*1 47,763 Nо. Gary Appellant. D. Appellee, Kansas, Taylor, 1375)
(538 P. 2d Opinion July filed 1975. Wilson, Hodge, Wichita, argued Wilson, W. Wood and James appellant.
cause was on the brief for the Jr., cause, Kennedy, argued attorney, Robert assistant district and Curt *2 Schneider, attorney general, Sanborn, attorney, T. and were on Keith district appellee. brief for the opinion the court was delivered by Foth, C.: This is a appeal direct from the defendant’s conviсtion by jury a aggravated kidnapping. 2, 1973, Whittle,
On May at P. Kimberly 4:00 approximately p.m., a year seven old Elementary first student of Caldwell School grade Wichita, way was on her As down a home. she walked sidewalk truck, near the school a man out of an old got blocked green pickup her waist, her path, picked around the her in the up and placed pas- senger’s side of the truck. leaving
While the area the truck passed several members student saw the safety-patrol; Kimberly driver down pushing they the seat. One alert safety identified the truck young patrolman as an old GMC and obtained the license number. This was reported who principal relayed in turn information to the Wichita A license police. check revealed belonged the truck Gary the defendant. Taylor,
Events did not go so well for began She and Kimberly. cry, her abductor took a small knife from his poсket, pressed against throat, her, her and told “If I am you don’t stop crying, going you.” skin She and told quit crying put him to the knife away, man, he did. which who identified to' her “Gary,” himself as to show her promised some horses. drove to a in rural They spot Butler county the rain-swollen along Walnut River where he let her There, horses, the truck. out of instead of her her showing picked the collar of and the her up her blue and jeans, coat seat on the count of three her into threw the water. she couldn’t Although Kimberly swim was able to her above water and keep head scramble out of the river onto a little or sand bar island not far her, downstream. She to hide found Gary but took her attempted back the initial point again. launch threw her This time current carried her farther to the other away closer side the river where she was able to out water and get escape. was found a shоrt later a She down road walking country Hall, Mrs. Velma who in the area. Hall lived Mrs. took her to Hall home and dried her clothes. Hall and called her arrived Mr. parents police. Wallace Butler sheriff county deputy Halls’ call to the response about Kimberly to the Hall talked
Parks went house white man with “Gary” young described experience. She mustache, jeans blue wearing hair and shoulder-length a small unbuttoned, also described оver a T-shirt. She multicolored shirt an with shift on the gear an “wasn’t shiny,” the truck as old one that and a seat.. floorboard brown near a truckstop p. evening, 8:00 m. same
At approximately matching truck sheriff found a Augusta, county a Butler deputy spirited number of the one which had and with tag description He truckstop. inside the Kimberly away. him proved identification and his description matched Kimberly’s arrested. He thereupon the owner of the truck. be before brought initial claim is he was not Defendant’s K. S. A. 22-2901. delay as magistrate unnecessary required by without one hour after defendant The record indicates that approximately county, he was transferred was arrested at the Butler truckstop *3 custody was held in their until approxi- to the Wichita He police. a 4, before m. on before he mately p. Friday, May appeared 2:00 arrest intervening in the 42 hours magistrate Dining Wichita. from counsel, in line-up to a arraignment, defendant acquired appeared truck the green by young he was as the driver of the where identified “Gary” and as threw from Caldwell who safety-patrolman School on at police the river Kimberly, questioned was in least two occasions. for court. We have is not a new one this question previously a taking in delay our unwarranted
expressed
strong disapproval
However, we
con-
after arrest.
have
magistrate
before a
prisoner
in
process
said
is not
and of itself denial
due
sistently
“delay
a fair
right
it has
the accused’s
way prejudiced
in some
unless
17,
445;
2d
Giddings,
State v.
216 Kan.
531 P.
trial.”
State,
714;
214 Kan.
Underwood
Nading,
633,
The burden to show prejudice burden; e., this i. here makes no assume attempt delay claim that hour during he makes no anything happened ac- after He happened not as well have might presentment. which Instead, he еarly period. attempts counsel in this very quired state, it is “ill since claiming placed shift the burden to the [he] to muster the resources make is the to be able [a] least likely disagree. uniquely We The defendant is showing prejudice].” [of know positioned to or not took which were place whether events none, review unfairly He claims our prejudicial. independent of the record reveals none.
The defendant’s of his claims involve the search and seizure next truck. It Augusta, was seized of defendant’s arrest in and was towed to doors police There its Augusta department. sealed, were and it de- was later turned over the Wichita police partment. The truck Augusta. was searched officers in After taken to truck warrant being Wichita the photographed, obtained from Nothing resulting interior searched. this search was offered in the trial. did during evidence The stаte attempt introduce certain tools found in the bed of the truck but they were excluded lack A because their relevancy. piece beer bottle found in the bed of plain broken view the truck was received as being relevant because stated had that she Kimberly seen a whiskey or beer bottle the truck and that the defendant smelled as if drinking. been
The United States Court dealt anal- Supreme recently with an Lends, ogous situаtion in Cardwell v. 417 U. S. L. Ed.
When defendant’s car was located in a public parking lot. It was to their impounded by police impound- towed ment lot but not searched day. until The court found following no error in the seizure or in the delay the search.
First there found the еvidence indicating “[a]n automobile similar color and model to car had been seen [this] . leaving scene the crime . . corroborated by compari- son of the paint scrapings taken from the victim’s car with the color *4 and paint automobile [the defendant’s] had had [and he] done repair work on his car immediately the death of the following victim reason to believe that the car [constituted] in the used commissiоn of the crime for which was arrested.” [the defendant] was, at (Id. 592.) view, in the court’s cause to search probable it. our case an police had accurate extremely description make, model and color vehicle used in kidnapping. this,
In addition to they had and a tag number detailed descrip- tion of the driver. The truck found in the parking lot of truck-
710 Under exactly. description inside met the the defendant and
stop
truck.
tо search the
cause
this constituted probable
Cardwell
exist, there
did
cause
probable
that even if
contends
Defendant
truck
seizure of the
requiring
circumstances
exigent
were no
once again.
Cardwell
and cite
disagree
a warrant. We
without
that a warrantless seizure
claimed
the defendant
There
search in
made their
could have
police
because
necessary
that ar-
court rejected
Thе
the car was located.
lot where
parking
where
“public place
in a
car was parked
gument noting
dis-
the court
doing
In so
meaningfully
was not
restricted.”
access
443,
U.
29 L. Ed.
S.
v. New
Coolidge
Hampshire,
tinguished
pri-
car from the relative
a seizure
a
91 S. Ct.
where
held improper.
driveway
of the defendant’s
vacy
399 U. S.
Maroney,
a.
from Chambers
quoted
The
Cardwell
42, L. Ed. 2d
cause to believe that vehicle crime. to that relating of a crime and contained valuable evidence be im- that the truck necessary that evidence it was To preserve lost or would be so none of evidence protected mobilized Hoy, See clearly legal. The seizure destroyed. cause to search probable P. 2d 275. If the police arrested, they and defendant time it was discovered the truck at the *5 later, it and search more cause it impound probable time. convenient at trial of photographs defendant also of the usе complains
The taken police department. photographs of his truck identification purposes. and used at the trial for were taken see, eye readily eye what the could only camera preserved Blood, 812, 378 P. 2d State v. no trespass. can commit admitting photographs. these 548. We find no error an conducted interview next claim of error relates Defendant’s before was presented shortly detectives two Wichita police error it was retained counsel that after he He claims a magistrate. question being present. him without his counsel to question Melton, answered could be that no claimed statement similarly where the defendant charged. he had been after of counsel from him in the absence taken his to have the right waive may that an accused held there We before, after, as as well interrogation during police counsel present him. against are filed charges formal case, the defendant asked any questions being
In this prior to have counsel rights, including right informed of his fully during about his whereabouts He asked present. exculpatory were completely took His comments place. course, where, of in the of the crime him area general
except put de- the conversation during At one point he was arrested. morе any ques- not to answer his determination expressed fendant discrepancy There is some attorney. the absence of his tions and the police of the questioning defendant’s account between the announcement. he made this just as to when recollection officers’ that he anything, before he said claims that was Defendant were only that they the officers’statements to speak induced day whereabouts on аs to his general after information the defendant is that of the conversation crime. The officers’version willingly present to have counsel right his voluntarily waived and exer- his waiver revoking questions prior answered several time, testify, At that detectives to remain silent. right his cising ceased. immediately their questioning trial court. was conducted hearing v. Denno
A Jackson his lawyer to have right had waived It that the defendant his found that his state- of the intеrview the first during portion present It also and admissible. voluntary were his whereabouts ments during to counsel reasserted his right found that the defendant *6 inadmissible. and that all asked thereafter were questions interview admissibility determining of the defendant of a statement “. . . weigh any interrogation con- during court must the trial custodial obtained totality findings circum- flicting on of the its based evidence and make support trial court’s competent evidence If there is substantial stances. intelligently knowingly his voluntarily, waived findings that the defendant findings disturbed on rights, will not be such Amendment Fifth and Sixth 181.) Soverns, 775, 777, (State 529 P. 2d Kan. appellate review.” will are adequately supported here findings trial court’s not be disturbed. relate defendant of error final three allegations during to or occurring immediately prior matters
procedural trial. not have should
First, that the trial court claims of morning witnesses on the certain state to endorse allowed the endorsing the question K. S. A. 22-3201 (6) the trial. Under court, and its trial to the discretion witnesses is entrusted shown. that discretion is unless abuse will not be disturbed ruling unfairly been have rights or not defendant’s The test is whether 400, 536 & Reynolds, Williams State v. prejudiced. 691; State v. Smith, 523 P. 1395; 215 Kan. P. 2d Staf here no alleges 769. The defendant 213 Kan. ford, have been trial would strategy that his allege nor does he surprise, call these the state’s intent had warning different he earlier wit that these the record indicates additional witnesses. In fact during defendant’s counsel nesses had been interviewed by exactly that he knew course of his of the case and investigation and no no what their would be. There was testimony prejudice trial here in the endorse allowing abuse of discretion ment of additional witnesses. defendant next of two complains testimony police
officers who was hear- repeated Kimberly’s story testimony question permissible The court ruled that thе say. “A pre- under the rule statement hearsay covering exception at and avail- hearing made who is viously present person and its to the statement able for cross-examination with respect matter, admissible if made statement would be subject provided the A. 60-460 a witness”. S. (K. [a].) declarant while testifying court’s library. was in the Kimberly At the testified officers the defendant’s her in the courtroom When asked if wanted She later replied, cоunsel “No.” testified. It would appear the officers’ came within the testimony squarely statutory exception. however,
Defendant now argues, although physically present was not Kimberly subject cross-examination mentally present she “was not at all the transaction which because able recall times to be without merit. occurred 2.” this contention May We find trial, “Where at a it cannot be said that witness fact testifies A. under K. S. was nоt for cross-examination’ witness 'available P. 2d Syl. 60-460 State v. (a).” Ralph, ¶3. cross- Kimberly carefully “in fact” testify did the trial. She examined of counsel for by defendant’s counsel. The questioning 2nd events of May both sides revealed that could remember the she her. and that she had a clear recollection of what had happened difficulty Our reveals only significant review the record that the encountered centered around whether thе the truck was seat *7 green that, or brown. truck, Other than she its broken described and window torn seat identified of it as being and the one picture driven her She also abductor. recalled picking river, out of the one in line-up being who threw her and she personally again identified him courtroom. clear
It is from the record that both Kimberly was physically mentally present admitting at the The trial not err in trial. court did the officers’testimony.
The final clаim of the defendant trial concerns the court’s refusal to instruct lesser included offenses of simple kidnapping unlawful restraint. The trial court ruled that the facts of this case indicated that the defendant was either guilty aggravated kid- or not napping guilty anything. The failure instruct the jury on some lesser degree of a crime charged grounds is not for reversal if the evidence at the trial excludes theory guilt on a lesser Harris, offense. State v. 961, 215 Kan. 529 2d 101 P. and cases cited therein.
Under K. S. A. 21-3421 the element distinguishing aggravated kid- from napping simple kidnapping is presence “bodily harm” to the victim. There is no evidence that Kimberly any suffered permanent from Therefore, her ordeal. her if injury kidnapping “aggravated” must kidnapping it be because throwing into the Walnut River was harm” “bodily as a matter of law. We believe was. harm”
“Bodily has been defined by this court. In a kidnap-rape 714 against victim’s] the victim touching of “any [the held that
case we intentional, hostile and force, aggravated in an will, with physical victim manner, against force of such or projecting statute.” (State meaning harm’ within is ‘bodily kidnaper de definition was Brown, 375, 389, 832.) 312 P. 2d v. 181 Kan. Tanner, 279, 324. have In 44 P. 2d We 3 C. 2d from v. People rived constitutes holding rape cases followed Brown subsequent kid of aggravated a conviction harm” to “bodily support sufficient State, 21; 467, v. Sharp 426 P. 2d v. 198 Ayers, Kan. napping. 609, 533 Barry, and State v. in California’s also been followed construction has P. 1308. Chessman, Brotan, 555, 176 v. People P. 2d 929 29 C. 2d People P. 2d 1001. C. 2d the definition narrowed has significantly California court Tanner, this court and followed harm” forth in “bodily set are injuries that some “trivial” recognizes Brown. That court now nature of from forcible any to result likely very re- or impressions bruises insignificant the act. It concludes that had in mind legislature what the the act itself are not sulting from kidnapper one harm” the factor which it made “bodily when subjects reason A significant policy than another. to a more severe penalty inflicting from kidnapper distinction is to deter a making for un- victim, the victim’s release encourage and to harm his upon view, vio- was, acts of only unnecessary harmed. It court’s victim, abduction after initial occurring those upon lence Therefore, in- only to deter. legislature attempting which the harm.” See “bodily would constitute resulting from such acts juries Gilbert, 898; Jackson, P. 2d People 44 C. 2d People v. *8 365. 690, 47 63 C. 2d Cal. Rptr. fits within harm” meaning “bodily refinement of the Brown, Sharp Ayers, in the rapes
limits of our own cases. prior and not a part unnecessary were acts of violence Barry cases even injury harm or bodily There was of the itself. kidnapping cases, been, tem- only in some of the it have at least though may porary. act the Walnut River was an into throwing Kimberly
The act of intentional, and aggra- “an hostile force committed in physical Brown, unnecessary It was supra.) manner.” (State vated just it was kidnapping; of a forcible the required scope outside kidnapping that our “aggravated” attack on the victim type fast; was swollen to deter. The river designed was statute swim Kimberly couldn’t and was coat. wearing heavy corduroy Only fortune saved her from her in good drowning. Thrоwing itself; e., river was i. it felony was an unlawful application her, of force to her with an obvious intent done in a person injure manner whereby death could have been inflicted. It thus had all the elements of an K. S. A. aggravated battery under 21-3414. resulted,
While no injury we think that in common permanent and in understanding legal contemplation ordeal inflicted on this child constituted harm.” It follows that “bodily defendant was indeed guilty aggravated kidnapping or trial nothing, required not on instruct lesser included offenses. any is judgment affirmed.
APPROVED BY THE COURT J.,
Fromme, not participating. I J., dissenting: Prager, dissent from syllabus respectfully ¶ I portions would reverse be- corresponding opinion. cause the trial court erred in denying defendant’s for an request instruction lesser included offense and in failing to define harm.” In “bodily my judgment evidentiary record a factual raises issue as to harm” “bodily whether or inflicted upon person kidnappеd.
The key to a determination of this
is the
issue
construction of the
term
harm”
in K. S. A.
“bodily
as used
21-3421. The
its
majority,
term,
construction of the
relies
numerous
upon
California cases
“bodily
which construe
harm” to
to the
of the kid-
injury
mean
body
nap victim. These
given
cases have
rise
in-
jury
California
struction
which
harm” is defined to
“bodily
mean “substantial
injury
body
of a
who
person
kidnapped by
applica-
tion of
force
and in addition to
above
the forсe which is
physical
necessarily involved
commission of such kidnapping.” (CAL-
No.
This instruction
9.23.)
judicially
has been
See
approved.
JIC
Reed,
People v.
Cal.
Rptr.
Cal.
430.
App.
Reliance
is
upon
language
placed,
above
well
for we have
held
term “unharmed” to mean
previously
“uninjured.” (State
Cox,