State v. Boone
| Decision Date | 06 November 1976 |
| Docket Number | No. 48267,48267 |
| Citation | 220 Kan. 771,556 P.2d 880 |
| Parties | STATE of Kansas, Appellee, v. Richard B. BOONE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When two or more complaints, informations or indictments against a single defendant are tried together under K.S.A. 22-3203, the procedure should be the same as if the prosecution were under a single complaint, information or indictment. Appointment or retention of two separate defense counsel and division of the case into two 'mini-trials' to accommodate the two defense counsel are disapproved.
2. The foundation to admit physical evidence is determined by the trial judge, who must be satisfied as to the relevance of the physical evidence and its connection with the accused and the alleged crime.
3. When a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime, unless it is clearly irrelevant the object should be admitted for such weight and effect as the jury sees fit to give it.
4. It is not prejudicial to the defendant in a criminal trial when a physical object is initially admitted into evidence without a proper foundation, when subsequent thereto in the same trial testimony is elicited from another witness to establish a valid foundation for the admission of such physical object into evidence.
5. In a criminal action where a jury found the defendant guilty of two counts of aggravated robbery under K.S.A. 21-3427, the record is examined and it is held: (a) A six-week time span between the robbery and the later discovery and identification of a weapon similar to the robbery weapon is not so great as to impair the relevancy of the defendant's possession of the weapon; (b) non-ownership of an automobile driven by the defendant does not destroy the relevancy of evidence discovered in the glove compartment of that automobile; and (c) the trial court did not err in the admission of evidence.
G. Knute Fraser, Wichita, argued the cause, and was on the brief for the appellant.
Christopher A. Randall, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Robert L. Kennedy, Jr., Asst. Dist. Atty., were on the brief for the appellee.
This is an appeal in a criminal action from a jury verdict which found Richard B. Boone (defendant-appellant) guilty of two counts of aggravated robbery. (K.S.A. 21-3427.)
The sole question presented is whether the court committed prejudicial error when it admitted state's Exhibit No. 3, a knife allegedly used in the aggravated robbery, into evidence. The appellant argues no proper foundation existed for its admission into evidence.
It is necessary to briefly recite the facts of this appeal and a companion appeal involving the appellant, State v. Boone, 220 Kan. 758, 556 P.2d 864 () On June 25, 1974, Betty Carter, a manager at the Town and Country Market at 1023 East Lincoln in Wichita, was working alone in the store when it was robbed at about 7:45 a.m. (Hereafter reffered to as the East Lincoln robbery.) referred to as the East Lincoln robbery.) over the counter with a knife in his hand and made her lie on the floor while he emptied the unlocked floor safe and a cash register into a canvas bank bag. A customer, Mr. Richard Kellogg of Wichita, walked in while the robbery was in progress. The robber took his wallet and made him lie down also. The robber then fled on foot.
Betty Carter testified the man who robbed her had on blue jeans and a light blue shirt, and he wore blue track shoes with orange stripes. At 2:30 p.m. on June 25, 1974, the police had Betty Carter view a lineup. She identified the appellant as the robber. Mr. Kellogg was unable to identify the appellant as the person who took his wallet.
On June 25, 1974, when the appellant was arrested, a blue denim shirt and blue tennis shoes with gold stripes down the side were seized. These were similar to those worn by the robber and were admitted into evidence at the trial. A money bag similar to that taken by the robber and checks written by Betty Carter and another employee were found by a Wichita street cleaner on Rock Road and admitted into evidence. Wichita police officer Garrison testified the appellant said he had been at Central and Rock Road seeing about a job at a construction site. Mr. Kellogg's billfold and identification cards were found under the right front seat of the appellant's car at the time of his June 25, 1974, arrest.
The appellant was apparently released on bond following his first arrest. On August 9, 1974, the appellant was arrested and charged with the aggravated robbery of a Town and Country Market located at 600 South Oliver in Wichita. (Hereafter referred to as the South Oliver robbery.) The facts surrounding this arrest are covered in State v. Boone, 220 Kan. 758, 556 P.2d 864 () In that appeal two men using a gun were involved. Suffice it to say the charges against the appellant were consolidated and were tried one after another to the same jury in what might be characterized as two 'mini-trials' with separate defense counsel.
A knife was found in the glove compartment of the vehicle driven by the appellant on August 9, 1974, and admitted into evidence over his objection, in the portion of the trial relating to this appeal. Betty Carter testified concerning the knife marked state's Exhibit No. 3 as follows:
When the state offered the knife and other articles into evidence, the appellant's attorney objected saying:
Nevertheless, the court admitted all the offered exhibits.
The state completed its presentation of evidence regarding this appeal and announced it would present no further evidence regarding the East Lincoln robbery. The state then presented evidence regarding the South Oliver robbery in which the appellant was also charged with two counts of aggravated robbery. The appellant moved to suppress the knife found on August 9, 1974, but the motion was denied. The court then relied on the admission of the knife into evidence earlier to again admit it, over objection, into evidence in that portion of the trial relating to the South Oliver robbery. The court said:
'. . . I have admitted it in the other case and I am going to admit it in this case, so there won't be any question about it. . . .'
The jury found the appellant guilty of both counts of aggravated robbery in this appeal involving the East Lincoln robbery and guilty of one count of aggravated robbery in the other appeal involving the South Oliver robbery.
The sole issue on this appeal is whether the trial court committed prejudicial error when it admitted the knife found on August 9, 1974, into evidence. The legality of the August 9, 1974, search which produced the knife is not in issue here. That search was upheld in State v. Boone, 220 Kan. 758, 556 P.2d 864 ()
The issue on appeal stems from the trial of consolidated charges which were tried with two separate defense counsel. The statutory language regarding consolidation is found at K.S.A. 22-3202 and K.S.A. 22-3203. These statutes are modeled after Rules 8 and 13 of the Federal Rules of Criminal Procedure. No question regarding consolidation is argued and we think consolidation was proper. (See, State v. Browning, 182 Kan. 244, 320 P.2d 844; State v. Hacker, 197 Kan. 712, 421 P.2d 40, cert. denied, 386 U.S. 967, 87 S.Ct. 1050, 18 L.Ed.2d 119; and State v. Ralls, 213 Kan. 249, 515 P.2d 1205.)
However, we cannot approve the procedure followed. At trial the jury was instructed as to the procedure being followed so they would not become confused. But the trial court's procedure, with appointment or retention of two separate defense counsel and a division of the case into two 'mini-trials' to accommodate the two defense counsel, is unwarranted. Rule No. 13 of the Federal Rules of Criminal Procedure indicates the procedure when two indictments or informations or both are to be tried together shall be the same as if the prosecution were under a single indictment or information. Previous cases brought to this court...
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State v. Garcia, 60313
...unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it. State v. Boone, 220 Kan. 771, Syl. p 3, 556 P.2d 880 (1976)." 225 Kan. at 419-20, 590 P.2d In the present case, the victim's brother testified that Exhibit 19 was "just......
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State v. Boone
...four errors require reversal. The defendant made a separate appeal from his conviction for the June 25, 1974, robbery in State v. Boone, Kan. 556 P.2d 880, this day The appellant's first point on appeal is that it was prejudicial error to admit certain items into evidence, following the ove......
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State v. Smallwood
...and the crime charged. (State v. Hernandez, 222 Kan. 175, 563 P.2d 474; State v. Jakeway, 221 Kan. 142, 558 P.2d 113; and State v. Boone, 220 Kan. 771, 556 P.2d 880.) In State v. Donahue, 218 Kan. 351, 543 P.2d 962, our court allowed the introduction, over objection, of physical objects bel......
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State v. Nicholson, 49876
...unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it. State v. Boone,220 Kan. 771, Syl. P 3, 556 P.2d 880 (1976). Discrepancies between where an object is found and where it was used bear upon the weight to be given the ev......