State v. Winston, 47275
| Decision Date | 06 April 1974 |
| Docket Number | No. 47275,47275 |
| Parties | STATE of Kansas, Appellee, v. Joseph M. WINSTON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The juvenile code (K.S.A. 38-815(f)) permits the taking of photographs of minors with the consent of the juvenile judge.
2. The fact that evidence bearing upon the crime charged may indicate the commission of another crime does not render such evidence inadmissible if it is relevant to establish the guilt or innocence of the accused with respect to the crime charged.
3. It is discretionary as to whether a trial court shall permit a jury in a criminal case to view the scene of a crime.
4. The words 'reasonable doubt' are clear in their meaning and no instruction defining their meaning is necessary.
5. In a prosecution for burglary and rape the record on appeal is examined and it is held the trial court did not err (1) in refusing to suppress a photograph of the accused, (2) in permitting a positive incourt identification (3) in refusing a new trial for newspaper publicity during the trial, (4) in admitting into evidence articles of personal property which might indicate the commission of some independent crime not charged, (5) in permitting the use of a blackboard drawing, (6) in refusing a request for the jury to view the scene of the crime, (7) in refusing to permit the accused to reopen his case, and (8) in giving an instruction attempting to define reasonable doubt.
E. Roger Horsky, Leavenworth, argued the cause and was on the brief for appellant.
Patrick J. Reardon, County Atty., argued the cause, and Vern Miller, Atty. Gen., and Hall Triplett, Sp. Prosecutor, were with him on the brief for appellee.
The appellant, Joseph M. Winston, was convicted of aggravated burglary (K.S.A.1973 Supp. 21-3716) and rape (K.S.A.1973 Supp. 21-3502) in connection with entering a private residence in Leavenworth, Kansas, in the early morning hours of June 29, 1971. The intruder entered the bedroom of the victim, committed the rape, took money from her purse and then left the premises. Appellant became the suspect when his picture was identified among photographs of eleven individuals contained in a police album. He was arrested while standing on a street corner in Leavenworth two weeks after the crimes were committed. The shoes he was wearing and the wallet he was carrying at the time of his arrest were identified as stolen property belonging to the victim's husband.
Appellant was tried before a jury. He appeals to this court because of alleged trial errors.
Appellant contends the trial court erred in refusing to suppress the photograph and the subsequent in-court identification. The legal bases for this attack are K.S.A. 38-815(f), (g), and (h) which provide:
'(f) Neither the fingerprints nor a photograph shall be taken of any child less than eighteen (18) years of age, taken into custody for any purposes, without the consent of the judge of the court having jurisdiction; and when the judge permits the fingerprinting of any such child, the prints shall be taken as a civilian and not as a criminal record.
'(g) All records in this state concerning a public offense committed or alleged to have been committed by a child less than eighteen (18) years of age, shall be kept separate from criminal or other records, and shall not be open to inspection, except by order of the juvenile court; and it shall be the duty of any peace officer, magistrate, judge or other similar officer, making or causing to be made any such record, to at once report to the judge of the juvenile court of his county the fact that such record has been made and the substance thereof together with all of the information in his possession pertaining to the making of such record.
'(h) When a record has been made by or at the instance of any peace officer, magistrate, judge, or other similar officer, concerning a public offense committed or alleged to have been committed by a child less than eighteen (18) years of age, the judge of the juvenile court of the county in which such record is made shall have the power to order such officer, magistrate or judge to expunge such record; and, if he shall refuse or fail to do so within a reasonable time after receiving such order, he may be adjudged in contempt of court and punished accordingly.'
The photograph had been taken by the Leavenworth police department nine months before the present crimes were committed and before appellant had reached the age of eighteen. At the hearing on the motion to suppress, appellant called two witnesses to testify. The officer who exhibited the book of eleven photographs to the victim testified that the victim identified the photograph, that the photograph was taken on September 25, 1970, and that he knew of no court order authorizing the photograph to be taken. The victim identified the picture as the one she had viewed prior to appellant's arrest. There was very little other evidence introduced on the motion. In denying the motion to suppress the court said it did not have sufficient evidence before it to support a finding that the photograph itself was illegally obtained. We are inclined to agree with the trial court.
The juvenile code (K.S.A. 38-815(f)) permits the taking of photographs of minors with the consent of the juvenile judge. Records concerning a public offense by a minor are not open to inspection, except by order of the juvenile court. (K.S.A. 38-815(g).) When such a record has been made, such as a police photograph, the judge of the juvenile court has the authority to order the same expunged. (K.S.A. 38-815(h).) The purpose of the statute is to place control of the records of minors charged with crime in the office of the juvenile court so as to protect their confidentiality. However, it is not illegal to take such a picture if the court consents to the taking. In State v. Hinkle, 206 Kan. 472, 479 P.2d 841, it is stated:
'Police officers are authorized to investigate and obtain information from a juvenile relative to a crime, and when there are sufficient grounds to believe a crime has been committed and the juvenile committed the crime, they must then deliver the juvenile into the hands of the proper juvenile authorities along with all information in their possession.' (p. 478, 479 P.2d p. 846.)
In Hinkle it is held a confession by a minor is not inadmissible merely because the person making it is a minor. It was further held that the provisions of K.S.A. 38-815(b) (formerly 1970 Supp.) should not be construed to hamper the traditional function of law enforcement officers in investigating a crime even though committed by a juvenile.
In the instant case the evidence was insufficient to establish the circumstances under which the photograph had been taken and used. The judge of the juvenile court was not called to testify at the hearing on the motion to suppress. We cannot assume for the purposes of the appellant's appeal that the judge refused to permit the photograph to be taken and we cannot assume the judge ordered the photograph expunged. The statute, K.S.A. 38-815(f), does not require a written order from the judge to permit the photographing. It merely requires his consent. We cannot presume the officers violated the statute.
The trial court's finding that appellant had failed in his burden of proof in this regard was proper and the motion to suppress was properly denied. With this determination the balance of appellant's argument fails. The victim made a positive in-court identification of the appellant as follows:
It is apparent under our holdings in State v. Kelly, 210 Kan. 192 Syl. 2, 499 P.2d 1040, and State v. Lora, 213 Kan. 184, Syl. 6, 515 P.2d 1086, the in-court identification in this case is capable of standing on its own, free of taint from previous identification procedures.
Appellant's next claim of error is based on two news articles which appeared in the Leavenworth Times during the trial. The articles stated that appellant was presently serving a sentence in the Kansas State Penitentiary for destruction of property and auto theft and referred to him as Joseph M. Winston, alias Bunny Winston. There is nothing in the record before or heard of show that a single juror read or heard of the news articles. No post-trial affidavits were filed. In State v. Eldridge, 197 Kan. 694, 421 P.2d 170, cert. den. 389 U.S. 991, 88 S.Ct. 486, 19 L.Ed.2d 483, it is held:
'. . . A defendant is not deprived of a fair trial in violation of the due process...
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