State v. Bagby, 53521

• Decision Date: 03 April 1982
• Docket Number: No. 53521,53521
• Citation: 642 P.2d 993,231 Kan. 176
• Parties: STATE of Kansas, Appellee, v. James A. BAGBY, Appellant.
• Court: Kansas Supreme Court

Page 993

642 P.2d 993

231 Kan. 176

STATE of Kansas, Appellee, v. James A. BAGBY, Appellant.

No. 53521.

Supreme Court of Kansas.

April 3, 1982.

Syllabus by the Court

1. A court may order consolidation for trial of separate complaints or informations filed against a single defendant if the crimes could have been joined in a single complaint or information. K.S.A. 22-3203.

2. Joinder in the same complaint or information is proper if the crimes charged: (1) are of the same or similar character, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1).

3. Within established guidelines, the decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal, absent a clear showing of abuse of the exercise of that power of discretion.

4. Declaration of a mistrial under the provisions of K.S.A. 22-3423 is a decision largely within the discretion of the trial court, and that decision will not be set aside on appeal absent a clear showing of abuse of discretion.

5. When the defendant partially explains a subject on direct examination, the prosecutor on cross-examination may explore that subject further.

Charles A. O'Hara, of O'Hara, Busch, Johnson & Falk, Wichita, argued the cause and was on the brief for appellant.

Jack Peggs, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for appellee.

SCHROEDER, Chief Justice:

This is a criminal action in which James A. Bagby (defendant-appellant) appeals convictions by a Sedgwick County jury of aggravated burglary (K.S.A. 21-3716), attempted rape (K.S.A. 21-3301 and 21-3502), and aggravated sodomy (K.S.A. 21-3506).

The convictions were obtained in the consolidation of two separate criminal actions against the defendant which together involved three victims and alleged in multiple counts aggravated burglary, attempted and actual rape, and aggravated sodomy. Each of the three victims testified as prosecution witnesses; however, at the conclusion of the State's case, the court dismissed six counts relating to two of the victims. Three counts relating to one victim went to the jury, and the jury returned verdicts of guilty on all three counts.

The case submitted to the jury involved an incident which occurred at approximately 7:00 p. m. on January 27, 1981. Ms. W. was standing in a walk-in closet in her apartment when she saw a man come into her bedroom. He forcibly removed her from the closet and threatened to harm her if she screamed. At that time he had in his possession a yellow-handled screwdriver. After securing the door and turning the lights out, the man forced Ms. W. to perform acts of oral sodomy. Before an actual rape occurred, Ms. W. managed to leave the bedroom on a ruse and flee through the back door to a neighbor's apartment. Meanwhile, Ms. S., a neighbor who was unlocking her back door, saw a black man run past, carrying part of his clothing.

Police officers arrived and, within the hour, took Ms. W. and Ms. S. to the scene of a nearby automobile accident. Ms. W. positively identified the driver of the car, James Bagby, as her assailant. She also made positive identifications of the defendant at the preliminary hearing and at trial. Ms. S. identified Bagby as the man who had run past her apartment earlier. She, too, made a positive in-court identification of the defendant.

James Bagby appeals from the jury convictions of aggravated burglary, attempted rape, and aggravated sodomy, alleging prejudice in the consolidation of the two complaints for trial and in the handling of the subsequent dismissal of six counts. He also alleges that an eyewitness identification instruction should have been given and that the State's cross-examination of the defendant was improper.

The defendant first alleges that it was error to consolidate the multiple charges of aggravated burglary, attempted or actual rape, and aggravated sodomy involving three victims.

K.S.A. 22-3203 governs consolidation for trial of separate complaints or informations:

"The court may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment."

Joinder in the same complaint or information is proper if the crimes charged: (1) are of the same or similar character, (2) are based on the same act or transaction, or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. K.S.A. 22-3202(1).

Consolidation in the instant action rests on the same or similar character of the crimes involved. State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205 (1973), further delineated the prerequisites for consolidation under these circumstances "When all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information or if separate informations have been filed they may be consolidated for trial at one and the same trial."

Within these guidelines, the decision to consolidate rests within the sound discretion of the trial court and its holding will not be disturbed on appeal, absent a clear showing of abuse of the exercise of that discretion. State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134 (1976); State v. Browning, 182 Kan. 244, 248, 320 P.2d 844 (1958); State v. Acheson, 3 Kan.App.2d 705, 707, 601 P.2d 375 (1979).

With respect to each victim in these consolidated cases, the defendant was charged with aggravated burglary, attempted or actual rape, and aggravated sodomy. In each instance, the aggravated burglary was committed to advance the sexual acts. The offenses occurred in Wichita, Kansas, and required the same kind of, although not identical, evidence. At the preliminary hearing, each victim described a black man who threatened her with an object like a screwdriver or an ice pick. Two of the victims described similar clothing and recalled the assailant making a reference to being from New York. One positively identified the defendant and the other two said the defendant resembled the assailant although they could not make a positive identification.

Based on the offenses charged and the information available to the judge prior to trial, we cannot say he abused the exercise of his power of discretion in ordering consolidation nor can we say the defendant was prejudiced by the consolidation. The case at bar is readily distinguishable from State v. Thomas, 206 Kan. 603, 481 P.2d 964 (1971), to which the defendant draws our attention. In Thomas, unrelated forgery and murder charges were consolidated, and no instruction was given to the jury that the evidence pertaining to the forgery should be limited to that case. The court found prejudice to the defendant sufficient to require reversal. In the case at bar, the charges consolidated were the same or similar. During the course of the trial, the court dismissed the charges relating to two of the victims and admonished the...