State v. Strauch, 58387

• Decision Date: 02 May 1986
• Docket Number: No. 58387,58387
• Citation: 718 P.2d 613,239 Kan. 203
• Parties: STATE of Kansas, Appellee, v. Charles F. STRAUCH, Appellant.
• Court: Kansas Supreme Court

Page 613

718 P.2d 613

239 Kan. 203

STATE of Kansas, Appellee, v.Charles F. STRAUCH, Appellant.

No. 58387.

Supreme Court of Kansas.

May 2, 1986.

Syllabus by the Court

1.If a warrantless arrest is challenged by a defendant, the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment of the United States Constitution.The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony.Following State v. Clark, 218 Kan. 726, 544 P.2d 1372, cert denied426 U.S. 939, 96 S.Ct. 2657, 49 L.Ed.2d 392(1976);K.S.A.1985 Supp. 22-2401(c)(1).

2.In determining whether probable cause to arrest exists, all information in the officer's possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.Under the facts of this case, it is held: There was sufficient evidence presented to establish probable cause to arrest the defendant without a warrant.

3.Coercion in obtaining a confession from an accused can be mental as well as physical.In determining the voluntariness of a confession of crime, the question in each case is whether the defendant's will was overborne at the time of the confession; if so, the confession cannot be deemed the product of a rational intellect and a free will.Under the facts of this case, it is held: The defendant's confession was not coerced, but was voluntary and properly admitted into evidence.

4.In establishing the proper basis for an expert's opinion, where the facts and data are not perceived by or personally known by the witness, they must be supplied to the witness so that he is aware of them at the time he testifies.This may be done by having him attend throughout the trial; but it is certainly much more common, and just as proper, for counsel to provide the witness with the factual background prior to the time he expresses his opinion.The facts made known to him and upon which his opinion is based should, of course, be in evidence."Made known" as used in K.S.A. 60-456(b) refers to facts put into evidence.Following Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136(1977).Under the facts of this case, it is held: The facts upon which a medical expert based his opinion had been admitted into evidence and the trial court did not abuse the exercise of its power of discretion in permitting the expert to give his opinion.

5.The underlying felony in the felony-murder rule must be a forcible felony, one inherently dangerous to human life.K.S.A. 21-3110(8) includes aggravated sodomy in its definition describing a forcible felony.It is held: The felony of aggravated criminal sodomy is a felony inherently dangerous to human life and supports a felony-murder charge.

6.To determine whether an underlying felony merges into a homicide, the test is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide.It is held: The charges of aggravated criminal sodomy and first-degree murder do not merge as all the elements of the felony offense of aggravated criminal sodomy are not present in the homicide.

7.When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply.The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder.It is only when the evidence that the underlying felony was committed is weak, inconclusive or conflicting that instructions on lesser included offenses may be required.Under the facts of this case, it is held: The evidence on the charge of aggravated criminal sodomy was neither weak, inconclusive, nor conflicting and the trial court properly denied defendant's requested instructions on the lesser included offenses for the alternative charge of felony murder.

8.The sentencing criteria set forth in K.S.A. 21-4606 apply to a trial court's determination of the sentence to be imposed and the sentence itself includes whether multiple terms of imprisonment are to be served consecutively or concurrently.The record is examined and it is held: The trial court considered the sentencing criteria and did not abuse its discretion in imposing consecutive sentences on the defendant; nor did the imposition of consecutive sentences constitute cruel and unusual punishment.

Ronald E. Wurtz, Topeka, argued and was on brief, for appellant.

Gene M. Olander, Dist. Atty., argued, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.

SCHROEDER, Chief Justice:

Charles F. Strauch, the defendant-appellant, was convicted by a Shawnee County, Kansas, jury of premeditated first-degree murder (K.S.A. 21-3401) and aggravated criminal sodomy (K.S.A.1985 Supp. 21-3506[c].The defendant raises the following issues on appeal: his confession was improperly admitted into evidence, a mistrial should have been granted due to prosecutorial misconduct, certain expert testimony was inadmissible, his motion for judgment of acquittal on the aggravated criminal sodomy charge should have been granted, instructions on the lesser included offenses of felony murder should have been given, and his sentence was excessive.

On Sunday, October 21, 1984, the body of a partially nude female was found lying face down in a pond southeast of Topeka, Kansas.Various items of clothing were found scattered at the scene of the crime: a pair of black slacks torn in half, a white sweater, bra, earrings, and one shoe.The victim was later identified as Lilly Ledford.The findings of the autopsy performed by Dr. David Borel revealed the victim had received serious skull fractures, chest fractures, and had been stabbed.In addition to an extensive list of other injuries were injuries to the lining of her rectum, which indicated penetration by a foreign object of up to eight and a half inches.Abrasions on the victim's back indicated she had been dragged on the ground to the pond.

On Sunday, October 21, 1984, the same day the body was discovered, the police talked to Mr. and Mrs. Roger Maack, who lived in the area where the body was found.Mr. and Mrs. Maack were driving home on Saturday, October 20, 1984, at approximately 9:30 p.m.They saw a white Chevrolet pickup, with its lights off, setting on the east side of the road near the location of the pond.When they were about two car lengths away from the pickup, a man jumped out from the trees, crossed the ditch, and opened the hood of the pickup.Mrs. Maack described the man as 5'10"'-5'11"', weighing 200 pounds, and wearing a tan or wheat-colored jacket and blue jeans.Mr. Maack described the man as partially bald, heavyset, and wearing a tan coat and blue jeans.At trial, Mr. Maack identified the defendant as the man he saw that night.

On Monday, October 22, 1984, the police had obtained the following information.Teresa Huske and the victim had gone to the Venetian Club together Saturday night, October 20, 1984.When Ms. Huske left the club, at approximately 6:40 p.m., the victim was talking to Charlie Strauch.A bartender at the Venetian Club, Shirley Calvert-Emery, left the club at approximately 8:30 p.m. the same night.At that time, the victim and the defendant were still there.The victim wanted a ride to Charlie Hall's but turned down Ms. Calvert-Emery's offer to take her there.The defendant's address was listed on his membership card to the Venetian Club.A white pickup was seen in the driveway at that address.Reta Johnson, the defendant's girlfriend, and the defendant lived together at that address.The police talked to Reta Johnson.

The defendant was arrested at approximately 5:30 p.m., as he was getting off work, on Monday, October 22, 1984.He was read the Miranda warning at the time of his arrest and again prior to his interrogation.Following the warning, the defendant confessed to the murder of Lilly Ledford.The facts surrounding the defendant's interrogation at the time of his confession will be discussed later.In his confession, the defendant stated he drove Reta's truck to the Venetian Club on Saturday.A woman wearing a white sweater and slacks asked him if he was going to Charlie Hall's, and he said yes.They drove to Charlie Hall's and no one was there.The defendant turned back toward Topeka, and stated he ran out of gas.The woman was playing with the defendant's penis, but he said he had been drinking and was impotent.The woman told him he wasn't a man, but a little boy.They started fighting back and forth in the turck--he grabbed her feet and pulled her out of the truck, tearing off her slacks.The woman had something shiny in her hand and started hitting him.He then hit her with a roofing hatchet.Then the defendant walked up a gravel road, but found it was a dead-end and returned to the truck.There he found the victim was lying under a tree making gurgling sounds.The defendant kicked her and got the roofing hatchet from the truck.During their struggle he remembered kicking her and hitting her several times with the roofing hatchet.He dragged her down to the pond by her feet, on her back, and "flung" her around by the feet into the water.The defendant then walked to a Derby gas station and called Reta.She picked him up at the Derby station and they got home after midnight.Reta washed his clothes--a brown coat, brown corduroys and black T-shirt.The defendant washed the blood off the roofing hatchet.On Sunday, the defendant changed the tires and the bed of the truck.The defendant and Reta disposed of his boots and the roofing hatchet at a dump.They threw his clothes and the victim's purse from a bridge into a river.The police later recovered those items.

At trial, another bartender at the Venetian Club, ...