State v. Mitchell, 51066

Decision Date01 December 1979
Docket NumberNo. 51066,51066
Citation602 P.2d 1383,226 Kan. 776
PartiesSTATE of Kansas, Appellee, v. Jerry MITCHELL, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The Kansas Code of Criminal Procedure contains no provision authorizing a pre-arrest court order directing a suspect to produce handwriting exemplars. However, under the circumstances herein, the district court did not err in denying defendant's motion to suppress evidence of the handwriting exemplars obtained by a pre-arrest court order.

2. Communications by telephone are admissible in evidence where they are relevant to the fact or facts in issue, and admissibility is governed by the same rules of evidence concerning face-to-face conversations except the party against whom the conversations are sought to be used must ordinarily be identified.

3. It is not necessary that the witness be able, at the time of the telephone conversation, to identify the person with whom the conversation was had, provided subsequently identification is proved by direct or circumstantial evidence somewhere in the development of the case.

4. The completeness of the identification of a party to a telephone conversation goes to the weight of the evidence rather than its admissibility, and the responsibility lies in the first instance with the district court to determine within its sound discretion whether the threshold of admissibility has been met.

5. In an appeal from convictions of burglary and felony theft, the record is examined and it is Held : (1) The district court did not err in denying defendant's motion to suppress; (2) the district court did not err in permitting a witness to testify as to a telephone conversation between himself and a man identifying himself as Jerry Mitchell; and (3) the evidence was sufficient to support the conviction.

Richard A. Benjes, of Martindell, Carey, Hunter & Dunn, Hutchinson, argued the cause and was on the brief for appellant.

Joseph L. McCarville, III, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Joseph P. O'Sullivan, County Atty., were with him on the brief for appellee.

McFARLAND, Justice:

This is an appeal by defendant Jerry Mitchell from jury trial convictions of burglary (K.S.A. 21-3715), and felony theft (K.S.A. 21-3701, now 1978 Supp.).

On April 30, 1978, a burglary and felony theft occurred at the C-K Supply Company in Hutchinson, Kansas. During the burglary, a walk-in safe was broken into with the use of tools taken from another part of the premises. There were indications that the burglar was familiar with the burglarized business. In the rubble around the safe, a slip of paper was found on which some words and numbers had been written. The paper was identified as a form provided by the Hutchinson Job Service Office. It was a form used by individuals seeking jobs to write down relevant information on jobs available. The information on the form referred to a truck driving job in Satanta, Kansas. The police learned that defendant had been one of three applicants for the Satanta job. By search warrant the police secured job applications filled out by defendant at three other businesses. The handwriting on these applications was similar to that on the form found at the burglary scene, but the K.B.I. needed additional handwriting exemplars for a positive identification. An assistant county attorney obtained a court order requiring defendant to prepare additional handwriting exemplars. Defendant complied with the order and the K.B.I. positively identified the handwriting on the job form as that of defendant. Defendant was then charged and arrested on the crimes herein. Defendant sought to suppress the handwriting exemplars and the testimony of the K.B.I.'s handwriting expert as far as it was based on the court-ordered exemplars. The motion was overruled.

Defendant, as his first issue on appeal, contends the district court's denial of his motion to suppress was error. Defendant contends that inasmuch as he had not been charged when the order for exemplars was issued, the court ordering the exemplars was without jurisdiction to enter such an order. No constitutional questions are raised on this point.

In order to understand the circumstances as they existed when the order was entered, we must go into considerable detail. Prior to the order relating to the handwriting exemplars, the State had obtained search warrants for the job applications and a search of defendant's home, car and person.

On or about May 9, 1978, the following affidavit was filed:

"I, Joseph L. McCarville, III, Assistant Reno County Attorney, 27th Judicial District, State of Kansas, being of lawful age and duly sworn upon my oath, depose and state:

"That on the 30th day of April, 1978 in Reno County, Kansas a burglary was reported at C & K Supply, Hutchinson, Kansas to the Hutchinson Police Department. Det. John C. Koontz of the Hutchinson Police Department seized as evidence from that burglary some head hairs left on the safe, a walk-in safe that was opened by the burglar and from which removed the loot.

"Now on the 3rd day of May, 1978 at 12:15 P.M. Det. Sgt. Steven G. Bayless of the Reno County Sheriff's Office obtained a Search Warrant from Judge Richard J. Rome for the premises of 928 East 2nd and the car owned by Jerry Mitchell based upon the affidavit which is attached hereto and is hereby incorporated by reference. I believe that the allegations contained in that affidavit are true and was present while Det. Sgt. Bayless swore to their truth. Further, that that affidavit shows probable cause that Jerry Mitchell was the person who committed the burglary at C & K Supply on the 30th day of April, 1978 in Reno County, Kansas.

"Therefore, I respectfully request the Court to issue a Search Warrant for the person of Jerry Mitchell to seize head hairs to be used compared to the head hairs obtained by Det. Koontz at the scene of the burglary at C & K Supply."

Attached to the McCarville affidavit and made a part of it was the following unexecuted "affidavit" of Sergeant Bayless:

"I, Steven G. Bayless, Detective Sgt., Reno County Sheriff's Department, being of lawful age and duly sworn upon my oath, depose and state:

"That on the 16th day of April, 1978, in Reno County, Kansas a burglary at Western Manufacturing Company address Wasp Lane at the old Naval Base was reported and I investigated. I discovered that entry had been gained by forcing a door, that tools belonging to Western Manufacturing had been used to punch a safe containing money and credit cards, that $55.00 in cash was taken, that a Sears and Roebuck microwave oven rotisserie valued at $275.00 was taken, that no finger prints were left on the scene by the perpetrators, that filing cabinets inside the premises were pried and half inch wide pry marks were left from unknown type instrument, the tools used to open the safe were left at the scene and a spit from the rotisserie that was taken was left behind.

"On the 30th day of April, 1978, in Reno County, Kansas a burglary was reported at C & K Supply in Hutchinson, Kansas to the Hutchinson Police Department. In that burglary no fingerprints were left, tools belonged to the business were used to open the safe which was punched, and the tools were left behind, money taken from the safe included $60.00 in change plus change from the coffee and pop machine fund totaling some $70.00 in change, a strip of plaid cloth was left behind on a sharp edge of the safe, and the point of entry was made by forcing the door into the warehouse.

"That I know an individual by the name of Jerry Mitchell who has been convicted for safe burglaries and has the following modus operandi: He usually punches safes once in a while will peel them, usually only takes money, he usually works alone although uses one partner, gains entry to the building wherever it requires the least physical effort such as vents, doors or windows, uses tools belonging to the business if they are available, and leaves them at the scene, and usually does not leave fingerprints by the use of gloves or some other means. Also Mitchell usually has personal knowledge of the location to be burglarized from either having worked there or been inside or having someone that knows the place.

"Jerry Mitchell worked for C & K Supply for three weeks in January of 1978 and he also worked for Western Manufacturing for three weeks in March of 1978. On the day after the burglary of Western Manufacturing in which $25.00 in change was taken approximately Jerry Mitchell cashed in $27.00 in change at Riverside Bowling Alley in South Hutchinson, Kansas. On the day after the C & K Supply burglary in which approximately $70.00 in change was taken Jerry Mitchell cashed in $76.00 in change at Riverside Bowling Alley in South Hutchinson. Jerry Mitchell was in the vicinity of the Western Manufacturing burglary on the evening of the burglary because he had his car break down down there and made a collect call to the Riverside Bowling Alley in South Hutchinson, Kansas to have someone go down and pick him up."

On May 10, 1978, McCarville filed the following affidavit in support of his motion for the order requiring defendant to produce handwriting exemplars:

"I, Joseph L. McCarville, III, Assistant Reno County Attorney, 27th Judicial District, State of Kansas, being of lawful age and duly sworn upon my oath, depose and state:

"That on or about the 30th day of April, 1978, in Reno County, Kansas, C & K Supply reported to the Hutchinson Police Department that a burglary had occurred and approximately $1,600.00 in cash was taken from their walk-in vault. An investigation by Det. J. C. Koontz of the Hutchinson Police Department revealed that a small slip of paper was found in the debris of the point of entry into the safe. That on this paper were written several letters and numbers which Det. Koontz has compared with known samples of the handwriting of Jerry...

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1 cases
  • Handwriting Exemplar of Casale, In re
    • United States
    • Pennsylvania Superior Court
    • 16 d3 Janeiro d3 1985
    ...arrested, and had not been directed to appear before an investigative agency pursuant to statutory authority), with State v. Mitchell, 226 Kan. 776, 602 P.2d 1383 (1979) (state district court did not err in denying defendant's motion to suppress handwriting exemplars where although there wa......

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