State v. Weigel

• Decision Date: 14 June 1980
• Docket Number: No. 51494,51494
• Citation: 612 P.2d 636,228 Kan. 194
• Parties: STATE of Kansas, Appellee, v. Thomas WEIGEL, Appellant.
• Court: Kansas Supreme Court

Page 636

612 P.2d 636

228 Kan. 194

STATE of Kansas, Appellee, v. Thomas WEIGEL, Appellant.

No. 51494.

Supreme Court of Kansas.

June 14, 1980.

Syllabus by the Court

1. Probable cause exists if the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed.

2. The Order of the trial court had the same effect as a lawful search warrant and under the procedure outlined in this opinion the use of the hair samples was lawful.

3. Aiding a felon is a separate criminal offense proscribed by K.S.A. 21-3812. It is not error to refuse an instruction thereon when the accused has not been charged with said crime and it is not a lesser included offense of the crimes of which he has been charged.

4. The actions of defendant in forcing the bank employees into a bank vault and attempting to lock the vault door were for the purpose of permitting the defendant and others to flee the scene and did constitute the crime of kidnapping.

5. A witness need not be an expert in voice identification to testify as to the identity of the defendant by means of tone and voice inflections.

6. Testimony by a witness that he or she recognized the accused by his voice is admissible in evidence, provided only the witness has some basis for comparison of the accused's voice with the voice which he or she identifies as the accused's.

7. Mere hesitancy or uncertainty on the part of a witness in identifying an accused by voice recognition affects only the weight and not the admissibility of the testimony.

8. If after the jury has retired for deliberation it desires further information as to the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court, following which the court, after notice to counsel for the parties, may consider and make such provision for a response as the court finds to be required under the circumstances.

9. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.

10. The time limitations in K.S.A. 1979 Supp. 22-2902 are directory and inconsequential delay beyond the time specified for holding the preliminary hearing will not justify a dismissal.

11. Sufficiency of the preliminary hearing including its timeliness may be challenged only by motion to dismiss under K.S.A. 22-3208.

12. A motion under K.S.A. 22-3208 to dismiss or to grant appropriate relief must be filed no later than 20 days after arraignment. Failure to raise a question as to the sufficiency of the preliminary hearing by such a motion constitutes a waiver and precludes review on appeal.

13. Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

14. Some of the criteria which are to be considered in determining what is cruel or unusual punishment as to the length of a sentence include excessiveness, disproportionality, lack of necessity, unacceptability to society, and arbitrariness of infliction. None of these criteria are present in the present case and the sentences imposed in this case are approved.

Gary Lee Kaufman, of Nuss & Kaufman, Great Bend, argued the cause and was on the brief for appellant.

Ivan D. Krug, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

FROMME, Justice:

Thomas Weigel was convicted by a jury of aggravated robbery, kidnapping and the theft of a car. He appeals and raises many points to be considered by this court.

The above charges arose from a robbery of the Nekoma State Bank in Rush County, Kansas. Defendant Weigel and four accomplices participated in the robbery, which occurred on January 5, 1979, at 4:00 p. m. A white over red car was stolen from the Rush County Livestock Auction to be used in the robbery. The robbers proceeded to the bank wearing ski masks, yellow surgical gloves and jackets. One of the accomplices was armed with a handgun. The defendant was armed with a sawed-off shotgun. Three of the bank employees were forced into the vault. Over $2,500.00 was taken from the bank premises, plus a woman's pocketbook. The robbers closed the vault door and turned the handle thinking the vault was locked. They failed to turn the dial on the door, and those inside the vault were able to open the door. The sheriff's office was notified and the highway patrol was alerted within thirty minutes after the robbery occurred.

Within thirty minutes after the robbers left the bank they abandoned the stolen car and switched to Gary Weigel's car. It became stuck in a snow drift north of LaCrosse Kansas. A member of the highway patrol came upon the car and its five occupants. The guns and the money from the bank had been hidden previously in a snow drift by the side of the road. The vehicle and the five occupants were searched and released. The occupants checked into a motel at Hays, Kansas. The money was later retrieved from the snow drift by the defendant and two of his fellow participants.

After word of the bank robbery was received by the officers all five of those who participated were rounded up and arrested. The actual arrests occurred both on the day of the robbery and the day following. All except the defendant entered pleas of guilty to the charges. Lonnie Hill, who participated in the robbery, turned State's evidence and testified against the defendant. According to Hill's testimony the defendant planned the robbery and was the leader. The defendant was the one who owned and was armed with the sawed-off shotgun. Money taken from the bank included some marked money which was taken from the defendant when he was arrested. A lady's brown purse, owned by one of the bank employees, was found in or around the abandoned stolen car. The sheriff located ski masks, yellow surgical gloves, and jackets worn during the robbery. These were found in an area surrounding the abandoned stolen car. Some of the stolen money in money sacks was located above ceiling tile in a motel room rented by one or more of the robbers. There can be little doubt as to the sufficiency of the evidence to convict the defendant and no claim of insufficiency is made. The foregoing evidence and other evidence to be mentioned later will bear upon the issues to be decided in this appeal.

The first issue on appeal concerns the admissibility of the marked money taken from the defendant at the time of his arrest. The defendant's attack on admitting the money in evidence is based upon his claim that the issuance of the arrest warrant was not based upon probable cause. He argues that if the arrest was not legal any evidence obtained as a result of the arrest was also illegal and should not have been admitted in evidence at the trial. He cites Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The warrant was issued upon a sworn complaint with a two and one half page single spaced statement sworn to by a special agent of the Kansas Bureau of Investigation attached. The statement summarized the facts known and made known to the officer during interviews with various witnesses, including two of the suspects and fellow officers.

The United States Supreme Court has stated that the substance of any definition of probable cause is the reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879, reh. denied, 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513 (1949). 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. State v. Evans, 219 Kan. 515, 521, 548 P.2d 772 (1976); State v. Barnes, 220 Kan. 25, 28, 551 P.2d 815 (1976). Probable cause exists if the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972); State v. Morin, 217 Kan. 646, 648, 538 P.2d 684 (1975). We have read the affidavit upon which the warrant was issued and find the allegations therein sufficient to justify issuance of the warrant upon probable cause.

Although the defendant in his brief challenges the veracity of the affidavit, he failed at the trial court level to follow the proper procedure as outlined in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to obtain a hearing thereon. He failed to allege that the matter contained in the affidavit was a known falsehood or made in reckless disregard for the truth. The statements challenged must be those of the affiant's and not of the affiant's informants. The challenger must offer proof or proffer evidence as to what statements are known falsehoods and name the witnesses who will testify under oath that the matters are lies. Because of these obvious failures defendant is precluded from going behind the statements in the...