State v. McCorgary

• Court: Kansas Supreme Court
• Writing for the Court: FROMME; PRAGER
• Citation: State v. McCorgary, 585 P.2d 1024, 224 Kan. 677 (Kan. 1978)
• Decision Date: 28 October 1978
• Docket Number: No. 49069,49069
• Parties: STATE of Kansas, Appellee, v. Thomas Leo McCORGARY, Appellant.

Page 1024

585 P.2d 1024

224 Kan. 677

STATE of Kansas, Appellee, v. Thomas Leo McCORGARY, Appellant.

No. 49069.

Supreme Court of Kansas.

Oct. 28, 1978.

Syllabus by the Court

1. Although state action in obtaining evidence by surreptitiously placing an informer in a cell with defendant during a criminal prosecution may violate defendant's constitutional rights in a pending case, such action does not require suppression of other evidence volunteered at the same time by defendant pertinent in a subsequent prosecution on an entirely different charge.

2. Photographs and color film are not rendered inadmissible as evidence merely because they may be gruesome and shocking if they are true reproductions of relevant physical facts and conditions material to matters in issue.

3. The speedy trial requirement of the Sixth Amendment of the United States Constitution which is also guaranteed by § 10 of the Bill of Rights of the Kansas Constitution is inapplicable to a preindictment delay, except when the governmental delay is solely for the purpose of gaining tactical advantage over the accused in which case there may well be a due process violation.

4. A mistrial will not be declared under K.S.A. 22-3423(C ) unless the rights of either the defendant or the state have been substantially prejudiced.

5. The record of convictions on multiple charges of first degree murder is examined and it is Held no reversible error appears.

Richard L. Hilton and Ernest H. Moulos, Wichita, argued the cause and were on the brief for appellant.

Stephen E. Robison, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Stuart W. Gribble, Asst. Dist. Atty., were with him on the brief for appellee.

FROMME, Justice:

Thomas Leo McCorgary was convicted of killing Earl Bowlin, Ruth Bowlin and Wayne Platt. These three murders occurred in 1963. McCorgary was not prosecuted until ten years later. Jury verdicts of guilty were returned on all three counts of murder in the first degree on June 12, 1974. This appeal followed.

At the outset a few facts should be given. The Bowlin murders were particularly gruesome killings. Earl Bowlin was found shot in the living room of his farm home. Four bullet wounds were in his head and one in his chest. A smeared trail of blood led from inside the house to the front porch. This convinced the investigating officers that the missing wife, Ruth Bowlin, had also been killed. The torso of Ruth Bowlin's body was found in a shallow grave under some trees about three quarters of a mile from the Bowlin farm home.

Wayne Platt, the operator of a service station, was killed a few days later on the outskirts of Wichita. The station was in the general area a person would traverse to reach the city of Wichita after leaving the Bowlin farm. Platt was found in the restroom of his service station. He had been shot with a .45 caliber weapon. It was not until ten years later that a connection between these murders was discovered. We will develop additional facts as they become pertinent to a discussion of the points raised on appeal.

The first point raised by appellant McCorgary concerns the testimony of David Elliott, a police informer and a cell mate of McCorgary while in the Sedgwick County jail in March of 1973. McCorgary then had been charged and was later convicted of the murder of Karl Williams. The Williams conviction was reversed by this court and remanded for a new trial. See State v. McCorgary, 218 Kan. 358, 543 P.2d 952 (1975), Cert. denied 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976). (McCorgary was retried and was convicted a second time for the Williams murder. His conviction was upheld in an unpublished opinion of this court.) In order to understand the point raised in the present case the cause of the reversal in the Williams conviction must be understood. The case was remanded for a new trial because of the improper use of the testimony of David Elliott, a police informer. We held in that case the state violated McCorgary's right to counsel by surreptitiously placing the police informer in a cell with appellant in order to obtain information on the Williams murder through questioning by the police informer. We held the police could not do indirectly what they could not do directly, I. e., interrogate McCorgary in the absence of his attorney or without a knowing waiver of his right to have counsel present during questioning. Our holding in this regard was based upon Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

When the incriminating statements were made to Elliott on the Karl Williams murder McCorgary was being held on the Williams charge. However, at that time in addition to the incriminating statements on the Williams murder, McCorgary confessed to the killing of Earl Bowlin, Ruth Bowlin and Wayne Platt. These murders had occurred ten years before. McCorgary was not under indictment and no charges had been filed on these killings at the time he voluntarily confessed to Elliott. The confession was not made as a result of any surreptitious questioning by Elliott as to the circumstances of the Bowlin and Platt deaths.

Elliott was permitted to testify in the present case as to the incriminating statements made by McCorgary which amounted to a verbal confession that he killed the Bowlins and Wayne Platt ten years before.

The appellant contends the admission of the testimony of Elliott resulted in reversible error. He urges error on two separate grounds. The first is a Fifth Amendment argument that since Elliott was acting as a police agent during the time in question he was required to advise appellant of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). This would appear to be the first case in which this court has been called upon to consider the application of Miranda to the use of undercover agents or informers in a custodial setting. The question has, however, been considered by several federal courts. The federal courts have held Miranda inapplicable under the present circumstances.

The first of these cases is United States v. Fioravanti, 412 F.2d 407, 413-414 (3rd Cir.), Cert. denied 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). This was an appeal from a conviction in a federal counterfeiting case. The government's case was based largely on the testimony of a secret service agent who had worked undercover. For a short time after the defendants were arrested they were held in a detention room along with the agent whose true identity was still undisclosed. During this time the appellant made an incriminating statement which came out at trial while the agent was being cross-examined by defense counsel. The court held the statement to be admissible at trial despite the absence of the Miranda warnings. In so holding the court made the following observations:

"Here, it is inconceivable that the defendant could have experienced the coercion-born type of fear and intimidation set forth in Miranda, because when he volunteered this incriminatory statement, he thought that he was conversing with a fellow partner in crime, not a policeman. The predicate of Miranda is the inherently coercive nature of police interrogation of a person in custody; it cannot have application to a situation where one, not under stress of interrogation, simply volunteers a statement which perchance turns out to be inculpatory." 412 F.2d at 413-414.

See also United States v. DiLorenzo, 429 F.2d 216, 219-220 (2nd Cir. 1970); United States v. Viviano, 437 F.2d 295, 300-301 (2nd Cir.), Cert. denied 402 U.S. 983, 91 S.Ct. 1659, 29 L.Ed.2d 149 (1971).

In Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), Reh. denied 386 U.S. 940, 951, 87 S.Ct. 970, 17 L.Ed.2d 880 (1967), the exact situation presented here was considered by the United States Supreme Court. The question there framed was whether evidence obtained by the government by means of deceptively placing a secret informer in the quarters and councils of the defendant during one criminal trial so violated the defendant's constitutional rights that suppression of such evidence was required in a subsequent trial of the same defendant on a different charge. The court in Hoffa answered the above question in the negative. The court pointed out that none of the incriminating statements which the informer heard were made in the presence of counsel, in the hearing of counsel, or in connection in any way with the legitimate defense of the second crime. The defendant was not in custody or charged with the second crime about which defendant volunteered his statements. The court declined to exclude the testimony of the informer as to the incriminating statements relevant in the subsequent case. It stated there was nothing in Massiah, in Escobedo, or in any other case which would render such testimony by the informer a violation of defendant's Fifth or Sixth Amendment rights.

Although state action in obtaining evidence by surreptitiously placing an informer in a cell with defendant during a criminal prosecution may violate defendant's constitutional rights in a pending case, such action does not require suppression of other evidence volunteered at the same time by defendant pertinent in a subsequent prosecution on an entirely different charge. See United States v. Gray, 565 F.2d 881 (5th Cir. 1978); Grieco v. Meachum, 533 F.2d 713 (1st Cir.), Cert. denied 429 U.S. 858, 97 S.Ct. 158, 50 L.Ed.2d 135 (1976); United States v. Missler, 414 F.2d 1293 (4th Cir. 1969), Cert. denied 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); Gascar v. United States, 356 F.2d 101 (9th Cir. 1965), Cert. denied 385 U.S. 865, 87 S.Ct. 125, 17 L.Ed.2d 92 [224 Kan. 681] (1966); United States v. Edwards, 366 F.2d 853 (2nd Cir. 1966), Cert. denied 386 U.S. 908, 87 S.Ct. 852, 17 L.Ed.2d 782 (1967).

Appellant's next point...