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
(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,
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
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
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
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.
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.
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
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.
STATE'S COMMENT ON POST-ARREST SILENCE
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
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.
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 ...