State v. McClain
| Decision Date | 14 July 1995 |
| Docket Number | No. 72265,72265 |
| Citation | 258 Kan. 176,899 P.2d 993 |
| Parties | STATE of Kansas, Appellee, v. Eddie McCLAIN, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
A motion under K.S.A.1992 Supp. 22-3208 to dismiss or to grant appropriate relief must be filed no later than 20 days after arraignment. Failure to raise a question as to the sufficiency or timeliness of the preliminary hearing by such a motion constitutes a waiver and precludes review on appeal.
B. Kay Huff, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant. Appellant filed a brief pro se.
Anthony W. Mattivi, Asst. Dist. Atty., argued the cause, and Joan M. Hamilton, Dist. Atty., and Carla J. Stovall, Atty. Gen., were with him on the brief, for appellee.
Eddie McClain, Jr., appeals his conviction of aggravated robbery. This court has jurisdiction pursuant to K.S.A.1994 Supp. 22-3601(b)(1).
McClain's pro se brief and that of his appellate counsel raise four issues for our consideration: (1) whether the evidence at trial was sufficient to show guilt beyond a reasonable doubt; (2) whether the search of the vehicle in which McClain was riding was permissible; (3) whether McClain was denied a timely preliminary examination; and (4) whether McClain was denied the effective assistance of counsel.
On February 21, 1993, the employees of a Wendy's restaurant in north Topeka, were robbed by two black males masked with nylon stockings and armed with semi-automatic handguns. The robbers forced an employee to place the cash from the register into a Wendy's bag. Altogether, the robbers took over $2,000.
Shortly after the robbery, Trooper Dan Smith of the Kansas Highway Patrol heard a dispatch broadcast by the Topeka Police Department indicating that an armed robbery had just taken place. The broadcast described the individuals involved in the armed robbery as "two to three black males, one armed with a handgun and possibly wearing a dark stocking hat ... and the vehicle involved was a small black pickup truck." In response to this broadcast, Trooper Smith positioned his patrol car near the intersection of Highway 75 and Interstate 70 in Topeka.
Within a few minutes, Trooper Smith observed a small, black pickup truck occupied by two black males traveling on Highway 75 away from the location of the north Topeka Wendy's. Smith pulled behind the vehicle and began following it as it exited eastbound onto I-70. After the vehicle exited I-70 onto a west Topeka street, Trooper Smith observed that it had a broken brake light. Trooper Smith activated his emergency equipment to stop the vehicle. During the time he was following the vehicle with his emergency lights on, Trooper Smith observed the driver and passenger acting suspiciously. The vehicle stopped in a parking lot.
The trooper informed the driver that he had stopped the truck because of a broken brake light and because he suspected the occupants were involved in an armed robbery. While Trooper Smith was speaking to the driver, he noticed that the passenger, later identified as McClain, attempted to reach inside his coat. Trooper Smith ordered both occupants of the truck to keep their hands on the dash. Other officers arrived on the scene. When the driver was not able to produce a driver's license, Trooper Smith removed the driver from the vehicle and placed him under arrest. Other officers removed McClain from the vehicle and arrested him for the robbery.
A nylon stocking, consistent with the type used in the robbery, was observed in McClain's waistband as he was removed from the vehicle. Officers searched the truck and recovered a 9 mm. semiautomatic handgun under the passenger seat, a Wendy's bag containing $2,169.86 in cash, and several Wendy's deposit slips in the glove box.
McClain was charged and convicted of one count of aggravated robbery. A second count of aggravated robbery involving a separate incident had been charged but was later dismissed. McClain was subsequently sentenced to a term of 15 years to life.
The standard of review when the sufficiency of the evidence is questioned on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Bowen, 254 Kan. 618, 631, 867 P.2d 1024 (1994); State v. Graham, 247 Kan. 388, Syl. p 5, 799 P.2d 1003 (1990). The State, to obtain an aggravated robbery conviction under K.S.A. 21-3427, was required to prove that McClain (1) committed a robbery and (2) was armed with a dangerous weapon or inflicted bodily harm upon any person in the course of such robbery.
A review of the record reveals that two Wendy's employees testified that they were robbed by two black men brandishing guns. The employees gave the police a description of the men, their clothing, and the robbers' vehicle. McClain fit the general description given by the employees. McClain and another black male were apprehended within minutes of the robbery in a vehicle which fit the description of the one spotted leaving the scene of the robbery. McClain's clothing fit the general description given by the Wendy's employees. A handgun and a Wendy's sack containing money and Wendy's deposit slips were found inside the truck in which McClain was a passenger. A nylon mask was found partially concealed in the waistband of McClain's pants. Despite the absence of an eyewitness identification, this court can easily conclude that, after a review of all of the evidence, when viewed in the light most favorable to the prosecution, there is sufficient evidence for a rational factfinder to find McClain guilty beyond a reasonable doubt.
McClain filed a motion to suppress the evidence seized during the search of the vehicle prior to trial. The trial judge denied McClain's motion, stating:
"I'm going to deny the motion and find that it was a lawful stop based upon probable cause on the police dispatch on the robbery and also the broken taillight, and that incidental to that stop and arrest of the driver, that the search is a valid search."
McClain contended that his rights under the Fourth Amendment were violated and that the police exceeded their authority under K.S.A.1992 Supp. 22-2402(1)'s power to stop a suspect when the vehicle in which he was a passenger was stopped and subsequently searched. McClain argued that although the stop for a broken brake light, a traffic infraction, was valid, the officer improperly exceeded the scope of the traffic infraction by searching the pickup. The State responded that 22-2402(1) was not the authority used to stop and question McClain because the search was incident to an arrest.
K.S.A.1992 Supp. 22-2402(1) provides:
"Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand ... the name, address of such suspect and an explanation of such suspect's actions."
As noted in State v. Johnson, 253 Kan. 75, 80, 853 P.2d 34 (1993), K.S.A.1992 Supp. 22-2402 is a codification of the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, 392 U.S. at 21, 88 S.Ct. at 1880, the Court held that an officer may stop and frisk an individual even though the officer does not have probable cause to believe a crime has been or is being committed if the officer is able to point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." See State v. McKeown, 249 Kan. 506, 508-09, 819 P.2d 644 (1991).
This court's standard of review is well settled:
"If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court."
State v. Garcia, 250 Kan. 310, Syl. pp 2, 3, 827 P.2d 727 (1992).
The stop of a vehicle, under the circumstances set forth in K.S.A.1992 Supp. 22-2402(1) and Terry, is different than merely approaching an individual in a public place. The stopping of a vehicle by a law enforcement officer always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion of a violation. See Delaware v. Prouse, 440 U.S. 648, 661-63, 99 S.Ct. 1391, 1400-01, 59 L.Ed.2d 660 (1979). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of "specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the vehicle contains individuals involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975); State v. McKeown, 249 Kan. at 510, 819 P.2d 644.
To illustrate that the seizure of evidence from a vehicle stopped for a traffic offense was an improper exercise of power, McClain relies upon State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990), and State v. Garcia, 250 Kan. 310, 827 P.2d 727. Damm involved a stop of a vehicle after an officer observed its taillights were defective. After stopping the car, the officer demanded identification from the driver and his two passengers. All three complied and were left sitting in the vehicle while the officer returned to the police car to...
To continue reading
Request your trial
-
State v. Bolze-Sann
...days to 21). The failure to comply with this time limitation “constitutes a waiver and precludes review on appeal.” State v. McClain, 258 Kan. 176, 185, 899 P.2d 993 (1995) ; see also State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980) ; State v. Smith, 215 Kan. 34, 37, 523 P.2d 691 (19......
-
State v. Daniel
...scenario similar to Daniel's search, but we had addressed Belton and its application in rather broad terms. In State v. McClain, 258 Kan. 176, 183, 899 P.2d 993 (1995), we describedBelton as creating a " bright-line rule" that when a policeman has made a lawful custodial arrest, the officer......
-
State v. Mays, No. 87,519
...time limitation is directory. Inconsequential delay beyond the 10 days will not require dismissal of the charges." State v. McClain, 258 Kan. 176, 185, 899 P.2d 993 (1995). The McClain court further held that the timeliness of a preliminary hearing may be challenged only by a motion to dism......
-
State v. Davison
...at 261-62, 850 P.2d 283. Our Supreme Court applied the Tygart factors again while relying on Belton in State v. McClain, 258 Kan. 176, 177, 183-84, 899 P.2d 993 (1995), to uphold police officers' search of a vehicle after arresting its driver and passenger for armed This court subsequently ......
-
Paradigm Shifts in Search and Suppression Law
...purposes"). [18] New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2680, 69 L. Ed. 2d 768 (1981). [19] See, e.g., State v. McClain, 258 Kan. 176, 184, 899 P.2d 993 (1995); State v. Craig, 2009 WL 929094, *1, 203 P.3d 1281 (Kan. App. 2009) (Table). [20] __ U.S. __, 129 S. Ct. 1710, 173 L. Ed......