Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 25, 1990.


The opinion of the court was delivered by

The defendant, Jimmy Jack Searles, appeals from his convictions of felony murder, K.S.A. 21-3401, and attempted rape, K.S.A. 21-3301; K.S.A. 21-3502.

The issues for our review are whether

(1) the trial court improperly allowed the State to comment on Searles' exercise of his privilege against self-incrimination;
(2) the trial court erred in allowing the prosecution to introduce K.S.A. 60-455 evidence arising from two prior crimes charged against Searles, one of which resulted in an acquittal and the other in a mistrial with no retrial;
(3) the trial court erred in giving a PIK Crim.2d 52.06 limiting instruction on the K.S.A. 60-455 evidence which stated that evidence had been admitted tending to prove that Searles committed other crimes; and
(4) the trial court erred in admitting the blood analysis testimony of the State's experts.
We find no error and affirm.
  The decomposed body of Roxanne G., the mother of three young children, was found beside a county road outside of Parsons,

[246 Kan. 569]

      Kansas, ten days after her disappearance. An autopsy revealed that Roxanne had died from a blow to the head.

  The night she disappeared, Roxanne spent the evening with her neighbor, Midge. They decided to go to Joe's Club to be with Midge's husband. Midge's eldest daughter, Sheila, babysat at Roxanne's home with her younger siblings and Roxanne's children. A short time after Roxanne arrived at the club, Jimmy Jack Searles, the defendant, approached her and asked her to dance. After the dance, Roxanne returned to sit with Midge. Roxanne wanted to dance again. Midge suggested that Roxanne ask Searles to dance. Roxanne and Searles had danced several times when Roxanne told Midge that she was leaving with Searles to go to another bar, the Midnight Factory. Midge cautioned Roxanne against leaving with a man she had just met, but Roxanne responded that she would be all right because she would know a hundred people at the Midnight Factory.

  Midge noticed it was 11:43 p.m. when Roxanne left with Searles. When Midge arrived home, she noticed Roxanne's car parked where Roxanne had left it. Midge immediately went over to Roxanne's apartment. She told Sheila that Roxanne had gone to the Midnight Factory and would be home later.

  A couple of hours later, Midge was awakened by Sheila. Roxanne still had not returned home and her three-week-old baby was crying. Midge returned to Roxanne's apartment with Sheila to find some formula for the baby and then went back to bed. Sheila woke her mother a second time at 7:00 in the morning to tell her that Roxanne had not returned. Roxanne's brother and his wife came over a few hours later. The police were called later that evening.

  The case was initially investigated as a missing persons report. Searles was interviewed by the police. His pickup truck was taken into custody with his consent. Searles told the police that he had gone to Joe's Club at 7:00 that evening, met and danced with Roxanne, and left with her at approximately 11:05 p.m. Instead of going directly to the Midnight Factory, Searles took Roxanne to a friend's house. The friend, Jim Lane, confirmed that Searles and a woman introduced as Roxanne came to his house late that night. According to Lane, Searles arrived shortly after midnight to talk to him about a combine they owned together and left

[246 Kan. 570]

      approximately an hour later. Searles stated that after they left Lane's house, he decided he did not want to go dancing. He said he dropped Roxanne off at the Midnight Factory before returning home to his wife.

  The Midnight Factory was under surveillance that night. A special agent for the Kansas Bureau of Investigation (KBI) was working on an undercover investigation at the club. She was inside to observe and to attempt to purchase narcotics. She was at the club until 1:45 a.m. but did not see Roxanne. None of the officers stationed in various places outside saw Roxanne dropped off at the Midnight Factory by Searles. However, the officers testified that the club was very busy and many vehicles, including pickup trucks similar to the one Searles drove, pulled into the parking lot that night. They did not notice anyone being dropped off outside the club, although such a drop-off would have been unusual enough that they thought they would have remembered it.

  Ten days later, the body of a deceased female was found in a weed-filled ditch about fifteen feet from a gravel road in Labette County. The body did not appear to have been moved. It was decayed and had been damaged by animals. The body was propped up with the buttocks partly in the air and appeared to have been in that position for some time. According to the county coroner, who had been summoned to the scene, he had to use a flashlight to see the body. He saw no garments on the body, with the exception of a piece of an undergarment that appeared to be ripped on one thigh. The sheriff, however, testified that a shirt was found on the body in the vicinity of the neck.

  In the coroner's opinion, a violent sexual act had occurred, as well as a murder. This opinion was based upon the fact that the deceased was a young female with her clothing removed and upon the position of the body. The coroner said that, based on his experience, even when a body remains exposed for prolonged periods of time "the articles of clothing do not simply come off, do not become removed spontaneously."

  Dr. William Eckert, a forensic pathologist from Wichita, viewed the scene. The body was taken to Wichita for an autopsy. Dr. Eckert determined the body was Roxanne's by a comparison of the teeth with Roxanne's dental records.

[246 Kan. 571]


  The examination of the body was limited due to the advanced state of decomposition and the damage done to the body by animals. It was not possible to perform medical tests to see if there was semen or sperm in the vagina or rectum. However, Dr. Eckert was able to determine the cause of death to be a skull fracture caused by a blunt instrument. Dr. Eckert observed that there was a curve to the fracture which would suggest that the object used to make the fracture had a curve to it. Dr. Eckert also concluded that a lug wrench found in Searles' truck could have made the curved indentation on the skull. Finally, he concluded that, although the exact time of death could not be determined, the state of decomposition of the body was consistent with the period of time Roxanne was last seen alive.

  Shortly after the autopsy, Searles' truck was searched a second time. During the initial search of the truck the officers had seized several tools, including a lug wrench and a section of rope and wire. The second search of the truck was conducted by a KBI agent who used luminal to search for blood on the truck. Luminal is a chemical that reacts with blood and is used on metal, fabric, and wood to help locate blood or blood residue. If blood is present the area will glow. The test does not ascertain whether the blood is animal or human.

  When the bed of the truck was first sprayed, specific areas glowed indicating the presence of blood. Those areas were between the back of the truck and the left wheel well, along the side wall, and on top of the back bumper. Scrapings were taken and sent to the KBI lab for evaluation. Another search of the truck was conducted. During the third search, more blood was located on the bumper, but this time it was found on the inside or back side of the rear bumper. Again, scrapings were taken.

  Searles was interviewed a second time and he was read his Miranda rights. He elected to speak with the police. Searles related basically the same story at the second interview, except he stated that his wife told him he arrived home at 1:30 a.m. instead of between midnight and 12:30 a.m. as he originally thought. Searles also told the officers that he was not attracted to Roxanne. According to the officer, Searles' demeanor at this interview was very cold and his actions were very calm. Searles' initial claim of trial error arises from this interview.

[246 Kan. 572]


  Eileen Burnau, a criminalist with the KBI, performed tests to identify the genetic marking or blood grouping of the blood found on Searles' truck, blood taken from Searles, and blood taken from Roxanne's parents.

  More tests on the blood were done by Dr. Edward Blake, a forensic serologist. Blake received several items, including a scraping of blood from the bumper of Searles' truck, a specimen of hair from Roxanne, three small pieces of bloodstained rope, and blood samples from Searles and from Roxanne's parents.


  At trial, during the direct examination of Officer Tucker, the State elicited testimony concerning the second interview of Searles. This interview took place at the Law Enforcement Center eight days after the victim's body had been found and lasted for over three hours. At that time Searles was read his Miranda rights. Searles indicated he understood those rights and agreed to speak with the officers. About three-fourths of the way through the interview, Searles was asked if he had killed Roxanne. According to Officer Tucker, Searles did not respond for a long period of time and finally said no. Searles then asked, "If I did what you say I did, what happens now?" In response, Officer Tucker told Searles that he just wanted to hear Searles' story of what actually had happened, but no promises or deals could be made. After a long silence, the conversation ended when Searles replied that in that case, "I have nothing to say." After Tucker related this statement at trial, the State immediately went on to other questions. The fact that Searles had stated, "I have nothing to say," was never raised again.

  Searles first claims that allowing the State to introduce this evidence of his post-arrest/post-Miranda silence was violative of due process of law. Searles admits he did initiate conversation with the police by asking, "What happens now?" He complains on appeal of the admission of his statement, "I have nothing to say."

  Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), held that the State's use of post-arrest/post-Miranda silence for impeachment purposes was constitutionally impermissible. A Doyle violation occurs when a defendant's post-arrest

[246 Kan. 573]

      silence is used to impeach the defendant when an exculpatory explanation is subsequently offered at trial.

  We recognized Doyle in State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976). In Mims, we found harmless error when the prosecutor on cross-examination asked the defendant why he did not tell his alibi story to the police at the time of his arrest. Mims' stories were consistent. He had clearly offered his alibi story to the police at that time.

  Recently, in State v. Higgins, 243 Kan. 48, 755 P.2d 12 (1988), we extended the holding in Doyle and Mims. In Higgins, the defendant's post-arrest silence was first introduced during defense cross-examination of a police detective. The detective testified that, because the defendant would not sign a waiver of his rights, the detective could not obtain a statement from him. On redirect, the prosecution proceeded to question the detective in detail about the defendant's refusal to speak with him after the defendant's arrest. The defense objection was overruled on the grounds that the defendant had waived his right to object by introducing the defendant's post-arrest silence in his cross-examination. Again, in its closing argument, the State commented on the defendant's silence. While acknowledging that one is allowed to exercise the right to remain silent, the State asked why the defendant had not denied the crime or given an alibi if innocent. We held that, under Doyle and Mims, the testimony concerning the defendant's post-arrest silence and the State's comments constituted reversible error. We attached importance to the comments of the prosecutor during closing argument and the emphasis placed on the post-arrest silence.

  The United States Supreme Court addressed the scope of Doyle in Greer v. Miller, 483 U.S. 756, 97 L.Ed.2d 618, 107 S.Ct. 3102, reh. denied 483 U.S. 1056 (1987). In Greer, the majority held that a Doyle violation occurs when a trial court allows specific inquiry or comment on an accused's post-Miranda silence. If the trial court attempts to cure such conduct through a sustained objection or limiting instruction, the conduct does not violate Doyle but is prosecutorial misconduct which may or may not rise to the level of a due process violation. Greer, 483 U.S. at 764-65.

[246 Kan. 574]


  The question about which Searles complains is similar to the situation in State v. Taylor, 223 Kan. 261, 574 P.2d 210 (1977). In Taylor, we stated: "The questioning really had nothing to do with defendant's silence after arrest and after receiving the Miranda warnings. His silence at that stage was not emphasized and was not used for impeachment purposes contrary to Doyle." 223 Kan. at 265.

  In the present case, where there was only one question concerning Searles' statement that he had nothing to say an no further comment on ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.