State v. Marks

Decision Date16 July 1982
Docket NumberNo. 53780,53780
Citation231 Kan. 645,647 P.2d 1292
PartiesSTATE of Kansas, Appellee, v. Elmore MARKS, Jr., Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. An affidavit requesting a search warrant must set forth particular facts and circumstances to allow the magistrate to make an independent evaluation of the existence of probable cause.

2. Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances and exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed.

3. Since reliability is the linchpin in determining the admissibility of identification testimony, in a criminal prosecution, a reliable in-court identification may be capable of standing on its own even though preceded by a deficient pretrial confrontation.

4. A criminal defendant has no right to have counsel present when the State conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender.

5. K.S.A. 22-3405(1) accords a criminal defendant no right to be present at an in-chamber conference for the exercise of peremptory challenges.

6. K.S.A. 22-3212 entitles a defendant to the working notes of the forensic chemist who examines a rape kit if those notes are contained in the State's file. Otherwise, a prosecutor is only under a duty to permit the defendant to inspect and copy or photograph the relevant working notes.

7. Before an expert opinion regarding a psychiatric diagnosis may be received in evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular field.

8. When consent is the defense in a prosecution for rape qualified expert psychiatric testimony regarding the existence of "rape trauma syndrome" is relevant and admissible.

9. When a sentence is within the statutory limits as set forth by the legislature it will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion.

Cortland E. Berry, Reading, argued the cause and was on the brief for appellant.

Jay Vander Velde, County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

HERD, Justice:

This is an appeal from a jury conviction of rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506).

At approximately 10:00 p. m., July 4, 1980, the victim, a twenty-one-year-old student at Emporia State University, went to an Emporia private club called "The Attic." The club opened late because of a fireworks display that night. The victim was the club's first customer that evening. She testified she went to the club because she was upset over a recent breakup with her boyfriend.

Shortly after the victim arrived at the club, Elmore Marks, Jr. entered. He made his way to her booth and sat down. A conversation ensued with the victim talking about school and work. Marks fabricated a grandiose story about his being a Ph.D and an M.D. and how he was in the process of writing an analytical book about people. He indicated the background for the book consisted of a series of interviews with people of varied experiences. The victim naively swallowed Marks' line and agreed to be interviewed for the book.

After two drinks and an hour and a half discussion the victim agreed to go with Marks to the house of one of his friends in order that he might arrange a trip to Nassau to pay her for assisting with the book. They drove to the house, which actually belonged to Marks, and there he pretended to make reservations for the trip. Later Marks told his victim she looked nervous and gave her a small white pill as a remedy. She took the pill and became dizzy and light-headed. Marks then produced another pill virtually forcing it down her. Her dizziness grew worse. Marks led her to the bedroom where she laid down. Marks then pulled up a chair, took pad and pencil in hand and began interrogating the victim about her sex life. When she refused to answer, Marks became angry and started taking off her clothing. He also choked her briefly and attempted smothering her with a pillow. The victim fought back but her dizziness prevented her from escaping. Marks threatened if she did not stop fighting he would kill her. After a long struggle he succeeded in removing the victim's clothing and forced her to have sexual intercourse and oral sodomy with him. After giving his victim a shower and massage, Marks drove her to her car.

Upon returning to her apartment, the victim tearfully related the episode to her roommate who called the police and drove her to the hospital. The examining physician found a lacerated area near the opening of the victim's vagina but no other bruises or marks.

Several days later the victim rode with the police and guided them to Marks' residence. A search warrant was obtained and the house was searched. Marks was arrested and charged with rape and aggravated sodomy. After conviction this appeal followed.

Appellant first challenges the sufficiency of the affidavit to obtain the search warrant. The affidavit was made by Detective Michael Lopez and consisted of a very detailed account of the assault and surrounding circumstances. It was based on Lopez's interview with the victim.

K.S.A. 22-2502 governs the issuance of search warrants:

"A search warrant shall be issued only upon the oral or written statement of any person under oath or affirmation which states facts sufficient to show probable cause that a crime has been or is being committed and which particularly describes a person, place or means of conveyance to be searched and things to be seized."

The search warrant affidavit must set forth particular facts and circumstances to allow the magistrate to make an independent evaluation of the existence of probable cause. Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Bald conclusions, mere affirmations of belief or suspicions are not enough. An affidavit may be based on hearsay, but it must state "sufficient affirmative allegations of fact as to affiant's personal knowledge" to allow the magistrate to rationally reach his independent decision. State v. Williams, 226 Kan. 688, 693, 602 P.2d 1332 (1979); State v. Morgan, 222 Kan. 149, 563 P.2d 1056 (1977).

"Probable cause" to issue a search warrant is not easily defined. This court has, however, compared it to a jigsaw puzzle where, "(b)its and pieces of information are fitted together until a picture is formed which lends a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance." State v. Morgan, 222 Kan. at 151, 563 P.2d 1056. In any event, probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. State v. Weigel, 228 Kan. 194, 197, 612 P.2d 636 (1980).

Here the affidavit stated in detail the facts surrounding the alleged rape. It contained much more than bald conclusions or suspicions. We conclude the magistrate who examined the affidavit was justified in issuing the warrant.

Appellant next contends certain items taken from his residence which are not listed on the search warrant were erroneously admitted into evidence. The search warrant authorized police to seize:

"(A) multi-flowered print Hawaiian style shirt; men's sandals; a gold chain necklace having a gold coin on it with the figure of Christ standing with arms outstretched; small white tablets with disecting (sic) lines across the center; yellow/green flowered shower curtain; body hair located in the tub of the bathroom; flower print bedspread; bed sheet located on bed of the bedroom; and to take photographs of the exterior and interior of the premises of 305 Cottonwood and the 1965 Plymouth Barracuda bearing Michigan license SHP938 and a 1977 Plymouth bearing Michigan license NBD409."

Officers actually seized numerous other items including a shower brush, several gold rings, a plastic bag containing "green vegetation" and a hashish pipe.

An examination of the record shows there is no merit to appellant's contention. The only items from the search admitted in evidence at trial were the necklace, the Hawaiian shirt, and photographs taken of appellant's car. The items seized but not listed on the search warrant were not offered into evidence at trial. There was no erroneous admission of evidence.

Appellant next argues there was no probable cause for his warrantless arrest.

Appellant was arrested July 8, 1980, at the same time the search warrant was executed. Officers based their decision to arrest Marks on the same information that was contained in the affidavit for the search warrant. K.S.A. 22-2401 states: "A law enforcement officer may arrest a person when: ... (c) He has probable cause to believe that the person is committing or has committed (1) A felony ...."

"Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances and exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed." State v. Brocato, 222 Kan. 201, 203, 563 P.2d 470 (1977).

See also State v. Morgan, 231 Kan. 472, 646 P.2d 1064 (1982).

There was ample evidence to support the warrantless arrest. The information provided by the victim was detailed and thorough. Police also had within their knowledge the doctor's report that the victim suffered from a laceration near her vaginal opening. The arresting officers were justified in believing Elmore Marks had committed a felony.

Appellant next challenges the victim's pretrial identification of him from a photographic lineup.

On July 24,...

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