State v. Porter

• Decision Date: 05 November 1977
• Docket Number: No. 48763,48763
• Citation: 574 P.2d 187,223 Kan. 114
• Parties: STATE of Kansas, Appellee, v. Bobby Earl PORTER, Appellant.
• Court: Kansas Supreme Court

Page 187

574 P.2d 187

223 Kan. 114

STATE of Kansas, Appellee, v. Bobby Earl PORTER, Appellant.

No. 48763.

Supreme Court of Kansas.

Nov. 5, 1977.

Syllabus by the Court

1. Under K.S.A. 22-3609 a denial of a defendant's motion for a lineup is not an order appealable to the district court.

2. A defendant does not have a constitutional right to be placed in a lineup.

3. A defendant does not have a constitutional right to have counsel present at a photographic display, either before or after charges have been filed.

4. In the absence of a showing media publicity created prejudice in the community to the extent that defendant could not obtain a fair and impartial trial, it is not error to deny a motion for a change of venue.

5. A defendant is not entitled to a separate instruction on identity.

6. An accused may waive the right to have counsel present during a police interview, both before and after formal charges are filed.

7. In an appeal from convictions for first degree murder and aggravated robbery, the record is examined and it is held : The trial court did not err in (1) refusing to order a lineup; (2) not requiring presence of counsel at a photographic display; (3) denying a motion for change of venue; (4) denying a separate instruction on identity; and (5) admitting a statement defendant made to police.

Charles M. Tuley, of May & Tuley, Atchison, argued the cause and was on the brief for appellant.

Thomas F. Werring, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

OWSLEY, Justice:

This is a direct appeal from jury verdicts of guilty of first degree murder (K.S.A. 21-3401) and aggravated robbery (K.S.A. 21-3427).

On Memorial Day, 1975, the owner of a small convenience store in Atchison, Kansas, was gunned down during a robbery. The facts of the crime are unimportant to this appeal. Suffice it to say a description of the robber was spread into the community and nearby states. After several leads were investigated a warrant was issued for the arrest of defendant. On July 10, 1975, defendant was transported from Little Rock, Arkansas, to stand trial. We have condensed the many points of error asserted by defendant.

I. Pretrial Identification

Defendant was formally arraigned on July 11, 1975. Counsel was appointed. Subsequently, several witnesses were shown a display of six photographs, one being defendant. Neither defendant nor his counsel was present. At a later date counsel made a motion before the city court for a lineup. This request was denied. Defendant appealed the ruling to the district court, whereupon the appeal was dismissed.

Defendant first argues it was error for the district court to dismiss the appeal on the issue of his right to a lineup, relying on K.S.A. 22-3609 (now K.S.A. 1976 Supp. 22-3609 and 22-3609a). Prior to the creation of our court of appeals the statute read:

"(1) The defendant shall have the right to appeal to the district court of the county from any judgment of a court of limited jurisdiction or a municipal or police court which adjudges the defendant guilty of a violation of the laws of Kansas or the ordinances of any municipality of Kansas or which imposes a sentence of fine or confinement or both. . . ."

Defendant claims the refusal to permit a lineup amounted to a finding of guilt. We cannot agree.

The city court had jurisdiction of the matter only for purposes of conducting a preliminary hearing. This court has often stated that a preliminary hearing is not a trial of a defendant's guilt; it is rather an inquiry into whether the defendant should be held for trial. (State v. Holloway, 219 Kan. 245, 547 P.2d 741; State v. Smith, 215 Kan. 34, 523 P.2d 691; State v. Bloomer, 197 Kan. 668, 421 P.2d 58, cert. denied, 387 U.S. 911, 87 S.Ct. 1697, 18 L.Ed.2d 631; State v. Earley, 192 Kan. 167, 386 P.2d 189; In re Mortimer, 192 Kan. 164, 386 P.2d 261.) In such cases the magistrate or city judge has no power to determine guilt or innocence but only to determine whether a felony has been committed and whether there is probable cause to believe the accused committed it. (State v. Boone, 218 Kan. 482, 485, 543 P.2d 945, reh. denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811.)

Because appellate jurisdiction to the district court exists only when allowed by statute (Landscape Development Co. v. Kansas City P. & L. Co.,197 Kan. 126, 415 P.2d 398; Williams v. Seymour Packing Co., 174 Kan. 168, 175, 254 P.2d 248; Kowing v. Douglas County Kaw Drainage Dist.,167 Kan. 387, 207 P.2d 457), the district court had no jurisdiction to take the appeal. Defendant's remedy was to appeal the denial of the lineup to this court once he had been adjudged guilty. (See, State v. Wallace, 172 Kan. 734, 243 P.2d 216; State v. Edwards, 35 Kan. 105, 10 P. 544.)

The defendant did not have a constitutional right to be placed in a lineup (Dunlap v. State, 212 Kan. 822, 512 P.2d 484; Reedy v. State, 210 Kan. 793, 504 P.2d 146); thus, it was not error for the lower courts to deny his request.

Defendant urges Kansas to adopt the rule set forth in Evans v. Superior Court, 11 Cal.3d 617, 114 Cal.Rptr. 121, 522 P.2d 681 (1974), and State v. Boettcher, 338 So.2d 1356 (La.1976). These cases recognized that a defendant has no right to be placed in a lineup, but held that a district court has broad discretion in allowing a lineup when the identification of the defendant is shown to be a material issue, when there is a great likelihood the visual identification of the witnesses may not be reliable, and when a lineup would tend to resolve the issue.

We have examined the cases cited and conclude the facts of this case do not justify a lineup, even if the cases were adopted as the law of this state, an issue we need not decide at this time. Witnesses gave police an extensive description of defendant, his clothing and the getaway car. Three witnesses picked defendant from a photographic display. While identity was at issue, it cannot be said there was a reasonable likelihood of a mistaken identification which required a lineup.

Defendant also contends he was deprived of his right to counsel during the photographic display, relying on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The Wade-Gilbert-Stovall trilogy of cases gives defendant a right to counsel at a lineup held after prosecution had commenced. The right to have counsel present at a photographic display, even after charges have been filed, does not exist. (State v. Clark, 218 Kan. 726, 544 P.2d 1372; State v. Anderson, 211 Kan. 148, 505 P.2d 691; United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619.)

Finally, defendant argues the photographic display tainted the witnesses' in-court identification. Despite defendant's argument to the contrary, our examination of the photographs reveals nothing suggestive about them. Further, there is nothing in the record to indicate police officers suggested any witness pick a particular photograph or that the photographic display was conducted in such a way as to be suggestive. As a result of the display one witness positively identified defendant as the robber, two witnesses thought defendant was the robber, while one witness could not pick anyone. Defense counsel had the opportunity at trial to attempt to shake the witnesses' identification of defendant by cross-examination designed to attack their memories or demonstrate to the jury any suggestiveness of the photographic displays.

II. Change of Venue

Prior to trial defendant requested a change of venue. In support of his motion he filed copies of numerous newspaper articles and radio stories concerning the crime. Defendant also offered his own affidavit concluding he could not get a fair trial within fifty miles of Atchison County.

A change of venue in a criminal case lies within the sound discretion of the trial court. (Green v. State, 221 Kan. 75 558 P.2d 110; State v. Gander, 220 Kan. 88, 551 P.2d 797.) The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. (State v. Gander, supra; State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255; State v. Randol, 212 Kan. 461, 513 P.2d 248.) Media publicity alone has never established prejudice per se. Defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury. (State v. Black, 221 Kan. 248, 559 P.2d 784; Green v. State, supra; State v. Gander, supra; State v. Cameron & Bentley, supra; State v. Platz, 214 Kan. 74, 519 P.2d 1097; State v. Randol, supra.) A brief affidavit which states only conclusions is not sufficient to support a change of venue. (State v. Black, supra; State v. Holsey, 204 Kan. 407, 464 P.2d 12.)

III. Identification Instruction

Defendant contends he was entitled to a separate instruction on identity. The same argument was advanced and rejected by this court in State v. Robertson, 221 Kan. 409, 559 P.2d 810; State v. Wilson, 221 Kan. 92, 558 P.2d 141, and State v. Ponds and Garrett,...