State v. Thompson

• Decision Date: 11 December 1976
• Docket Number: No. 48320,48320
• Parties: The STATE of Kansas, Appellee, v. Larry D. THOMPSON and Michael Pennington, Appellants.
• Court: Kansas Supreme Court

Page 1079

558 P.2d 1079

221 Kan. 165

The STATE of Kansas, Appellee, v. Larry D. THOMPSON and Michael Pennington, Appellants.

No. 48320.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. The supreme court has no jurisdiction to entertain a direct appeal by a defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal.

2. When a trial court, pursuant to K.S.A. 22-3215, conducts a preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, and determines the statement was freely, voluntarily, and intelligently given and admits the statement into evidence at the trial, the supreme court on appellate review will accept such determination if it is supported by substantial competent evidence.

3. The prohibition against continued interrogation after a refusal of a person in police custody to talk does not invalidate a statement thereafter given where the right to remain silent has been voluntarily and knowingly waived at a later time.

4. Unconstitutional governmental action can only be challenged by a person directly affected and such a challenge cannot be made by invoking the rights of others.

5. Where a defendant is convicted of forcible sodomy, he lacks standing to challenge the sodomy statute on the ground that it is unconstitutional in prohibiting private, consensual acts of adults.

6. K.S.A. 21-3506 which makes aggravated sodomy a crime is not unconstitutional (1) as an invalid exercise of the police power, (2) as a bill of attainder, or (3) as providing for cruel and unusual punishment.

7. Under K.S.A. 21-3426 and 21-3427 (Weeks 1974) a specific intent to deprive the owner permanently of his property is not an essential element of the crime of robbery or aggravated robbery. It is sufficient if the taking is done with the general intent to commit the act of taking the property by threat of bodily harm or by force.

Ernest H. Moulos, Wichita, argued the cause, and was on the brief for appellants.

Christopher A. Randall, Asst. Dist. Atty., argued the cause, and Curt Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice.

This is a direct appeal in a criminal action in which the defendants-appellants, Larry D. Thompson and Michael Pennington, were tried by a jury and convicted of aggravated robbery (K.S.A. 21-3427) and aggravated sodomy (K.S.A. 21-3506). The defendants were also charged with kidnapping but a mistrial was declared on that charge when the jury was unable to agree on a verdict.

At the outset we must consider a motion filed by the state to dismiss the appeal of the defendant Larry D. Thompson. It is the position of the state that this court has no jurisdiction to hear the appeal because a timely notice of appeal was not filed within the time allowed by K.S.A. 22-3608. The record discloses that the defendant Thompson was convicted by a jury in the district court of Sedgwick county on May 5, 1975. Sentence was imposed on May 29, 1975. 22-3608(1) provides in part that if sentence is imposed, the defendant may appeal from the judgment of the district court not later than ten days after the expiration of the district court's power to modify the sentence. The district court's power to modify Thompson's sentence expired on September 26, 1975, 120 days after sentence was imposed as provided by K.S.A. 21-4603(2). The time in which Thompson could file a notice of appeal expired on October 6, 1975. A notice of appeal was filed by Thompson's counsel, Chester Lewis, on December 11, 1975, 66 days out of time. In his response to state's motion Thompson's counsel argues that the defendant Thompson was an indigent person and that, following his conviction and incarceration, an attorney was not appointed to pursue his appeal until December 21, 1975. It is undisputed that defendant Thompson was represented by counsel during the period in which an appeal could be taken. There is nothing in the record to show that defendant Thompson's counsel did not provide him with proper representation. There is no contention by defendant that his counsel was negligent or derelict in his duties to defendant Thompson. Under the circumstances we must conclude that this court has no jurisdiction of Thompson's appeal and that his appeal should be dismissed. The supreme court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses lack of jurisdiction, it is the duty of the supreme court to dismiss the appeal. (State v. Mitchell, 210 Kan. 470, 502 P.2d 850.) It is the established rule in this state that this court has no jurisdiction to entertain an appeal by defendant in a criminal case, unless he takes his appeal within the time prescribed by the statutes providing for such an appeal. (State v. Sims, 184 Kan. 587, 337 P.2d 704; State v. Shores, 185 Kan. 586, 345 P.2d 686.) Since the defendant Thompson failed to serve and file his notice of appeal by October 6, 1975, as required by the provisions of K.S.A. 22-3608(1), this court is without jurisdiction to hear his appeal. The appeal of the defendant Thompson is dismissed.

The appeal of the defendant Michael Pennington was timely filed and we will now proceed to determine the issues which he has raised in his statement of points. We must first examine the essential facts of the case. This action arose from an incident which occurred on the evening of January 6, 1975, in Wichita. The victim, Kevin McCune, had attended a party early in the evening and left for his home about midnight as a passenger in a friend's automobile. Shortly after the drive began McCune ascertained that his friend was too intoxicated to drive and decided that he would walk home. The friend let him out of the car. After walking approximately one mile McCune was picked up by four persons in a car. The occupants in the car included defendants Thompson and Pennington, Judy McPherson, and a female named Michelle. There is some dispute as to whether McCune solicited thr ride or was invited by the occupants. Prior to taking McCune home, Thompson, the driver, took Michelle to a house where she got out. Thereafter Thompson proceeded down a dirt road and stopped his vehicle. From this point on the testimony was hotly disputed.

The state presented evidence which indicated that Thompson stopped the car at a deserted location and at gunpoint obtained McCune's jewelry, wallet, and suede coat. Following this McCune was forced to have oral sex with Pennington and Thompson and finally with Miss McPherson. It was McCune's testimony that Thompson threatened to kill him if he did not cooperate. At this point a patrol car happened on the scene and intervened. One of the officers testified that he first observed Thompson and McCune in the back seat of the car where McCune was clad only in knit shirt. Thompson was fully dressed. When the officer reached the car, McCune ran toward the police officer screaming that he had been sexually assaulted. After calming McCune the officers placed the defendants and Miss McPherson under arrest. The defendants in their testimony denied robbing McCune and, although admitting the sexual activities, took the position that all parties consented thereto. At the trial of the case two basic issues arose: (1) Whether the defendants robbed McCune of his coat and personal belongings and (2) whether the acts of sodomy committed on that occasion were consensual or forcible. The jury resolved these issues against the defendants and found them guilty of aggravated robbery and aggravated sodomy.

The first point raised on the appeal by the defendant Pennington is that the trial court erred in not suppressing the confession made by the defendant at the police station. The factual circumstances surrounding the taking of this confession were undisputed. Following the arrest of Pennington and Thompson at the scene, the arresting officer Vinroe informed them of their Miranda rights. Both of the defendants indicated that they did not want to make a statement. Thompson and Pennington were then put into officer Vinroe's police car and driven to the police station. During the drive officer Forshee advised the defendants again of their Miranda rights. Both responded that they understood their rights and did not wish to make a statement. No further questions were asked by the arresting officers. The defendants were booked at approximately 6:00 a. m., January 7, 1975. At 9:10 a. m. on that date detective Fraipoint interviewed Pennington and told Pennington that he would like to hear his side of the story. Pennington was given a form containing his constitutional rights as well as a place to indicate waiver of these rights. Pennington read the form and initialed beside each right, indicating that he understood those rights and then signed the form. He then indicated that he would talk to the detective. Pennington told Fraipont that it was McCune who had the gun and forced Pennington to engage in homosexual activities. Pennington stated that he knew nothing of McCune's jewelry or billfold but that McCune had given Miss McPherson his coat to sell for gasoline. Pennington then stated that the sexual activities were performed by mutual agreement and that no force was exerted on McCune.

The statement of Pennington was admitted into evidence at the trial following a Jackson v. Denno hearing. A motion to suppress the statement was overruled. Both defendants testified on their own behalf at the trial, each denied robbing McCune and, although admitting consensual sexual activities with McCune, denied that there was any force involved.

The defendant Pennington contends in substance that under the totality of the circumstances the trial court erred in not suppressing the defendant's confession. Pennington...