State v. Meeks, 45491

• Decision Date: 09 May 1970
• Docket Number: No. 45491,45491
• Citation: 205 Kan. 261,469 P.2d 302
• Parties: STATE of Kansas, Appellee, v. Ray Emerson MEEKS, Appellant.
• Court: Kansas Supreme Court

Page 302

469 P.2d 302

205 Kan. 261

STATE of Kansas, Appellee, v. Ray Emerson MEEKS, Appellant.

No. 45491.

Supreme Court of Kansas.

May 9, 1970.

Syllabus by the Court

1. Where one is arrested as a suspect for having committed a crime and the apprehending officer explains the constitutional rights of the suspect to him prior to interrogation strictly in accordance with the Miranda decision, and the suspect understands his constitutional rights and knowingly and intentionally waives such rights and makes a confession, he cannot later be heard to say that the warning given to him was insufficient when the confession is presented in evidence.

2. Where one is arrested as a suspect for having committed robbery in the first degree, and immediately upon apprehension, approximately four hours after the offense, is returned to the scene by the apprehending officers and identified by the victim, the accused's constitutional right to counsel has not been infringed.

3. Where the identification of the defendant in a criminal action is no longer a controversial issue in the trial of the case by reason of the defendant's confession, subsequent curtailment by the trial court of the defendant's cross-examination of an identification witness is not reversible error.

4. On review in a criminal action alleged errors regarding the giving of instructions are examined, as more particularly set forth in the opinion, and found to be without sufficient merit to warrant a reversal.

Russell Shultz, Wichita, argued the cause and was on the brief for appellant.

Reese C. Jones, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.

SCHROEDER, Justice.

This is an appeal by the defendant in a criminal action from a conviction of robbery in the first degree pursuant to K.S.A. 21-527.

Various trial errors are asserted on appeal.

The evidence disclosed that Ray Emerson Meeks (defendant-appellant) robbed Douglas McNaught, the attendant at a Derby filling station in Wichita, Kansas, located at 2014 East Central Street. At approximately 7 a.m. on December 3, 1967, the appellant arrived at the station in his automobile. He requested a scraper for his windshield which McNaught gave him. When McNaught went to wait on other cars the appellant left. Shortly thereafter, the appellant returned and came into the station where the appellant at gunpoint demanded money from McNaught. He was given approximately $115 in cash. A customer then arrived and both men went out to wait on the car. At this time the appellant had the gun in his pocket. After waiting on the customer they went back into the station where the appellant searched for a gun that he thought was located in the station. The appellant contemplated taking the attendant's automobile, the operation of which the attendant explained to the appellant, but he decided not to because he would be picked up too easily in it. The appellant also instructed the attendant not to identify him if he saw him again. The appellant then left on foot.

The police after notification took a report from the attendant, and at approximately 11 a.m. spotted a car of the description given them located outside a residence at 707 North Piatt in Wichita. Shortly thereafter a man matching the description the attendant had given emerged from the residence at 707 North Piatt. He was accosted by Officer Malone, and while sitting in the officer's car the appellant was advised of his constitutional rights. The appellant indicated he understood his rights and that he would talk with the officer, but denied any knowledge of the robbery. Thereafter W. T. Shackelford, a detective in the Wichita police department, arrived on the scene and took the appellant in his automobile. Shackelford also advised the appellant of his rights before questioning him. The police officers then took the appellant to the scene of the robbery where the attendant identified the appellant as the one who committed the robbery. As they approached the police station the appellant stated he wished to talk to the officers, and he subsequently admitted the robbery. He then executed a waiver of search and two detectives returned to the appellant's residence with the appellant.

At the residence the appellant let the officers in the back door and took them to the basement, where he showed the officers a trunk which contained the money taken in the robbery. He also showed them the gun used in the robbery. It was recovered from the dresser drawer in the basement at the residence.

The appellant contends the trial court erred in admitting into evidence his conversations statements, confession and admissions.

It is argued the foregoing evidence was obtained without a sufficient warning having been given to the appellant of his rights, and that such evidence was therefore inadmissible and could not be used against him. Objections asserted by the appellant concerning the admission of this evidence at the trial were all overruled.

Police Officer Malone testified he was the officer responding to the call concerning the robbery in question, and took from his billfold a card containing the Miranda warning which he read to the appellant as follows:

'You have the right to remain silent, anything you say can and will be used against you in a court of law. You have a right to talk to a lawyer and have him present with you while you are being questioned. If you cannot hire a lawyer the Court will appoint one for you. Do you understand each of these rights I have explained to you? Having these rights in mind do you wish to talk to us now?'

Officer Malone said the appellant replied that he understood his rights.

Detective Shackelford testified he met the appellant while in the custody of Officer Malone and took custody of him; that he read from a card in his pocket verbatim the Miranda warning, and after each statement contained therein he asked the appellant if he understood, to which the appellant responded in the affirmative.

Detective Shackelford said as he and Officer Malone drove the appellant to the police station the appellant said he would tell them all about it; the appellant said, 'You have been nice.'

The trial judge found the full disclosure made by the appellant was voluntary, and the exhibits introduced in evidence were all voluntarily made available to the officers investigating the crime, after the appellant had properly been advised of his constitutional rights.

Counsel for the appellant argues the warning to the appellant-that an attorney would be appointed by the court if he could not hire one-failed to disclose to the appellant that he was entitled to the appointment of counsel prior to questioning. He argues the obvious conclusion taken from the warning would be that, 'you're not in court now but that if we ever get to court the court will appoint you a lawyer since you cannot afford one yourself.' He relies on Gilpin v. United States, 415 F.2d 638 (5th Cir. 1969). There the warning given advised the defendant that an attorney would be appointed for him when he went to court, but not before interrogation, and this was held to be insufficient under Miranda.

The warning given by the officers here complied literally with the decision in Miranda. We thing the construction placed upon the warning here given by counsel for the appellant is unwarranted, and his point lacks merit.

In addition to advising one suspected of crime of his rights, the state has the burden to show that the suspect understood those rights and that he knowingly and intentionally waived his privilege against self incrimination.

The record in this case discloses the state sustained the burden cast upon it to the satisfaction of the trial court, and the evidence sustains the trial court's finding and conclusion.

Before any statements were taken from the appellant he was warned twice of his rights strictly in accordance with the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The record here discloses none of the evils of custodial interrogation that Miranda delineated. The appellant was not subjected to long hours of interrogation or repeated interrogation sessions. No pressure or threats were used against him. The testimony of Detective Shackelford discloses the appellant was in full possession of his faculties, knew what his rights were, and voluntarily waived those rights.

It is next contended the trial court erred in limiting the cross-examination of Detective Shackelford by counsel for the appellant.

On cross-examination Detective Shackelford testified that on the way to the police station from the home of the appellant shortly after his arrest, they stopped by the Derby filling station where the robbery took place and permitted McNaught, the victim of the robbery, to observe the appellant. Counsel for the appellant thereupon attempted to cross-examine Detective Shackelford as to the method of identification attempted at that time, but the court refused to permit such examination. It is argued this action of exhibiting the appellant to the only identification witness available at a time, when he was in the custody of two police officers, in their police vehicle, was clearly a violation of the due process clause, and was the type particularly proscribed by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

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