State v. BradleyState v. Bradley
- Reporters:
- , ,
- Before:
- Schroeder
The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant appeals from a conviction on two counts of aggravated assault of a law enforcement officer (
The primary question on appeal is whether a detective in the police department, wearing civilian clothes, was a properly identified law enforcement officer under
Shortly after noon on April 7, 1972, Vernon L. Weaver, a commercial artist and student at Wichita State University, was standing at the corner ¡of Third and Ohio Streets in Wichita taking photographs he intended to use in an art class. Alexander Bradley a/k/a Wayland E. Carpenter (¡defendant-appellant) was parked in a black station wagon at that corner. Bradley motioned that he wanted. Weaver to come to his car. When Weaver did so, Bradley asked, him what he was doing. Weaver stated that he was taking photographs. Bradley lifted a pistol from the car seat and pointed it at Weaver again asking what Weaver was doing. Weaver repeated, what he had said previously and then started running toward his car. Before reaching his car, Weaver stopped, turned around, and. attempted to observe the number on Bradley’s license plate. However, Bradley had turned around in his car and was pointing the pistol at Weaver through the rear window of his car, so Weaver immediately ran to his car, and started to drive away. Weaver-decided to make another attempt to observe Bradley’s license plate-number. He followed Bradley and eventually succeeded in obtaining his license plate number. Weaver then stopped at a car dealership and explained what had occurred to an off-duty policeman who was there. The policeman called the police dispatcher and related this information including Bradley’s license plate number.
In the meantime Bradley had ¡driven into the downtown area of Wichita. There he encountered Ike Neufeld, who was driving his automobile near the Century II civic center. Bradley drove his
While Bradley and Neufeld were talking, Officer Robert S. Ben-ham of the Wichita Police Department approached the scene in his patrol car in response to a radio transmission regarding a man in a black station wagon waving a gun at people. Officer Benham stopped his patrol car approximately fifteen feet in front of Bradley’s automobile. Officer Benham was wearing a police uniform and badge, and his patrol car had a visibar across the top, which consisted of two large red lights with a white sign between them saying “Wichita Police”. Officer Benham exited his patrol car and called to Bradley to drop his gun. As Officer Benham started to approach Bradley’s car, Bradley turned his gun from Neufeld, pointed it at Officer Benham and fired one shot. Officer Benham then crouched behind the open door of his patrol car and again called to Bradley to drop his gun. When he concluded that Bradley was going to keep the gun, Officer Benham retreated to the rear of the patrol car and radioed for assistance. Bradley again pointed his gun at Neufeld and then he assumed conversation.
Within a few minutes Detective Sergeant Merle J. Nelson of the Wichita Police Department arrived on the scene. He had come from the police station a few blocks distant in response to Officer Benham’s call. Detective Nelson was not dressed in police uniform, but was wearing a sport jacket blazer and a pair of blue and white slacks. At this time Bradley was yelling that he wanted to talk to the Governor. Nelson shouted back that the Governor was not in the city and asked if Bradley would talk with him. At this time, according to Detective Nelson’s testimony, Officer Benham hollered at Bradley telling him “that that is Detective Nelson, would you talk to him.” Bradley looked at Detective Nelson, then back at Officer Benham, and replied, “Yes, I will talk to him. Come on over to the car.” Detective Nelson went to the automobile and talked with Bradley for some time. Bradley told Nelson that he
Neufeld, Benham and Nelson testified that Bradley acted confused and incoherent, and was loud and excited.
Bradley was charged and found guilty of aggravated assault on Officer Benham (Count One) and Detective Nelson (Count Two). Bradley was acquitted of two other counts not material to this appeal. Thereafter, the state moved the court to impose sentence under
Aggravated assault on a law enforcement officer is defined and proscribed by
“Aggravated assault of a law enforcement officer is an aggravated assault, as defined in section 21-3410, committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of his duty.
“Aggravated assault of a law enforcement officer is a class C felony.”
The appellant contends the evidence at the trial was insufficient, as a matter of law, to establish that Detective Nelson was a “properly identified” law enforcement officer within the meaning of 21-3411.
This court has not heretofore considered the meaning of the statutory phrase “properly identified”.
The appellant urges that proper identification requires evidence: (1) That Detective Nelson personally identified himself as a law enforcement officer to the defendant, and (2) that the defendant knew Detective Nelson was a law enforcement officer.
The appellant cites three cases for his position: Pettibone v. United States, 148 U. S. 197, 37 L. Ed. 419, 13 S. Ct. 542 (1892); United States v. Bell, 219 F. Supp. 260 (E.D.N.Y. 1963); and United States v. Forrest, 300 F. Supp. 1011 (E. D. Wis. 1969).
Pettibone held that under an applicable federal statute it was necessary,
. . [F]or the accused to have knowledge or notice or information of the pendency of proceedings in the United States court, or the progress of the administration of justice therein, before he can be found guilty of obstructing, or impeding, or endeavoring to obstruct or impede the same.” (p. 205.)
Bell
and.
Forrest
both held the defendants must know that the person assaulted was a federal officer before the defendant can be guilty of assaulting a federal officer in violation of
We have examined Pettibone, Bell and Forrest. They are not controlling authority in the case at bar. Not only are the facts of those cases inapposite, but the statutes under which they were decided differ substantially from 21-3411.
For the reasons hereafter stated we are of the opinion the statutory element “properly identified” only requires evidence that the law enforcement officer be identified in such a manner that the defendant reasonably should know he is a law enforcement officer. This view is supported by the language of the statute and by
First, the language of
The appellant does not offer any authority or basis for his assertion ’that under 22-3411 the officer-victim must personally identify himself as a law enforcement officer to the defendant. Clearly, the statute does not contain such a limitation. It merely requires that
The appellant does not contend that the statute requires him to know Officer Benham was a law enforcement officer. Benham was the uniformed police officer the appellant was convicted of assaulting in Count One. The appellant does not challenge the sufficiency of the evidence to support his conviction on Count One. No reason is suggested that the legislature intended to provide different standards of protection for the two classes of officers covered by the statute.
Secondly, the foregoing interpretation is supported by
“Unlawful interference with a fireman or fire fighter is knowingly and intentionally interfering with, molesting or assaulting, as defined in section 21-3408, any fireman or fire fighter while engaged in the performance of his duties, or knowingly and intentionally obstructing, interfering with or impeding the efforts of any fireman or fire fighter to reach the location of a fire.”
In
After examining the record on appeal in the light of what has been said, we find there was substantial competent evidence from which the jury reasonably could have found that Detective Nelson was a “properly identified” law enforcement officer when he was assaulted with a deadly weapon by the appellant. Detective Nel
The appellant next contends that since his acts of assault on Officer Benham and Detective Nelson “occurred at the same time and were part of the same acts or occurrences ... it was an abuse of discretion for the trial court to impose the Habitual Criminal Act and also to order the sentences imposed for each violation to run consecutively.”
While the appellant’s various assaults with his pistol upon Officer Benham and Detective Nelson occurred during one episode, they nevertheless constituted separated offenses of aggravated assault on each of the law enforcement officers. This is not a situation where a single transaction may constitute two separate and distinct offenses. (See, Coverly v. State, 208 Kan. 670, 493 P. 2d 261.)
Under
“When separate sentence of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences or probation have been revoked, such sentences shall run concurrently or consecutively as the court directs. . . .”
From the record presented the basis of the appellant’s attack upon his sentence lacks merit.
The judgment of the lower court is affirmed.