State v. Blocker
| Decision Date | 20 January 1973 |
| Docket Number | No. 46725,46725 |
| Citation | 211 Kan. 185,505 P.2d 1099 |
| Parties | STATE of Kansas, Appellee, v. Dorothy R. BLOCKER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Whether or not the state may endorse the names of additional witnesses on the information during the trial rests within the sound discretion of the trial court, and its ruling thereon will not be disturbed in the absence of abuse, the test being whether the defendant's rights will be prejudiced.
2. The trial court may, in its discretion, permit the state to introduce evidence on rebuttal which would have been admissible in the state's case in chief and its ruling in such regard will not be cause for reversal unless it appears that its discretion has been abused to the defendant's prejudice.
3. It is the rule of this jurisdiction that the granting of a continuance lies within the sound judicial discretion of the trial court.
4. The violation of a court order separating the witnesses in a criminal case does not of itself disqualify a witness from testifying, and the trial court, in its discretion, may permit him to testify.
5. Under the provisions of K.S.A. 60-420 a witness may be examined by any party, including the party who called him, on matters which go to his credibility and any such party may introduce extrinsic evidence relevant on that issue.
6. A party is not concluded by the testimony of any witness he has called but may introduce other competent evidence to prove a fact even though the latter evidence may tend to impeach or contradict the testimony of the previous witness.
7. A person who is under personal attack is justified in using such force, but only such force, to defend himself against imminent serious bodily harm as appears reasonably necessary to him for that purpose under the circumstances then confronting him.
8. Instructions to the jury are to be considered as a whole and not piecemeal, any they are not to be taken out of context.
9. In a prosecution for homicide where self defense is an issue, evidence of threats against the accused made by the deceased and the deceased's known predisposition to violence is admissible for consideration by the jury along with all the other evidence in the case.
10. When the jury has been instructed to consider all the evidence in deliberating on their verdict it is improper to single out or unduly emphasize particular facts or circumstances in evidence or to stress the comparative weight or potency of a specific type of competent evidence.
11. A juror may not impeach his verdict on grounds which inhere in the verdict itself, nor may he divulge what considerations influenced him in arriving at the verdict or the reasoning on which he came to his decision.
12. Evidence as to extraneous matters of physical facts, incidents or occurrences, either within or outside the courtroom, is admissible where the same tends to impugn the verdict and is material to the issues being determined.
13. After the jury has been dismissed from further consideration of a case it is permissible for a lawyer connected with the case to communicate with the jurors so long as he does not make comments to or ask questions of them calculated or tending to harass or embarrass the jurors or influence their actions in future jury service.
14. The record is examined in a prosecution for murder in the second degree and for reasons appearing in the opinion it is held the court did not err (1) in permitting the state to endorse an additional name on the information and permitting the witness to testify on rebuttal, (2) in denying a continuance, (3) in denying a defense motion for directed verdict, (4) in the admission of evidence, (5) in instructing the jury, and (6) in refusing to permit examination of four members of the jury at the hearing of the defendant's motion for new trial.
Robert L. Marietta, of Marietta, Kellogg & Lord, Salina, argued the cause, and Charles S. Scott, of Scott, Scott, Scott & Jackson, Topeka, was with him on the brief for appellant.
Bill Crews, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
This opinion chronicles an unhappy train of events culminating in death and a murder conviction. The principals in the tragedy, Dorothy Blocker, the defendant, and Edward Russ, the deceased, had been intimately associated for some three years, although though the relationship had become bitter and argumentative during the last three months. Edward Russ was a cross-country truck driver. He was a married man, no stranger to violence, and he nurtured a jealous disposition. Dorothy Blocker was an unmarried woman at the time, and was possessed of four minor children ranging in ages from eight to fifteen years. We shall refer to Dorothy Blocker either as defendant, Mrs. Blocker or Dorothy, and to Edward Russ either as Russ or decedent.
On the day of the homicide, January 31, 1970, Russ returned from a two-week trip to California, during which he had called Dorothy on several occasions. He arrived at the Blocker home shortly after noon and found that Dorothy and a woman friend had gone to Gene Stanley's house, taking Dorothy's record player with them. Russ obtained the keys to Dorothy's car by forcing the glove compartment and, taking Dorothy's eight-year old son Glenn with him, went to get his inamorata. He parked the car in front of the Stanley home, left Glenn in the car, and went into the house where he angrily told Dorothy to come with him, and this she did. On returning to the car Russ struck Dorothy in the face with such force that she fell to the floor of the car and involuntarily urinated. Russ drove the car back to the Blocker home where another physical encounter took place in which Dorothy was pushed against the side of the car and her wrist watch broken. The facts from there on are somewhat conflicting but the end result was that Dorothy pulled a small gun from her purse and fired three shots, one of them striking Russ in the back and causing his premature demise. The time was shortly after 1 p. m.
Charges of murder in the second degree were filed against the defendant for which she was tried and convicted. She was sentenced to a term of twenty years and brings this appeal.
Four of her grounds of error relate in one way or another to the admission of her picture taken at the police station about six hours after the homicide occurred. The picture was identified on rebuttal by Officer Richardson. His name was not endorsed on the information prior to trial but leave was obtained to endorse it when the defense rested. The purpose of introducing the picture was to rebut the testimony of five defense witnesses that Dorothy's face was bruised and swollen and her eye partially closed.
It is contended the court erred in permitting the endorsement of Richardson's name after the defense rested; in permitting him to testify inasmuch as he remained in the courtroom in violation of an order excluding witnesses; that his testimony was not rebuttal, but evidence in chief; and that it impeached the testimony of other state witnesses.
K.S.A.1971 Supp. 22-3201(6) provides that the prosecuting attorney shall endorse on the information the names of all witnesses known to him at the time of filing and may endorse the names of other witnesses thereon as may afterward become known, at such times as the court may by rule or otherwise prescribe.
On several occasions this court has considered late endorsements as they related to the foregoing statute and its predecessor, G.S.1949, 62-802. From our decisions the rule has evolved that permission to endorse additional names on the information during trial rests within the sound discretion of the trial court, and its ruling will not be disturbed in the absence of abuse-the test being whether the defendant's rights have been prejudiced. (State v. Foster, 202 Kan. 259, 447 P.2d 405; State v. Poulos, 196 Kan. 287, 411 P.2d 689; State v. Hendrix, 188 Kan. 558, 363 P.2d 522; State v. Thomas,173 Kan. 460, 249 P.2d 645.)
It is urged that Officer Richardson's testimony identifying the defendant's picture was not rebuttal evidence, but evidence in chief, and should have been offered during the state's case. Resolution of this question depends on whether or not the defendant's right to a fair trial was substantially prejudiced. In State ex rel. v. Stout, 101 Kan. 600, 168 P. 853, the same point was raised. There, evidence which would have been admissible in chief was introduced by way of rebuttal, and the trial court refused to permit the defendant to offer evidence to rebut the rebuttal. In the course of its opinion this court said:
In a somewhat more recent case,...
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Williams v. Lawton, 97,132.
...of the court is required before counsel may conduct postverdict interviews with willing jurors. See, e.g., State v. Blocker, 211 Kan. 185, 197, 505 P.2d 1099 (1973) (after verdict has been returned it is not improper for an interested attorney to interview members of jury so long as the lim......
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Williams v. Lawton
...for the educational benefit of counsel and not for the purpose of "fishing" for grounds to impeach the verdict. See State v. Blocker, 211 Kan. 185, 196, 505 P.2d 1099 (1973) (K.S.A. 60-444 "not intended to authorize broad hunting expeditions or fishing The posttrial calling of jurors for te......
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State v. Hill
...appears to be necessary for that purpose.' (State v. Stokes, 215 Kan. 5, 523 P.2d 364, Syl. p 4 [1974]. See also, State v. Blocker, 211 Kan. 185, 192, 505 P.2d 1099 [1973].) If the jury had found the deadly force employed by Gregory was 'reasonably necessary' to repel Fullard's attack, it w......
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State v. Rueckert
...418, 536 P.2d 1382; State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395; State v. Price, 215 Kan. 718, 529 P.2d 85; State v. Blocker, 211 Kan. 185, 505 P.2d 1099.) Defendant shows no evidence of surprise or prejudice. The witness was known to counsel and had been interviewed by him fo......