State v. Washington

602 P.2d 1377, 226 Kan. 768
CourtSupreme Court of Kansas
DecidedDecember 1, 1979
Docket51,016
StatusPublished
Cited by14 cases

This text of 602 P.2d 1377 (State v. Washington) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Washington, 602 P.2d 1377, 226 Kan. 768 (kan 1979).

Opinion

226 Kan. 768 (1979)
602 P.2d 1377

STATE OF KANSAS, Appellee,
v.
GEORGE ANDREW WASHINGTON, JR., Appellant.

No. 51,016

Supreme Court of Kansas.

Opinion filed December 1, 1979.

Robert M. Brown, of Topeka, argued the cause and was on the brief for the appellant.

Joan M. Hamilton, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, and Gene M. Olander, district attorney, were with her on the brief for the appellee.

The opinion of the court was delivered by

McFARLAND, J.:

Defendant George Andrew Washington, Jr., was convicted by a jury of kidnapping (K.S.A. 21-3420); rape (K.S.A. 1978 Supp. 21-3502); and unlawful possession of a firearm (K.S.A. 21-4204[1][b]). He was charged with aggravated kidnapping (K.S.A. 21-3421), but was convicted of kidnapping as a lesser included offense. Defendant appeals his convictions.

Defendant and the victim were acquainted with each other and both were employees of a Ramada Inn Motel in Topeka. By agreement the two drove to Lawrence and back in defendant's automobile on the evening of October 23, 1978. The victim testified that upon their return to Topeka defendant forced her, at gunpoint, to accompany him to a Topeka motel, where she was raped by defendant. Additional facts will be included under the various issues as needed.

I. SUPPRESSION OF EVIDENCE

On the evening of October 24, 1978, the victim reported the *769 crime to the Topeka police department. She gave Detective Mogge the name of the defendant and a description of his vehicle. The detective then put out that information in a bulletin to all cars. In response thereto, another officer, Sergeant Weckwerth, contacted Mogge and provided the information that defendant was a tenant in a trailer court managed by the officer. He stated the tag number of defendant's vehicle and that it was presently parked in the trailer court. Weckwerth was keeping the vehicle under surveillance and he was advised to stop the vehicle if it moved.

The victim had also advised Mogge that present in the vehicle the evening before were a gun, a bottle of Jack Daniels whiskey, and some green vegetation. An assistant district attorney prepared an affidavit for a search warrant. Detective Mogge was enroute to a judge's home to secure the search warrant when he received a call from Weckwerth that defendant had returned to the vehicle and was driving away. Weckwerth followed the vehicle to a Kwik Shop where it stopped. He approached defendant and had him step out of the vehicle. The car door was left open by defendant and the gun case containing the gun was in plain view on the floor board, protruding from under the driver's seat. Weckwerth seized the gun, whiskey, and some green vegetation from the vehicle. Mogge, meanwhile, arrived at the judge's home and secured the search warrant. The seizure apparently occurred slightly before the judge signed the warrant. While Mogge was still at the judge's home he was advised of the seizure. Mogge advised the dispatcher to tow the vehicle to the police station. Mogge searched the vehicle at the station and found additional green vegetation. At the time Weckwerth seized the items he did not know the particular items being sought, only that defendant was a suspect in a rape case and was probably armed. Inasmuch as Weckwerth personally knew defendant, there was no question that defendant was the man being sought.

Defendant contends the trial court erred in overruling his motion to suppress the gun, whiskey, and green vegetation seized by Weckwerth, on the basis the items were seized without probable cause and without a search warrant.

Detective Mogge knew the particular items being sought and had probable cause to stop the vehicle. While Mogge was securing the search warrant he was also directing Weckwerth's activities. *770 The fact Mogge had not relayed all his information to Weckwerth does not alter the situation. The officers herein were working in close concert with each other and the knowledge of one is the knowledge of both in determining whether probable cause existed for the action of one of the officers. See United States v. Stratton, 453 F.2d 36 (8th Cir.), cert. denied 405 U.S. 1069 (1972); White v. United States, 448 F.2d 250 (8th Cir.1971), cert. denied 405 U.S. 926 (1972); United States v. Woods, 544 F.2d 242, 259-260 (6th Cir.1976), cert. denied 430 U.S. 969 (1977); United States v. Trabucco, 424 F.2d 1311, 1315 (5th Cir.1970). Under the circumstances herein, the trial court did not err in overruling defendant's motion to suppress.

II. RUTH STROHMEYER TESTIMONY

Ruth Strohmeyer was an assistant manager at the Ramada Inn and knew both the victim and defendant. The crimes occurred the night of October 23 and early morning hours of October 24, 1978. Early in the morning of October 24, the victim contacted Ms. Strohmeyer and told her what had happened, and they arranged to meet about 5:30 that evening. Shortly after the meeting the victim reported the crime to the police, after being driven to the police station by Ms. Strohmeyer and the motel manager.

Defendant objected to the Strohmeyer testimony on the ground it was incompetent, immaterial and prejudicial. On appeal he contends it was improperly admitted to bolster the victim's testimony.

While as a general rule the testimony of a witness cannot be bolstered or supported by showing she has made prior consistent out of court statements, there are limitations and exceptions, including that for rape prosecution. See 81 Am.Jur.2d, Witnesses §§ 641-644. 65 Am.Jur.2d, Rape § 76, p. 805, states:

"As a general rule, hearsay evidence is incompetent and inadmissible to establish a fact, but the admission of evidence of the complaint of the victim in a rape prosecution is an exception to the hearsay rule. Thus the courts are unanimous in holding that in prosecutions for rape and assault with intent to commit rape, the fact that the prosecutrix made a complaint shortly after the offense can be shown either through her testimony or through the testimony of other witnesses. Evidence of the complaint may be shown for the purpose of corroborating the testimony of the prosecutrix, but not as independent evidence of the offense charged, unless made in extremis.
"Evidence of the failure of the woman to complain, or of a delay in making the complaint, is a circumstance which tends to discredit the victim's testimony."

*771 The victim returned home about 2:30 a.m. on October 24, 1978, and did not report the crime to the police until approximately 7:00 o'clock that evening.

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Bluebook (online)
602 P.2d 1377, 226 Kan. 768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-kan-1979.