State v. McCollum, 46959
| Decision Date | 03 March 1973 |
| Docket Number | No. 46959,46959 |
| Citation | 507 P.2d 196,211 Kan. 631 |
| Parties | STATE of Kansas, Appellee, v. Larry Eugene McCOLLUM, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under K.S.A.1972 Supp. 22-3402 a person charged with a crime, and held in jail solely by reason thereof, must be brought to trial within ninety days after his arraignment on the charge, unless the time for trial is extended by the court for reasons authorized by the statute.
2. Under K.S.A.1972 Supp. 22-3402(d) not more than one continuance of not more than thirty days may be ordered by the trial court for the following reason: Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by the statute.
3. A person's right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution attaches only at or after the time that adversary judicial proceedings have been initiated against him. Thus, where lineup proceedings are conducted by police officers, the per se exclusionary rule announced in Wade and Gilbert is not extended to identification testimony based upon a police station lineup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense. (Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.)
4. It is always necessary to scrutinize any pretrial confrontaion between a person suspected of committing a crime and identifying witnesses. The due process clause of the Fifth and Fourteenth Amendments to the United States Constitution forbids a lineup that is unnecessarily suggestive or conducive to irreparable mistaken identification. This rule applies even though the person suspected of committing a crime has no constitutional right to counsel.
5. When a person has not been formally charged with a criminal offense, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures, and the interest of society in the prompt and purposeful investigation of an unsolved crime. (Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.)
6. The ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of the officer makes resort to a search warrant impractical in some cases. In such cases, if an officer has reasonable cause to believe the conveyance contains contraband or items which offend against the law, the officer may conduct a reasonable warrantless search of the vehicle.
7. If there is probable cause to search an automobile such search need not be 'incidental to' or 'contemporaneous with' an arrest, but may be made wholly independent of any arrest at all.
8. Proof which the prosecuting attorney anticipates in the trial of a case frequently fails to come up to expectations, and so the tendency is to permit a prosecuting attorney a reasonable latitude in stating to the jury the facts he proposes to prove. Where no substantial prejudice results, and there is nothing to show that the prosecuting attorney acted in bad faith, appellate courts usually refused to reverse or remand a case for a new trial because of a reference by the prosecuting attorney to matters which he subsequently made no attempt to prove, or for one reason or another was unable to prove.
9. On appellate review the question is not whether the evidence establishes guilt of the defendant beyond a reasonable doubt, but whether the evidence was sufficient to form the basis for a reasonable inference of guilt.
Robert H. Waters, of Waters & Sowell, Kansas City, argued the cause and was on the brief for appellant.
Nick A. Tomasic, Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Frank D. Menghini, County Atty., were with him on the brief for appellee.
This is an appeal by the defendant in a criminal action from a conviction of robbery in the first degree and a sentence of not less than twenty nor more than forty-two years.
On March 25, 1970, th Seven-Eleven Store located at 25th and Central in Kansas City, Kansas, was held up at approximately 10:00 o'clock a. m. Money was demanded and taken from the store attendants. The holdup man was described as a negro male, unmasked, wearing sun glasses, a mustache, dressed in a trench coat and black hat and armed with a sawed-off shotgun. The only persons inside the store at the time of the holdup were two store employees, Kenneth Shemark and James Robinson. When the police responded to the call, signaled by a silent alarm triggered at the store at the time the robbery occurred, they received a complete description of the suspect. From persons outside of the store the police learned the suspect and another man (both colored) had fled the scene of the crime in an automobile described as a 1959 or 1960 Chevrolet 2-dr., either light blue or grey in color.
The description was broadcast over the police radio and within twenty minutes Larry Eugene McCollum (defendant-appellant) was apprehended riding in an automobile which fit the description given and containing all of the above described items. Officer Vincent Rodriguez while in a patrol car spotted the suspect's vehicle and apprehended the two occupants of the vehicle.
At approximately 10:35 o'clock a. m. the same morning, the police conducted a lineup of five persons, one of whom was the appellant. Mr. Shemark made a positive identification of the appellant after viewing the lineup.
Detective Charles Steele testified he read both suspects (the appellant and the driver, Ronald Johnson) their rights when they arrived at the police station. Detective Steele also read the suspects a waiver of rights form which the appellant refused to sign.
Thereafter a complaint was filed in the magistrate court charging the appellant with first degree robbery. A preliminary hearing, at which the appellant was represented by counsel, was conducted on the 16th day of April, 1970, and the appellant was bound over for trial in the district court.
On the 21st day of July, 1970, the appellant was arraigned before the district court of Wyandotte County, Kansas. At that time the state advised the appellant it intended to invoke the habitual criminal act. On July 30, 1970, the appellant, through his attorney, filed motions to suppress physical evidence and evidence pertaining to the lineup identification. Both motions were denied after a hearing held on October 2, 1970.
The appellant contends the trial court erred in not discharging him because he was not brought to trial within ninety days after arraignment on July 21, 1970.
Being unable to post bond after arraignemtn, the appellant was held in custody. Therefore, under K.S.A.1972 Supp. 22-3402 the state was required to try the appellant within ninety days after his arraignment on the charge, unless the time for trial was extended for reasons authorized by the statute.
While the offense with which the appellant is here charged was committed prior to July 1, 1970, the effective date of the new code of criminal procedure, he was not arraigned until after July 1, 1970, and he is entitled to proceed under the new code of criminal procedure as authorized by K.S.A.1972 Supp. 22-4602(1). The appellant asserted the provisions of K.S.A.1972 Supp. 22-3402 in the trial court, and he did not elect to proceed under the repealed code of criminal procedure. (See State v. Davis, 209 Kan. 225, 495 P.2d 965.)
The provisions of K.S.A.1972 Supp. 22-3402, insofar as material to this appeal, read as follows:
'(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety days after his arraignment on the charge, he shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).'
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'(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons: . . .
The above statute has been construed and applied by this court in State v. Davis, supra, and State v. Sanders, 209 Kan, 231, 495 P.2d 1023.
Here the appellant was arraigned on July 21, 1970, and the ninety day period would have expired on the 20th day of October, 1970.
On the 2nd day of October, 1970, at the hearing on the appellant's motions to suppress evidence concerning his identification at the lineup and physical evidence seized in the case, he was represented by retained counsel, and the county attorney informed the court as to a possible trial setting. He stated:
The judicial conference was scheduled for the entire week of October 12, 1970, which meant that there would be no judges available to hear any cases that week.
After the denial of the appellant's motions by the trial court on October 2, 1970, he again appeared in court with his retained attorney on the 5th day of October, 1970. At that time his retained attorney orally moved the court for permission to withdraw from further representation of the appellant because of the appellant's dissatisfaction with his services. When the trial court asked the appellant to state the reason for the difficulty between them, the appellant answered, 'I just don't feel Mr. Chambers has given me adequate and...
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