State v. McCarty, 44798

• Citation: 427 P.2d 616,199 Kan. 116
• Decision Date: 13 May 1967
• Docket Number: No. 44798,44798
• Parties: STATE of Kansas, Appellee, v. Jack Lloyd McCARTY and John Boyd, Appellants.
• Court: United States State Supreme Court of Kansas

Page 616

427 P.2d 616

199 Kan. 116

STATE of Kansas, Appellee, v. Jack Lloyd McCARTY and John Boyd, Appellants.

No. 44798.

Supreme Court of Kansas.

May 13, 1967.

Rehearing Denied June 10, 1967.

Syllabus by the Court

1. It is not essential to the validity of a consent to a search of private premises that the person giving the consent first be advised that whatever is obtained as a result of the search may be used in evidence against him.

2. Where two persons jointly occupy premises, either may give consent to a search and the evidence thus disclosed can be used against either.

3. In a joint trial of two or more defendants, a confession given by one of them may be admitted as evidence of his own guilt where the surrounding facts are such that the jury, under proper instructions, may reasonably be expected to follow the court's injunction to disregard the confession as to the other defendants.

4. Where, in a joint trial, the confession of one defendant which incriminates another is admitted into evidence it is the duty of the trial court to instruct the jury clearly and positively on the limited effect to be given the confession and that such confession may be considered only against the defendant who gave it and not against the other.

5. The record in an action wherein two defendants were jointly tried for robbery is examined and it is held: (1) the consent executed by one of the defendants to a search of their quarters was valid, and evidence found as a result of the search was properly admitted against both defendants (2) the confession of one of the defendants was admissible as evidence against him; (3) the trial court adequately instructed the jury as to the limited purpose for which the confession could be considered; (4) under the facts of this case the jury could reasonably be expected to follow the court's instructions in the above regard; and (5) the Habitual Criminal Act is not invalid.

Thomas Odell Rost, Topeka, argued the cause and was on the brief for appellants.

Robert D. Hecht, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

FONTRON, Justice.

The defendants, Jack Lloyd McCarty and John Boyd, were jointly tried for robbery in the first degree and both defendants were convicted. After their motion for new trial was overruled, the defendants filed this appeal. In the course of our opinion, we shall refer to the appellants either individually, or as defendants, and to the appellee as the state.

Throughout the trial and the proceedings for a new trial the defendants were represented by Mr. Charles S. Scott of Topeka. On this appeal they are represented by Mr. Thomas Odell Rost, also of Topeka. Both gentlemen are reputable members of the bar of this state.

The state's evidence tended to show the following: Shortly before 2 p. m., November 15, 1965, the defendant, McCarty, wearing an overcoat and a hat, entered a liquor store, owned by a Mrs. Barbara Herman, located at 1925 Seward Avenue, in Topeka; poking a long gun in her back, McCarty forced Mrs. Herman to the rear of the store and then compelled her to wait on a customer who bought a bottle of liquor with a number of quarters marked with red X's.

As the customer left, Mrs. Herman fled to a pizza parlor next door yelling for help; there, a Mr. Taylor saw McCarty emerge from the liquor store and followed him to a waiting car where McCarty got into the back seat; the car was driven away by a second man whom Taylor identified as Boyd; Taylor followed the car to a bridge over the Kansas river and then returned to the store where he described the car and license number to the police. A check of the liquor store's cash register showed that between seventy-nine and eighty dollars had been taken.

Descriptions of the get-away car and its license number were broadcast and shortly thereafter police officers spotted the car backing up to a tavern in North Topeka. As officers converged on the car, Boyd was apprehended and taken into custody; officers then began looking through the tavern for the second man; upon hearing noises overhead, one of the officers ran upstairs while others ran around to a window in time to see McCarty kick out the pane and jump to the ground, where he was received with open arms by the waiting policemen.

As the officer who went upstairs ran through the rooms, he observed a sawed-off 12-gauge shotgun which he proceeded to pick up; this gun was loaded with five 16-gauge shells which the officer later took out; both gun and shells were taken to the station along with the defendants.

At police headquarters, McCarty signed a written consent to a search of the living quarters over the tavern; armed with this consent, officers returned to the tavern where they obtained a further consent to the search from Mr. Buggs, the tavern keeper; from their search the officers obtained the overcoat, also referred to as trench coat, and the hat worn by McCarty, a box of 12-gauge shotgun shells, five dollars and fifty cents in quarters, four marked with red X's, and three dollars in dimes, the coins being found under a pillow on the bed. A total of seventy-one dollars was taken from the person of McCarty and six dollars and forty-five cents from Boyd.

No evidence was presented on behalf of the defense.

Four points are raised by the defendants in their brief: (1) physical evidence obtained from the search of the living quarters above the tavern was illegally obtained; (2) a confession given by McCarty was inadmissible; (3) McCarty's statement was erroneously admitted as to Boyd; and (4) the Habitual Criminal Act under which both defendants were sentenced is invalid. We will discuss these points in order.

Turning to point one, the defendants concede the shotgun was correctly admitted, and in this, we agree. The gun was taken in 'hot' pursuit of a very 'hot' prospect and was clearly admissible in evidence.

What the defendants object to is the admission of items taken from the living quarters above the tavern when the officers returned to search it. It is argued that the search was illegal because McCarty was not advised, before executing his written consent, that evidence obtained from the search could be used against him.

We believe the defendants misconceive the reach of the Fourth Amendment. It was designed to afford a man and his property protection against unreasonable searches and seizures; to insure, for the individual, a sanctum where he and his effects might be free from unjustifiable official intrusion. Speaking on this topic, the federal Supreme Court, in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, put it this way:

'* * * What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts something in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. * * *' (p. 301, 87 S.Ct. p. 413.)

We deem it clear that the search of the defendants' living quarters in this case was not unreasonable. It was made pursuant to McCarty's express written consent and the oral permission of Buggs, the tavern keeper. There is not the slightest suggestion that deception was practiced or compulsion was employed in obtaining the consent of either man. The evidence shows the consent of both to be voluntary.

McCarty's consent was sufficient as to Boyd, also. The rule appears well settled that where two persons jointly occupy premises, one of them may consent to a search of such premises. (United States v. Sferas, 7 Cir., 210 F.2d 69, cert. den., 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086; State v. Shephard, 255 Iowa 1218, 124 N.W.2d 712; People v. Guyette, 231 Cal.App.2d 460, 41 Cal.Rptr. 875; State v. Hall, 264 N.C. 559, 142 S.E.2d 177; 79 C.J.S. Searches and Seizures § 62, p. 824.)

Our attention is called to the recent case of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.2d 974. Apparently the defendants would have us apply a Miranda prerequisite for an admissible confession to a valid consent to a search of private quarters. The defendants cite no authority in support of this contention and our limited research has discovered none.

It is our opinion, however, that the defendant's argument is unsound and must be rejected. Miranda deals only with the compulsory self-incrimination barred by the sonable search and seizure proscribed by the Fourth Amendment. There is an obvious distinction between the purposes to be served by these two historic sections of the Bill of Rights. The Fifth Amendment prohibits...