State v. Mallett
| Decision Date | 02 November 1963 |
| Docket Number | No. 43500,43500 |
| Citation | 192 Kan. 154,386 P.2d 214 |
| Parties | The STATE of Kansas, Appellee, v. Carroll D. MALLETT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal from a conviction of the offense of robbery in the first degree, the record is examined and considered, and it is held the trial court did not err in any of the matters specified, and neither did it err in overruling the motion for a new trial.
Russell Shultz, Wichita, argued the cause, and Robert M. Walker, Wichita, and Jack Holt, Sr., Little Rock, Ark., were with him on the brief for the appellant.
R. K. Hollingsworth, Deputy County Atty., argued the cause, and William M. Ferguson, Atty. Gen., Robert E. Hoffman, Asst. Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for the appellee.
Defendant, Carroll D. Mallett, has appealed from a conviction of the offense of robbery in the first degree (G.S.1949, 21-527).
In the evening of April 24, 1962, three men entered a grocery store in Wichita and announced that 'it was holdup.' Two of them--and possibly the third--carried guns. Several employees and customers were in the store at the time. The details of the holdup need not be narrated. Approximately $4,000 belonging to the store, and other items, were taken.
About a month later defendant Mallett and two other men, by the names of Wilson and Price, were taken into custody in Green Bay, Wisconsin. They were returned to Wichita. All three were charged in the same information. Later it appears that Price, through 'alibi' affidavits, apparently convinced the authorities that it was physically impossible for him to have participated in the robbery. In any event, the charge against him was dismissed and he was discharged.
Defendant and Wilson were granted separate trials. We are told that Wilson was tried first and that he was acquitted by the jury.
Defendant was found guilty as charged. The penalty for conviction of robbery in the first degree is confinement for not less than ten years nor more than twenty-one years (G.S.1949, 21-530). Having previously been convicted in the federal court in Arizona of transporting a stolen automobile in interstate commerce, the provisions of the habitual criminal statute (G.S.1949, 21-107a) were invoked, and he was sentenced to confinement for not less than twenty years nor more than forty-two years. His motion for a new trial was overruled and this appeal followed.
Shortly after their return to Wichita from Wisconsin defendant and Wilson advised the authorities that they were represented by an attorney from Arkansas. The record discloses that perhaps local counsel also had been retained. One afternoon defendant and Wilson were brought to the interrogation room of the courthouse and were questioned by detectives Triplett and Brown. The four of them were in the room together. At the trial the detectives testified for the state. Brown testified that defendant and Wilson were asked if they would give a statement concerning the robbery, and that Wilson replied that if the statement in connection with the robbery.' In his brief defendant contends it was error to admit testimony of this conversation, and some point is made of the fact there was no 'identification' of the persons speaking. Upon oral argument of this appeal it was further contended that defendant's rights were violated by the fact the officers attempted to interrogate him and Wilson at a time when they were represented by counsel.
There is no merit to either of these contentions. In the first place, the testimony of Brown was merely cumulative of that previously given by Triplett, to which no objection was made. In the second place, defendant was present during the entire questioning, and it was not error to permit Brown to relate the statement by Wilson. And finally, the mere fact that defendant and Wilson had retained counsel did not preclude the authorities from interrogating them concerning the offense with which they were charged. This is not one of those instances in which it has been held that it was error to 'extract' a confession from one in custody prior to permitting him access to counsel.
When being cross-examined by counsel for defendant, detective Triplett was asked why it was that Price had not been...
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State v. Platz
...successfully assert as error the admission of testimony which he has elicited in his own behalf on cross-examination. (State v. Mallett, 192 Kan. 154, 156, 386 P.2d 214; see also State v. Runnels, 203 Kan. 513, 518, 456 P.2d 16; State v. Garcia & Bell, 210 Kan. 806, 813, 504 P.2d 172.) Cons......