The opinion of the court was delivered by
This is a direct appeal from a jury verdict which found
defendant, John A. Skelton, guilty of aggravated burglary (K.S.A.
21-3716), aggravated kidnapping (K.S.A. 21-3421), rape (K.S.A.
21-3502), and aggravated criminal sodomy (K.S.A. 21-3506). The
jury did not reach a verdict on a second count of aggravated
criminal sodomy, and the State dismissed this count at
The defendant raises five issues on appeal: (1) His
identification was tainted by suggestive pretrial procedures; (2)
the evidence seized from his car was inadmissible; (3) the trial
court failed to suppress evidence seized from defendant's house;
(4) there was insufficient evidence to support the aggravated
burglary conviction; and (5) the State's use of peremptory
challenges violated defendant's Sixth Amendment rights. The
determination of those issues necessitates a detailed recital of
On June 20, 1988, a burglary occurred at A.E.'s residence in
Sedgwick County, Kansas. Shortly thereafter, A.E. installed a
security system. Living with A.E. were his wife and 29-year-old
daughter, K.E. On July 28, 1988, A.E.'s wife left the house for
work at about 7:20 a.m. As A.E. left at approximately 7:30 a.m.,
he noticed a dark Monte Carlo or Grand Prix with a chrome strip
at the bottom being driven slowly near his house. As the cars
passed, the drivers had eye contact. It appeared to A.E. that the
driver of the other vehicle was slouched down in his seat. The
driver was a white male with fairly long, dark hair. The license
plate was an older-model Sedgwick County tag that A.E. thought
began with an "R." Defendant's license tag was an older-model
Kansas tag numbered S 56484.
K.E. activated the newly installed alarm system when she left
for work at about 7:50 a.m. on July 28, 1988. As she approached
her car, a man jumped out from behind the corner of the house and
knocked her to the ground. When she struggled and screamed, he
told her that he had a knife and showed it to her. When she asked
what he wanted, he demanded money. Initially, K.E. saw the man
face to face in the sunlight, but then he kept behind her. He
told her that they were going into the house. As they entered,
the security alarm sounded audibly, and an operator for the
security alarm company spoke with K.E. on a speaker phone. K.E.
intentionally gave a wrong code word twice, prompting the
operator to increase the listening capacity and to call the
The assailant again demanded money, and K.E. dumped the
contents of her purse but had only change. He took her into a
bathroom, and she saw him in the mirror. He saw himself too,
seemed surprised, and asked if she gave the right password. She
told him "no" and urged him to leave because the police would
arrive soon. He forced her to leave with him through the front
They walked over a small bridge and, while crossing a dirt
field, K.E. started screaming. The man knocked her to the ground
and hit her several times. When she agreed to "be good," he let
her up and took her to an area with trees and grass. He ordered
her to lie face down in the grass. When she did so, he ripped off
her blouse, tied her hands behind her back with her bra, lifted
her skirt, ripped off her underpants, and inserted a finger into
her vagina. At trial, K.E. testified that he also inserted
a finger into her rectum, but she was uncertain in prior
statements to the police about this conduct and the jury did not
reach a verdict on Count 5, charging anal sodomy.
The man unzipped his pants and laid on top of K.E. but did not
obtain an erection. He knelt in front of her and ordered her to
lick his penis. When she refused, he hit her several times in the
back of the head. K.E. pretended to be unconscious. He lifted her
head by her hair and attempted to put his penis in her mouth.
Although she kept her teeth clenched, he put his penis in her
mouth and rolled it around on her gums. He again crawled on top
of her, but he never obtained an erection and eventually left.
K.E. remained on the ground with her eyes closed, then stood up
and saw her assailant walking west across the field. She ran to
her house and told Wichita police officer Raymond Fletcher, who
had responded to the call from the security company, that her
assailant was still in the area. She described the man as a white
male in his 20s, approximately 5'11", of muscular build with
neck-length dark or black hair and a tattoo. In a statement to
police, K.E. indicated that whenever she tried to look at her
assailant, he would shove her face back down. At trial, K.E.
testified she saw his face on three occasions: (1) when they
first entered the house and she pointed out the alarm; (2) in the
mirror when he pushed her against the bathroom vanity; and (3)
over her shoulder when he was tying her hands together with her
K.E. and Officer Fletcher got into his police car and followed
a black Pontiac Bonneville or Parisienne that had just pulled out
of a field heading north. A chase ensued with speeds up to 118
m.p.h. Officer Fletcher lost the vehicle as it headed east on
21st Street. Officer Phillip Gleason, who had arrived at the A.E.
residence just as the car chase began, followed Officer Fletcher
to 21st Street. He turned east onto 21st Street and observed a
black car about one-half mile in front of him. Gleason saw the
vehicle at 119th Street and then saw a dark vehicle turn south
onto Sheffield. Gary Smarsh, a construction worker in the area,
flagged Gleason down and reported that a black, four-door Pontiac
had driven past him at a high rate of speed, left the blacktop
road, and drove into a wheat field.
Photographs of tire tracks found in another field north of the
residence were compared with photographs of tires on defendant's
car. The tracks exhibited family characteristics similar to three
of the tires. These characteristics did not exclude these tires
as a possible source for the tracks, but individual
characteristics were not available that would conclusively show
the tracks were made by the tires on defendant's car. Later, A.E.
and a witness to the high-speed chase observed defendant's car
while it was parked in front of defendant's residence on N.
Perry. Both testified that the car, a black Pontiac Bonneville,
was similar to the one they had observed the morning of July 28.
Wichita police detective Richard Fesler interviewed K.E. on
July 28. Following that interview, another police officer told
Fesler that John Skelton was a possible suspect in the attack on
K.E. On July 29, Fesler drove by Skelton's residence and saw his
car parked in the driveway. It was clean, but some vegetation was
hanging underneath it. On July 30, Fesler saw Skelton's car in
the parking lot of the Bubba-Rock Club, which is a nightclub
where Skelton was employed. This time, Fesler took samples of the
green and brown vegetation from three places underneath the
On July 29, Fesler showed K.E. six photographs, including a
ten-year-old picture of defendant, but she did not identify any
of the photographs as a picture of her assailant. A.E. was shown
the same pictures but did not pick anyone.
Defendant was taken into custody and participated in an
in-person lineup on August 1, 1988. Each of the six individuals in
the lineup was required to say, "I have a knife." Although K.E.
identified defendant as her assailant immediately upon entering
the room, she waited until she had viewed each of the individuals
carefully and listened to each speak before making her
William Wilson, who was being held in the Sedgwick County jail
on 23 burglary and theft charges, participated in the lineup. He
was previously acquainted with defendant through defendant's
brother, and visited with defendant prior to the lineup. Wilson,
in return for a favorable recommendation at his sentencing for
the 23 charges, testified that defendant told him in a
conversation before the lineup that defendant had been using
cocaine the night
before the assault on K.E. and planned to break into the house to
obtain money to pay his drug debts. According to Wilson, when
K.E. tried to run away, defendant "felt like killing the bitch
but he just wanted to degrade her." Defendant also told Wilson
that a high-speed chase ensued and eventually he lost the police
in Riverside Park.
Search warrants for defendant's car, which had been impounded,
resulted in seizure of a screwdriver and a silver knife. Defense
counsel moved to suppress K.E.'s identification of defendant
during the lineup and at trial, as well as physical evidence
seized from defendant's garage and his car. All the motions were
Defendant, testifying at trial, denied any involvement in the
attack of K.E. According to defendant, he worked at the
Bubba-Rock Club until approximately 2:30 the morning of July 28
and then rode to the apartment of his friend, Dave Johnson.
Around 4:00 to 5:00 a.m., defendant's girlfriend arrived, and
they attempted to reconcile problems until she left at 7:00 a.m.
Defendant slept on the floor until 11:00 a.m. Johnson drove
defendant back to the Bubba-Rock parking lot to defendant's car.
Defendant testified that the vegetation under his car was
probably from his several camping trips to Cheney Lake during
July. He denied the conversation with William Wilson before the
lineup. Defendant testified that a suitcase and its contents,
which had been stolen from the A.E. property in the June 20
burglary, and which was inadvertently found during execution of a
search warrant of defendant's residence at 1028 N. Perry on June
27, 1988, was stored in defendant's garage by his friend, Carl
Venz. Carl Venz and not the defendant was suspected of committing
Following defendant's conviction, the State moved to invoke the
Habitual Criminal Act based upon defendant's 1981 convictions for
aggravated burglary, battery, and theft, and 1975 convictions for
attempted rape, aggravated burglary, and robbery. The court
granted the motion and sentenced defendant to terms of 15 to 40
years for aggravated burglary, three life sentences for
aggravated kidnapping, and 45 years to two life sentences each
for the rape and aggravated sodomy. The sentences for the latter
three charges were ordered to run concurrently with each other
but consecutively to the sentence imposed for aggravated
burglary. Additional facts will be discussed as necessary to
determine the issues raised by the defendant.
Defendant first argues that K.E.'s identification of him both
at the in-person lineup and at trial were tainted by use of
suggestive procedures. On July 29, K.E. was shown a photographic
array of six individuals. The array contained two black-and-white
photographs of each individuals, one frontal and one profile, for
a total of 12 photographs. The photograph of defendant was ten
years old. Neither K.E. nor her father identified defendant in
the photo array.
Defendant was arrested on July 30, 1988. He appeared with five
other individuals in an in-person lineup on August 1, 1988. These
individuals were of a similar height and weight to defendant, as
discussed by Office Fesler at trial. Mug shots of the six
individuals in the lineup are also contained in the record on
At the time of the lineup, Detective Fesler asked each of the
individuals to state, "I have a knife." Other than this comment,
no one spoke during the lineup. K.E. identified the defendant.
She indicated ...