Petition — Shaw v. Kansas

Supreme Court, U.S, |

rFItEgs

OCT 14 1980

80-592

NO. MICHAEL RODAK, JR., CLE!

peeeenteeen

IN THE

SUPREME COURT OF THE UNITED STATES

1980 TERM

SAMUEL S. SHAW

PETITIONER

vs.

STATE OF KANSAS

RESPONDENT

ON WRIT OF CERTIORARI

TO THE

UNITED STATES SUPREME COURT

FROM THE

SUPREME COURT

OF THE

STATE OF KANSAS

PETITION FOR WRIT

OF CERTIORARI

STEVEN C. SHERWOOD

Attorney at Law

1540 North Broadway

Wichita, Kansas 67214

(316) 262-5313

ATTORNEY FOR PETITIONER

QUESTION PRESENTED FOR REVIEW

DID THE TRIAL COURT ERR IN OVERRULING

PETITIONER'S MOTION TO SUPPRESS THE STATEMENT

GIVEN BY PETITIONER TO AN AGENT OF LAW ENFORCE-

MENT OFFICERS, OVERRULING HIS OBJECTIONS AND

OTHER MOTIONS PERTAINING THERETO, AND DID THE

APPELLATE COURTS OF THE STATE OF KANSAS ERR IN

SUSTAINING THE TRIAL COURT?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PETITION

GROUNDS FOR INVOKING JURISDICTION .

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

APPENDIX I

APPENDIX II

APPENDIX III

APPENDIX IV

APPENDIX V

APPENDIX VI

APPENDIX VII

TABLE OF AUTHORITIES

Miranda vs. Arizona, 384 U.S. 436,

16 L.Ed.2d 694, 86 S.Ct. 1602

United States vs. Carollo, 507 F.2d 50,

(Sth Cir. 1975) cert. denied, 423 U.S.

874, 96 S.Ct. 143, 46 L.Ed.2d 105

United States vs. Jordan, 557 F.2d 1081

(Sth Cir. 1977) se a eS

Title 28, U.S.C. Section 1257(3).

U.S. Constitution, Amendment V

U.S. Constitution, Amendment VI

12, 15

13, 14

13, 14

5

G, Ray

15

6, 15

IN THE

SUPREME COURT OF THE UNITED STATES

SAMUEL S. SHAW

PETITIONER

VS.

STATE OF KANSAS

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES SUPREME COURT

GROUNDS FOR INVOKING JURISDICTION

The Petitioner, Samuel S. Shaw, respect-

fully prays that a Writ of Certiorari issue to

review the judgment and opinion by the Court

of Appeals of the State of Kansas, opinion

filed July 11, 1980, from which Petition to

the Supreme Court of the State of Kansas for

review was subsequently denied on September 9,

1980. No times are recorded by these Courts

relating to the entry of these decrees, but

they are entered by date only.

A copy of the Opinion of the Court of

Appeals is attached hereto as Appendix I.

A copy of the Order Denying Review from

the Supreme Court of the State of Kansas is

attached hereto as Appendix II.

€

Petitioner submits that the jurisdiction

of the Court is invoked under Title 28 USC

Section 1257 (3), which reads as follows:

"(3) By Writ of Certiorari

where the validity of a treaty or

Statute of the United States is

drawn in question or where the

validity of a state statute is

drawn in question on the ground

of its being repugnant to the

Constitution or treaties or laws

of the United States, or where

any title, right, privilege or

immunity especially set up or

claimed under the Consitution,

treaties or statutes thereof, or

commission held or authority ex-

ercised under, the United States."

The Petitioner specifically claims that

his specific constitutional rights, privileges

and immunities against self incrimination and

right to assistance of counsel were violated

by the admission into evidence in the trial

Court of a statement made to a person acting

as an agent for police officers, said state-

ments having been made without Petitioner

having been advised of his rights, and without

advice of counsel. These substantial federal

questions were raised by a Motion to Suppress

which was filed prior to the trial (Appendix

III).

The Motion to suppress the statements

(which were taken by tape recording) was over-

ruled by the trial Court. (Appendix IV) The

question was raised again on Petitioner's

Motion for New Trial (Appendix V) and also in

the Petitioner's appeal to the Court of Appeals

to the State of Kansas. (Appendix I)

CONSTITUTIONAL PROVISIONS

The Fifth Amendment, United States Con-

stitution, states:

"No person...shall be compelled

in any criminal case to be a witness

against himself, ..."

The Sixth Amendment, United States Con-

stitution, states:

"In all criminal prosecu-

tions, the accused shall enjoy

the right...to have the assistance

of counsel for his defense."

STATEMENT OF THE CASE

The Petitioner was charged by ccmplaint/

information with one count of Arson, one count

of Aggravated Assualt, two counts of Criminal

Damage to Property, and one count of Conspiracy,

all these counts stemming from the events of

the 25th of January, 1978, wherein Mohammed

and Paulette Sarraf suffered injury to their

mobile home by bullets striking it and the

loss, by fire, of an automobile parked near

the mobile home. The complaint/information

was filed on December 20, 1978. On February 6,

1979, the Petitioner filed a Motion for Sup-

pression (Appendix III) of any statements made

by the Petitioner to David C. Day while David

C. Day was equipped with the radio transmitter

supplied by law enforcement officers, said

statements being highly incriminating, and

overheard by means of a receiver some distance

away, and being taped. The pertinent portion

of the Motion to Suppress, that being paragraph

one, was overruled by the Court on the 9th

day of February, 1979, the Court's Order being

filed of record on March 8, 1979. (Appendix

IV) Thereupon, the case came on for trial on

the 9th day of April, 1979, and the jury re-

turned a verdict of guilty on all counts on

the 17th day of April, 1979. (Appendix VII)

During the course of the trial, Petitioner

again moved to suppress the taped statement,

which was designated State's Exhibit 27, 28,

29 and 30, the last three exhibits being dupli-

cates of the first. (Appendix VI, page 35)

The Court overruled said Motion. (Appendix

VI, page 38) Motion for New Trial was heard

on the 8th day of May, 1979, was overruled,

and the Petitioner was sentenced to the Secre-

tary of Corrections for imprisonment for a

period of not less than five nor more than

twenty years on count one, Arson, for a period

of not less than three nor more than ten years

On count two, Aggravated Assualt, for a period

of not less than one nor more than five years

on each of count three and four, those both

being Criminal Damage to Property, and for

not less than one and no more than five years

on count five, Conspiracy. The last three

counts were to run consecutive to counts one

and two. (Appendix VII) Thereafter, the

Petitioner appealed to the Court of Appeals

in the State of Kansas, which Court denied his

appeal, (Appendix I) and thereafter, he pe-

titioned for rehearing to the Supreme Court of

the State of Kansas, which Petition was denied.

(Appendix II)

On or about the 25th day of January,

1978, one Mohammed Sarraf and his wife Paulette

were at home in their mobile home. Three

bullets struck the mobile home, resulting

in Mohammed and his wife calling the police.

After that call, the victims noticed their

small car parked next to the mobile home in

flames, and it subsequently burned completely.

Subsequently, the Petitioner's name was men-

tioned as a possible suspect. Subsequent in-

vestigation revealed that the shots had been

fired and the fire in the car had been set by

David C. Day. After hearing Day's confession,

wherein he stated the Petitioner paid him to

do the crimes, the police arranged with Day

to go talk to the Petitioner while Day was

wearing a wireless transmitter, allowing the

police to tape the conversation between the

parties. At the time the informant met with

the Petitioner at his place of business, the

Wichita Police Department was prepared to make

the arrest. They had surrounded the business

premises and were in a position to control

the Petitioner's departure. At trial, the

witness Day testified that he knew he was to

be arrested when the police came into the

place of business and stated that the police

told him that the Petitioner was to be ar-

rested at the same time. (Appendix VI, page 35)

After the police had put the transmitter on

David C. Day, they surrounded the place of

business, posting officers both inside and

_

outside the building, and then upon a signal

to David C. Day, Mr. Day engaged in a con-

versation with the Petitioner, wherein they

discussed the burning of the car and the

trailer incident. Thereafter, officers en-

tered the business, and the Petitioner was

subsequently charged and convicted as pre-

viously set forth herein.

ARGUMENT

The Fifth Amendment protects an indi-

vidual's right to be free from self incrimi-

nation. This right protects a criminal

Defendant from conviction based on involuntary

confession. The Supreme Court of the United

States has established procedural safe guards

designed to prevent involuntary confessions.

Before questioning a suspect, the police must

warn him that he has the right to remain

Silent, that any statement he gives may be

used against him and that he has the right

to consult retained or appointed counsel

before answering. These are the requirements

ah Din

of Miranda vs. Arizona, 384 U.S. 436. 16 L.

Ed.2d 694, 86 S.Ct. 1602. If these procedures

are not followed, any statement made subse-

quent to the initiation of the conversation

generally will be inadmissible in the pro-

secution's case in chief. Miranda vs. Arizona,

supra.

The Courts require the Miranda proce-

dures when a person undergoes custodial inter-

rogation. Custodial interrogation is defined

in Miranda as:

"Questioning initiated by

law enforcement officers after a

person has been taken into custody

or otherwise deprived of his free-

dom of action in any significant

way."

There are four criteria to be studied

in making determination of whether or not an

interrogation is custodial in nature. These

are:

1. Whether probable cause existed

to arrest the suspect,

2. Whether the investigation had

focused on the suspect,

site

3. Whether the police had sub-

jectively intended the individual

to be in custody, and

4. Whether the suspect believed

that he was in custody.

The determination of whether or not an

interrogation is custodial is determined on

a case by case approach. United States vs.

Jordan, 557 F.2d 1081 (5th Cir. 1977).

The Court in United States vs. Jordan, supra,

also stated that in a case by case analysis

it was not always necessary to find all four

of the above stated factors present to call

into play the Miranda requirements. In Jordan,

the Court also restated its implication of

United States vs. Carollo, 507 F.2d 50, 52

(Sth Cir. 1975) cert. denied, 423 U.S. 874,

96 S.Ct. 143, 46 L.Ed.2d 105, that there may

be a case where a focus of investigation

factor, standing by itself, would be sufficient

to require Miranda.

It is clear in the present case that

prior to the taking of the statement of the

Petitioner by David C. Day, the investigation

<=

had focused on the Petitioner. Police had

already obtained the statement of David C. Day

incriminating the Petitioner, and they had

further advised David C. Day, prior to obtaining

the taped statements that they intended to

arrest Petitioner. These facts speak the

existence of probable cause to arrest the

suspect. There is little doubt that the police

subjectively intended the individual to be in

custody in that they had surrounded the pre-

mises where the questioning was to have taken

place, placing officers all around the building

and in the building itself. The only element

missing to satisfy the Miranda requirements is

that the Petitioner had no reason to suspect

that he was, in fact, in custody. Again, it

is not required that all four factors to call

into play the Miranda requirements. United

States vs. Jordan, supra; United States vs.

Carollo, supra. In this case, the police

have focused their attention on the Petitioner,

Samuel S. Shaw. They had the confession of

=o

another participant, which clearly implicated

the Petitioner, and had surrounded and entered

the building wherein the Petitioner was located.

They had stated to the agent David C. Day,

that they intended to make an arrest as soon

as they entered the building. They surrounded

the place in such a manner and with the intent

that the Petitioner would not be allowed to

leave the premises.

Under these facts and circumstances,

statements made by Samuel S. Shaw to David fe

Day, which were transmitted to and recorded

by the Police Department and which were intro-

duced into evidence in State's Exhibits 27,

28, 29 and 30, should have been Suppressed for

failure of the Police Department to meet the

requirements of Miranda and protect the Pe-

titioner's rights under the Fifth Amendment

to the United States Constitution, and the

Sixth Amendment to the United States Consti-

tution.

|

CONCLUSION

For the foregoing reasons, Petitioner

respectfully submits Writ of Certiorari should

be granted.

Respectfully submitted,

STEVEN C. SHER

1540 North Broadway

Wichita, Kansas 67214

(316) 262-5313

-16-

APPENDIX I

OPINION OF THE COURT OF APPEALS

OF THE STATE OF KANSAS

NOT DESIGNATED FOR PUBLICATION

No. 51,126

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

Vv.

SAMUEL S. SHAW,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court,

division No. 1; WILLIS W. WALL, judge. Opinion

filed July 11, 1980. Affirmed.

Andrew E. Busch, of O'Hara, Busch,

Johnson & Falk, of Wichita, for the appellant.

Ronald D. DeMoss, assistant district

attorney, Robert T. Stephan, attorney general,

and Vern Miller, district attorney, for the

appellee.

ats

Before FOTH, C.J., SPENCER AND SWINE-

HART, JJ.

SWINEHART, J.: The defendant, Samuel

S. Shaw, appeals from his conviction of arson,

K.S.A. 21-3718, aggravated assault, K.S.A.

21-3410, two counts of criminal damage to

property, K.S.A. 1979 Supp. 21-3720, and

conspiracy, K.S.A. 21-3302.

The defendant alleged three grounds

of error, one of which was abandoned on oral

argument. Thus, only the alleged prejudicial

remarks of the prosecutor and improper ad-

mission of statements will be considered.

During cross-examination of a defense

witness and after defendant's counsel ob-

jected to a question as being beyond the

scope of direct examination and irrelevant,

the prosecutor retorted: "Well, now, if Mr.

Shaw would like to testify concerning the

character of Mr. Payne (the testifying witness)

he could certainly take the stand." Defen-

dant's counsel again objected and requested

=~ =

that the jury be instructed to disregard

that statement of the prosecutor. The court

overruled the objection to the original ques-

tion asked on cross-examination, admonished

the jury to disregard the comment about de-

fendant's privilege to take the stand and

testify, and further admonished the prosecutor

as to the scope of his examination.

Assuming that the prosecutor's comment

constituted an improper reference to defen-

dant's right against self-incrimination, it

cannot be characterized as basis for reversal

in view of the court's immediate admonishment

and the overwhelming evidence of guilt.

State v. Ponds, 227 Kan. 627, 608 P.2d 946

(1980); State v. Henderson, 226 Kan 726, 603

P,2d 613 (1979).

Defendant further contends that the

court erred by admitting into evidence a

tape recording of incriminating statements

that he made to an agent of the Wichita Police

Department without prior Miranda warnings.

=<

The facts material to the resolution

of this question are not in dispute. The

tape recording was of a conversation between

the defendant and his former employee who

was acting as a police informant. According

to the police, the informant's story standing

alone was not sufficient to make the arrest.

Thus, the recording which was taken just

prior to defendant's arrest was necessary to

confirm information provided by the agent.

At the time the informant met with the

defendant at his place of business, the

Wichita Police Department was prepared to

make the arrest. They had surrounded the

business premises — were in a position to

control defendant's departure. However,

without question, the defendant was unaware

of this situation at the time the conversa-

tion was taped. Our question is whether the

defendant's Fifth Amendment rights were vio-

lated.

Defendant cites Miranda v. Arizona,

-20-

384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602

(1966); United States v. Jordan, 557 F.2d

1081 (5th Cir. 1977); and United States v.

Carollo, 507 F.2d 50, 52 (5th Cir.), cert.

denied 423 U.S. 874 (1975), to support his

position. However, the facts of the present

case make it distinguishable from the above

mentioned cases. In the present case none

of the safeguards protected by Miranda were

breached. There was no showing that defen-

dant realized he and his place of business

were surrounded by police; that he was being

interrogated or giving a statement to a

police officer or agent of the police; or

that he was under any apprehension, coercion

or intimidation while talking to his former

employee whom he did not know was acting in

a dual capacity.

Defendant's contention that his Fifth

Amendment rights were violated is without

merit. State v. McCorgary, 224 Kan. 677, 585

P.2d 1024 (1978); State v. Jordan, 220 Kan.

~tin

110, 551 P.2d 773 (1976).

Judgment is affirmed.

-~22-

APPENDIX II

OPINION OF THE

SUPREME COURT OF THE STATE OF KANSAS

IN THE SUPREME COURT OF THE STATE OF KANSAS

State of Kansas, Appellee,

Vv. No. 51126

)

)

)

)

Samuel S. Shaw, Appellant. )

)

You are hereby notified of the fol-

lowing action taken in the above entitled

‘case:

Petition for review.

Denied.

Date September 9, 1980

Yours very truly,

LEWIS C. CARTER

Clerk, Supreme Court

-23-

APPENDIX III

MOTION TO SUPPRESS

ANDREW E. BUSCH

Attorney at Law

732 North Topeka

Wichita, Kansas 67214

265-6624

IN THE EIGHTEENTH JUDICIAL DISTRICT

DISTRICT COURT, SEDGWICK COUNTY, KANSAS

CRIMINAL DEPARTMENT

STATE OF KANSAS,

Plaintiff,

vs. Case No. 78CR2100

)

)

)

)

;

SAMUEL S. SHAW aka SAM )

BUTT, aka MOHAMMAD S., )

BUTT, )

)

Defendant. )

)

MOTION

COMES NOW, the defendant and moves the

court for an Order requiring the suppression

of any and all statements and recordings of

said statements obtained by the prosecution:

1. Through the use of participant

monitoring whereby statements made by the

-~24-

defendant in a private place to another par-

ticipant, to-wit: David Cc. Day, while said

David C. Day was equipped with a radio trans-

mitter, supplied by agents of the plaintiff,

which were overheard by police by means of

a receiver located some distance away, for

the reason that such action by law enforce-

ment agencies constitutes a search and seizure

which was unreasonable in the absence of a

search warrant, and testimony to overheard

conversations under such circumstances must

be ruled inadmissable.

2. Any statements made by the defen-—

dant to David C. Day while said David C. Day

and this defendant were in custody in Sedg-

wick County Jail and this defendant was un-

aware that said David C. Day was acting in

the capacity of the agent of the law enforce-

rw Andrew E. Busch

Andrew E. Busch

Attorney for defendant

ment agency.

o98=

NOTICE OF HEARING

_ Please take note that the above Motion

will be heard before the Honorable Judge

Elliott Fry, Position A, 6th floor, South

Court, Sedgwick County Courthouse, Wichita,

Kansas on the 9th day of February, 1979, at

9:30 o'clock A.M., or as soon thereafter as

the Court may reach the same.

/s/ Andrew E. Busch

Andrew —£. Busch

CERTIFICATE OF SERVICE

I, Andrew E. Busch, do hereby certify

that I mailed a true and correct copy of the

above and foregoing Motion to Jim Turner,

Assistant District Attorney, Sedgwick County,

Courthouse, 535 North Main, Wichita, Kansas

67203 on this 2nd day of February, 1979.

/s/ Andrew E. Busch

Andrew E. Busch

-~26-

APPENDIX IV

ORDER OVERRULING MOTION TO SUPPRESS

JIM TURNER

Assistant District Attorney

Sedgwick County Court House

Wichita, Kansas 67203

IN THE EIGHTEENTH JUDICIAL DISTRICT

DISTRICT COURT, SEDGWICK COUNTY, KANSAS

CRIMINAL DEPARTMENT

THE STATE OF KANSAS,

Plaintiff,

vs. Case No. 78CR2100

SAMUEL S. SHAW, also known

as SAM BUTT, also known as

MOHAMMAD S. BUTT,

Division No. 5

Defendant.

i ea a a hh ae

NOW, on this 9th day of February, 1979,

this matter comes on for hearing on defen-

dant's motion to suppress filed herein. The

State appears by Assistant District Attorney,

Jim Turner, and the defendant appears in

person and by his attorney, Andrew Busch.

The Court, after hearing evidence

and arguments of counsel and being fully

advised in the premises finds as follows:

1. As to Paragraph No. 1 of defen-

dant's motion, the Court that that portion

of defendant's motion should be and the same

is hereby overruled;

2. As to Paragraph No. 2 of defen-

dant's motion, the Court finds that there is

insufficient evidence before to Court for the

Court to rule; that if evidence comes to

light, a hearing will be held before such

evidence is introduced.

IT IS THEREFORE BY THE COURT ORDERED

that Paragraph 1 of defendant's motion is

overruled; IT IS FURTHER ORDERED that as to

paragraph 2, there is presently insufficient

evidence before the Court; that if such

evidence comes to light, this Court will hold

a hearing before its introduction.

IT IS SO ORDERED.

/s/ James J. Noone

JUDGE JAMES J. NOONE

x =

[s/ James D. Turner

JIM TURNER

Assistant District Attorney

/s/ Andrew E. Busch

ANDREW BUSCH

Attorney for Defendant

-29-

APPENDIX V

MOTION FOR NEW TRIAL

ANDREW E. BUSCH

Attorney at Law

732 North Topeka

Wichita, Kansas 67214

265-6624

IN THE EIGHTEENTH JUDICIAL DISTRICT

DISTRICT COURT, SEDGWICK COUNTY, KANSAS

CRIMINAL DEPARTMENT

THE STATE OF KANSAS, )

Plaintiff,

vs. ‘ Case No. 78CR2100

SAMUEL SHAW,

Defendant.

)

MOTION FOR NEW TRIAL

COMES NOW the Defendant, Samuel S.

Shaw, in the above entitled matter, by and

through his attorney, Andrew E. Busch, and

respectfully moves this Honorable Court for

an Order setting aside the verdict of the

jury entered herein on the 17th day of April,

1979, and granting this defendant a new trial

for the following reasons:

-~30-

—_

—

1) The Court erred in failing to

dismiss Count 5 of the Complaint and Infor-

mation, Conspiracy, herein at the close of

the State's evidence and at the motion of

the defendant for the reason that the record

was without sufficient evidence to make a

prima facie case against the defendant on

that Count by which a jury could convict in

accord with the law.

2) The Court erred in failing to dis-

miss Count 2 of the Complaint and Information,

Aggravated Assualt, herein at the close of

the State's evidence and at the motion of

the defendant for the reason that the record

was without sufficient evidence to make a

prima facie case against the defendant on

the Count by which a jury could convict in

accord with the law.

3) The Court erred in failing to in-

struct the jury as requested by the defendant

that:

"An accomplice witness is one who

testifies that he was involved in

~ =

the commission of the crime with

which the defendant is charged.

You should consider with caution

the uncorroborated testimony of

an accomplice witness." (PIK 52.18)

4) The Court erred in allowing the

admission into evidence, over the objection

of the defendant, of the States' Exhibits

27 & 30 which were obtained on violation of

defendant's rights under the 4th and 5th

Amendments to the United States Constitution.

WHEREFORE by reason of the above and

foregoing and in the interest of justice,

the defendant earnestly prays this Honorable

Court to grant this motion for a new trial.

/s/ Andrew E. Busch

Andrew E. Busch

Attorney for Defendant

NOTICE OF HEARING

Please take note that the above Motion

for a New Trial will be heard before the

Honorable Willis Wall, Division 1, 6th floor,

Sedgwick County Courthouse on the 4th day of

May at 9:00 o'clock a.m., or as soon there-

after as the Court may reach the same.

/s/ Andrew E. Busch

Andrew E. Busch

_ =

CERTIFICATION

I, Andrew E. Busch, hereby certify that

I mailed a true and correct copy of the above

and foregoing Motion for a New Trial to Jim

Farmer, Assistant District Attorney, Sedgwick

County Courthouse Annex, 535 North Main,

Wichita, Kansas 67203 on this 27th day of

April, 1979.

[s/ Andrew E. Busch

Andrew E. Busch

-33-

APPENDIX VI

PERTINENT PORTIONS OF THE

TRIAL TRANSCRIPT

(TRIAL TRANSCRIPT, PAGE 217)

Yes.

And the fact that you wanted some help

from them for your sentence didn't have

anything to do with it?

Well, when I talked to Schrader and Pat

Taylor about it might help me, and they

Said they didn't think so, and I got most

of my help -- it was from my lawyer.

Well, didn't they say they'd talk to the

District Attorney for you if you helped

them?

I think -- I think they did, but --

You do or you don't think?

They said they would, but they couldn't

guarantee anything.

What did they tell you would happen that

night if you went down there with the

body pack on?

~34-

A. I was still going to be arrested.

Q. Did they say they were going to arrest

Mr. Shah, too, that night?

A. Uh-huh.

Q. Did they -- would you answer out loud,

please?

A. Yes.

Q. They told you that before they wired you

up?

A. (Witness nods head affirmatively. )

Is that a yes, please?

The way they was talking I understood it

to be that they were going to -- I knew

I was going to be arrested when they

walked in.

(TRIAL TRANSCRIPT, PABE 229, LINE 1,

THROUGH PAGE 230, LINE 9.)

MR. BUSCH: If I might, Your Honor, at

this point I would renew my motion to sup-

press those tapes in light of the testimony

of David Day in that the police had already

-~35-

indicated that it was their intent to arrest

Mr. Shah at the Stage Door Inn prior to that

time. It's obvious at this point that the

investigation had centered on this individual.

They were going down there -- they were going

to arrest him. He should have been advised

of his Miranda rights. They sent their own

agent in, had him wired for sound, and I feel

that he should have been advised of his rights

under Miranda at that point since the investi-

gation had centered on him. Since there is

already in evidence an intent to make the

arrest, the tapes should be suppressed.

MR. TURNER: The matter has already

been heard by Judge Noone.

MR. BUSCH: Well, that evidence was

not before Judge Noone, and it was in dispute

at that time.

MR. TURNER: The State can review all

of the cases that were brought before Judge

Noone, if it has a minute to refresh its

memory, if there's any need to.

-36-

MR. BUSCH: Your Honor, the motion

was made before Judge Noone, but that evidence

was not presented to the Court at that time.

THE COURT: It appears that Judge

Noone did overrule that motion and your pre-

vious motion in February of '79.

MR. BUSCH: That is correct, Your Honor.

THE COURT: And --

MR. BUSCH: But, there was not an evi-

dentiary hearing held at that time, and he

was unaware of the evidence that was presented

to the Court today regarding the intent of

the law enforcement agent to arrest Samuel

Shah prior to the taking of these statements.

(TRIAL TRANSCRIPT, PAGE 233,

LINE 5 THROUGH LINE 21. )

MR. BUSCH: If it please the Court,

if I might reply. I'm sure I have read the

case, but I'm not sure if it's the one I'm

thinking of. In this particular case I be-

lieve they were talking about a taped state-

«37 =

ment that was used in rebuttal evidence. It

may Or may not have been the case. I would

aSk Your Honor to check on that.

Also, in that case there was no state-

ment anywhere in the evidence, nor was there

one recited by Mr. Turner, that they were

going to arrest him. There's a statement

to that effect in this case, Your Honor,

that they were going to arrest him that night.

That's what they told Mr. Day before they

left and went down there.

THE COURT: This matter has already

been ruled on. The Court is going to go on

the fact that the motion was overruled by

Judge Noone and that this motion at this

time is overruled.

-~38-

APPENDIX VII

TOURNAL ENTRY OF JUDGMENT

OF TRIAL COURT

JAMES D. TURNER

Assistant District Attorney

Sedgwick County Courthouse

Wichita, Kansas 67203

268-7281

IN THE EIGHTEENTH JUDICIAL DISTRICT

DISTRICT COURT, SEDGWICK COUNTY, KANSAS

CRIMINAL DEPARTMENT

THE STATE OF KANSAS,

Plaintiff,

vs. Case No. 78CR2100

SAMUEL S. SHAW a/k/a SAM

BUTT a/k/a MOHAMMAD S. BUTT

a/k/a SAMUEL S. SHAH,

Division No. 1

Defendant.

ee Bs hs ees a

JOURNAL ENTRY OF JUDGMENT

On this 9th day of April, 1979, this

case comes on for trial, the defendant having

heretofore been served a copy of the Infor-

mation charging him with Arson, Count One,

contrary to K.S.A. 21-3718; Aggravated As-

sault, Count Two, contrary to K.S.A. 21-

3410; Criminal Damage to Property, Count

-39-

7

Three, contrary to K.S.A. 21-3720; Criminal

Damage to Property, Count Four, contrary to

K.S.A. 21-3720 and with Conspiracy, Count

Five, contrary to K.S.A. 21-3302. The State

of Kansas appears by its attorney, James D.

Turner, Assistant District Attorney. The

defendant appears in person and by his at-

torney, Andrew E. Busch.

Thereupon, a Jury is duly impaneled

and sworn and evidence is presented, the

trial being adjourned from court day to

court day until both sides rest.

Thereafter, on the 17th day of April,

1979, the Jury after having received the

evidence, the instructions of the Court,

the arguments of counsel and having duly

deliberated, returned the following verdicts

in open court:

"We, the Jury, impaneled and

sworn in the above entitled case,

do upon our oath find the defendant

guilty of the crime of Arson as

charged in Count One. (Please state

either "guilty" or "not guilty" in

accordance with the verdict of the

jury.)

-40-

Date of this verdict 4-17, 1979.

/s/ Douglas R. Gibb

Foreman"

"We, the Jury, impaneled and

sworn in the above entitled case, do

upon our oath find the defendant

guilty of the crime of Aggravated

Assault as charged in Count Two.

(Please state either "guilty" or

"not guilty" in accordance with the

verdict of the jury. )

Date of this verdict 4-17,1979.

/s/ Douglas R. Gibb

Foreman"

"We, the Jury, impaneled and

sworn in the above entitled case,

do upon our oath find the defendant

guilty of the crime of Criminal

Damage to Property as charged in

Count Three. (Please state either

"guilty" or "not guilty" in ac-

cordance with the verdict of the

jury.)

Date of this verdict 4-17,1979

[s/ Douglas R. Gibb

Foreman"

"We, the Jury, impaneled and

sworn in the above entitled case, do

upon our oath find the defendant

guilty of the crime of Criminal

Damage to Property as charged in

Count Four. (Please state either

"guilty" or "not guilty" in accor-

dance with the verdict of the jury. )

a

Date of this verdict 4-17, 1979

/s/ Douglas R. Gibb

Foreman"

"We, the Jury, impaneled and

sworn in the above entitled case,

do upon our oath find the defendant

guilty of the crime of Conspiracy

as charged in Count Five. (Please

state either "guilty" or "not guilty"

in accordance with the verdict of

the jury.)

Date of this verdict 4-17, 1979

/s/ Douglas R. Gibb

Foreman"

Thereupon, the Court accepted the ver-

dicts and continues this case for sentencing

and/or motion for new trial to be heard on

May 8, 1979.

Thereafter, on the 8th day of May, 1979,

all parties appear as aforesaid. Defendant's

Motion for New Trial is heard by the Court,

who, after reviewing the file, hearing the

statements of counsel and being fully advised

in the premises, overrules said motion.

The Court inquires of the defendant

if he has any legal cause to show why judg-

-42-

ment of sentence should not be pronounced

against him; the defendant failing to show

any such cause and none appearing, there

being none, the Court then proceeds to pro-

nounce judgment of sentence against the de-

fendant as follows:

IT IS THE SENTENCE OF THIS COURT AND

IT IS HEREBY CONSIDERED, ORDERED, ADJUDGED

AND DECREED that the defendant is hereby

committed to the custody of the Secretary

of Corrections for imprisonment for a period

of not less than five (5) nor more than

twenty (20) years on the charge of Arson,

Count One, contrary to K.S.A. 21-3718 and

in accordance with K.S.A. 21-4501(c); and

for a period of not less than three (3) nor

more than ten (10) years on the charge of

Aggravated Assault, Count Two, contrary to

K.S.A. 21-3410 and in accordance with K.S.A.

21-4501(d); and for a period of not less

than one (1) nor more than five (5) years

each on the charges of Criminal Damage to

-43-

Property, Count Three and Count Four, both

contrary to K.S.A. 21-3720 and on the charge

of Conspiracy, Count Five, contrary to K.S.A.

21-3302, all in accordance with K.S.A. 21-

4501(e). Counts Three, Four and Five shall

run concurrent with each and consecutive to

Count One and Two. Defendant shall pay the

costs of this action to the Clerk of this

Court, including witness fees and miscel-

laneous expenses.

IT IS FURTHER ORDERED that the Clerk

of this Court deliver two (2) certified copies

of this judgment and commitment to the

Sheriff of Sedgwick County, Kansas, or one

of his duly authorized deputies. It is

further ordered that such certified copies

serve as the commitment of the defendant and

said Sheriff or authorized deputy transport

the defendant to the custody of the Secretary

of Corrections for imprisonment and make due

return thereof.

IT IS FURTHER ORDERED that for the

ities

purpose of computing defendant's sentence,

his parole eligibility and conditional re-

lease dates thereunder, that such sentence

shall be computed from April 17, 1979.

IT IS SO ORDERED.

[s/ Willis W. Wall

WILLIS W. WALL, JUDGE

APPROVED BY:

/s/ James D. Turner

JAMES D. TURNER

Assistant District Attorney

/s/ Andrew E. Busch

ANDREW E. BUSCH

Attorney for Defendant

~45-