State v. Mitchell, 51066
Decision Date | 01 December 1979 |
Docket Number | No. 51066,51066 |
Citation | 602 P.2d 1383,226 Kan. 776 |
Parties | STATE of Kansas, Appellee, v. Jerry MITCHELL, Appellant. |
Court | Kansas 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.
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:
Attached to the McCarville affidavit and made a part of it was the following unexecuted "affidavit" of Sergeant Bayless:
On May 10, 1978, McCarville filed the following affidavit in support of his motion for the order requiring defendant to produce handwriting exemplars:
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Handwriting Exemplar of Casale, In re
...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......