State v. Bradford, 47883

• Decision Date: 10 April 1976
• Docket Number: No. 47883,47883
• Citation: 548 P.2d 812,219 Kan. 336
• Parties: STATE of Kansas, Appellee, v. Dennis Ray BRADFORD, Appellant.
• Court: Kansas Supreme Court

Page 812

548 P.2d 812

219 Kan. 336

STATE of Kansas, Appellee, v. Dennis Ray BRADFORD, Appellant.

No. 47883.

Supreme Court of Kansas.

April 10, 1976.

Syllabus by the Court

1. Whether inadmissible testimony constitutes harmless or reversible error depends upon the particular evidence and the circumstances of the case in which the question arises.

2. The erroneous admission of evidence during a trial does not in every case require a reversal of a conviction. A defendant is entitled to a fair trial but not a perfect one.

3. The granting or denial of a motion to provide psychiatric services for an indigent defendant is a matter within the sound discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that the exercise of such discretion has been abused to the extent of prejudicing the substantial rights of the defendant.

4. No rule governing oral argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence. The stating of facts not in evidence is clearly improper.

5. In a felony murder case where the evidence of the commission of the felony is disputed or unclear, where the evidence supports instructions on lesser degrees, and where different inferences and conclusions might be drawn by the jury as to which degree of homicide, if any, was committed, the giving of instructions on lesser degrees of homicide is proper.

6. In an appeal from a conviction of murder in the second degree, the record is examined and it is held that a witness' inadvertent reference to defendant's prior incarceration did not prejudice defendant's substantial rights; that the closing argument of the prosecutor, though improper, was not so prejudicial as to require a new trial; and that the trial court did not err in refusing to provide psychiatric services for the defendant, nor in instructing, over objection, on murder in the second degree.

Richard H. Seaton, of Everett & Seaton, Manhattan, argued the cause, and was on the brief for appellant.

Dennis C. Sauter, Asst. County Atty. argued the cause, and Curt T. Schneider, Atty. Gen., and Paul E. Miller, County Atty. were with him on the brief for appellee. MILLER, Justice:

Dennis Ray Bradford appeals from a conviction of murder in the second degree. He was tried on an information charging him with first-degree murder, committed during the perpetration of a robbery in violation of K.S.A. 21-3401. He raises these points on appeal: that the court erred in instructing on second-degree murder because that offense is not included within a charge of felony murder; that testimony by a state's witness that defendant had been in prison inflamed and prejudiced the jury; that the court erred in denying defendant the services of a psychiatrist; and that the prosecutor's description, in closing argument, of a blood test not in evidence was improper. This case was well briefed and presented by able counsel.

We turn first to the evidence, which revealed a needless, cruel and bizarre homicide. Dennis Ray Bradford and Carlie Moss spent the evening of June 2, 1974 drinking together and walking around Manhattan, Kansas (Moss testified as a witness for the state). Around midnight, while they were walking down Colorado Street, Bradford said something about robbing somebody, and the two separated. A few minutes later Moss heard Bradford say, 'Hand me your billfold' and he heard someone respond that he didn't have one. Moss then rejoined Bradford and recognized the third man as Scott Carlson. Bradford and Moss both struck Carlson who attempted to flee. Bradford again hit Carlson, knocking him down. Carlson fell against the curb and was knocked out. Bradford and Moss then dragged the prostrate Carlson into an alley way between Pierre and Colorado Streets. Bradford said, 'He's already half gone, why not finish him off.' Carlson, unconscious, was lying on his back. Bradford picked up a large rock or cement block and struck Carlson repeatedly in the face and head, crushing his skull. Bradford said to Moss, 'This is how you kill a man. He won't see anyone no more.' Bradford then went through Carlson's pockets, removing a paper pad which Bradford had in his possession at the time of his arrest later that morning.

We will consider first the final three points raised by defendant. Sybil Mings was called as a witness by the state. During her testimony she mentioned that the defendant had been in the reformatory and in prison. The trial court struck the testimony and admonished the jury to disregard it. It is apparent from the record and counsel for the defendant concedes that these statements by the witness were unsolicited and were not intentionally placed before the jury by the state. Evidence of defendant's prior incarceration was, of course, inadmissible. The court took prompt action to strike it and to admonish the jury.

The defendant is entitled to a fair trial but not a perfect one. Whether inadmissible testimony constitutes harmless or reversible error depends upon the particular evidence and the circumstances of the case in which the question arises. As we said in State v. Fennell, 218 Kan. 170, 542 P.2d 686:

'A relevant factor in determining whether an erroneous admission of evidence is harmless error is the weight of evidence supporting the conviction . . . We are convinced upon a review of the whole record that the evidence was of such direct and overwhelming nature and showed appellant's guilt of the two offenses charged to such extent that admission of the California conviction could not have affected the result of the trial and therefore its admission must be deemed harmless error.' (p. 174, 542 P.2d p. 691.)

And in State v. Bly, 215 Kan. 168, 523 P.2d 397, we said:

'. . . (T)he erroneous admission of evidence during a trial does not in every case require a reversal of a conviction. (State v. O'Neal, (204 Kan. 226, 461 P.2d 801).) A defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials. (Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476.) Not every admission of inadmissible evidence can be considered to be reversible error; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. K.S.A. 60-261 requires the courts of Kansas to disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. This rule known as the harmless error rule applies unless the error is of such a nature as to amount to a denial of substantial justice. (State v. Fleury, 203 Kan. 888, 457 P.2d 44.)' (p. 178, 542 P.2d p. 406)

We have reviewed the entire record in this case. There is a wealth of evidence to support the conviction. Under the facts here disclosed we conclude that the inadvertent reference to defendant's prior incarceration did not prejudice his substantial rights and was but harmless error.

Early in this proceeding the trial court committed Bradford to the State Security Hospital at Larned, presumably under K.S.A. 22-3302, for the purpose of a psychiatric examination so that his competency to stand trial might be determined. The court held a hearing for that purpose upon receipt of a written report from the hospital. Defendant and his counsel were present. At the conclusion of the hearing the court determined that Bradford was 'able to understand the nature and purpose of the proceedings against him and to make or assist in making his defense and that he is therefore competent to stand trial.'

Upon his arraignment some thirty days later, the defendant requested that the court authorize the obtaining of psychiatric services pursuant to K.S.A. 22-4508. The motion alleged that such services were necessary:

'. . . (T)o determine whether defendant was suffering from mental disease or defect at the time of the alleged offense . . . (and) to determine whether this defendant's history of alchol (sic) use, and the effect of alcohol on defendant, produced a mental disease or defect excluding criminal responsibility at the time of the alleged offense.'

The journal entry recites that the motion was argued by counsel for both parties and was overruled. No supporting evidence, affidavits or medical records were provided so far as we are informed, and no notice of an intention to rely on the defense of insanity was served pursuant to K.S.A. 22-3219. The oral argument on the motion is not reproduced in the record.

The granting or denial of a motion for psychiatric or other services for an indigent defendant under K.S.A. 22-4508 is a discretionary matter. In State v. Campbell, 210 Kan. 265, 500 P.2d 21, we observed that:

'. . . (T)he granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that the exercise of such discretion has been abused to the extent of prejudicing the substantial rights of the defendant. (State v. Taylor, 202 Kan. 202, 447 P.2d 806; State v. Young, 203 Kan. 296, 454 P.2d 724; and State v. Frideaux, 207 Kan. 790, 487 P.2d 541.)' (p. 274, 500 P.2d p. 29.)

Here the trial court had before it the written motion and the report of the State Security Hospital. It heard the arguments of counsel. Further, the defendant was personally present in court. Upon this record we cannot say that the trial court abused its discretion nor do we believe that the defendant's substantial rights were prejudiced. The record before us discloses no compelling reason why psychiatric services should have been provided. We find no error in this matter.

Defendant's counsel, in closing argument, asked why no test was run on the blood that was on the clothes, to be compared with that of the victim and the defendant. The prosecutor, in closing, responded...