State v. Bey, 47731

• Citation: 217 Kan. 251,535 P.2d 881
• Decision Date: 10 May 1975
• Docket Number: No. 47731,47731
• Parties: STATE of Kansas, Appellee, v. Julian BEY, Appellant.
• Court: United States State Supreme Court of Kansas

Page 881

535 P.2d 881

217 Kan. 251

STATE of Kansas, Appellee, v. Julian BEY, Appellant.

No. 47731.

Supreme Court of Kansas.

May 10, 1975.

Syllabus by the Court

1. The provisions of K.S.A. 60-460(c)(2) permit testimony of a witness given at a preliminary examination to be used at the trial of a criminal defendant only if it is shown that the witness is unavailable to testify personally. Under K.S.A. 60-459(g) 'unavailable as a witness' includes situations where the witness is absent from the place of hearing because the proponent of his statement does not know and with diligence has been unable to ascertain his whereabouts.

2. In a criminal proceeding judged by the 'totality of the circumstances', the conduct of identification procedures may be 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to be a denial of due process of law.

3. In the trial of a criminal action the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

4. In the trial of a criminal action in-court identifications may be capable of standing on their own even though preceded by deficient pretrial confrontations.

5. In a murder committed during the commission of a felony the felonious conduct itself is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. Therefore, to support a conviction for felony murder all that is required is to prove that a felony was being committed which was inherently dangerous to human life, and that the homicide was a direct result of the commission of that felony.

6. In the trial of a criminal action the uncorroborated testimony of an accomplice is sufficient to sustain a conviction. The credit to be given such testimony is a matter for the jury's determination.

7. In a criminal action charging the defendant with first degree murder while perpetrating the crime of aggravated robbery, the record is examined on appeal and it is held: The trial court did not err: (1) in permitting the use of transcript testimony of a prosecution witness who testified at the preliminary hearing, but was unavailable to testify in person at the trial; (2) in failing to suppress evidence pertaining to lineup identification procedures; and (3) in upholding the sufficiency of the evidence to support the defendant's conviction under the felony-murder rule.

Michael Lerner, Barnett & Lerner, Kansas City, argued the cause, and was on the brief for appellant.

Nick A. Tomasic, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Justice:

This is an appeal in a criminal action by Julian Bey (defendant-appellant) from a conviction of first degree murder (K.S.A. 21-3401) while perpetrating the crime of aggravated robbery (K.S.A. 21-3427).

The questions raised on appeal pertain to: (1) the use of transcript testimony of a prosecution witness who testified at the preliminary hearing but was unavailable to testify in person at the trial; (2) the lineup identification procedures; and (3) the sufficiency of the evidence to support the appellant's conviction under the felonymurder rule.

Testimony received at Bey's trial disclosed that on September 11, 1973, John Lomax, Wilbert Etier and appellant drove to the offices of the Prolerized Steel Corporation in Kansas City, Kansas, to commit a robbery. Lomax and Bey entered the office building while Etier waited behind the wheel of the get-away car. As Bey and Lomax entered the office a young man, Roy Lake, ran from the building and shouted that a robbery was taking place. Etier emerged from the driver's side of the waiting automobile and fired his rifle at Lake, resulting in his death.

The appellant was charged and tried for the robbery and the killing. Two men working in the Prolerized Steel office at the time of the robbery, Mr. Richard Glasscock and Mr. Rudy Roth, identified the appellant as one of the robbers. Lomax admitted participating in the robbery and testified for the prosecution. Etier was killed by unknown persons prior to the trial of Bey. According to Lomax's testimony, Lomax, Julian Bey and Wilbert Etier drove in a blue Pontiac to the Prolerized Steel plant on the morning of September 11, 1973. After arriving Lomax entered the business office and requested a job application but was told they were not hiring. Lomax testified he started to leave the office when the appellant entered the office. The appellant was armed with a shotgun; Lomax had a .32 chrome revolver; and Etier, who stayed with the car, had a rifle and a pistol. Lomax further stated as the appellant was about to enter the office, there was a young man standing just inside the door. When the appellant entered the young man ran out the door. The appellant told Lomax to 'stop him,' but Lomax just let him go. Once inside Lomax and the appellant ordered the men in the office to lie down and then took money from a drawer and the safe, a total of approximately $500.

When the robbery was completed Lomax and the appellant returned to the car and departed with Etier driving. According to Lomax, as the three were riding in the car, Etier asked why Lomax and the appellant had 'let the dude run?', and Etier then stated that he 'had to do away with him.' Lomax testified that he neither saw nor heard the shooting.

Additional evidence before the jury included a reading of the transcript of one Bobby Arnold's testimony from the preliminary hearing. Arnold was an independent truck driver who was present outside Prolerized Steel's business office at the time of the robbery. He testified that he was a blue Pontiac parked by the office and observed a white boy walking toward and car when two black men got out of the Pontiac and walked toward the office with the boy. He next saw the boy break away from the two men and start running in Arnold's direction shouting 'Holdup run'. The two men continued on into the office building. Arnold then saw another black person get out from the driver's side of the Pontiac and fire several shots at the running boy.

Predicated upon the evidence presented the jury found Bey Guilty of first degree murder under the felony-murder rule, and he was sentenced to life imprisonment. Bey moved for a new trial. That motion was overruled by the trial court and Bey has duly perfected this appeal.

The appellant contends the trial court erred in refusing to exclude the reading of the preliminary hearing testimony of Bobby Arnold because Arnold was not properly served with a subpoena for appearance at the trial, and that a diligent effort was not made to secure his appearance.

The provisions of K.S.A. 60-460(c)(2) permit testimony of a witness given at a preliminary examination to be used at the trial only if it is shown that the witness is unavailable to testify personally. K.S.A. 60-459(g) provides in part that:

"Unavailable as a witness' includes situations where the witness is . . . (5) absent from the place of hearing because the proponent of his statement does not know and with diligence has been unable to ascertain his whereabouts.'

This court has considered the admissibility of the testimony of an absent witness given at a preliminary hearing, or at a former trial, on many occasions. In State v. Washington, 206 Kan. 336, 479 P.2d 833, the rule is stated as follows:

'Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a 'good faith effort' to obtain the witness's presence at trial (Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P.2d 695; State v. Guthrie, 192 Akn. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173 Kan. 240, 245 P.2d 1177. Also, see K.S.A. 60-459(g)).' (206 Kan. p. 338, 479 P.2d p. 835.)

(See also State v. Kirk, 211 Kan. 165, 505 P.2d 619; State v. Calvert, 211 Kan. 174, 505 P.2d 1110; State v. Ford, 210 Kan. 491, 502 P.2d 786.)

This court has not attempted to define the term 'reasonable diligence' with the preciseness that other legal phrases have been characterized. Analysis of our previous decisions establishes that each case turns on its own facts and circumstances to determine the availability of a witness. (State v. Kirk, supra.)

To support its motion requesting the trial court to authorize the reading of the transcribed testimony of Arnold at the preliminary hearing to the jury, the state called Joseph A. Horvat, an investigator in the Wyandotte County district attorney's office, to testify concerning efforts he made to contract Arnold for the trial.

According to Horvat following the preliminary hearing, he and the district attorney talked with Arnold to verify the fact that he would be available to testify at the trial. Arnold was cooperative, and gave his street address in Marshall, Missouri, and his phone number.

In preparing for the trial the investigator issued a subpoena to Arnold at the given address on January 8 (trial commenced on January 14). After leaving the subpoena was not served, the investigator attempted to telephone Arnold at the number given but the line had been disconnected. An...