State v. Bright, 47946

• Decision Date: 13 December 1975
• Docket Number: No. 47946,47946
• Citation: 543 P.2d 928,218 Kan. 476
• Parties: STATE of Kansas, Appellee, v. George BRIGHT, Jr., Appellant.
• Court: Kansas Supreme Court

Page 928

543 P.2d 928

218 Kan. 476

STATE of Kansas, Appellee, v. George BRIGHT, Jr., Appellant.

No. 47946.

Supreme Court of Kansas.

Dec. 13, 1975.

Syllabus by the Court

1. A witness who testifies to such identifying biographical data as place of birth, education, address, marital status, length of residence in the community and employment history does not through such testimony alone place his character in issue. However, when the testimony offered by the accused goes beyond those bounds and attempts to characterize the accused as having a nonviolent disposition or character, the state may on cross-examination counter such testimony by showing that the defendant had been convicted of a violent crime in the past in order to rebut the testimony given on direct examination.

2. The terms 'malice' and 'malice aforethought' are simply interchangeable terms and no significance can be attached to the selection of one or the other in an indictment or information.

3. Where an information charging murder alleges the killing was done 'deliberately, with premeditation and malice aforethought', those terms import and include the term 'willfully' and the information is not defective because the term 'willfully' is not used specifically.

Frank F. Eckdall, Kansas City, argued the cause, and was on the brief for appellant.

Nick A. Tomasic, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Philip L. Sieve, Asst. Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice:

This is a direct appeal in a criminal action in which the defendant-appellant, George Bright, Jr., was charged with murder in the first degree (K.S.A.1973 Supp. 21-3401) and convicted by a jury of murder in the second degree (K.S.A.1973 Supp. 21-3402), a lesser offense under the original charge. The defendant Bright has appealed claiming trial errors.

The facts surrounding the homicide are not set forth in any detail in either the record or briefs of the parties. Suffice it to say the defendant and a Herbert Ray Jones were jointly charged with killing one Eddie Jones, the step-father of Herbert Ray Jones, on May 22, 1975, by stabbing the deceased numerous times and also by shooting him with a shotgun. The defendant on this appeal does not raise an issue as to the sufficiency of the evidence to support his conviction of murder in the second degree. The issues raised on appeal are concerned with procedural errors allegedly made during the trial.

The defendant's first point is that the trial court erred in admitting evidence that defendant had previously been convicted of armed robbery in 1968. This evidence was admitted over objection by the defense during the cross-examination of police lieutenant Thomas, a defense witness. In his opening statement defendant's counsel stated to the jury that he intended to call as a witness Lt. Thomas of the Kansas City, Kansas, police department who had known the defendant for 12 years prior to the date of the homicide. He further informed the jury that Officer Thomas would tell them that he was familiar with the defendant's disposition and that the defendant was a meek, nonaggressive, mild, unassuming and nonviolent person whom defendant's counsel characterized as a 'church mouse'. During the presentation of the defendant's case Lt. Thomas was called to the stand and was questioned on direct examination by defense counsel in the following manner:

'Q. . . . Have you had from time to time any sort of working relationship with him?

'A. Yes, sir.

'Q. Now, I want a yes or no answer on this and no volunteering, of course, as you know. But do you know of the disposition of George Bright?

'A. You said disposition? You mean the type of person?

'Q. Yes, his qualities as you know them, his disposition to do this or that, generally his aggressiveness or his meekness or qualities such as that. You have said that you did know his disposition. I'd like for you to give the court and jury the benefit of that opinion.

'A. Yes, I do.

'Q. Well, state what his disposition is as far as being-well, whatever you think of. I don't want to lead you, of course.

'A. George is a nice fellow. He is an easy-going fellow. He loves to drink and be around people. Violent-George is not the violent type.'

On cross-examination the prosecutor asked Thomas if he was aware that the defendant Bright had been convicted in 1968 of armed robbery. Over objection of defense counsel Thomas testified that he was aware of the defendant's prior conviction.

The thrust of defendant's argument is that the admission of this testimony on cross-examination was contrary to K.S.A. 60-447 which states in substance that 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, may be admitted only after the accused has introduced evidence of his good character. The defendant contends that the questions propounded to Lt. Thomas on direct examination by defense counsel did not constitute evidence offered to show the good character of the accused. It is argued that it was defense counsel's intention only to show the defendant's character trait as a nonviolent person and that it was not to open the door for admission of evidence by the state as to the defendant's total character including evidence of a prior crime committed by him. The issue to be determined is whether or not the direct testimony of Lt. Thomas introduced by the defense opened the door for the prosecutor to cross-examine Thomas as to the defendant's prior conviction of armed robbery. In our judgment it did. A similar situation was before the court in State v. Kidwell, 199 Kan. 752, 434 P.2d 316. There we stated:

'When a defendant in criminal proceedings calls a witness to testify to his good reputation in the community he does so in an effort to convince the jury that it is improbable that a person of such reputation would be guilty of the crime charged. In such case the prosecution is entitled to cross-examine the character witness as to knowledge of certain specific reports of misdeeds by defendant for the purpose of testing the reliability of the testimony as to the reputation of defendant. . . .' (pp. 754, 755, 434 P.2d p. 318.)

In State v. Stokes, 215 Kan. 5, 523 P.2d 364, we held that a witness, who testifies to such identifying biographical data as place of birth, education, address, marital status, length of residence in the community and employment history, does not through such testimony alone place his character in issue. We pointed out however, that when the testimony offered by the defendant goes beyond those bounds and attempts to characterize the defendant's past life as blemish-free, or makes reference to specific prior incidents, he foregoes to that extent the protection of the statute. It is clear on the record before us that defense counsel on direct examination of Lt. Thomas opened the door for the prosecutor to cross-examine Thomas in regard to the defendant's prior conviction. On direct examination Lt. Thomas characterized defendant Bright as a mild mannered individual, seemingly incapable of violence. The obvious purpose of the question was to convince the jury that it...