State v. Bryant, 50966

• Decision Date: 01 March 1980
• Docket Number: No. 50966,50966
• Citation: 227 Kan. 385,607 P.2d 66
• Parties: STATE of Kansas, Appellee, v. Sidney E. BRYANT, Appellant.
• Court: Kansas Supreme Court

Page 66

607 P.2d 66

227 Kan. 385

STATE of Kansas, Appellee, v. Sidney E. BRYANT, Appellant.

No. 50966.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

1. The record on appeal is examined in a criminal action and it is held that the trial court did not err (1) in permitting the state to endorse an additional witness on the information; (2) in failing to give to the jury a cautionary instruction on the testimony of an accomplice; (3) in sentencing the defendant to a mandatory sentence under K.S.A.1978 Supp. 21-4618; and (4) in failing to grant defendant a new trial on the grounds of newly discovered evidence or to grant him another evidentiary hearing with an opportunity to be present.

2. A defendant convicted of crime is not entitled, as a matter of right under K.S.A. 22-3405, to be present at a hearing on his motion for a new trial filed after the imposition of sentence, where the ground asserted is newly discovered evidence. The presence of the defendant at such a hearing is a matter resting within the sound discretion of the trial court.

Christopher J. Redmond, Wichita, argued the cause and was on the brief for appellant.

Stuart W. Gribble, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Vern Miller, 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, Sidney E. Bryant, was convicted of aggravated robbery (K.S.A. 21-3427), and given a mandatory sentence under K.S.A.1978 Supp. 21-4618. The evidence in the case was undisputed that on November 27, 1978, the Sonic Drive-In in Wichita was robbed by three black males. One of the robbers had a gun. The only real factual issue for the jury to determine was the identity of the defendant as one of the robbers.

The state's evidence showed that the robbery took place at about 12:10 p. m. on November 27, 1978. Jerald Peck, the manager of the drive-in, noticed three black males enter the building. He then heard a loud noise which sounded like either a firecracker or a gunshot. A voice then demanded money, stating that it was a holdup. One of the men jumped behind the counter, taking money in a total amount of $3600. Peck did not actually see a firearm. He concluded that the men were armed because of the earlier noise. This witness positively identified the defendant as one of the robbers. Charlotte Schneider, an employee, observed a gun in the possession of one of the robbers who, in her opinion, was shorter than 5' 7 . She was unable to identify any of the robbers. The state's final witness, Isaac Stewart, admitted his participation in the robbery. Stewart testified that it was the defendant who used Stewart's gun at the scene. The two of them, along with Willie Diller and another man, went to the drive-in. According to Stewart, as the robbers entered the building, the defendant demanded money and brandished the gun which accidentally discharged, hitting the defendant's foot. That was the noise heard by the manager. Diller jumped behind the counter, took the money, and the three robbers then fled. The testimony of Stewart that the defendant had accidentally shot himself in the foot was corroborated by Dr. Nancy Nowlin who testified that, on examination of defendant's foot, she observed a small scar close to the toe. The defendant's witnesses testified to an alibi defense. According to them, the defendant was home in bed and sick at the time of the robbery. Following his conviction, the defendant brought an appeal to this court, claiming trial errors.

The first point raised on the appeal is that the trial court abused its discretion in permitting the State to endorse the name of Isaac Stewart as an additional witness on the day of the trial. The original information in the case was filed on January 8, 1979. The defendant's preliminary hearing was held on January 22. On January 24 the police officers took a taped statement from Isaac Stewart. An amended information was filed on January 31, 1979. The case was called for trial on February 20, 1979. On that day at 11:30 a. m., Thomas J. Weilert, an assistant district attorney, was assigned the case. In talking with one of the police officers, Weilert first became aware of the taped statement of Isaac Stewart. Weilert immediately notified defense counsel of the existence of the tape and his intent to move for the late endorsement of Isaac Stewart as a witness in the case. Prior to the commencement of voir dire, the State filed a motion requesting the late endorsement. The trial court sustained the motion and permitted the endorsement, provided defense counsel was given an opportunity to read a copy of the transcript and hear the tape and further to be given an opportunity to interview the witness, if he so desired. Counsel for the defendant objected to the late endorsement of the witness. From the record, it appears that the district attorney's office did not have knowledge of the tape's existence prior to the day the case was set for trial. During the discussions about the late endorsement, the State suggested a continuance of the case. Defense counsel, after hearing the tape and interviewing the witness, did not request a continuance of the trial to a later date.

Under all of the circumstances, we have concluded that the trial court did not abuse its discretion in permitting the late endorsement. K.S.A.1978 Supp. 22-3201(6) has been construed to confer broad discretionary power on the trial court in allowing a late endorsement. A trial court's order permitting a late endorsement of a witness is not to be overturned absent an abuse of discretion. The test is whether the defendant's rights have been prejudiced. State v. White & Stewart, 225 Kan. 87, 91, 587 P.2d 1259 (1978). This court will not condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution's trial strategy. State v. Stafford, 213 Kan. 152, 164, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974). The purpose of the endorsement requirement is to prevent surprise to the defendant and to give him an opportunity to interview and examine the witnesses for the prosecution in advance of trial. State v. Stafford, 213 Kan. at 164, 515 P.2d 769. The trial court commits reversible error in allowing a late endorsement when surprise prevents "a fair preparation of his defense." State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374 (1977). Accordingly, this court has traditionally required the defendant not only to object to the late endorsement but to request and be denied a continuance before a late endorsement will constitute reversible error. See for example, State v. Wilson & Wentworth, 221 Kan. at 365, 559 P.2d 374.

The record discloses that the prosecutor twice stated to the court that there would be no objection to a continuance, if the defense counsel thought it was necessary to prepare his defense. Defense counsel indicated that he would confer with his client to determine whether a continuance was desirable and did so. He did not thereafter request a continuance. Under all the circumstances, we cannot say that defense counsel's preparation for the trial was impaired since he apparently needed no additional time to prepare. We also note that defense counsel vigorously cross- examined Isaac Stewart and brought to the jury's attention certain discrepancies to impeach his testimony.

The defendant's second point is that the trial court erred in failing to instruct the jury that it should consider with caution the uncorroborated testimony of an accomplice witness. Specifically, defense counsel requested PIK Crim. 52.18. This court has required a cautionary instruction when the testimony of an accomplice is uncorroborated. State v. Moody, 223 Kan. 699, 576 P.2d 637 (1978); State v. Wood, 196 Kan. 599, 604, 413 P.2d 90 (1966). Although some discrepancies exist between the testimony of the various witnesses, we cannot say that the testimony of Isaac Stewart was uncorroborated. The manager, Peck, identified defendant as one of the robbers and further testified that he heard a loud noise that sounded like a gunshot immediately prior to the robbery. Mrs. Schneider was unable to identify the defendant but did testify that one of the robbers had a gun. As indicated above, there was evidence from which it could be inferred that the defendant had suffered a gunshot wound to his foot. Under all the circumstances, it cannot be said that Isaac Stewart's testimony was uncorroborated to the extent it was error for the trial court to fail to give the cautionary instruction. See State v. Parrish, 205 Kan. 178, 468 P.2d 143 (1970).

The defendant next maintains that the trial court erred in sentencing the defendant to a mandatory sentence under K.S.A.1978 Supp. 21-4618, because there was insufficient evidence to establish that the defendant used a firearm in the commission of the robbery. In State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211 (1979), this court defined the scope of review of sentencing under K.S.A.1978 Supp. 21-4618 to be limited to whether there was competent evidence that the defendant used a firearm when committing the robbery. In this case there was competent evidence that the defendant was in possession of a firearm during the robbery. That evidence is discussed earlier in this opinion. We find no merit in this contention.

As his final point, the defendant contends that the trial court erred in failing to grant him a new trial because of the recantation by Isaac Stewart of his trial testimony and, further, that the trial court should have brought the defendant back from the penitentiary for the hearing on his motion for a new trial. The factual circumstances surrounding this point are as follows: The defendant's trial commenced on February 20, 1979, and the verdict of guilty was returned by the jury on February 23, 1979. On March 20, 1979, the trial court c...