State v. Estes

• Decision Date: 01 March 1975
• Docket Number: No. 47504,47504
• Citation: 216 Kan. 382,532 P.2d 1283
• Parties: STATE of Kansas, Appellee, v. Lloyd Wayne ESTES, Appellant.
• Court: Kansas Supreme Court

Page 1283

532 P.2d 1283

216 Kan. 382

STATE of Kansas, Appellee, v. Lloyd Wayne ESTES, Appellant.

No. 47504.

Supreme Court of Kansas.

March 1, 1975.

Syllabus by the Court

1. The rules of evidence set forth in the Code of Civil Procedure apply to criminal actions as well as to civil acitions.

2. Under K.S.A. 60-404 a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence, unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.

3. Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal they are not properly before the appellate court for review.

4. In a criminal action where the defendant is charged with aggravated robbery in one count and aggravated kidnapping in another, and the trial court overruled the defendant's motion at the close of the state's evidence to require the state to elect upon which count it was proceeding, the record is examined and it is held: A verdict of guilty on aggravated robbery returned by the jury with a question indicating the jury was having difficulty with the evidence on the aggravated kidnapping count, following which the trial court directed the jury to acquit the defendant of aggravated kidnapping, did not prejudice the defendant by reason of the court's refusal to compel an election at the close of the state's evidence.

Jerry L. Donnelly, Lawrence, argued the cause, and was on the brief for the appellant.

David Berkowitz, County Atty., argued the cause, and Jan Hamer, legal intern, Lawrence, and Curt T. Schneider, Atty. Gen., were with him on the brief for the appellee.

SCHROEDER, Justice:

This is an appeal in a criminal action by Lloyd Wayne Estes (defendant-appellant), from a conviction of aggravated robbery by a jury in violation of K.S.A.1972 Supp. 21-3427.

Trial errors are asserted on appeal for reversal.

On March 27, 1973, at approximately 10:55 p. m., the Frey & Williams Liquor Store, 2324 Louisiana, Lawrence, Kansas, was robbed by two men. Mr. Mike Canella, the clerk working at the liquor store at the time of the robbery, testified that two men entered the store and demanded money from him. The larger of the two men, later identified as Mr. Coffelt, was armed with a gun, and the smaller man whom Mr. Canella identified as the appellant was carrying a can of mace.

After asking for the money the appellant sprayed Mr. Canella in the face twice with the mace, and the two men forced him to lie down in the back room of the liquor store. The men had difficulty in opening the cash register, so they brought Mr. Canella back into the front room to help open it. Mr. Canella testified that the larger man had his tee shirt pulled up over his nose, but the man he identified as the appellant had nothing hiding his face during the robbery. The appellant was no more than fifteen feet from Mr. Canella when the men first entered the store and Mr. Canella had an unimpaired view of the appellant until he was sprayed with mace.

Mr. Frey, the owner of the liquor store, determined that the two men had escaped with $228.05 in cash and one-half gallon of whiskey. Apparently Mr. Canella was the only one who observed the robbery. When the police arrived the two men had left the scene. Robert Avery, a Lawrence police officer who investigated the robbery on the night of its occurrence, testified that Mr. Canella's face was red and his eyes were watery when he arrived.

Two or three days after the robbery detective Carroll Crossfield questioned Mr. Canella at his home and showed him three pictures, one of which was of the appellant, for identification purposes. Mr. Canella stated: 'I had reason to think it was him (picture of appellant) but I was not going to commit myself to a photograph.' Detective Crossfield then stated the appellant was out on bond for a previous armed robbery, and that the appellant was the man they were looking for. Several days later Mr. Canella positively identified the appellant in a lineup held in Topeka as one of the men who robbed the liquor store. He testified:

'. . . That as soon as he saw appellant at the line-up he was positive that appellant was one of the men who had robbed him. That he is a professional photographer and makes pictures of people and can remember faces because of it. That he could have identified the appellant without the line-up. That the people in the line-up were similar in size, bodily frame, complexion, hair and facial features. That he had told Detective Crossfield that he could identify the smaller man of the two that robbed him prior to the line-up.'

Appellant was subsequently charged with aggravated robbery and aggravated kidnapping in connection with the robbery, and was brought to trial before a jury on both charges on June 11, 1973. At the conclusion of the state's evidence, the appellant's counsel moved the court to compel election of one charge or the other. Counsel for the appellant argued the evidence did not support both charges, but the court, viewing the evidence in its most favorable light, overruled the appellant's motion and stated the state was entitled to have both charges submitted to the jury.

The jury was permitted to deliberate on the guilt of the appellant on both counts contained in the amended information. In the course of deliberations the foreman of the jury sent a note to the presiding judge asking the following question:

'According to the law, is it possible to have aggravated armed robbery without kidnapping?'

The trial judge answered:

'The answer to your question is yes.'

The jury was then returned to the jury room and after deliberations submitted a verdict of guilty to the charge of aggravated robbery contained in Count I of the amended information. However, on the charge of aggravated kidnapping in Count II, the jury foreman gave the court a second note reading:

'Jury having difficulty on what Seperates aggravated robbery from kidnapping. According to instructions we understand these to be the Same. Difference isn't clear.'

After reviewing the second note, the trial judge found that the jury should be directed to acquit the appellant of the charge of aggravated kidnapping, 'it having arisen out of the same act of violence as the aggravated robbery.' The jury was so instructed and the appellant was acquitted on the second count. The appellant filed a motion for a new trial claiming the court had erred in allowing the jury to consider both of the counts contained in the amended information, but the motion was summarily overruled.

The appellant's first two points on appeal are stated as follows:

'1. The pre-trial photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification, thereby tainting the subsequent physical lineup and the in-court identification because an insufficient number of photographs were shown to the victim, counsel was not present at said photographic lineup, and statements were made to the victim by the law enforcement officer conducting said photographic lineup that the defendant had a prior record of armed robbery.

'2. The physical lineup identification of the defendant by the victim was inadmissible as evidence and tainted the subsequent in-court identification because it was conducted in an illegal and suggestive manner in that the defendant was forced against his will to participate in said lineup, an insufficient number of other persons were placed in said lineup, said physical lineup was conducted after an illegal and suggestive photographic lineup, the defendant was no represented by counsel at said lineup, and the defendant did not knowingly, understandingly, and voluntarily waive his right to the presence of such counsel.'

The record does not disclose that counsel for the appellant during the trial of this case lodged any objections to matters incorporated in the first two points on appeal. During oral argument before this court the appellant's counsel candidly conceded there was no objection either before trial or during trial to Mr. Canella's testimony as to the identity of the appellant. The motion for new trial set forth in the record does not finger any of the procedures used in the identification process, or disclose any objection to Mr. Canella's testimony identifying the appellant as one of the persons participating in the robbery.

The rules of evidence set forth in the Code of Civil Procedure apply to criminal actions as well as to civil actions. K.S.A. 60-404 is a codification of the state's prior law and provides that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. (State v. Shepherd, 213 Kan. 498, 516 P.2d 945; and Baker v. State, 204 Kan. 607, 464 P.2d 212.)

The appellant in his brief asserts constitutional grounds for reversal on the first two points, but nowhere in the record does it appear that an objection was made in the trial court on constitutional grounds. Therefore, constitutional questions are not properly before us. (State v. Garcia & Bell, 210 Kan. 806, 504 P.2d 172 and authorities cited therein.)

A suspect in a criminal case has no right to have counsel at either a photographic or a physical lineup conducted prior to the filing of formal criminal charges against him. These are not to be considered critical states of the proceeding which give rise to a right to counsel. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; and State v. McCollum, 211 Kan. 631, 507 P.2d 196.) The ...