State v. Marks

• Decision Date: 01 December 1979
• Docket Number: No. 50491,50491
• Citation: 602 P.2d 1344,226 Kan. 704
• Parties: STATE of Kansas, Appellee, v. Derea L. MARKS, Jr., a/k/a Larry Marks, Appellant.
• Court: Kansas Supreme Court

Page 1344

602 P.2d 1344

226 Kan. 704

STATE of Kansas, Appellee, v. Derea L. MARKS, Jr., a/k/a Larry Marks, Appellant.

No. 50491.

Supreme Court of Kansas.

Dec. 1, 1979.

Syllabus by the Court

1. The record on appeal is examined in a felony-murder case and it is Held : The trial court did not err (1) in overruling defendant's motion to suppress evidence; (2) in failing to instruct the jury on self-defense or the lesser crimes of voluntary and involuntary manslaughter; (3) in admitting evidence of a lineup identification; (4) in failing to compel the State to make discovery; (5) in permitting late endorsement of a witness; (6) in failing to give a limiting instruction on other crimes evidence; and (7) in denying defendant either a mistrial or a new trial.

2. A police officer observed two young men parked in an automobile on a public street. In his judgment the two men matched the general description of two men mentioned in an earlier police dispatch, wanted in connection with criminal activities. The police officer had no information indicating that the men in the car were committing or had committed any crime. He walked over to the parked vehicle and asked the defendant for his name and some identification. In response to the request, the defendant lifted up an arm rest revealing a handgun lying on the seat. The officer observed the defendant reach in the direction of the gun. The officer then drew his own handgun, ordered defendant not to touch the gun, seized the gun, and arrested defendant for illegal possession of a weapon in violation of a city ordinance. Held : The police officer acted reasonably in seizing the handgun and the seizure of the weapon did not violate the defendant's rights under the Fourth Amendment to the United States Constitution.

3. In a felony-murder case, whether or not an instruction on lesser crimes is required depends on the particular facts and circumstances of the case. In order for evidence to be sufficient to require instructions on lesser degrees of the homicide, the testimony supporting such instructions must be offered either by the State or by the defense for the purpose of proving what events occurred at the time the homicide was committed. Contradictory statements of a witness which are offered only for the purpose of destroying his credibility and not as positive evidence to prove the matters contained in the statements are not alone sufficient to require an instruction on the lesser degrees of homicide.

4. The Sixth Amendment right to counsel at a lineup attaches only when there has been a formal charge with respect to the Particular crime as to which the suspect is being identified. The fact that defendant was represented by counsel in connection with other crimes is irrelevant.

G. Edmond Hayes of G. Edmondson Hayes, P. A., Wichita, argued the cause and was on the brief for appellant.

Stuart W. Gribble, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty., and James D. Turner, Asst. Dist. Atty., were on the brief for appellee.

PRAGER, Justice:

This is a direct appeal in a criminal prosecution in which the defendant, Derea L. Marks, Jr., was convicted of eight felonies. Two separate cases containing multiple counts were tried together. In case 77 CR 1832, the defendant Marks was charged with felony murder, which allegedly occurred in the course of an aggravated robbery of the Wichita Public Scales Station in Wichita on July 18, 1977. Count 2 of that case charged the defendant with the aggravated robbery. The defendant Marks was later charged in case 77 CR 2540 with six separate felonies, consisting of four counts of aggravated robbery (K.S.A. 21-3427) and one count each of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701(A )).

The charges stem from a burglary and a series of robberies in Wichita during July and August of 1977, beginning with the burglary of the OTASCO store on July 7, 1977, when several handguns were taken, including a .32-caliber pistol later connected with the defendant. Counts 1 and 2 of case 77 CR 2540 charged the defendant with burglary and theft of the OTASCO store. At the trial defendant fully admitted his participation in that burglary. On July 9, 1977, the defendant and a juvenile associate, Willie Richardson, robbed the Universal Service Station in Wichita. For this robbery, the defendant was charged in count 3 of case 77 CR 2540. At the trial defendant admitted his participation in that robbery. On July 13, 1977, defendant and Willie Richardson robbed the Hi-Quality Service Station in Wichita. This robbery was the basis for count 4 of case 77 CR 2540.

On July 18, 1977, defendant and Richardson entered the Wichita Public Scales Station allegedly to commit another robbery. The State claimed that the operator of the station, Virgil C. George, was murdered in the course of the robbery. As noted above, this homicide and robbery are the charges contained in counts 1 and 2 of case 77 CR 1832. On July 21, 1977, defendant and Richardson robbed the Quik Chik in Derby, Kansas. This robbery was the basis for count 5 of case 77 CR 2540. At the trial the defendant admitted his participation in that crime. Finally, on August 1, 1977, the defendant and Richardson robbed the Sears Store in Twin Lakes Shopping Center in Wichita. This robbery was the basis for the charge contained in count 6 of case 77 CR 2540. As noted above, the two cases were consolidated for trial and the defendant was convicted on all eight counts contained in the two informations. The defendant has appealed to this court claiming trial errors. We will consider each point separately.

I. Denial of Defendant's Motion to Suppress the Gun as Illegally Seized Evidence.

Prior to the trial, the defendant filed a motion to suppress as evidence a .32-caliber pistol taken by police officer Rod Stovall from the defendant's possession on August 6, 1977. This handgun was an important piece of evidence in the case because, following its seizure by officer Stovall, tests made at the Wichita police forensic department established it to be the same gun used in the robbery and shooting death of Virgil C. George at the Wichita Public Scales Station on July 18, 1977. A Jackson v. Denno hearing was held on the motion to suppress prior to the trial. The undisputed evidence established the following facts: On August 6, 1977, police officer Stovall was driving his police vehicle in the area of the 900 block of North Volutsia in Wichita. He noticed defendant Marks and Richardson seated in defendant's car parked on the side of the street. As the officer pulled alongside the vehicle, he thought the two young men in the car matched the general description of two men, mentioned in an earlier police dispatch, who were wanted in connection with criminal activities. The police dispatch had described the two wanted men as black males, in their late teens or early twenties, with medium afro haircuts, and weighing somewhere in the area of 150 to 160 pounds. The police officer testified that he stopped his vehicle and walked over to the parked car to "check them out." The police officer admitted that he had no information indicating that the individuals in the car were committing any crime or that they had committed any crime. The police officer did not know either one of the two individuals personally and, as they were seated in the car, he could not observe their bodies from their shoulders down. He could not see whether they were fat or slender. At the time the officer approached the vehicle, he did not feel that his life was in danger. He had no knowledge of any contraband in the vehicle and was not concerned about the two men fleeing or destroying any contraband. The police officer had in mind only that the two men in the car fit the general description of the two individuals mentioned in the police dispatch who were wanted by the police.

As officer Stovall approached the car, the defendant was in the driver's seat. Richardson was seated to his right. The officer asked the defendant for his name and some identification. In response to the request, the defendant lifted up an arm rest in the middle of the front seat between him and Richardson. When defendant lifted up the arm rest, the officer observed a handgun lying on the seat. The officer saw the defendant reach in the direction of the gun. The officer then drew his own handgun from its holster and ordered defendant not to touch the gun. The officer then seized the gun and arrested the defendant for illegal possession of a weapon in violation of the Wichita city ordinances. Defendant Marks was taken to the police station and later released on his own recognizance. The police retained the gun until the ballistics test had been completed. It was determined that the gun was one of several stolen in the July 7, 1977, burglary of the OTASCO store. The defendant was never charged with a municipal ordinance weapons violation. On August 9, 1977, the defendant was charged in case 77 CR 1832 with felony murder and aggravated robbery of the Wichita Public Scales Station.

Following the presentation of this evidence by the State, the defendant's motion to suppress the gun as evidence was denied by the district court. The trial judge, in denying the motion to suppress, stated:

"THE COURT: As to the motion to suppress, a very interesting motion, extremely interesting case. And I certainly agree with Mr. Hayes when he says this was not a stop-and-frisk. It wasn't. It wasn't an arrest. And it wasn't a search. It was simply an officer asking, according to his testimony, if two individuals who he said might be . . . someone he was looking for could show identification. It was not an order to get out of the car or produce their identification. There was no search. And once the weapon was exposed as a result of that request, the officer, of course, was within his rights to seize it for his own protection, if...