State v. Williams

• Decision Date: 01 December 1979
• Docket Number: No. 50266,50266
• Citation: State v. Williams, 226 Kan. 688, 602 P.2d 1332 (Kan. 1979)
• Parties: STATE of Kansas, Appellee, v. Richard D. WILLIAMS, Appellant.
• Court: Kansas Supreme Court

Page 1332

602 P.2d 1332

226 Kan. 688

STATE of Kansas, Appellee, v.Richard D. WILLIAMS, Appellant.

No. 50266.

Supreme Court of Kansas.

Dec. 1, 1979.

Syllabus by the Court

In a criminal prosecution wherein defendant was charged with and convicted by a jury of two counts of aggravated kidnapping, two counts of rape, two counts of aggravated robbery, two counts of attempted first degree murder and two counts of aggravated burglary, the record is examined and it is Held : (1) Under the facts stated in the opinion, evidence taken from appellant's apartment was not inadmissible under the "fruit of the poisonous tree" doctrine; (2) The affidavit on which the search warrant was obtained was sufficient to provide probable cause; (3) The language in count one was sufficient to support the charge of aggravated kidnapping; (4) The charge of aggravated kidnapping was not multiplicious with the charges of attempted murder; (5) The language of count nine was sufficient to support the charge of aggravated kidnapping; (6) The instruction on aggravated kidnapping was not erroneous; and (7)The trial court in sentencing appellant did not act arbitrarily and without justification.

Harold E. Flaigle, of Law Offices of Michael D. Wilson, Wichita, argued the cause and was on the brief for appellant.

James D. Turner, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty., and Robert J. Sandilos, Asst. Dist. Atty., were with him on the brief for appellee.

PER CURIAM:

This is an appeal from convictions of two counts of aggravated kidnapping, two counts of rape, two counts of aggravated robbery, two counts of attempted first degree murder, two counts of aggravated burglary and the sentences given thereon.

The facts involved in the convictions center around three separate attacks on three separate victims.They will necessarily be somewhat extended, although we do not propose to give all the gruesome details.In presenting the facts the accused will be designated as defendant.

On November 17, 1977, the first victim went to her apartment at 431 Pennsylvania Avenue in Wichita, for lunch.A black male, later identified as the defendant, knocked on her door and asked where another person lived.She told him she did not know the individual, and suggested he go next door and ask.The defendant then pushed his way inside, shoving the victim to the floor.As a result of the defendant's forced entry, she sustained a split lip, shoulder sprain, and a head wound.The defendant then told her to lock the front door which she did.He pulled a knife with a six inch blade, forced the victim into the bedroom and told her to disrobe.She disrobed at knife point.The defendant demanded money.The victim dumped her purse on the floor and gave the defendant $3.00 in change.He then told her to lie down on the couch and with knife in hand raped her.After completing the actthe defendant directed the victim from room to room searching for more money.He then returned her to the couch where he again raped her at knife point.He directed her to dress and drive him somewhere.The defendant took his victim to her car and directed that she drive him around.She was admonished not to call the police.He eventually directed her to 24th and Lorraine in Wichita, where he got out of the car.She gave a description of her assailant to the Wichita Police Department.

The victim tentatively identified the defendant, who was lightly bearded when he attacked her but clean shaven at the lineup.She positively identified the defendant at trial.

The second victim was sleeping at her home at 446 Cleveland in Wichita at 11:00 a. m. on December 12, 1977, when a black male knocked on her door.The man, later identified as the defendant, asked if Pete was there, then asked to use her phone.When told that she did not have a phone, the defendant grabbed her wrist and forced his way into her apartment.He locked the door and forced the victim to the bedroom striking her with his fist.He then produced a knife with a six inch blade and told her to lie on the bed so that he could rape her.The victim advised the defendant that it was "that time of the month."He disrobed her to verify her statement, then bound her hands and searched her apartment for valuables.

The defendant then untied the victim, seated her on a chair, and forced her at knife point to take a white pill of some sort.He then took her back into the bedroom, forced her to the bed, and fondled her.The victim positively identified the defendant at trial and at a pretrial lineup.

On December 28, 1977, the third victim was getting ready to take her young daughter to the babysitter and go to work when a black male knocked on the door and asked to use the phone.He was let in the apartment for that purpose.He then lunged at the victim's throat and began choking her.She struggled briefly but ceased in order to avoid further serious injury.The defendant went through her purse, took her money and rummaged through the house in search of more valuables.In response to the victim's pleas to leave her and her daughter alone, the defendant struck her.She obeyed the defendant's command to strip.He demanded her wedding ring, her engagement ring and her watch.Then, with a screw driver in his hand, the defendant proceeded to rape the victim.

The defendant wanted the victim's LLoyds AM-FM Stereo.He told her to take the stereo out to her car, and that if she did anything he would kill her daughter.The victim was forced to tie up her daughter with speaker wires.The defendant then tied up the victim and gagged both of them.After expressing displeasure because the victim could stand up, he told her and her daughter to lie on the bed and placed two chairs over them to prevent movement.

At the foot of the victim's bed was a box of Christmas decorations.The defendant lit a number of matches and dropped them into the box, setting the contents on fire.He then set another box of papers on fire, pulled a desk across the bedroom door and left.When a relative of the victim called shortly thereafter, she managed to knock the receiver off the hook and ask for help.The police were notified and the fires set by the defendant were put out.The victim described her assailant and his apparel to the police.She also identified the defendant at trial as her assailant.

Other facts will be stated as we discuss the issues to which they apply.

The defendant has appealed from the convictions on numerous grounds.

1.The appellant first contends that the trial court erred in admitting evidence seized from 449 Indiana on December 28, 1977, under a search warrant which he claims relied in part on information gathered during an illegal entry and search of appellant's apartment, and was therefore inadmissible under the "fruit of the poisonous tree" doctrine.

A determination of this issue requires facts not directly pertaining to the crimes previously presented.

At 8:47 a. m. on December 28, 1977, Wichita Police Officer Bolinger received a report of the third victim's rape.He checked the neighborhood of 1414 East Third, and received a radio call from Officer Krist, who advised that a person fitting the suspect's description lived at 449 Cleveland.The description, taken from the victim by Officer Merrell, included the fact that her Chrysler automobile and stereo were missing.About the time the defendant's residence was located, the victim's Chrysler automobile was found abandoned at Third and Ohio Streets with none of the missing property inside.Officer Krist subsequently contacted the officers who had assembled at 449 Cleveland and advised that the correct address was actually 449 Indiana, one block west of Cleveland.The officers proceeded there and approached the front door.Officer Patrick knocked loudly on the door, commenting that he heard something inside.Minutes later Officer Bolinger went around to the rear door of the residence and opened the screen door.

As he attempted to look into the window in the door, he pushed his head against it and the door opened.At that time, believing someone to be inside, he went in.He was joined by Officer Patrick who went inside with him.The officers searched the inside for the defendant and after finding no one they left the dwelling.Before leaving, Officer Bolinger observed a keyring, some welding gloves, and a man's billfold lying on top of the television in the living room.Bolinger felt the keys might be those still missing from the third victim's apartment, and mentioned those keys to Detective Allen who arrived later at the scene.

Detective Allen was advised the victim had identified a mug-shot of the defendant, Richard Williams, as her assailant.He was also advised by Detective King and Officer Bolinger of details of the crime and the officers' earlier attempt to arrest the defendant at his house.Detective Allen and an assistant district attorney who accompanied him to the scene returned to the district attorney's office where a search warrant was drawn for 449 Indiana.A search warrant was obtained based on Detective Allen's affidavit.

Seized during execution of the search warrant at the defendant's residence that afternoon were items introduced as exhibits.

The objection made by appellant's counsel reads:

"Your Honor, my objection to these exhibits and the photographs that they depict is strictly on the ground that they're inadmissible because there was no probable cause for Officer Bolinger to have not only gotten in the door but to have had an opportunity to observe the keys as depicted in State's proposed Exhibit 73."

Over the objection of the state as untimely the trial court entertained appellant's motion but denied it for reasons stated "At that time the initial intrusion was not an intrusion, based on the evidence before the Court, for a search of items, but for a search of a person upon which there would have...