State v. Williams

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER
• Citation: State v. Williams, 623 P.2d 1334, 229 Kan. 290 (Kan. 1981)
• Decision Date: 28 February 1981
• Docket Number: No. 51883,51883
• Parties: STATE of Kansas, Appellee, v. Douglas L. WILLIAMS, Appellant.

Page 1334

623 P.2d 1334

229 Kan. 290

STATE of Kansas, Appellee, v. Douglas L. WILLIAMS, Appellant.

No. 51883.

Supreme Court of Kansas.

Feb. 28, 1981.

Syllabus by the Court

In an appeal in a criminal action for a conviction of aggravated burglary and felony murder, the record is examined and it is held: (1) The search warrants were supported by probable cause; and (2) the evidence was not sufficient to support the verdict.

Russell Shultz, of Shultz, Fisher, Monnat & Shultz, Wichita, argued the cause and was on brief, for appellant.

Geary Gorup, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Douglas L. Williams (defendant-appellant) guilty of felony murder (K.S.A. 21-3401) and aggravated burglary (K.S.A. 21-3716). The appellant raises three issues on appeal. He contends that (1) two search warrants were not supported by probable cause, (2) there was insufficient evidence to support the verdict, and (3) the trial court erred in its instructions to the jury.

The appellant was arrested, along with Allen R. Jordan, in connection with the rape and brutal slaying of Kay L. Robinson. Jordan was convicted of rape, aggravated burglary and felony murder in a separate trial held prior to the appellant's trial. Jordan's convictions were affirmed by this court in State v. Jordan (case No. 51,894, unpublished opinion filed December 6, 1980).

Kay was a high school senior at Augusta High School, in Butler County, Kansas. Kay worked part-time at a restaurant in Augusta, where she got off work at about 10 p. m. on May 8, 1979. She stopped and bought cigarettes at a gas station, then drove her car to the apartment of her boy friend, Mike Roger. Kay arrived alone at the apartment between 10:15 and 10:20 p. m. Mike Roger's apartment was on the second floor of a four-plex apartment unit. Bonnie Boone and her two minor sons lived in the apartment below Roger. Bonnie noticed when Kay arrived, and heard Kay enter the apartment. Near 11 p. m., Bonnie heard the sound of something falling on the floor of the apartment above her. When Mike Roger arrived home from work, about 1:30 a. m. he discovered the apartment was dark, and the door unlocked. Mike found Kay's body lying nude on the bed; her throat was cut.

The police investigated the crime scene and routinely questioned the occupants of all four apartments in the four-plex. The appellant and a female companion, Becky Young, lived in the second floor apartment across from Roger's apartment. They shared the apartment with Jordan and his female companion, Sheila Williams. Sheila Williams was the appellant's sister. Both women had a minor child who also lived with them.

On May 11, 1979, on the basis of an affidavit and application sworn before a judge of the district court, search warrants were issued for numerous items to be found in the residence or on the bodies of Jordan and the appellant. Among the items sought were knives, clothing, and blood and hair samples. On the basis of an affidavit and application sworn before a judge of the district court on June 15, 1979, search warrants were issued for saliva samples to be taken from Jordan and the appellant.

The appellant first contends that all evidence seized pursuant to the two search warrants should have been suppressed due to insufficient probable cause, and failure to comply with the Kansas Bill of Rights. Specifically, the appellant admits there was probable cause for the search warrants to issue as to Jordan, but argues that his own connection with the crime was speculative and based upon remote circumstantial evidence.

State v. Morgan, 222 Kan. 149, 151-52, 563 P.2d 1056 (1977), contains a summary of the principles pertinent to this issue. There the court stated:

"It is an elementary rule of law that a search warrant may not issue except on a showing of probable cause. The warrant must particularly describe the person, place or means of conveyance to be searched and the things to be seized. (K.S.A. 1976 Supp. 22-2502; State v. Gordon, 221 Kan. 253, 559 P.2d 312.) Sufficient facts must be placed before the issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists. Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant's personal knowledge to provide a rational basis upon which a magistrate can made a judicious determination of probable cause. (Aguilar v. Texas, 378 U.S. 108, 89 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159; State v. Hart, 200 Kan. 153, 162, 434 P.2d 999.)

" 'Probable cause' to issue a search warrant is like a jigsaw puzzle. Bits and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance. (K.S.A. 1976 Supp. 22-2502.) In State v. Lamb, 209 Kan. 453, 497 P.2d 275, this court explained:

" 'Probable cause to arrest refers to that quantum of evidence which would lead a prudent man to believe that the offense has been committed. (Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168 (171), 4 L.Ed.2d 134 (1959).) It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the information led a reasonable officer to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information. (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).) The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).)

" 'Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280 (288), 69 L.Ed. 543 (1925).)

" 'Evidence sufficient to support probable cause for an arrest on the part of an arresting officer is also sufficient to support a finding of probable cause by a magistrate in the issuance of a search warrant.' ((209 Kan. 453) p. 467 (497 P.2d 275).)

"The burden is on the prosecution to show a search and seizure was lawful and supported by probable cause (K.S.A. 22-3216(2); State v. Youngblood, 220 Kan. 782, 785, 556 P.2d 195); but once a search warrant has been issued, supported by an affidavit which recites facts sufficient to find probable cause, prima facie evidence of a lawful search and seizure is established. (79 C.J.S., Searches and Seizures, Sec. 98, pp. 917-18. See also, State v. Yates, 202 Kan. 406, 449 P.2d 575; State v. Emory, 193 Kan. 52, 391 P.2d 1013, cert. denied, 379 U.S. 906, 85 S.Ct. 200, 13 L.Ed.2d 179.)"

We note that the appellant did not dispute the truthfulness of material factual allegations in the affidavit and application for search warrant, but merely disputed the sufficiency of those facts to support a finding of probable cause. As a result, matters in the affidavit are accepted as true. See State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978). Under the facts presented, if there was probable cause for the searches, no additional proof was required merely because pubic hairs, blood samples, and saliva samples were sought. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

The facts of this crime presented the police a central figure for their investigation Allen Jordan. However, bits and pieces of circumstantial evidence also drew the appellant into the center of the police investigation. The same circumstantial evidence provided more than mere suspicion that the appellant may have been involved in the commission of the crime. The district court, when presented with the sworn affidavits and applications for the search warrants, correctly found probable cause and issued the search warrants as to both Jordan and the appellant.

Briefly summarized, the application and affidavits for the first search warrants contained the following information. At the time of the initial search warrant applications the police were confronted with the victim of a homicide and probable rape. The victim's eyeglasses were found beside her body on the bed. Fingerprint analysis positively identified fingerprints found on the eyeglasses as Jordan's. An unplugged clock was found on the floor in the bedroom; the clock had stopped a 10:55. No sharp object immediately identifiable as the murder weapon was found in the apartment. These facts were known to police through firsthand investigation.

Preliminary results of an autopsy confirmed the cause of death as massive bleeding from wounds which severed the arteries in the neck. The autopsy also discovered an abrasion on the victim's left shoulder, which was theorized as probably being caused by a metal wrist watch band. An ultraviolet light examination of the vaginal area indicated the possible presence of semen. Based upon the lack of clothing on the body when found, and the preliminary autopsy examination, the police concluded the victim had recently had sexual intercourse. The police knew from experience that the KBI laboratory would be able to examine the semen and determine its blood type...