State v. Masqua
| Decision Date | 04 November 1972 |
| Docket Number | No. 46607,46607 |
| Citation | 502 P.2d 728,210 Kan. 419 |
| Parties | STATE of Kansas, Appellee, v. Albert F. MASQUA, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A defendant who has no interest in premises, either of a proprietary or possessory character, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure.
2. Constitutional immunity from unreasonable searches and seizures may be waived by voluntary consent.
3. In a prosecution for forcible rape, evidence of the commission of other similar offenses by the defendant is admissible pursuant to K.S.A. 60-455 to be considered by the jury under proper instructions outlining the purpose of such evidence as bearing upon the question of the defendant's identity, guilty knowledge, motive, intent, and plan or mode of operation.
4. The district court has an affirmative duty to instruct on lesser included offenses even in the absence of a request by defense counsel or the prosecution; however, that duty arises only where the omitted instruction is required by the evidence and under circumstances where the appellant might reasonably have been convicted of a lesser offense if the instruction had been given.
M. C. Slough, St. Marys, argued the cause and was on the brief for appellant.
Edward S. Dunn, Jackson County Atty., argued the cause, and Vern Miller, Atty. Gen., and James Swoyer, Jr., Jefferson County Atty., were with him on brief for appellee.
The appellant, Albert F. Masqua, was charged with the offenses of murder in the first degree (K.S.A.1971 Supp. 21-3401) and forcible rape (K.S.A.1971 Supp. 21-3502). Venue was changed from Jackson County to Jefferson County. A jury found the appellant guilty of both crimes; he was sentenced to life imprisonment for the first degree murder conviction and a term of not less than five nor more than twenty years for the forcible rape conviction-the sentences to be served consecutively.
The parties have stipulated to an agreed statement of facts which is found in the record on appeal. The following is a summary of those facts necessary for a disposition of this case.
On August 19, 1970, the body of Eva M. Shields, an elderly woman, was discovered in the bedroom of her home in Holton, Kansas. Following examination and autopsy, it was concluded that she had been the victim of forcible rape and had been murdered. The time of death was ascertained to have been the evening immediately prior to the discovery of her badly beaten body.
Subsequently, on August 20, 1970, the appellant was arrested for vagrancy in Whiting, Kansas. The arrest was made without warrant in a house under the management and control of Melvina Banks, the appellant's aunt. The house was owned by Mrs. Banks' sons. At the time of Masqua's arrest for vagrancy, he was alone in the house and did not have Mrs. Banks' permission to be there, nor did he have the permission of anyone to be in the house. Rather, the record shows he was a resident of Hiawatha, Kansas, and was renting a room at the R & M Hotel in Hiawatha. Seized without warrant was a quantity of clothing found at the house where Masqua was arrested. The clothing was suppressed as evidence, the state making no objection to the suppression.
On August 21, 1970, Don Collins, Jackson County sheriff, and James Malson, of the Kansas Bureau of Investigation, entered the house in Whiting where the appellant was arrested for vagrancy. They had previously been given permission to enter and search by Melvina Banks who, as indicated above, had the management and control of the premises. She had given Collins and Malson the key to the house, and her husband and one of her children accompanied them as they searched. No warrant was issued in connection with the search.
While searching the attic entryway of the house, a pair of trousers was discovered. It was necessary to stand on a table to enter the attic through a trap door in the kitchen. The attic was very dusty; however, the trousers, found some distance back from the attic door, were not. Believing there were bloodstains on the trousers, they were seized and forwarded to the K.B.I. laboratory in Topeka for analysis.
The appellant was convicted of vagrancy; but, because the statute was repealed effective July 1, 1970, the sentence was attacked in habeas corpus proceedings on August 31, 1970, and the appellant was released upon order of the district court.
Upon his release from incarceration on the vagrancy charge, Masqua was forthwith arrested on the charges of first degree murder and forcible rape. A preliminary hearing was held and he was bound over for trial. An Information was filed October 1, 1970, and when arraigned, the appellant entered a plea of not guilty.
The appellant's motion to change venue was sustained by the district court after concluding that because of pretrial publicity and apparent passion and prejudice against Masqua in the community, there was substantial doubt whether he could receive a fair trial in Jackson County.
Preceding the trial and pursuant to K.S.A.1971 Supp. 22-3216, the appellant moved to suppress the trousers seized and the evidence derived therefrom. The district court found the search was made with the consent of Mrs. Banks, the person who had control of the house, and the appellant had no standing to object to the seizure as he had no possessory interest or right of control in the premises. The state introduced into evidence the trousers over the objection of the appellant. He here contends the district court erred in refusing to suppress the trousers.
This court is of the opinion the ruling of the district court was proper. The appellant was not legitimately on the premises in question. In fact, the record shows that he was a trespasser in the house at Whiting. As he has claimed no interest in the premises, either possessory or proprietary, he has no standing to invoke the constitutional guaranty from unreasonable searches and seizures. (State v. Edwards, 197 Kan. 146, 415 P.2d 231; Wheeler v. State, 202 Kan. 134, 446 P.2d 777; State v. Grimmett & Smith, 208 Kan. 324, 491 P.2d 549.) Moreover, the record clearly shows the law enforcement officers sought and received the consent of the person who had the management and control of the premises as a condition precedent to searching the house; they were given the key to the premises, and were accompanied on the search by the proprietor's husband and child. It is evident from the record that any objection to the search was voluntarily waived by Mrs. Banks; therefore, it must be concluded the appellant cannot now object. (State v. Pierson, 202 Kan. 297, 448 P.2d 30; State v. Boyd, 206 Kan. 597, 481 P.2d 1015; State v. Boyle, 207 Kan. 833, 486 P.2d 849.)
During the trial the state proffered evidence in its case in chief consisting of the testimony of two women to the effect they had been forcibly raped and sexually molested by the appellant. Prior to admitting the evidence, the district court, in chambers, required the county attorney to state the purpose of the proffer and made lengthy inquiry into the state's justification for offering the testimony. Counsel for the state advised the court, the appellant, and his counsel, that the proffer was made pursuant to K.S.A. 60-455 to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident on the part of the appellant in the commission of the alleged forcible rape of Eva M. Shields. The court concluded the evidence was admissible for the purpose of showing the appellant's identity, motive, opportunity, intent, preparation, plan and knowledge. Counsel then moved the court pursuant to K.S.A. 60-445 to exercise its discretion and exclude the testimony of both women. The court, having ruled the evidence was admissible, stated it would not exercise its discretion to exclude the evidence pursuant to the statute. Thereupon, the trial was resumed in the courtroom in the presence of the jury.
The evidence of both women was then presented. One woman, referred to as Mrs. X, testified that she was in her home in Holton in September, 1969; that appellant was present and he grabbed her and threw her to the floor and forcibly had sexual intercourse with her against her will, and that she did not report the rape to the police because she was afraid the appellant would return and beat up her and her husband. The second woman, referred to as Mrs. Y, testified that on July 30, 1967, she attended an Indian pow-wow near Kansas City, Missouri, and that about sundown the appellant grabbed her from behind and dragged her ten or twelve feet toward a picnic bench and threw her to the ground; that he attempted to have sexual intercourse with her against her will; that she struggled with appellant, and when she screamed for help he hit her about the face and head several times with his fist, breaking her glasses and injuring her head.
The district court admitted the evidence of both women and cautioned the members of the jury at the time it was admitted that they might consider the evidence only for its value, if any, as to the circumstances bearing upon the appellant's motive, opportunity, intent, preparation, plan, knowledge and identity or absence of mistake or accident. The jury was given a limiting instruction as to the purpose of the evidence and the extent it might consider such evidence in arriving at its verdict.
Counsel for the appellant made no...
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