State v. Wheeler, 47322

• Decision Date: 15 June 1974
• Docket Number: No. 47322,47322
• Citation: 215 Kan. 94,523 P.2d 722
• Parties: The STATE of Kansas, Appellee, v. Raymond C. WHEELER, Appellant.
• Court: Kansas Supreme Court

Page 722

523 P.2d 722

215 Kan. 94

The STATE of Kansas, Appellee, v. Raymond C. WHEELER, Appellant.

No. 47322.

Supreme Court of Kansas.

June 15, 1974.

Rehearing Denied July 17, 1974.

Syllabus by the Court

1. The adequacy of counsel acting on behalf of a person accused of crime is to be gauged by the representation afforded the accused in its entirety, and before it may be said that the accused's constitutional right to counsel has been denied, it must appear that the representation was wholly ineffective and inadequate.

2. The constitutional right to counsel attaches at or after the time that adversary judicial criminal proceedings have been initiated.

3. In determining whether an indigent accused is entitled to a transcript of prior proceedings it is proper to consider alternative devices which would tend to serve the same purpose or fulfill the same function as a transcript.

4. It is generally held that in the absence of statutory authority to the contrary a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or complaint.

5. An affidavit in support of a search warrant may be based, at least in part, on hearsay, provided there are adequate affirmative allegations to supply a rational basis on which a finding of probable cause can be based.

6. The extent of cross-examination for impeachment purposes lies largely within the sound discretion of the trial court.

7. It is only where trial error has adversely affected the substantial rights of the accused that it can be said to amount to prejudicial error justifying reversal.

8. Under the provisions of K.S.A.1973 Supp. 22-3202(1) and 22-3203 the trial court may order two or more complaints or informations against a single defendant to be tried together where the offenses charged are of similar character or are based on the same act or transaction or on two or more transactions connected together or constituting parts of a common scheme or plan.

9. Ordinarily, error may not be predicated on the failure of the trial court to give an instruction not requested at the trial.

10. The record is examined in an action wherein the defendant was charged with and convicted of a series of narcotic offenses and for reasons appearing in the opinion it is Held (1) the trial court did not err (a) in refusing to appoint new defense counsel, (b) in refusing to grant a new trial on the basis that no transcript of the preliminary examination was provided the accused, (c) in refusing to suppress, strike or exclude evidence, (d) in limiting cross-examination of a prosecution witness, (e) in permitting the charges to be tried simultaneously, and (f) in failing to instruct on the procuring agent theory of defense; (2) prejudicial error affecting the substantial rights of the accused does not appear.

Douglas J. Irwin, Wichita, argued the cause and was on the brief for appellant.

Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

FONTRON, Justice.

This appeal stems from the conviction of the defendant, Raymond C. Wheeler, on three charges of selling heroin and one charge of heroin possession. Mr. Wheeler was acquitted on a charge of possessing marijuana with intent to sell.

Various errors are assigned. Before they are discussed, however, a brief statement as to the facts should be supplied. On February 28, 1973, a narcotics investigator, or agent, went to Wheeler's house looking for a Ted Dalton. He told Wheeler he wanted to buy some heroin from Dalton. Wheeler asked how much was wanted, and he then sold the agent 'half a spoon' for $50. The following day the agent returned and complained to Mr. Wheeler of the quality. On this occasion Wheeler sold the agent 'a spoon' for $100 and said if this was not of better quality he would replace it free of charge. Two days later, March 3, 1973, the agent went again to Wheeler's residence, told Wheeler that the police for whom he bought the heroin were satisfied with the last 'spoon' and were going to buy it all. The upshot of this visit was that the agent bought another 'half spoon' for $50 and was going to buy the other half that evening. About 8 p. m. state and local officers raided Wheeler's house while the agent was there. They found fifteen packets of heroin and five bags of marijuana.

None of the defendant's complaints are directed toward the sufficiency of the evidence. They extend to trial errors and alleged violations of constitutional rights.

First it is contended that defense counsel, Mr. James W. Wilson, was incompetent and that the trial court erred in refusing to appoint new counsel for the defendant. The matter arose in this way: After the jury had been impaneled the defendant moved that Mr. Wilson be discharged; that new counsel be appointed; and that time be given for the new attorney to become acquainted with the case. Mr. Wheeler also requested that he, himself, be appointed co-defense counsel because he would like to designate the way his defense should be handled. The reason advanced by Wheeler for dissatisfaction with his appointed counsel was that he demonstrated no willingness to provide a defense but that he 'badgered and intimated me to plead guilty.' The trial court, after commenting that present appointed counsel was competent, that he had been a prosecutor, and that he was aware of the quantum of proof necessary for conviction, refused 'to change Counsel in the middle of a trial.' The court did, however, appoint Mr. Wheeler as his own co-defense counsel and continued Mr. Wilson's appointment as counsel, to the end that Wilson actively participated in the trial of the case.

We find no error in the action taken by the trial court. The test of adequacy of counsel was well phrased by Mr. Justice Schroeder in Winter v. State, 210 Kan. 597, 603, 502 P.2d 733, 738:

'The adequacy and effectiveness of an attorney's services on behalf of an accused in a criminal action must be gauged by the actual representation afforded the accused in its totality. To be a denial of an accused's constitutional rights it must clearly appear that the representation of the accused was wholly ineffective and inadequate. . . .'

See, also, Reid v. State, 213 Kan. 298, 301, 515 P.2d 1040; Widener v. State, 210 Kan. 234, 236, 499 P.2d 1123.

We were advised on oral argument that Mr. Wilson represented the defendant at the preliminary examination as well as at the trial. Having been present at the preliminary hearing he would have become acquainted with both the nature and the extent of the state's evidence against his client. He thus would occupy a preferred position from which to appraise realistically the gravity of the case against his client and to advise with him as to the best course of action to pursue. Although the defendant has used strong words in leveling charges against his counsel, he cites not a single instance of badgering or intimidation on his part. We are inclined toward the belief that Mr. Wilson did no more than to evaluate the case against his client in terms of its probable outcome should the case proceed to trial, and to advise Mr. Wheeler accordingly. No less would be expected of any conscientious lawyer in a matter of this kind.

With respect to Mr. Wilson's deportment at the trial, it was said by the defendant, himself, in arguing his motion for a new trial that once trial got underway he 'performed admirably in presenting the Defendant's case' and his 'demeanor was impeccable throughout the trial proceedings.' We can think of no better way to phrase it.

Mr. Wheeler next complains he was denied his constitutional right to telephone for an attorney to be present while his premises were being searched. In an out of court hearing the defendant testified that during the search he was handcuffed in another room and twice asked for a telephone call to an attorney to protect his rights, but that his requests were refused. We believe Mr. Wheeler mistakes the breadth of the constitutional right to assistance of counsel. There are limitations as to the time when the right accrues, as the United States Supreme Court noted in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411:

'In a line of constitutional cases in this Court . . . it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. . . .

'. . . (W)hile members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

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'The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. . . .' (pp. 688-690, 92 S.Ct. at 1882.)

The trial court ruled that Mr. Wheeler possessed no constitutional right to the presence of counsel at the time his house was being searched and we can not fault the court's ruling in such regard.

During the presentation of the defendant's motion for new trial, counsel stated: 'We also informed the...