aggravated robbery (K.S.A. 21-3427), and two counts of kidnapping (K.S.A. 21-3420). This case arose out of the armed robbery of a private residence in Wichita on January 20, 1980. The evidence showed that on that date at about 7:30 p. m. Bobby Joe Carr and Billy Hill robbed the owner of the residence and her daughter at gunpoint, tied them up, and confined them to one of the rooms. Hill and Carr then left the residence in a car stolen from the home and drove to a shopping center where they met defendant, Chester Irving. There the stolen car was abandoned. The defendant, acting as wheelman, then drove Hill and Carr to the Executive Inn motel where the proceeds of the robbery were sorted and divided among the parties. The police, having been previously made aware of the robbery by an informant, appeared at the motel where Hill and Carr were arrested. Two days later on January 22, 1980, defendant Irving's car was searched and a pistol and some jewelry taken in the robbery were recovered. Defendant Irving was actually charged as a participant in the crime on February 20, 1980, although in the intervening period he had employed counsel in anticipation of the charge.

The facts in this case are somewhat unusual because of the involvement of Francis Edward Calvert, an informant and agent of the district attorney's office. The evidence showed that on January 19, 1980, the day before the robbery, Hill and Carr had a conversation with Calvert and told him of their plans and intentions regarding the robbery. Calvert promptly notified the police authorities of the impending robbery. Following the robbery, Calvert advised the police that the robbery had been completed and he directed the police to the Executive Inn motel where Hill and Carr were arrested. In the conversation with Hill and Carr, Calvert was advised that defendant Chester Irving was to participate in the crime as wheelman by furnishing the transportation discussed above.

On January 21, 1980, Calvert telephoned defendant Irving and engaged him in conversation. The purpose of the telephone call was to obtain information from Irving regarding his knowledge of and participation in the robbery. It was undisputed that, when the telephone call was made, Calvert had been serving as an informant and agent for the Sedgwick district attorney's office for several months, and Calvert was aware that the defendant had employed counsel when the telephone call was made although he had not yet been charged with the crime. The telephone conversation between Calvert and Irving was taped by Calvert. This tape contained damaging admissions by Irving which established his participation in the robbery. This taped conversation was admitted into evidence and played to the jury at the trial where Irving was convicted.

At the trial, the evidence of guilt presented by the prosecution witnesses was overwhelming. Carr testified fully as to defendant's participation in the robbery. Calvert, the informant, testified as to his conversation with the defendant and the tape of the incriminating conversation was played to the jury. Additionally, the pistol and jewelry stolen in the robbery and recovered from Irving's car were admitted into evidence. It is fair to state that the admission of the tape of defendant's voice in which he discussed his participation in the robbery was devastating to the defense. The case for the defense consisted primarily of the testimony of Billy Hill, who denied defendant's participation in the robbery. The other evidence presented by the defense shed little light on the circumstances of the crime. As could be expected under these circumstances, the jury found defendant Irving guilty as charged. The defendant has appealed to this court claiming trial errors.

The defendant's first point on the appeal is that the trial court erred in unduly restricting defense counsel in his cross-examination of the witness, Calvert. Specifically, the trial court refused to allow defense counsel to elicit from Calvert his present address and the fictitious name he was then using. It appeared that Calvert was a participant in the Federal Witness Reidentification Program and had been relocated with a new identity in order to protect him from criminal elements because of his undercover work. The court, in its discretion, decided that such inquiry would not be appropriate under the circumstances. Calvert's previous criminal record and the fact that he was a paid informant were clearly presented to the jury. The evidence indicated that Calvert's assumed name and present location could not be revealed if he was to be protected from extinction. The rule in Kansas is that it is within the discretionary power of the trial court whether to compel a witness to reveal his identification and location where undercover work has been involved. State v. Hutchinson, 222 Kan. 365, 368, 564 P.2d 545 (1977); State v Burgoon, 4 Kan.App.2d 485, 488, 609 P.2d 194 (1980). Under all of the circumstances, we find that the trial court did not abuse its discretion in limiting the cross-examination of Calvert.

The defendant next contends that the trial court erred in admitting into evidence the taped conversation between defendant and the informant, Calvert, held on January 21, 1980. The tape of the conversation was played for the jury over objection by defense counsel during the direct examination of Calvert. In his motion to suppress the tape, the defendant stated that he had employed counsel in anticipation of being charged with the crime and that Calvert knew defendant had counsel. The telephone conversation between Calvert and defendant took place the day following the commission of the crime. Calvert at that time was and for several months had been a paid informant and agent for the Sedgwick district attorney's office. The evidence indicated that Calvert had not been specifically directed by the district attorney or federal authorities to tape a conversation with Irving, and, in fact, had received no specific instructions as to the crime involved in this case.

Defendant first maintains that the taped conversation was inadmissible because its admission deprived the defendant of his constitutional right to counsel as guaranteed under the Sixth Amendment to the United States Constitution. Defense counsel, in substance, argues that, since the State through Calvert was aware that defendant was represented by counsel at the time the telephone conversation was recorded, the prosecutor was required to inform Irving's counsel prior to any questioning by a government agent. In support of his position, the defendant relies on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 (1978). It should be noted that in both Massiah and McCorgary the defendant had actually been charged with the offense at the time the defendant's conversation with the police informant was recorded. In the case now before us Irving had not been charged with any crime at the time the conversation with Calvert was recorded. Furthermore, Calvert had not been given instructions to tape a conversation with Irving but indirectly got information about Irving's participation in the crime while seeking to obtain evidence to convict another well-known criminal in Sedgwick County.

The rule is now well established that the right to counsel under the Sixth Amendment does not attach prior to the initiation of adversary judicial proceedings against an accused. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972). Where a case is still in the investigative stage, or in the absence of a person being charged, arrested, or indicted, such adversary proceedings have not yet commenced, and thus no right to counsel has attached. In the recent case of United States v. Kenny, 645 F.2d 1323 (9th Cir.), cert. denied 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981), the factual circumstances were quite...