State v. Roadenbaugh

• Decision Date: 02 December 1983
• Docket Number: No. 55466,55466
• Citation: 234 Kan. 474,673 P.2d 1166
• Parties: STATE of Kansas, Appellee, v. Michael A. ROADENBAUGH, Appellant.
• Court: Kansas Supreme Court

Page 1166

673 P.2d 1166

234 Kan. 474

STATE of Kansas, Appellee, v. Michael A. ROADENBAUGH, Appellant.

No. 55466.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. Before giving the Miranda warning, the arresting officer herein, for his own protection, had the right to inquire as to the location of a weapon and such inquiry is not violative of the suspect's Fifth Amendment right against self-incrimination.

2. There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. The presumption is rebutted when evidence is introduced which could raise a reasonable doubt concerning a person's sanity and the question of sanity then becomes a question for the jury, assisted by proper instructions.

3. In an appeal from a conviction of second-degree murder, the record is examined and it is held the trial court did not err in: (1) refusing to suppress a gesture and statement made to the arresting officer relative to the location of a weapon; (2) refusing to grant a mistrial or new trial on the grounds of prosecutorial misconduct; (3) overruling defendant's motion for acquittal or for new trial based on insufficiency of the evidence; and (4) the giving of the instructions.

Janet S. Helsel of Offices of Otto J. Koerner, Wichita, was on the brief for appellant.

Geary N. Gorup, Asst. Dist. Atty., Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

McFARLAND, Justice:

Michael A. Roadenbaugh appeals his jury trial conviction of second-degree murder (K.S.A. 21-3402). The victim was defendant's mother, Mrs. Vivian Lawson. It is undisputed defendant killed Mrs. Lawson on October 21, 1981, in her Wichita residence. An insanity defense was presented at trial (K.S.A. 22-3219).

The first issue is whether the trial court erred in admitting a statement made by the defendant to the arresting officer.

Some additional facts relative to the slaying need to be stated. On October 19, 1981, defendant moved into the residence of his mother and stepfather (Vivian and Virgil Lawson). Defendant had a history of mental difficulties and alcohol abuse. When Mr. Lawson returned home from work at approximately 4:00 p.m. on October 21, 1981, he discovered the body of his wife. She had been shot twice--once in the chest and once in the back. The defendant was not in the home. An ambulance was summoned by Mr. Lawson and a police officer followed the ambulance to the scene.

Mr. Lawson advised the officer he owned a .22 caliber revolver and the officer observed the same in a bedroom drawer. Two empty .357 caliber cartridges were on a coffee table in the living room. Mr. Lawson advised the officer he did not own a weapon the empty cartridges would fit, but defendant might own such a gun. Mr. Lawson also gave the officer information concerning the defendant which caused the officer to believe defendant was a suspect in the slaying. The police dispatcher broadcast a physical description of defendant, his name, and the fact he might be carrying a brown suitcase. The broadcast further advised defendant might be armed with a .38 or .357 caliber revolver and stated he was a suspect in a homicide.

Later the same day, a police officer who had heard the broadcast saw a man fitting the description, carrying a suitcase, approaching the City Building at 455 North Main in Wichita. The officer asked the man to state his name and the man identified himself as Michael Roadenbaugh. Upon being requested to do so by the officer, defendant put the suitcase on the ground and placed his hands on the west wall of the City Building. The officer started patting defendant down and inquired "where his weapon was." The officer testified he made the inquiry for his own protection. In response to the question defendant removed his right hand from the wall and pointed toward the suitcase. Additionally, he verbally stated the weapon was in the suitcase. The officer then finished patting down the defendant, handcuffed him, picked up the suitcase, and accompanied defendant to police department offices in the City Building.

The defendant objected to the officer being permitted to testify as to defendant's gesture and verbal statement relative to the location of the gun. Defendant contends the officer's question which occasioned these responses was a custodial interrogation without benefit of a Miranda warning and hence was violative of his Fifth Amendment right against self-incrimination.

We do not agree.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), 10 A.L.R.3d 974, the U.S. Supreme Court in its landmark decision proclaimed:

"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612.

Miranda, however, does not stand for an absolute proposition law enforcement officers may never ask a citizen any question without previously informing the citizen of his constitutional rights, such as the right to remain silent. As the Miranda court observed, "[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement." 384 U.S. at 477-78, 86 S.Ct. at 1613-14.

A question propounded by a law enforcement officer during investigatory questioning, as contrasted to during custodial interrogation, does not require the previous giving of a Miranda warning. In State v. Bohanan, 220 Kan. 121, 551 P.2d 828 (1976), the Court, through Justice Prager, distinguished between custodial and investigatory interrogation as follows:

"Since Miranda this court has developed a number of general guidelines to be applied in determining whether or not a custodial interrogation has taken place. In State v. Brunner, 211 Kan. 596, 507 P.2d 233, we held that a person who has not been arrested is not in police custody unless there are significant restraints on his freedom of movement which are imposed by some law enforcement agency. We have also declared that a general questioning of citizens in the course of an investigation in the fact finding process does not constitute custodial interrogation. We defined an investigatory interrogation as the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. (State v. Frizzell, 207 Kan. 393, 485 P.2d 160.) In State v. Carson, 216 Kan. 711, 533 P.2d 1342, Syl. 5, we suggested that circumstances bearing on whether a person questioned was subjected to 'custodial interrogation' requiring Miranda warnings can be classified under the following general headings: (1) The nature of the interrogator; (2) the nature of the suspect; (3) the time and place of the interrogation; (4) the nature of the interrogation; and (5) the progress of the investigation at the time of interrogation. In Carson we also stated that the fact a suspect is the focus of an investigation, standing alone, does not trigger the need for a Miranda warning but it may be one of the determinative factors in arriving at a decision whether such a warning is needed." 220 Kan. at 128-29, 551 P.2d 828.

Summarizing a decade of case law on this matter, this court, in State v. Taylor, 231 Kan. 171, 642 P.2d 989 (1982), recently observed:

"The admissibility of appellant's statements depends upon whether they were the result of a 'custodial interrogation' or an 'investigatory interrogation.' A custodial interrogation, which requires that Miranda warnings be given, involves 'significant restraints on [a subject's] freedom of movement which are imposed by some law enforcement agency.' State v. Greenberg, 4 Kan.App.2d 403, 405, 607 P.2d 530, rev. denied 228 Kan. 807 (1980); State v. Brunner, 211 Kan. 596, Syl. p 2, 507 P.2d 233 (1973). In State v. Bohanan, 220 Kan. 121, 128, 551 P.2d 828 (1976), it was recognized, 'that general on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact finding process does not constitute custodial interrogation requiring a Miranda warning.' An investigatory interrogation, requiring no warning, is defined as 'the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way.' 220 Kan. at 128 [551 P.2d 828]." 231 Kan. at 172-73, 642 P.2d 989.

However, we do not believe the question of custodial or investigatory interrogation even arises in the circumstances herein. The officer had a clear right, for personal safety purposes, physically to search the defendant for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also K.S.A. 22-2402(2). In so doing it is permissible to spread eagle a suspect for the pat down or frisk and then feel the suspect's person for weapons. Surely a verbal question as to the location of a weapon is far less intrusive upon a suspect.

A similar issue was presented in People v. Toler, 45 Mich.App. 156, 206 N.W.2d 253 (1973). In addressing the propriety of the police officer's question about the location of the firearm, the Michigan Court of Appeals said:

"There is no dispute here concerning the issue of custody or lack of...