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STATE v. SKELTON

July 13, 1990.

STATE OF KANSAS, Appellee,
v.
JOHN A. SKELTON, Appellant.



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 sentencing.

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 the facts.

  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

[247 Kan. 35]

      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 police.

  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 door.

  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

[247 Kan. 36]

      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 bra.

  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.

[247 Kan. 37]

     

  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 vehicle.

  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 identification known.

  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

[247 Kan. 38]

      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 denied.

  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 that burglary.

  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

[247 Kan. 39]

      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 appeal.

  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 ...


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