State v. McCorgary

• Decision Date: 13 December 1975
• Docket Number: No. 47813,47813
• Citation: 218 Kan. 358,543 P.2d 952
• Parties: STATE of Kansas, Appellee, v. Thomas Leo McCORGARY, Appellant.
• Court: Kansas Supreme Court

Page 952

543 P.2d 952

218 Kan. 358

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

No. 47813.

Supreme Court of Kansas.

Dec. 13, 1975.

Syllabus by the Court

1. In Kansas a criminal prosecution may be deemed commenced upon filing complaint and issuance of warrant.

2. After a criminal prosecution has been commenced a defendant is as much entitled to aid of counsel as at the trial itself, absent a voluntary and knowing waiver.

3. When the police or other state officers surreptitiously place a defendant in a cell with an informer for the purpose of obtaining information concerning pending charges in the absence of counsel, such action by the police contravenes the basic dictates of fairness in the conduct of criminal causes and violates the fundamental rights afforded by the presence of counsel. (Following Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.)

4. The testimony of a police informer concerning incriminating statements made by the defendant while in jail pending charges is not admissible at defendant's trial if the information has been surreptitiously obtained by prior arrangements between the police and the informer.

5. The record of conviction on aggravated robbery and second degree murder charges is examined and it is held: (1) The trial court erred in failing to suppress the testimony of a police informer; (2) The court did not err in permitting the jurors to view a scene of the crime; (3) The court erred in instructing the jury on evidence tending to show consciousness of guilt; (4) No instruction on certain lesser included crimes was required by the evidence; (5) The two verdicts returned on separate crimes were not irreconcilable and should not be reversed on grounds of inconsistency; (6) No instruction on the defense of intoxication was required by the evidence; (7) The newspaper publicity before the trial did not per se justify a change of venue; and (8) The court did not err in overruling a motion for acquittal.

Michael E. Foster, Valley Center, argued the cause, and D. Keith Anderson, Valley Center, was with him on the brief for the appellant.

Robert L. Kennedy, Jr., Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., were with him on the brief for the appellee.

FROMME, Justice:

Thomas Leo McCorgary appeals from two convictions, second degree murder (K.S.A. 21-3402) and aggravated robbery (K.S.A. 21-3427).

Appellant's first point of error concerns the admission in evidence of the testimony of David Elliott, a police informer, with whom appellant was incarcerated while awaiting trial on the criminal charges. Elliott by prior arrangement with the police agreed to obtain information from McCorgary concerning the whereabouts of the murder victim's body and any other information that might be helpful to the prosecution. This prior secret arrangement was made after a complaint had been filed and warrant had been issued. When McCorgary was arrested he was taken before a magistrate and an attorney was appointed for him. He was then placed in an eight man cell. Elliott was one of his cellmates. During the next few days Elliott made friendly overtures to McCorgary. Elliott was a person who might be referred to as a 'jailhouse lawyer'. He gave free advice to other cellmates on their legal problems. During this time another cellmate asked Elliott about his legal problems. Thereafter McCorgary sought his advice and asked Elliott if the police could convict a person of murder if they couldn't find the body of the victim. Later McCorgary heard a radio report that the body of Karl Williams had been found. He became agitated, sought out Elliott and asked what the police would need to identify a body. Elliott then obtained a number of incriminating statements from McCorgary including a verbal confession in which McCorgary disclosed he had killed Williams by striking him on the head with a steel rod and had buried the body in a grove of trees near the steel plant where he and Williams had been employed. He admitted taking the victim's car.

Prior to trial appellant McCorgary filed a motion to suppress Elliott's testimony. The motion was denied. At the trial appellant renewed his objection to Elliott's testimony. A hearing, as required by K.S.A. #22-3215, was held to determine the admissibility of the testimony. The trial court determined that these oral statements made to Elliott were voluntary and not a product of interrogation on Elliott's part. They were admitted in evidence through the testimony of Elliott.

On appeal appellant contends that Elliott's statement should have been suppressed under the rule announced by the Supreme Court of the United States in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. Appellant's argument is persuasive.

In Massiah the defendant had been arrested and indicted on a federal narcotics charge. While free on bail Massiah engaged in conversation with a co-defendant who had previously agreed to cooperate with the narcotic agents. This conversation was surreptitiously monitored by a federal agent. The agent testified at trial and recounted Massiah's incriminatory admissions made during the conversation between Massiah and the co-defendant. On appeal the testimony of the agent who monitored the conversation was ordered suppressed by the Supreme Court for the reason that Massiah was denied his Sixth Amendment right to assistance of counsel. In Massiah the Supreme Court, speaking of the Sixth Amendment right to assistance of counsel, stated:

'. . . We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. . . .' (377 U.S. at p. 206, 84 S.Ct. at 1203.)

In ordering the testimony of the government agent suppressed, the Supreme Court relied on Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265. The Massiah court stated that, although the Spano confession was suppressed on the totality of the circumstances, four concurring Justices had pointed out in a concurring opinion that the constitution required reversal of the Spano conviction upon the sole and specific ground that the confession had been deliberately elicited by the police after the defendant had been indicted, and therefore at a time when Spano was clearly entitled to a lawyer's help. It was stated that under our system of justice the most elemental concepts of due process of law contemplate that, after an indictment is found, a defendant is entitled to the protection of all procedural safeguards, including the aid of counsel. Any secret interrogation of the defendant from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and violates the fundamental rights of a person charged with crime.

In Kansas a criminal prosecution may be deemed commenced upon filing complaint and issuance of warrant. (State v. Cashman, 174 Kan. 272, Syl. 3, 255 P.2d 660; State v. Hemminger, 210 Kan. 587, Syl. 2,502 P.2d 791.) After a criminal prosecution has been commenced a defendant is as much entitled to aid of counsel as at the trial itself, absent a voluntary and knowing waiver. K.S.A. 22-4503 provides:

'A defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings against him. . . .'

In State v. Melton, 207 Kan. 700, 486 P.2d 1361, and State v. Armstrong, 207 Kan. 681, 486 P.2d 1322, it is pointed out that a defendant may effectively waive the right to counsel but to be an effective waiver the record must plainly show the accused intelligently and understandingly rejected the assistance of counsel. It can hardly be said that a voluntary and knowing waiver of the assistance of counsel occurred under the circumstances of this case where by secret prearrangement the accused is placed in a cell with a police informer.

The state in the present case contends that the 'Massiah exclusionary rule' applies only to post-indictment statements which are deliberately elicited by police officers or their agents. The state further argues that there was no interrogation of McCorgary by Elliott, and that the trial court's findings that Elliott neither interrogated nor elicited information from appellant are binding on this court. We will assume the court's findings on this subject are supported by substantial evidence and accept the latter premise.

Before examining the question it should be noted the exclusionary rule declared in Massiah does not apply to voluntary statements of a defendant which are made to private citizens. (People v. Smith, 5 Ill.App.3d 642, 283 N.E.2d 736.) It has been held that if a defendant is injudicious in his conversations with fellow prisoners and the latter without prior arrangements with the police take it upon themselves to tell police officials of these conversations such conversations are admissible in evidence. (United States v. Aloisio, 440 F.2d 705 (7th Cir. 1971), cert. den. 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51; United States v. Casteel, 476 F.2d 152 (10th Cir. 1973); Milani v. Pate, 425 F.2d 6 (7th Cir. 1970), cert. den. 400 U.S. 867, 91 S.Ct. 109, 27 L.Ed.2d 107.)

In support of its position, that the 'Massiah exclusionary rule' does not apply to voluntary post-indictment statements made to a police informer, the state cites People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16 (1963), cert. den. 375 U.S. 994, 84 S.Ct. 634, 11 L.Ed.2d 480, rehr. den. 376 U.S. 939, 84 S.Ct. 794, 11 L.Ed.2d 660. Certiorari was denied in that case on January 1, 1964. A rehearing was...