State v. Baker

• Decision Date: 08 May 1976
• Docket Number: No. 48082,48082
• Citation: 549 P.2d 911,219 Kan. 854
• Parties: STATE of Kansas, Appellee, v. George BAKER, Appellant.
• Court: Kansas Supreme Court

Page 911

549 P.2d 911

219 Kan. 854

STATE of Kansas, Appellee, v. George BAKER, Appellant.

No. 48082.

Supreme Court of Kansas.

May 8, 1976.

Syllabus by the Court.

1. The primary test of admissibility of evidence is its relevancy to the issue in question.

2. Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact.

3. Admissibility of evidence is largely within the discretion of the district judge. The trier of fact should have all relevant evidence offered unless some overriding consideration of policy or expediency requires its exclusion, and the district judge may exclude relevant evidence if he finds its probative value is outweighed by the danger the jury will be unduly prejudiced.

4. To be relevant, evidence of collateral facts must be confined to the issues, but need not bear directly on them. There must be some natural, necessary or logical connection between such evidence and the inference or result it seeks to establish.

5. Evidence of attending circumstances at the time an accused is taken into custody, including property he possessed or had access to, is relevant and admissible when the circumstances logically tend to connect the accused to the crime charged.

6. Lack of positive identification of the money taken and of a positive showing that any of the recovered keys could open the burglarized apartment door went to the weight rather than the admissibility of such evidence.

7. A party who offers an object into evidence must show it is reasonably certain that there have been no material alterations of the object since it was first taken into custody.

8. In considering the sufficiency of evidence to sustain a conviction, this court's function is limited to ascertaining whether there is a basis in the evidence for a reasonable inference of guilt. If the essential elements of the charge are supported by any competent evidence, the conviction must stand.

9. In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in discussing it. Counsel may appeal to the jury with all the power and persuasiveness his learning, skill and experience enable him to use.

Lawrence G. Zukel, Kansas City, argued the cause and was on the brief for appellant.

Dennis L. Harris, Deputy Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

FATZER, Chief Justice:

The appellant, George C. Baker, was found guilty by a jury of the crimes of burglary (K.S.A. 21-3715) and theft over $50 (K.S.A. 21-3701). His motion for a new trial was overruled and he perfected this appeal.

The state's evidence is summarized: Peter Von Schwarzbek and Cynthia L. Shaffer lived in Apartment No. 2 that was burglarized. Cynthia is employed and left the apartment at 7:30 a. m. on January 20, 1975. Peter is a student at the Kansas University Medical Center, and also left the apartment that morning. He returned to the apartment for about 15 minutes at 1:30 p. m. When he left, the television was in the apartment and he locked the front and back doors. On his way out of the apartment complex, Peter passed two men in the foyer. At the trial, he identified one of the men as the appellant.

A postman testified he saw a strange car with two men enter the apartment complex and park. The postman noticed the two men go through a few of the buildings. He passed through the laundry room on his rounds and encountered the same two men. To his casual 'hi,' they simultaneously responded, 'I'm doing my laundry' and 'I'm reading the light meter.' The postman told the manager someone was walking through the buildings, and she was about to call the police when the car and the two men left. In a couple of minutes, the car returned and the manager called the police officers.

Arriving in a few minutes, the police talked to the postman and then drove to where the car was parked. As the police approached, the appellant jumped out of the car and ran to the laundry room door. The officer ordered the appellant to stop and inquired about his presence in the apartment complex. The appellant informed the officer he was drying his laundry. When checked by Officer O'Donnell the dryers were empty. Officer O'Donnell then made inquiries as to the ownership of the car and where the driver lived. He was told that Mr. Pappas, the other occupant, owned the car and lived in Johnson County. At that time, the automobile had one Missouri license plate displayed on the rear.

The officers secured the two men and the car, and then checked the security for the apartments in the building. The door to Apartment No. 2 was unlocked. On entering, the officers observed as empty television stand (a dust outline indicated where the television had been).

The appellant and his accomplice were then arrested and taken to the Kansas City police department where Mr. Pappas signed a waiver of search of his automobile. The trunk of the automobile was searched and a television was recovered. The television was later identified by receipt and serial number as being the property of Cynthia Shaffer.

Miss Shaffer testified that two or three silver dollars were missing from her jewel box. The investigating detective observed a coin imprint in the felt lining of the jewel box.

The officers found three sets of keys on rings in the course of their investigation at the scene. One set was found on an electrical junction box right inside the doorway where the appellant was stopped by the officer. The other two sets of keys were found in the car. Three silver dollars were found in the appellant's pocket.

All the items recovered at the scene on January 20, 1975, were turned in to the police department property officer on February 7, 1975. The items stayed in his custody until four or five days before the trial when he gave them to the district attorney. Both the arresting officer at the scene and the property officer testified all the items were in the same form and configuration when they viewed them at the trial as when they first saw them and had them in their custody and control.

At the close of the state's evidence, and out of hearing of the jury, the state's three exhibits were admitted into evidence over the defendant's objection.

Exhibit 1 included the two sets of keys found in the car and the Missouri license plate. The defendant objected on grounds of chain of custody and that the keys had not been shown to be relevant evidence. The court criticized the practice of the prosecutor's office of obtaining items from the property officer several days before trial but found the items had been sufficiently identified by the officer who recovered them, and received the exhibits into evidence.

Exhibit 2 was the three silver dollars. The defendant objected to their admission on the grounds it had not been shown the silver dollars were the ones missing from Cynthia's jewel box and that defendant's testimony would be that he saves silver dollars. The objection was overruled.

Exhibit 3 was the set of keys found in the laundry room near the door where the appellant had been stopped by the officer. The defendant's objection to Exhibit 3 was overruled and it was received into evidence.

The state rested its case, and the defendant's motion for discharge was overruled.

Thereafter, the defendant presented his case. He testified in his own behalf that he had met Peter Von Schwarzbek in a bar on Saturday night January 18, 1975. At that time, Peter told him he was breaking up with his girl and wanted to sell the television set he kept at the apartment. He further testified that on Monday, January 20, he received a call from Peter while he was at the same bar. They agreed on a price for the television of $75. Peter instructed the appellant to go to the apartment complex, to pick up the television in the laundry room, and to wait out in back for Peter to come by so appellant could pay him. The appellant and Pappas did as instructed, got the television from the laundry room and loaded it in the trunk of the car. They left briefly to get cigarettes and had returned to wait for Peter when they were arrested. At the trial, Peter denied ever meeting either man prior to the day of the burglary.

At the close of all the evidence, the defendant's motion for a directed verdict was overruled. Following the jury's verdict of guilty and the overruling of the defendant's motion for a new trial, this appeal was perfected.

The appellant first contends the district court erred in admitting certain keys, coins, photographs and other items into evidence, without proper foundation, all of which were immaterial and denied defendant a fair trial. Boiled down, the argument is: (1) Entry to the apartment was obtained without force; therefore, a key was needed, (2) the three rings of keys were never tied to appellant, i. e., there was no evidence to connect him with the keys found in Pappas' car or those found in the laundry room, (3) it was never ascertained if any of the recovered keys would open the door to the appellant, (4) due process requires that the police try the keys in the lock to prove one of them opened the door, and (5) the state had complete control of the evidence (keys) yet took no steps to prove appellant's capacity to open the lock; without such a showing, the keys were immaterial and irrelevant.

The appellant further argues it was prejudicial error to admit the silver dollars found in his pocket. Cynthia could not identify them or lay a foundation for their admission. The appellant explained why he had them; he testified that he always carried them and used them to flip when he shot pool.

The appellant contends...