State v. ThomasState v. Thomas
- Reporters:
- , ,
- Before:
- Kaul
The opinion of the court‘was delivered by
Kaul, J.:These appeals are from convictions in separate cases which were consolidated for trial in the district court of Sedgwick County. The appeals have been consolidated for hearing in this court and we shall refer to them in the singular.
The two cases having been tried together over the timely protest of defendant, our inquiry on appellate review is whether the record indicates sufficient possibility of prejudice by reason of such consolidation for trial as to require reversal. We believe it does.
In district court case No. CR5282, which was docketed in this court on appeal as No. 45,773, defendant was charged with second degree burglary and larceny in connection therewith (
In district court case No. CR5283, which was docketed in this court on appeal as No. 45,774, defendant was charged with first degree murder for the killing of one Jerry Dean Faidley while in the commission of a felony, under (
For convenience the two cases will be referred to as the forgery case and the murder case.
Defendant filed a motion for a new trial which was overruled.
The district court imposed life imprisonment on the conviction of first degree murder and sentences on each of the other nine counts, directing that they be served concurrent with each other, but consecutive with the life imprisonment sentence on the murder conviction.
The charges stem from a series of events which occurred during the last week of July and the first five days of August 1968.
About 1:30 a. m. on August 5, 1968, Patrolman Doyle Dyer, of the Wichita Police Department, was performing routine patrolling (checking buildings and cars) in the neighborhood of First and St. Francis Streets, in the downtown area of the city. He noticed a “colored male,” later identified as defendant, walking west on the
“. . . they probably wanted my services for something so I told the subject I had with me to-or that he was free to go, and at this time the Falcon pulled up beside of me and there was one white man and a woman and the man who was driving the car stated that there was an officer standing by 1st and Hydraulic and that somebody had been badly beaten.”
Dyer stated that defendant got out of the automobile and went south on Pennsylvania. Dyer then proceeded to First and Hydraulic where he met Officer Carl Pope. The two officers investigated a “dark green ’56 Pontiac, two door,” which was setting in the intersection of First and Hydraulic. They found a body “sitting in the passenger’s side of the front seat.” The body was later identified as that of Jerry Dean Faidley. The officers found a bullet hole in Faidley’s head, determined that he was probably dead, and called for assistance from the Police Department. They were unable to find identification on the body of Faidley.
The automobile in which Faidley’s body was found was discovered by Walter R. Rutherford, who was employed by the Central Rureau of Investigation. He saw Faidley’s automobile in the intersection of First and Hydraulic and on inspection found Faidley sitting in the front seat “with his head back over the top of the seat.” Rutherford asked a passerby to notify the Wichita Police and Dyer and Pope arrived soon thereafter.
Investigation of the Faidley automobile revealed fingerprints on a whiskey bottle and on the left hand door glass, which proved to be those of defendant.
Several witnesses saw defendant and Faidley together at the Starlite Club. One witness testified they left the Club together about 12:30 a. m. on August 5.
On August 6, 1968, a search party combed the area around First and Hydraulic. The searchers found a billfold belonging to Faidley
Concerning the burglary, forgery and uttering charges in case No. 45,773, the state’s evidence established that credit cards were stolen from the automobile of William D. Sadler while it was parked in a parking lot on July 25, 1968. There was further evidence that the office of Don D. Rutherford Company, Inc., was burglarized on July 31, 1968, printed checks of one Bessie Webb, dictating equipment, company checks, two antique pistols, and a paymaster check protector were taken in the burglary. Checks forged on the Bessie Webb printed check forms, presented for cashing by defendant with Sadler’s credit cards as identification, served as a basis for the forgery, uttering and burglary charges.
Defendant was arrested during the afternoon of August 5, 1968, at Henry’s Inc., in downtown Wichita, where he was attempting to cash a check, which had been stolen in the Rutherford burglary on July 31, 1968, on which he had forged the signatures of Bessie Webb as payer and that of William D. Sadler as endorsee.
Two separate complaints were filed against defendant. Counsel was appointed and a preliminary hearing was had in each case. After informations were filed in the district court the state moved that the two cases be consolidated for trial. The defendant objected and the trial court took the matter under advisement. When the trial court announced its ruling sustaining the state’s motion, the defendant renewed his objection.
Defendant contends the state’s proposal to consolidate was intended to prejudice the defendant’s defense to the robbery and murder charge by showing the prior and unconnected offenses of forgery, uttering and burglary.
Defendant claims the prejudice resulting from the erroneous consolidation was compounded because the trial court failed to instruct the jury that the evidence pertaining to the forgery case should be limited to only that case and as a result the jury was left free to convict defendant of murder because he was a forger.
Defendant asserts the consolidation of the two cases far exceeded acceptable guidelines for joinder and consolidation established by this court.
Defendant does not challenge the joinder of the separate offenses within the respective informations. He attacks only the consolidation of the two cases for trial.
In this connection it should be noted there is no distinction in the application of rules governing joinder of offenses within an information and those pertaining to consolidation of informations for trial. (State v. Anderson, 202 Kan. 52, 446 P. 2d 844; and State v. Browning, 182 Kan. 244, 320 P. 2d 844.)
It has long been the rule in this jurisdiction that where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses are of the same general character, requiring the same mode of trial, the same kind of evidence and the same land of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time. (State v. Anderson, supra; and State v. Jones, 202 Kan. 31, 446 P. 2d 851, and cases cited therein.)
In the case at bar the state’s evidence concerning the forgery case established that on July 25, 1968, credit cards owned by Sadler were stolen from his automobile. On July 31 printed checks of Bessie Webb and a check protector were taken in the Rutherford burglary. On August 1, 1968, defendant at different times cashed two checks at the Grove IGA Store. The checks were drawn on the Bessie Webb check forms, payable to William D. Sadler. Defendant used Sadler’s credit cards as identification in cashing the checks. Defendant was photographed while cashing the checks and was also identified by store employees. On August 5, 1968, defendant was arrested at Henry’s Inc., while attempting to cash a
The seven counts in the forgery case were clearly connected and the evidence was interrelated. Joinder of the seven counts in the forgery case was not only proper but necessary to prevent a bar of prosecution under
Under the circumstances related, we believe consolidation of the two cases for trial over defendant’s objection amounted to prejudicial error.
Testing the offenses consolidated here, against the standards referred to, it cannot be said that murder and forgery are of the same general character; nor is the same kind of punishment required. As we have already observed, the murder evidence was totally unrelated to the forgery evidence — the evidence establishing one offense was no proof of any element of the other offense. The murder evidence was largely circumstantial, while that of forgery was documentary and eyewitness testimony. Except for police officers, who investigated aspects of both cases, the witnesses were separate and distinct with respect to each case.
We find none of the guidelines for consolidation present in this case. This is not to say that all criteria must be present in order to join charges of two or more crimes in separate counts of one information or to consolidate informations for trial. Felonies, whether they be of the same or similar character, may be joined where the crimes charged are based on the same act or transaction, or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(State v.
Brown, 181 Kan. 375, 312 P. 2d 832, and cases cited therein.) If offenses of forgery and murder fall within any of these criteria, dissimilarity in character
In the instant case the alleged acts of defendant in committing the burglary and forgeries are not shown to be connected in anyway with his alleged acts in committing the alleged robbery and murder of Faidley; nor is there any showing that the respective acts were any part of a common scheme or plan.
We call attention to the fact that what was essentially the prior case law in this jurisdiction, governing joinder of offenses in one information and consolidation for trial of separate informations, has now been codified in
The state expresses fear that prosecution of the second case to be tried would be barred by the provisions of 62-1449, supra.
The subject matter of 62-1449 is clearly jeopardy. (State v. McCarther, 198 Kan. 48, 422 P. 2d 1012; and State v. Momb, 154 Kan. 435, 119 P. 2d 544.)
This court, in considering the statute [62-1449] in State v. Momb, supra, stated:
“There can be no doubt concerning the fact that the statute deals with jeopardy. It clearly was intended to supplement the existing law upon that subject in some manner. The tide to the act clearly says so. . . .” (p. 440.)
In considering the import of 62-1449, in McCarther we said:
“Identity of offenses is universally declared to be an indispensable ingredient of jeopardy. (State v. Ragan, 123 Kan. 399, 256 Pac. 169; 22 C. J. S., Criminal Law, § 278 [1], pp. 713-719.) In State v. Schmidt, 92 Kan. 457, 140 Pac. 843, we said:
“ ‘. . . In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses. . . .’ (p. 459.)” (p. 51.)
There is no showing here that the evidence in either case would identify any offense charged in the other. We believe the state is unduly alarmed concerning the effect of 62-1449, supra.
Even though the trial court’s order of consolidation is said to be an abuse of discretion, defendant still has the burden of showing prejudice that requires a reversal. Defendant says that since his defense to the murder charge was that the shooting was accidental, he was compelled to take the witness stand to explain the circumstances. As a result, defendant states he was forced to admit the forgery and uttering charges (he denied any participation in the Rutherford burglary), and thus was put in the position of sub
We believe defendant has shown prejudice sufficient to require a new trial. Prejudice has consistently been held to occur when joinder or consolidation embarrasses or confounds an accused in making his defense. (Pointer v. United States, 151 U. S. 396, 38 L. Ed. 208, 14 S. Ct. 410; McElroy v. United States, 164 U. S. 76, 41 L. Ed. 355, 17 S. Ct. 31; Gregory v. United States [District of Columbia Circuit, 1966], 369 F 2d 185; Cross v. United States [District of Columbia Circuit, 1964], 335 F. 2d 987; Meade v. State [Fla. 1956], 85 So. 2d 613, 59 A. L. R. 2d 835.)
Defendant makes one further assignment of error which we believe should be considered.
In a pretrial motion, defendant requested funds for the hiring of a psychiatrist to examine defendant while under the influence of drugs. As previously noted, defendant’s defense to the murder charge was that the shooting was accidental. The funds sought by defendant were not to be used for an examination to determine defendant’s sanity, either at the time of the offense or at the time of trial. The examination was to be used in an attempt to corroborate defendant’s story through the subconscious exploration of defendant’s mind by psychiatric examination, while defendant was under the influence of drugs. In other words, it appears the purpose of defendant in seeking the funds was to hire an expert or experts to hear defendant’s statement while under the influence of a drug, and then hopefully to come into court and testify that in their opinion defendant’s story was true.
Defendant concedes that at the time of trial there was no specific statutory authorization to supply funds for the purpose intended. Nonetheless, defendant argues he was not afforded a due process fair trial under the principles enumerated in
Roberts v.
LaVallee, 389 U. S. 40, 19 L. Ed. 2d 41, 88 S. Ct. 194. Defendant further points out that funds for such purposes are now authorized under
Under our decision in the recent case of State v. Chase, 206 Kan. 352, 480 P. 2d 62, the evidence in the form of expert testimony, which defendant sought to procure by the use of the funds requested, would have been inadmissible for the purpose stated. Thus, defendant’s indigency was a matter of no consequence. We find no abuse of discretion in the trial court’s ruling.
The viewpoint of this court, in this regard, is in line with prevailing authorities. The general rule is stated in 29 Am. Jur. 2d, Evidence, § 831:
“. . . Truth serum tests occupy much the same position as lie detector tests, and no court has as yet recognized the admissibility of the results of such tests, at least for the purpose of proving the truth of the matter asserted, . . .” (pp. 923, 924.)
Since new trials are necessary, we need not consider and pass upon other assignments of error.
The judgments are reversed with directions to grant separate trials.