State v. Bowers, 47988
| Decision Date | 24 January 1976 |
| Docket Number | No. 47988,47988 |
| Parties | STATE of Kansas, Appellee, v. Gary W. BOWERS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
One purpose of K.S.A. 60-447 is to allow a criminal defendant to testify in his own behalf without having his past misconduct revealed to the jury. Testimony concerning background information and biographical data is generally not deemed to be evidence of good character, and the accused is entitled to let the jury know who he is so it may properly fit him into the pattern of events brought out at trial. However, if the testimony offered by the accused goes beyond those bounds and attempts to characterize the accused as possessing character traits suggesting there is little likelihood he could have committed the offense charged, the state may on cross-examination, subject to the requirement of relevancy, offer evidence of prior convictions as circumstantial evidence of criminal propensity and likelihood of guilt.
Frank F. Eckdall, Kansas City, argued the cause and was on the brief for appellant.
Dennis L. Harris, Asst. Dist. Atty., argued the cuase, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.
This is a direct criminal appeal in which the defendant-appellant, Gary W. Bowers, was charged with two counts of aggravated robbery (K.S.A. 21-3427) and convicted by jury on one count of the charge. The defendant has appealed claiming trial error.
The facts may be briefly summarized. A lone gunman robbed Church's Chicken Place in Wyandotte County on Sunday, March 31, 1974, at approximately 7:00 p. m. Steele's Market, also in Wynadotte County, was robbed at gunpoint on Tuesday, April 2, 1974, at approximately 7:30 p. m. On May 14, 1974, the defendant was charged with committing both aggravated robberies. The case proceeded to trial to a jury on November 18, 1974, and resulted in a conviction for the Steele's Market robbery.
The defendant's sole point is that the district court erred in permitting the prosecution to cross-examine him about a previous conviction for burglary and larceny in 1967. The ruling was made at an oral hearing at the bench out of the presence of the jury and before the state's cross-examination of the defendant commenced. The court found the defendant had put his character in issue by his testimony and had 'painted a picture of a good, solid, substantial citizen who has never done anything wrong in his life,' and that
The defendant contends the district court's ruling was reversible error under any of three statutes: under K.S..A 60-421 because the defendant had introduced no evidence for the sole purpose of supporting his credibility; under K.S.A. 60-447 because the defendant had introduced no evidence of his good character; under K.S.A. 60-243(b) because the defendant had been cross-examined as to subject matter beyond the scope of his examination in chief. Since the state's motion and the court's ruling were based on K.S.A. 60-447, we will first consider whether the district court erred under this statute.
K.S.A. 60-447 provides in pertinent part:
'. . . (b) in a criminal action evidence of a trait of an accused's character as tending to prove his guilt or innocence of the offense charged, (i) may not be excluded by the judge under section 60-445 if offered by the accused to prove his innocence, and (ii) if offered by the prosecution to prove his guilt, may be admitted only after the accused has introduced evidence of his good character.'
Under K.S.A. 60-447 one does not actually 'put one's character in issue.' When a character trait is truly in issue, 'the ultimate thing to be proved is not the doing of an act, but a disposition itself.' Slough, Relevancy Unraveled, 5 Kan.L.Rev. 404, 406 (1957). Character traits of the accused under K.S.A. 60-447 are circumstantial evidence 'offered to indicate the possibility of his doing or not doing the act charged. . . .' Id. at 413.
Judge Gard's commentary on K.S.A. 60-447 is illuminating:
S. Gard, Kansas Code of Civil Procedure, 438 (1963).
Several of our decisions have applied K.S.A. 60-447 to the effect that before the prosecution may offer evidence of prior convictions, the accused must introduce evidence of his good character. E. g., State v. Gunzelman, 210 Kan. 481, 502 P.2d 705, 58 A.L.R.3d 552; State v. DeLespine, 201 Kan. 348, 440 P.2d 572.
In State v. Stokes, 215 Kan. 5, 523 P.2d 364, we noted that the policy underlying K.S.A. 60-447 (and K.S.A. 60-421 as well) is that a defendant should be permitted to testify in his own behalf without having his history of past misconduct paraded before the jury. We also pointed out that testimony concerning background information and biographical data such as place of birth, education, length of residence in the community, length of marriage, size of family, occupation, place of employment, service in armed forces and receipt of honorable discharge is not deemed to be evidence of good charater. A guideline for the allowable scope of the accused's testimony was suggested: '(The accused) is entitled, like any other witness, to let the jury know who he is so that it may properly fit him into the pattern of events brought out at the trial.' (215 Kan. p. 7, 523 P.2d p. 366.) We pointed out, however, that when the testimony offered by the defendant goes beyond these bounds and attempts to characterize the defendant...
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State v. Cheever
...a defendant does not put his or her character "truly in issue" simply by asserting an intoxication defense. State v. Bowers, 218 Kan. 736, 737, 545 P.2d 303 (1976); cf. State v. Mader, 261 Kan. 280, 283, 931 P.2d 1247 (1997) (when defendant relies upon self-defense, his or her attempt to pr......
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State v. Cheever
...a defendant does not put his or her character "truly in issue" simply by asserting an intoxication defense. State v. Bowers , 218 Kan. 736, 737, 545 P.2d 303 (1976) ; cf . State v. Mader , 261 Kan. 280, 283, 931 P.2d 1247 (1997) (when defendant relies upon self-defense, his or her attempt t......
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State v. Holt, 106,711.
...No. 103,372, 2011 WL 427460, at *2–4 (Kan.App.) (unpublished opinion), rev. denied 292 Kan. 966 (2011) (citing State v. Bowers, 218 Kan. 736, 738–40, 545 P.2d 303 [1976] and State v. Smart, 26 Kan.App.2d 808, 811, 995 P.2d 407 [1999],rev. denied 269 Kan. 939 [2000] ). In this context, a jud......
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State v. Chandler, 67270
...guarantee that he be allowed to testify without having his history of past misconduct paraded before the jury. See State v. Bowers, 218 Kan. 736, 738, 545 P.2d 303 (1976). Chandler contends that the prior conviction question was asked in such a way as to inform the jury that he was in priso......