State v. Brown

• Decision Date: 08 June 1984
• Docket Number: No. 55999,55999
• Citation: 681 P.2d 1071,235 Kan. 688
• Parties: STATE of Kansas, Appellee, v. Gary W. BROWN, Appellant.
• Court: Kansas Supreme Court

Page 1071

681 P.2d 1071

235 Kan. 688

STATE of Kansas, Appellee, v. Gary W. BROWN, Appellant.

No. 55999.

Supreme Court of Kansas.

June 8, 1984.

Syllabus by the Court

1. The extent of cross-examination for purposes of impeachment lies largely within the sound discretion of the trial court. Absent proof of clear abuse, the exercise of that discretion will not constitute prejudicial error. Discretion is abused when no reasonable person would take the position adopted by the trial court.

2. A defendant asserting an insanity defense in a criminal proceeding has no right to require his counsel be given prior notice of the time and place of the State's psychiatric examination of the defendant or to have his counsel present at the examination.

3. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.

Michael Barbara of Sawhill, Underhill & Barbara, Haysville, argued the cause and was on the brief for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause and Kimberly Gee Vines, Asst. Dist. Atty., Clark V. Owens, Dist. Atty. and Robert T. Stephan, Atty. Gen., were on the brief for appellee.

McFARLAND, Justice:

Gary W. Brown was convicted of the first-degree murder (K.S.A. 21-3401) of John Brown and the aggravated battery (K.S.A. 21-3414) of Peggy Ensley. Peggy and defendant had previously lived together in a relationship with some of the indicia of a common law marriage. John Brown was the husband of Peggy's sister. On December 10, 1982, defendant shot the victims while they were sitting in John Brown's van in Viola, Kansas. The defense raised at the jury trial was insanity. Defendant appeals his convictions.

The first issue presented is alleged improper limitation of defense counsel's cross-examination of the State's expert psychiatric witness. The question propounded was:

"Doctor, you would agree with me that it's not fair to send an insane man to jail, is it?"

The State's objection on the grounds of relevancy and materiality was sustained by the trial court on the ground of materiality.

The witness had testified on direct examination as to defendant's mental capacities and psychological composition relative to the time of the shootings. The question propounded by defense counsel was seeking the personal opinion of the witness on one aspect of the judicial system.

The extent of cross-examination for purposes of impeachment lies largely within the sound discretion of the trial court. State v. Wheeler, 215 Kan. 94, 99, 523 P.2d 722 (1974); State v. Osburn, 171 Kan. 330, 333, 232 P.2d 451 (1951). Absent proof of clear abuse, the exercise of that discretion will not constitute prejudicial error. State v. Jones, 233 Kan. 112, 114, 660 P.2d 948 (1983). Discretion is abused when no reasonable person would take the position adopted by the trial court. State v. Stellwagen, 232 Kan. 744, Syl. p 3, 659 P.2d 167 (1983).

We conclude no abuse of discretion has been shown in the trial court's limitation of defense counsel's cross-examination of the State's expert witness.

The second issue is whether the trial court erred in denying defendant's pretrial motion to be notified of the time and place of the State's psychiatric examination of defendant and in refusing defense counsel's request to be present at the examination. The State presented a letter from the expert who was to conduct the examination stating the presence of a third party would be improper and could alter the results of the examination. The expert had extensive experience in conducting this type of examination for criminal proceedings.

Defendant does not specifically argue that he had a constitutional right to have his counsel present at the examination. The issue of whether such examination affords defense counsel a constitutional right to be present is considered at Annot., Right of Accused in Criminal Prosecution to Presence of Counsel at Court-Appointed or -Approved Psychiatric Examination, 3 A.L.R. 4 th 910. The majority rule is that such an examination is not a "critical stage" of the proceeding vesting defendant with a constitutional right to have his counsel present. As noted in the annotation, a number of jurisdictions have held that an accused is not entitled to have counsel present on the ground that counsel's presence would limit the effectiveness of the examination. We concur with both of these rationales.

Defendant asserts his counsel should be allowed to be present at the examination for the reason his presence was necessary for full disclosure. He relies heavily on State v. Pyle, 216 Kan. 423, 532 P.2d 1309 (1975), in support of this contention, but such reliance is misplaced. Pyle involved a situation where the defendant had been through a competency to stand trial evaluation and later asserted an insanity defense. Defendant then sought to use the experts involved in the competency proceeding as experts for his insanity defense. However, he desired to use the shield forbidding disclosure of statements made by defendant in the competency proceedings (K.S.A. 22-3302 in limiting...