State v. Weinman

• Decision Date: 11 May 1968
• Docket Number: No. 44717,44717
• Citation: 201 Kan. 190,440 P.2d 575
• Parties: STATE of Kansas, Appellee, v. Janet Louise WEINMAN, Appellant.
• Court: Kansas Supreme Court

Page 575

440 P.2d 575

201 Kan. 190

STATE of Kansas, Appellee, v. Janet Louise WEINMAN, Appellant.

No. 44717.

Supreme Court of Kansas.

May 11, 1968.

Syllabus by the Court

1. Where no objection is made by counsel for an accused in the trial of a criminal action to the admission in evidence of incriminating statements which were previously made to law enforcement officials, after an explanation of the accused's constitutional rights, the voluntariness of the accused's incriminating statements is not challenged, and on appeal resulting from a conviction the question cannot be raised for the first time.

2. Confessions, or admissions, voluntarily made by an accused in a criminal action are not inadmissible because made at a time when the accused did not have counsel.

3. The restrictions as to 'in custody interrogation' of one suspected of crime announced in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, have only prospective application.

4. Incriminating statements voluntarily made by an accused in a criminal action to an investigating officer prior to the filing of charges, where the accused's constitutional rights have been fully met, are admissible in evidence as an exception to the hearsay rule. (K.S.A. 60-460(g).)

5. Where the accused in a criminal action and her accomplice are tried together, and reference is erroneously made by a witness to the criminal record of the accomplice during the trial of the action, and to which the trial court sustained an objection, instructing the jury at the time the testimony was given to disregard such testimony, and later instructing the jury at the close of all the evidence to disregard such irrelevant testimony, the accused is not prejudiced by implication or denied a fair trial.

Gwinn G. Shell, Garnett, argued the cause and was on the brief for appellant.

Wayne Loughridge, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Justice.

This is an appeal in a criminal action from a conviction of second degree burglary and larceny in connection therewith. The facts giving rise to this action are identical with those in State v. Cantrell, 201 Kan. 182, 440 P.2d 580, decided this date, and to which reference is made.

The appellant herein, Janet Louise Weinman, specifies various trial errors.

Both the appellant and Cantrell were charged in separate actions with the same offenses committed on the 2nd day of February, 1966. The actions were filed on the 18th day of February, and on the 28th day of February, 1966, the defendants appeared in their respective cases to reduce the bond. At that time they were represented by Orville Cole, an attorney. Bond was reduced from $10,000 to $7,000 for each defendant. On the 7th day of March, 1966, the parties appeared with Mr. Cole who was permitted to withdraw as attorney for the defendants, and arraignment was set for the 14th day of March, 1966. Arraignment was thereafter continued until the 18th day of March, 1966. When the defendants appeared before the court on the 18th day of March for arraignment they were represented by Mr. Elliott, an attorney of their own choosing, and waived the reading of the information and entered a plea of not guilty. The trial was set for 9:30 a. m. on the 9th day of May, 1966.

Apparently arrangements had not been made by the defendants to employ counsel to represent them at their trial. The trial judge after calling Mr. Elliott by telephone a few days before the trial date suggested the possibility of appointing counsel for the defendants so that the trial of the cases could proceed. Therefore, on the day set for trial Mr. Elliott appeared in court with the defendant Cantrell and was appointed to represent him in the trial of the case, and Mr. Earle D. Jones, an attorney of Mission, Kansas, appeared in court with the appellant herein and was appointed to represent her.

At the request of counsel for the respective defendants they were tried together, and the defendants each in turn stated into the record in response to inquiry by the trial judge that they had no objection to being tried at the same time and to the same jury. Thereupon a jury was selected and duly sworn to try the cases.

The jury, after hearing the evidence, returned a verdict of guilty as to the defendant Weinman on each of the charges. The verdict was approved and sentence duly pronounced by the trial court.

The appellant first contends the trial court erred in the admission of statements made by her to an agent of the Kansas Bureau of Investigation named David E. Johnson without making inquiry as to the voluntary nature of the statements.

The only inquiry concerning the voluntariness of the statements made by the appellant was made in the presence of the jury. Johnson stated that he identified himself to her, 'advised her that she would probably be charged with burglary, advised her that she didn't have to make a statement if she didn't care to, any statement that she did make could be used against her in court, and she was entitled to have an attorney if she so desired.'

Without any objection whatever by counsel for the appellant, the state's attorney proceeded to inquire of the witness Johnson concerning statements made to him by the appellant. She freely answered the questions he asked. In the course of this inquiry Johnson testified:

'Q. Did she say who was with her?

'A. I asked her what time she and Mr. Cantrell left. I don't believe she said who was with her. I said, 'What time did you and Mr. Cantrell leave Kansas City?'

'Q. What did she say?

'A. Approximately 9:00 or 10:00 o'clock.

'Q. Did she describe their route of travel?

'A. She did. * * * (giving details). * * *

'Q. Did you question her concerning the McCollam Store?

A. I asked her how come she burglared that store.

'MR. ELLIOTT: Object to it. * * * Apparently Mr. Cantrell was not present when this conversation took place.

'THE COURT: All right, I think I will overrule the objection. I will instruct the jury that any testimony or any statement made or evidence of any statement made by Miss Weinman in the absence of Mr. Cantrell would not be admissible as to the issues regarding him and would not be binding on him so to speak.

'Q. In answer to your question to her, what was her answer in regard to the McCollam Store?

'A. She stated that she did not break in. When she went in, the door was open.

'Q. Did you ask her any other questions in regard to this store?

'A. I asked her what she carried out.

'Q. Did she answer that question?

'A. She stated she thought the bananas and cigarettes. I asked her why she carried the bananas out, and she said she didn't know except she guessed she was hungry.'

The appellant in her brief does not contend the statements made in response to inquiry by Agent Johnson were involuntary, but contends that because she did not have counsel the statements should not have been admitted as statements against interest. It is argued admitting the testimony of Agent Johnson into evidence gave additional credence to the statements made by the appellant.

We find no merit in such argument. The question which arose in State v. Milow, 199 Kan. 576, 433 P.2d 538, concerning the voluntary nature of a confession is not before the court on the record here presented. Here the trial court was not called upon to make a determination on the voluntariness of the statements. Where no objection is made by counsel for an accused in the trial of a criminal action to the voluntariness of a confession or incriminating statements previously made to law enforcement officials, the voluntariness of the...