State v. Wilson

• Decision Date: 15 June 1974
• Docket Number: No. 47258,47258
• Citation: 215 Kan. 28,523 P.2d 337
• Parties: STATE of Kansas, Appellee, v. Albert WILSON, Appellant.
• Court: Kansas Supreme Court

Page 337

523 P.2d 337

215 Kan. 28

STATE of Kansas, Appellee, v. Albert WILSON, Appellant.

No. 47258.

Supreme Court of Kansas.

June 15, 1974.

Syllabus by the Court

1. In a criminal prosecution the issue whether a defendant's statement is voluntary is a question of fact to be determined in the first instance by the trial court in a separate hearing held for that purpose.

2. A trial court's determination of the admissibility of a defendant's statement will not be disturbed on appeal if it is supported by substantial competent evidence.

3. Incriminating statements or admissions which are made freely and voluntarily without threat of force or compulsion are not barred under the rules set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, but are admissible in evidence.

4. In a criminal prosecution an offer by the defendant to stipulate remains merely an offer unless accepted by the prosecution.

5. In a criminal prosecution the making of an admission by the defendant does not bar the state from proving the fact independently as though no admission had been made.

6. Technical objections to the trial court's instructions will not be considered when raised for the first time on appeal.

Rodney H. Busey, of Arvin, Arvin & Busey, Chartered, Wichita, argued the cause and was on the brief for the appellant.

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

KAUL, Justice:

The defendant, Albert L. Wilson, appeals from convictions of aggravated assault (K.S.A.1973 Supp. 21-3410) and felony possession of a firearm (K.S.A.1973 Supp. 21-4204).

The charges against defendant stemmed from an altercation and shooting incident which occurred in and nearby the Carriage Inn Tavern in Wichita during the evening of June 9, 1972.

The evidence established that Joy Currie, employed as a barmaid at the tavern, was an acquaintance of officer Breedlove of the Wichita Police Department. During the evening in question defendant made an appearance at the tavern which caused Joy Currie to believe trouble would ensue. After defendant left the tavern Joy Currie telephoned officer Breedlove who was off-duty at the time. Breedlove, out of uniform, arrived at the tavern shortly after 11 p. m. Soon after Breedlove's arrival, defendant made a second appearance at the tavern and was pointed out to Breedlove by Joy. Breedlove proceeded to a telephone in the rear of the tavern to call the police department. As Breedlove was dialing defendant approached and pointed a gun at him. Ensuing events are described by Breedlove in his testimony which is narrated as follows:

'. . . When I observed him pointing the firearm at me I dropped the phone, and there's a door that is just right there which leads back into the pool area. I dropped the phone, jumped back in there, pulled my revolver, jumped back out, yelled police officer, drop your weapon and he turned and ran out of the south door, myself right behind him out of the south main entrance of the Carriage Inn. I ran after him. Upon going out the south door, I heard a report and saw a muzzle flash. I kind of grabbed hold of the sides of the frame of the door and pulled myself out, jumped back out and returned fire, and by that time he was already around the corner west from the entrance. I ran around to the west side of the building and stopped there. I stuck my head around the corner and observed a '59 white Chevrolet praked on the west side of the building and as I stuck my head around the corner I received approximately two more rounds from the gun which appeared to come from the front seat of the car, muzzle flash coming out of the car itself. Bullets hit the wall and dust fragments got in my eye. The defendant fired at me three or four times after he fired from the car. The car started up and he was laying down in the front seat evidently with his head pointing toward me, backed up the car and started to leave the area. I jumped out and emptied my service revolver into the car. The car did not stop. I tried to get the tag number; however, I couldn't because it was dark. I ran back to the Carriage Inn, picked a nickel off the ground and called the police department and gave them a description of the subject that tried to harm me and the direction of travel, type of car and everything. . . .'

Three days later, on June 12, 1972, defendant was arrested at his house by Sergeant Nelson and Captain Williamson of the police department. His rights, as delineated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were immediately read to defendant from a typed card and when asked if he understood defendant replied in the affirmative. In a close sequence of events following his arrest defendant inquired whether the officers had a search warrant and, further, whether there would be a 'head knocking over this deal with the cop.' After the officers and defendant were seated in the police car a conversation took place relating to defendant's gun. In this connection, Captain Williamson's testimony appears in the record as follows:

'A. . . . as we started to pull away I asked him where the gun was. He says, 'The river got it.' and I said, 'Where at in the river?' He says-didn't reply to me. Traffic was going, people all over the place. Sergeant Nelson asked him, 'Where is the gun at?' He says, 'It's in the river. I hope it's deep.'

'Q. And did you say anything then after he said, 'In the river. I hope it's deep?'.

'A. Yeah, because I asked him again where it was at. He said, 'I don't know. I just hope it's deep."

Defendant was charged with aggravated assault on a law enforcement officer under K.S.A.1973 Supp. 21-3411. Apparently, because officer Breedlove was not in uniform at the time, defendant was convicted of aggravated assault under K.S.A.1973 Supp. 21-3410. With one exception mentioned hereafter, the instructions submitted by the trial court are not included in the record on appeal.

Defendant briefs and argues three points on appeal. He first contends the trial court erred in admitting the statements made to the arresting officers concerning the whereabouts of his gun. The trial court first heard evidence relating to the matter outside the presence of the jury and determined defendant's statements were admissible. Thereafter, the officers were allowed to testify in the presence of the jury. Defendant admits the Miranda warning was given and acknowledged by him prior to his inculpatory statements. Defendant's argument seems to be that the arresting officers should have done more than merely give him the Miranda warning and should have asked him specifically if he wanted to exercise any of his rights after the warning had been given. This argument is untenable. Defendant gave an unequivocal 'Yes' response when asked if he understood his rights. He makes no claim that he was coerced or that his statements that the gun was in the river were given otherwise than voluntarily.

Defendant further argues that his question concerning a search warrant should be interpreted as an attempt to invoke his right to remain silent. We see no basis for arriving at defendant's suggested conclusion. The statements concerning the whereabouts of the gun came about in the course of a conversation between defendant and the arresting officers and, as we read the record, were a part of a continuing chain of conversation freely and intelligently entered into by defendant. The statements in question are in context quite similar to defendant's statements found to be admissible in State v. Porter, 201 Kan. 778, 443 P.2d 360, cert. den. 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805. In Porter the arresting officers advised the defendant prior to the giving of any Miranda warning that they had come for his pistol, the defendant's response was 'You can't have my pistol.' Porter's exclamation was considered in the light of the Miranda decision and even though Porter had been given no warning at the time, we held:

'Incriminating statements or admissions which are made freely and voluntarily without threat of force or compulsion are not barred under the rules set forth in Miranda v. Arizona, 384 U.S. 436, 86...