State v. Kress, 46700

• Decision Date: 04 November 1972
• Docket Number: No. 46700,46700
• Citation: 502 P.2d 827,210 Kan. 522
• Parties: The STATE of Kansas, Appellee, v. John Edgar KRESS, Appellant.
• Court: Kansas Supreme Court

Page 827

502 P.2d 827

210 Kan. 522

The STATE of Kansas, Appellee, v. John Edgar KRESS, Appellant.

No. 46700.

Supreme Court of Kansas.

Nov. 4, 1972.

Rehearing Denied Dec. 14, 1972.

Syllabus by the Court

1. Where one is arrested as a suspect for having committed theft of an automobile and on-the-scene witnesses immediately identify him as the person they saw in possession of the stolen car about ten minutes prior to the arrest, the accused's constitutional right to counsel has not been infringed.

2. Evidence of a prior conviction of auto theft was properly admitted as bearing on defendant's state of mind or intention to permanently deprive the owner of the use of the stolen automobile.

3. When a suspect is asked if an automobile belongs to him in an on-the-scene investigation, his answer is admissible notwithstanding the failure of the investigating officer to give the warning required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Edward J. White, Kansas City, argued the cause, and George A. Groneman, Kansas City, was on the brief for appellant.

Nick A. Tomasic, Chief Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Frank D. Menghini, County Atty., were with him on the brief for appellee.

OWSLEY, Justice:

This is a direct criminal appeal from a jury verdict of 'guilty to the charge of theft of an automobile' as defined by K.S.A.1971 Supp. 21-3701. The car was a 1967 Pontiac two-door, black with gold decals on both doors. The defendant was sentenced under the Habitual Criminal Act pursuant to K.S.A.1971 Supp. 21-4504, to a term of from six to twenty years. The court overruled appellant's motion for a new trial and the defendant appeals.

On or about the 12th day of March, 1971, a car was stolen from the lot of the Board of Public Utilities of Kansas City, Kansas. The car belonged to the Board of Public Utilities and for more than two years had been driven by Mr. Sylvester Byrd. Prior to the incident involved in this case, Mr. Byrd was issued another car and the Pontiac was used as a 'loaner.'

On April 4, 1971, Sylvester Byrd and his wife and children were washing their car at a coinmatic car wash. As the Byrd family prepared to leave they noticed a man washing a car similar to the one Mr. Byrd had driven for two years. Although the decal on the door of the car had been painted over with black paint the Byrds were able to make identification of the stolen car. Both Mr. and Mrs. Byrd observed the man washing the automobile. According to Mr. Byrd, after leaving the car wash, he made a U-turn and stopped in front of the car wash on the opposite side of the street-a distance of at least thirty feet. He observed the man for another sixty seconds in order to 'reassure' himself that the man was not an employee of the Board of Public Utilities. The Byrds then called the police. When the Byrds returned to the car wash the car and the man were gone. While waiting for the police the car and the man drove by in front of the car wash and both Mr. and Mrs. Byrd again observed him. Mrs. Byrd then proceeded to follow the car while Mr. Byrd waited for the police. After driving a few blocks Mrs. Byrd saw the car parked in a liquor store lot and observed a man standing beside the car. She then returned to the car wash. Two police officers arrived at the car wash about this time and met Mrs. Byrd somewhere between the car wash and where the liquor store was located. The officers then proceeded to the liquor store where they observed the automobile which the police dispatcher informed them had been stolen, and a man standing in a telephone booth nearby. The officers approached the telephone booth and asked the man if the car was his and the man said, no, it was a friend of his. At that time defendant was placed under arrest and advised of his rights. The Byrds were either brought to the scene by the back up unit at the request of the arresting officers or proceeded there of their own volition. They each observed the defendant who was sitting in the back seat of the police car.

At the trial Mr. and Mrs. Byrd testified that the man they saw washing and driving the car was the same man they observed in the back seat of the police car. They also identified the defendant as the man they had observed on the day of the incident.

The defendant presents and argues three specifications of error. We will consider the specifications of error as they are designated in the defendant's brief.

I.

Defendant asserts the courtroom identification of the defendant based upon a custodial displaying of the defendant alone to the identifying witnesses without the assistance of counsel is a violation of his rights under the United States Constitution, Amendment Six, Kansas State Constitution Bill of Rights, Section Ten, and Kansas Statutes Annotated 62-1304.

Mr. and Mrs. Byrd testified that the man sitting in the back seat of the police car was the same man they saw washing and driving the stolen car.

Defendant claims the admission of this testimony violated his constitutional rights as determined in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. These cases point out that an accused person is entitled to counsel and that counsel should have an opportunity to be present at all pretrial identifications.

Here, we have an on-the-scene identification of the only suspect within ten minutes of the first sighting of the suspect and within two or three minutes of the arrest. The witnesses were not solicited by the police. When presented with on-the-scene identifications and prompt confrontations the courts have drawn a distinction from the formal lineup identification made after indictment as in Wade and Gilbert.

In Russell v. United States, 408 F.2d 1280 (D.C.Cir.1969), cert. den. 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245, the court said:

'. . . The confrontations disapproved in these cases (Wade and Gilbert) were post-indictment lineups. Similarly, though it spoke in broad terms, the Court was evidently focusing primarily on the routine lineup and show-up procedures employed by the police to obtain evidence for use at trial. The Court was concerned both to enhance the fairness of such procedures and to expose to judge and jury any elements of unfairness or unreliability which might attend them. In these typical cases, where counsel had been retained and time was not a factor it could find 'no substantial countervailing policy considerations * * * against the requirement of the presence of counsel.'

'The present case, however, involves an immediate on-the-scene confrontation at 5 o'clock in the morning when there would necessarily be a long delay in summoning appellant's counsel, or a substitute counsel, to observe a formal line-up. Such delay may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement.' (pp. 1283, 1284.)

In Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (D.C.Cir.1968), the court justified on-the-scene identification in the following language:

'. . . the police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh. . . .' (p. 1106.)

The Russell and Bates cases were the basis for our decision in State v. Meeks, 205 Kan. 261, 469 P.2d 302.

In Meeks the defendant was arrested as a suspect and immediately upon his apprehension, approximately four hours after the offense, he was returned to the scene and identified by the victim. We held that the accused's constitutional right to counsel was not infringed and said:

'Here the time between the crime and the arrest was short; the finger of suspicion pointed to the appellant, but he denied the crime. He may or may not have been the robber. The only eye witness who could identify the appellant for sure was the victim and time was important. Any delay in identifying the appellant would mean that, had he not been the robber, the real culprit would be at large with the trail growing...