State v. Bird, 57592

• Decision Date: 25 October 1985
• Docket Number: No. 57592,57592
• Citation: 238 Kan. 160,708 P.2d 946
• Parties: STATE of Kansas, Appellee, v. Thomas P. BIRD, Appellant.
• Court: Kansas Supreme Court

Page 946

708 P.2d 946

238 Kan. 160

STATE of Kansas, Appellee, v. Thomas P. BIRD, Appellant.

No. 57592.

Supreme Court of Kansas.

Oct. 25, 1985.

Syllabus by the Court

1. In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of the information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal.

2. Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible.

3. In this state, an information which charges an offense in the language of the applicable criminal statute is sufficient.

4. If an information does charge a crime, the defendant waives any further objections to the definiteness or certainty of the information by failing to request a bill of particulars or raise these objections prior to submission of the case to the jury. K.S.A. 22-3208(3).

5. The taking of a witness' depositions in criminal proceedings is controlled by K.S.A. 1984 Supp. 22-3211, which sets forth four situations in which the deposition may be taken. Under K.S.A. 1984 Supp. 22-3211(3), a prosecutor may request that a witness be deposed, and if, after a hearing, the court determines the witness may be unavailable at trial, the witness' testimony is material, and it is necessary to prevent a failure of justice, the court may authorize the taking of the deposition. Granting the right to take a deposition under subsection (3) is discretionary with the trial court.

6. The use of a deposition taken pursuant to K.S.A. 1984 Supp. 22-3211 does not deprive a defendant of his constitutional right to confront witnesses if the defendant was present at the taking of the deposition and the defendant had the opportunity to thoroughly cross-examine the witness.

7. In a criminal trial, before admitting hearsay evidence under an exception to the hearsay rule, a trial court must also consider the application of the confrontation clauses as contained in the Sixth Amendment to the United States Constitution and also in section 10 of the Bill of Rights of the Kansas Constitution. This requires a showing (1) that a witness not present for cross-examination is unavailable, and (2) that the statement bears adequate indicia of reliability or guarantees of trustworthiness.

8. K.S.A. 60-460(j) is an exception to the rule against hearsay which contemplates that the judge, using judicial discretion, find the proffered hearsay statement was at the time of the assertion so far contrary to the declarant's interest that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true.

9. Even if all the elements of the coconspirator exception (K.S.A. 60-460[i] of the hearsay rule are satisfied, the testimony is not admissible unless evidence other than the proffered out-of-court statement is already in the record which establishes a substantial factual basis for a conspiracy between the defendant and the declarant. A "substantial factual basis" may be something less than prima facie proof of the conspiracy, as long as the whole of the evidence taken together establishes that a conspiracy actually existed. Therefore, it is immaterial whether a prima facie case is established before or after the introduction of the hearsay declaration of a coconspirator pursuant to K.S.A. 60-460(i)(2).

10. Under K.S.A. 60-460(i)(2), in order for the hearsay declaration to be admissible, it need only be shown that the statement was relevant to the conspiracy, not that it was in furtherance of the conspiracy.

11. Evidence is admissible to show a conspiracy between the defendant and the declarant even though the latter was not joined in the information and no conspiracy was charged therein.

12. In a criminal case in which the defendant is charged with criminal solicitation to commit first-degree murder, evidence of the intended victim's life insurance, as related to the facts in this case, is relevant to establish motive and is admissible if there is evidence to show the defendant had knowledge of the insurance.

13. Since Kansas does not follow the "plain error" rule utilized in federal courts, reversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged.

14. The prosecutor is entitled to considerable latitude in closing argument. There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments by defense counsel.

15. A trial court has no duty to give a cautionary instruction when receiving accomplice testimony, unless such instruction is requested.

Robert D. Hecht, of Scott, Quinlan & Hecht, Topeka, argued the cause and was on brief, for appellant.

Rodney H. Symmonds, Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Thomas P. Bird (defendant-appellant) guilty of criminal solicitation. K.S.A. 1984 Supp. 21-3303. The defendant was sentenced to a term of not less than two and a half and not more than seven years' imprisonment. The defendant contends the trial court erred in numerous aspects, including the admission of certain hearsay statements of Lorna Anderson, the taking of and admission of deposition testimony of a State's witness, the admission of evidence concerning Martin Anderson's life insurance, and the failure to give certain cautionary instructions. In addition, the defendant contends the complaint information did not charge an offense, and that the prosecutor was guilty of misconduct during closing argument.

The facts, which are complex, will be stated as briefly as possible since the defendant does not challenge the sufficiency of the evidence.

The State's case was developed primarily through the testimony of Darrel Carter. Mr. Carter was a life-long resident of Lyon County, Kansas, who worked as a self-employed business contractor at the time of trial. He had been married for nineteen years and had three children. He testified that he had become acquainted with Martin and Lorna Anderson through a social sorority. Although he at first claimed he was only socially acquainted with Lorna, he later admitted to having had sexual relations with her.

Carter testified that in May 1983, Lorna approached him and asked him to meet with her at the Faith Lutheran Church in Emporia where she worked as the secretary. She did not tell him what the meeting would be about. A few days later, Carter went to the church as requested. He met with Lorna in her secretarial office and she introduced him to the pastor of the church, the defendant in this case. Lorna told Carter that the defendant was going to help them kill Martin Anderson. Carter initially said that he didn't want to have anything to do with a murder. He then asked the defendant why he didn't counsel Lorna and Marty or talk to Lorna about getting a divorce. The defendant told Carter that Lorna didn't want a divorce because Martin Anderson had a large insurance policy and she wanted the money and not the divorce. The defendant also said that he loved Lorna and he was doing this to help her. The defendant said he planned to preside over the funeral so that he could be close to Lorna--he indicated that since he was the minister, no one would suspect him. When Carter asked them why they thought he'd participate in the plan as he'd never done anything like it and was not a cold-blooded killer, Carter testified the defendant said, " 'I have--I haven't either ... I'm a man of God and I'm going to kill Martin Anderson.' "

Carter then testified that the defendant and Lorna outlined two alternative plans to kill Martin Anderson. The first plan was to drug Anderson or get him drunk at his home, load him into his car, take him to a place in the country where there was a bend in the road and a bridge with a 50-foot drop-off into the water, and then push the car over the embankment. Carter was asked if he would be willing to pick the defendant up after he pushed the car over and bring him back to town, thus enabling Lorna to stay at home to establish an alibi. The second plan, which Carter was not asked to help with, involved the defendant's faking a robbery and shooting Anderson to death in a house where Anderson stayed while attending his monthly military reserve meeting in Topeka.

After hearing the plans, Carter became concerned for his own safety, and instead of giving them a definite answer, he said he needed some time to think it over. As he was leaving the church, the defendant told him if anyone asked him why he was there to tell them he'd been discussing the possibility of the church's youth group selling fireworks at Carter's annual fireworks stand.

A few days after the meeting at the church, the defendant came to a job site where Carter was working and asked if he'd made a decision. Carter said that he had not made up his mind.

Later, Carter telephoned the defendant and told him he would not help. Carter testified that neither the defendant nor anyone claiming to act on behalf of the defendant contacted him to advise him the defendant was no longer going ahead with the plan.

Two other State's witnesses testified that Carter had told them in May or June 1983, that he'd been asked to help kill someone. Neither of the witnesses knew whether or not to believe Carter.

In November of 1983, Darrel Carter's brother Dan was arrested in connection with the shooting...