State v. Bly

• Decision Date: 15 June 1974
• Docket Number: No. 47361,47361
• Citation: 523 P.2d 397,215 Kan. 168
• Parties: The STATE of Kansas, Appellee, v. Aaron L. BLY, Appellant.
• Court: Kansas Supreme Court

Page 397

523 P.2d 397

215 Kan. 168

The STATE of Kansas, Appellee, v. Aaron L. BLY, Appellant.

No. 47361.

Supreme Court of Kansas.

June 15, 1974.

Syllabus by the Court

1. The general principles of law to be followed in applying K.S.A. 60-455 pertaining to the admission into evidence of other crimes or civil wrongs committed by a defendant in a criminal case are reviewed and applied.

2. The rule limiting evidence of other crimes and civil wrongs in a criminal case is to be strictly enforced.

3. In determining whether or not to admit evidence of other crimes a trial court must employ a 'balancing' procedure, i. e. a court must weigh the probative value of the evidence offered against its tendency to prejudice the jury.

4. Evidence of other crimes has no real probative value if the fact it is supposed to prove is not substantially in issue.

5. Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. It is not sufficient simply to show that the offenses were violations of the same or a similar statute.

6. A defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials. The erroneous admission of evidence during a trial does not in every case require a reversal of a conviction but only where it is of such a nature as to affect the outcome of the trial so as to amount to a denial of substantial justice.

7. Where a defendant in a criminal action does not take the witness stand it is reversible error to permit a jury to draw an inference adverse to one accused of crime from his reliance upon his constitutional right to remain silent.

8. When a defendant testifies he may be impeached like any other witness. The use of pretrial silence for impeachment depends on whether, in the circumstances presented, there is such inconsistency between silence and testimony as to reasonably permit the use of silence to impeach the defendant's credibility. (Following State v. Jackson, 201 Kan. 795, 443 P.2d 279.)

9. The record is examined in an appeal from a conviction of aggravated robbery and it is held: (1) the improper admission into evidence of a subsequent conviction for bank robbery to prove identity was harmless error; (2) the defendant was not denied a fair trial or due process of law because of the prosecutor's cross-examination of the defendant and his comments in his summation on the fact that the defendant did not come forth with his story at the time he was arrested; and (3) no other reversible error or abuse of discretion in the rulings of the trial court is shown.

John J. Ambrosio, Topeka, argued the cause, and was on the brief for the appellant.

Donald P. Morrison, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for the appellee.

PRAGER, Justice:

This is a direct appeal in a criminal case in which the defendant-appellant, Aaron L Bly, was convicted of two counts of aggravated robbery as defined by K.S.A.1970 Supp. 21-3427 and one count of aggravated assault on a law enforcement officer under the provisions of K.S.A.1970 Supp. 21-3411. The evidence presented at the trial established the following factual situation: On March 28, 1971, at about 9:42 p. m. three armed black males wearing masks entered Sutton's Food Center, Inc. a large supermarket in north Topeka. One man proceeded to the courtesy booth area where he confronted Norman Goodman, the store manager, and demanded momey. This person received slightly over $4,000 from the store safe and one riot gun and one handgun belonging to the store. A second armed robber approached Dora Kessinger, an employee at a checkout counter, and demanded money. The third robber took a billfold from William Griffin a customer in the store. Mr. Goodman described the robber who had confronted him as wearing a coat and gloves similar to those worn by the defendant Bly when he was apprehended a short time after the robbery. Mr. Goodman also testified that this member of the holdup gang had a build similar to that of the defendant. Goodman further stated that from the sound of the robber's voice he believed the man who confronted him to be a Negro although he did not pretend to have absolute ability to make this determination. Dora Kessinger, William Griffin and Joyce Morrison, another store employee, all testified that in their judgment the holdup men were Negroes because of the sound of their voices.

Immediately after the robbery Norman Goodman observed a car rapidly leaving the area of the store which he described as a 1967 or 1968 Chevrolet, light blue or gray. He called the police who immediately broadcast the circumstances of the armed robbery over the police radio system. At 9:48 p. m. Topeka police officers Hamlin and Sandburg observed a parked vehicle meeting the description furnished by Mr. Goodman. When the officers attempted to get close to the vehicle it took off and another car that had been parked nearby started backing down the street at a high rate of speed with its lights off. The officers gave pursuit to this second vehicle which was later identified as a 1970 Oldsmobile owned by the defendant's uncle, Calvin Baines. During the pursuit the officers observed two black males in the car who fired on the police car, striking the patrol vehicle right above the driver's head. In the course of the chase a wheel fell off the Oldsmobile at which time the two black occupants abandoned the vehicle while it was still in motion. The driver fell as he moved away from the car and ran toward an area where the defendant Bly was subsequently apprehended. A search of Calvin Baines' vehicle later disclosed the stolen money, two firearms, one of which was the riot gun taken from the store, a mask similar to the one used in the robbery and some bullets.

Approximately two minutes after the suspects had fled Calvin Baines' car, Shawnee county sheriff's officers Hardy and Canfield observed a black male running across the street from one alley to another a few blocks away from where the vehicle had been abandoned. Hardy and Canfield received gunfire from this man. The description of this person as given by Hardy and Canfield was similar to that of the defendant Bly and was also similar to the description given of the man observed by Officer Sandburg. Approximately three minutes after the shooting occurrence the defendant was apprehended about three-fourths of a block away from the shooting incident. It was observed that he was sweaty, out of breath, with the crotch and knee of his slacks torn. The pistol taken from the store was located almost directly across the street from where the defendant was apprehended. Bullets like those found in the Baines' Oldsmobile were found in the defendant's pocket. Residents in the area where the defendant was apprehended stated that they did not know him and knew of no reason why he should be in the vicinity. The arresting officers testified that when they observed the defendant they told him to stop but he kept walking away from the officers. They told him to stop again and he sat down on the sidewalk. The case presented by the state was strong and pointed the finger of guilt directly at the defendant, Aaron L. Bly. At the trial it was undisputed that an aggravated robbery occurred and that in the course of the pursuit the robbers had fired at the police officers. The only real area of contest at the trial involved the identity of the defendant as one of the robbers.

At the close of the state's evidence the defendant Bly took the witness stand and testified that he came to Topeka from Kansas City in his uncle's 1970 Oldsmobile to visit his girl friend who lived in the 300 block of Lafayette Street in Topeka. The defendant stated that although he had been to her house three times in the month prior to the incident, on this trip he took a new route and got lost. He testified that he came up to another car and approached its occupants to ask directions. He testified that the men in the car pointed a gun at him and commandeered his uncle's 1970 Oldsmobile. He ran from the area and fell while running in an attempt to get help. According to the defendant he ran five blocks without making inquiry or seeking assistance at any of the numerous residences in the vicinity. He testified that he observed a man running in the immediate vicinity where he had been apprehended whose physical description and wearing apparel were similar to his own. On rebuttal it was demonstrated by the state that the area in which defendant was apprehended, the 1400 block on Paramore Street, was a substantial distance away from the area where he had planned to go, the 300 block of Lafayette Street. Apparently the defendant did not explain the presence of the bullets in his pocket which matched the description of those found in the getaway car. At the close of the trial the jury returned a verdict of guilty and the defendant was sentenced to the custody of the Director of Penal Institutions. The defendant has brought a timely appeal to this court claiming a number of trial errors.

The defendant first contends that the trial court erred in allowing the witnesses to the robbery at Sutton's supermarket to testify as to the race of the robbers based upon hearing their voices. As pointed out above four witnesses in the store testified that from hearing the robbers' voices they believed the robbers were Negroes. We find nothing improper in the admission of this testimony into evidence. The witnesses had the right to testify as to what they observed. Furthermore it was undisputed that the occupants of the getaway vehicle who fired on the officers were Negroes. We find this point without merit.

The defendant as his second point contends that the trial court committed prejudicial error...