State v. Smith

• Citation: 224 Kan. 662,585 P.2d 1006
• Decision Date: 28 October 1978
• Docket Number: No. 49046,49046
• Parties: STATE of Kansas, Appellee, v. Jerry Wayne SMITH, and Carol J. Miller, Appellants.
• Court: United States State Supreme Court of Kansas

Page 1006

585 P.2d 1006

224 Kan. 662

STATE of Kansas, Appellee, v. Jerry Wayne SMITH, and Carol J. Miller, Appellants.

No. 49046.

Supreme Court of Kansas.

Oct. 28, 1978.

Syllabus by the Court

In an appeal from a conviction of aggravated robbery (K.S.A. 21-3427), aggravated kidnapping (K.S.A. 21-3421), and three counts of kidnapping (K.S.A. 21-3420), resulting from defendants' acts during a robbery of the Fourth National Bank of Wichita, the record is examined and it is Held : The trial court did not err in finding (1) there was a basis in the evidence for a reasonable inference of guilt, (2) there was probable cause to arrest and the search was not illegal, (3) the admission of the federal court transcript did not result in prejudicial error, (4) the crimes of kidnapping and aggravated kidnapping are not incidental to aggravated robbery and also duplicity was not disclosed, (5) double jeopardy did not result from a prosecution in federal court, (6) the defendants' rights to a speedy trial were not denied, (7) a severance should be denied, (8) defendant Miller was not denied effective assistance of counsel, (9) the instructions to the jury were proper, (10) the defendants were not deprived of a fair trial because of the failure to poll the jury, and (11) prejudicial error did not result from the prosecutor's remarks to the jury.

William A. Wells, Wichita, argued the cause and was on brief, for appellant Carol J. Miller.

Clyde Wendelken, Wichita, argued the cause, and appellant Jerry Wayne Smith was on brief, pro se.

Stuart W. Gribble, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen. and Vern Miller, Dist. Atty., were with him on brief, for appellee.

OWSLEY, Justice:

This is an appeal by defendants Jerry Wayne Smith and Carol J. Miller from a jury verdict finding them guilty of aggravated robbery (K.S.A. 21-3427), aggravated kidnapping (K.S.A. 21-3421), and three counts of kidnapping (K.S.A. 21-3420). These convictions resulted from defendants' acts during a robbery of the Fourth National Bank in Wichita.

On January 6, 1975, Isaac Linder was making routine early morning rounds at the Fourth National Bank in Wichita when he was accosted by two men, hit on the head with a pistol, and his gun, flashlight and keys were taken. He was forced into the bank where his hands were tied behind him with wire and his face was covered. The assailants were wearing ski masks and gloves. One of the assailants was wearing a black hat with white trim, plaid pants, and tennis shoes.

During the next few minutes other employees arrived Robert Marts, Margaret Sanchez and Etta Bloomcamp. They were forced to go to the basement where they were bound with wire. Each had his or her head covered to prevent sight. The contents of the night depository were taken. The victims did not see the two men at work, but they heard the contents of the night depository being removed.

The victims freed themselves and police were summoned. The defendants apparently escaped in a maroon pickup truck with a white cab-over camper that belonged to Linder. The truck was later found three blocks from the bank.

About 7:15 that morning, Trooper David McGlasson of the Kansas Highway Patrol stopped to assist two black men changing a tire on a black over tan Cadillac with Oklahoma tags. He later identified the clothing the men were wearing as matching the clothing description given by the victims and by the officers who arrested the men. The trooper asked their names, whether they had been in Wichita the previous night, and where they had entered the turnpike. They told him they had entered the turnpike at Kansas City. While driving down the turnpike after his conversation with the men, the trooper recalled that the back window of the Cadillac was frosted over. He knew the window would have been defrosted if the men had driven from Kansas City, so he radioed the Wellington exit, gave a description of the car, and asked the attendant to check the turnpike ticket and advise him where the car had entered the turnpike. Fifteen minutes later the attendant informed him the two men had entered at the South Wichita toll gate. This information was relayed to the police dispatcher and subsequently broadcast by various other dispatchers, along with a description of the vehicle and the clothing worn by the two men. Sheriff's officer Gary Sinclair of Newkirk, Oklahoma, and Trooper Roger Sixkiller of the Oklahoma Highway Patrol received these broadcasts and stopped the two men near Tonkawa, Oklahoma, at approximately 8:20 a. m. on January 6, 1975. The suspects were placed under arrest. Trooper Sixkiller had not received a description of the two men; his report stated only that there were three men, not two, that they were black, and the reports also stated the license tag number and color of the car. The officers made a cursory search of the vehicle for concealed weapons and a pat-down search of the two men.

Defendants were advised of their Miranda rights by Pete Litton, Tonkawa Chief of Police, at the scene of their arrest. They were then taken to the Tonkawa Police Department by Trooper Sixkiller, and the Wichita Police Department was notified of the arrest. Officer Sinclair then went to Newkirk, Oklahoma, where he applied for and obtained a search warrant to search the vehicle.

No evidence was taken prior to securing the search warrant. When Sinclair returned to the Tonkawa Police Department with the search warrant, defendant Smith was asked to empty his jacket pockets. Among the contents were several checks that had been marked for deposit with the Fourth National Bank in Wichita. Defendants were placed in jail and booked. Subsequently, their car was searched and zippered money bags belonging to the bank were found in the trunk. In addition, the officers found several personal items which had been taken from Linder at the scene of the crime, including his glasses, personal papers, and a piece of wire matching the wire used to tie up the bank employees.

Each of the defendants was found guilty on the charges of aggravated robbery, aggravated kidnapping, and three counts of kidnapping. Defendants appeal.

I. Sufficiency of Evidence

Defendants' first issue on appeal goes to the sufficiency of the evidence and whether the state failed in its burden to properly identify them. Defendants contend that because the bank employees' heads were covered they could not make a positive identification, and that identifications made were based upon general build and eyes. In addition, Trooper McGlasson, after stopping to aid defendants in changing their tire, was unable to make a positive identification.

In State v. Wade, 203 Kan. 811, 813-14, 457 P.2d 158, 161 (1969), this court stated:

"Where the sufficiency of evidence is being reviewed, this court's function is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (Citations omitted.) Our law recognizes the jury is the exclusive judge of all material questions of fact and is entitled to draw reasonable inferences from the evidence. (State v. Greenwood, 197 Kan. 676, 421 P.2d 24.) If the evidence tends to disclose the offenses charged were committed, and the defendant committed them, the question is for the jury to decide, even though the evidence is weak. (State v. Townsend, 201 Kan. 122, 439 P.2d 70; State v. Dill, 182 Kan. 174, 319 P.2d 172.)"

In the present case, although the bank employees had articles of clothing over their heads to prevent them from seeing defendants, some of them were able to catch a glimpse of various items of apparel worn by each of the defendants. The security guard at the bank testified as to the plaid slacks and black hat worn by one of the men. These items of clothing were later identified by Trooper McGlasson as having been worn by one of the men changing the tire on the turnpike. At trial McGlasson identified a folder filled with identification cards and operators' licenses as the one produced by defendant Smith upon his request for driver's identification on the turnpike. A bank employee, Robert Marts, made a positive in-court identification of one of the defendants based upon his height, his eyes, and his general build. Several of Linder's personal belongings, along with items identified as property of the bank, were found in the trunk of the car. Several checks marked for deposit at the bank were found on the person of defendant Smith.

The bank employees were unable to make a positive identification of defendants at the lineup, but the evidence, although circumstantial, appears sufficient to place defendants at the scene of the crime. Circumstantial evidence can be used to prove any element of a crime. State v. Johnson, 220 Kan. 720, 722, 556 P.2d 168 (1976). We believe there was a basis in the evidence for the jury to determine a reasonable inference of guilt.

II. Probable Cause and Illegal Search

Defendants contend the trial court erred in admitting evidence seized as a result of an arrest without probable cause and from an illegal search and seizure. K.S.A. 22-2401 sets forth the conditions under which a law enforcement officer may make an arrest.

We have considered the issue of probable cause in several recent cases. In State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275, 287 (1972), we stated:

"Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925).)"

In State v. Evans, 219 Kan. 515, 521, 548 P.2d 772, 778 (1976), we said:

"Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. . . ."

In State v. Barnes, 220 Kan....