State v. Calvert

• Decision Date: 20 January 1973
• Docket Number: No. 46708,46708
• Citation: 505 P.2d 1110,211 Kan. 174
• Parties: STATE of Kansas, Appellee, v. Francis Edward CALVERT, Appellant.
• Court: Kansas Supreme Court

Page 1110

505 P.2d 1110

211 Kan. 174

STATE of Kansas, Appellee, v. Francis Edward CALVERT, Appellant.

No. 46708.

Supreme Court of Kansas.

Jan. 20, 1973.

Rehearing Denied March 7, 1973.

Syllabus by the Court

1. It is the function of the trier of facts, not that of a court of appellate review, to weigh the evidence and pass upon the credibility of witnesses, and where the sufficiency of the evidence is being reviewed the function of an appellate court is limited to ascertaining whether there was a basis for a reasonable inference of guilt.

2. In-court identifications may be found capable of standing on their own feet even though preceded by deficient pretrial confrontations.

3. When the state relies on direct evidence, circumstantial evidence that someone other than the defendant committed the crime charged is irrelevant in the absence of other evidence to connect such third party with the crime.

4. Exclusion of evidence on the ground of remoteness rests in the sound discretion of the trial court, and the ruling will not be reversed unless it appears the ruling prejudiced a substantial right of the complaining party.

5. A voluntary plea of guilty to another offense, where such plea in effect admits facts in issue in the case on trial, is admissible.

6. Evidence otherwise relevant in a criminal prosecution is not rendered inadmissible because it may show another crime than that charged.

7. Where a mistrial is declared with the consent or because of the fault of the defendant, former jeopardy does not bar a subsequent prosecution and defendant cannot plead former jeopardy when placed on trial on an amended information for the same offense.

8. The rule in this jurisdiction is that before the previous testimony of an absent witness may be read to the jury a proper showing must be made by the proposing party that the witness cannot, by the exercise of reasonable diligence, be produced at the trial.

9. In a robbery prosecution, the record is examined and it is held that no prejudicial error has been shown.

Michael M. Moran, Wichita, argued the cause, and was on the brief for appellant.

Keith Sanborn, County Atty., argued the cause, and Vern Miller, Atty. Gen., and Larry Kirby, Deputy County Atty., were with him on the brief for appellee.

KAUL, Justice:

Defendant appeals from convictions by a jury of two counts of robbery in the first degree. (K.S.A. 21-527, now K.S.A.1972 Supp. 21-3426, 21-3427.)

On the morning of February 23, 1970, a man entered the Wichita office of the Public Finance Corporation. He was approached by the cashier, Phyllis Johnson, who offered her help. The man produced a handgun and said: 'Yes, I want the money. I want all of it.' The office manager, Mr. Donald Hogan, produced money from the safe and from two cash drawers and delivered it to the robber, who left the premises. According to the witnesses the robbery took from two to four minutes. At the trial, Hogan, Johnson and Jerry Trabell, assistant manager of the corporation office, identified the defendant as the robber.

On the morning of March 7, 1970, Georgia Williams, a sales clerk employed at Duckwall's Store located in the Westlink Shopping Center in Wichita, reported to work by entering the back room of the store through an unlocked outside door. When she entered she saw a man standing on a stairway leading from the back room to the second floor office. The man was holding a handgun and said: 'This is a holdup.' He forced Mrs. Williams to remain standing on the stairway. A second man was already in the store office on the second floor. Shortly thereafter, the store's assistant manager, Jerry Orebaugh, entered the back room from the sales floor. One of the men pointed a gun toward Orebaugh's face and told him: 'This is a holdup.' Witnesses noted that one robber was considerably taller than the other. The shorter of the two robbers forced Orebaugh to go to the upstairs office and deliver the store's money. The taller man stayed on the stairs and kept a gun on three female sales clerks, who had gathered in the back room in the meantime. Two of the clerks and Orebaugh were taken to the store's basement. Orebaugh and one of the clerks were bound and the other clerks were ordered to go to the far end of the basement. At this point the robbers left the premises. At the trial defendant was identified as the taller of the two robbers by Orebaugh and Mrs. Williams.

In April 1970 defendant was placed in a lineup and viewed by witnesses of several robberies, including that of Duckwall's and Public Finance Corporation. On June 29, 1970, a second lineup was held and defendant was again included. The defendant was the only person in both lineups. Several of the witnesses viewed both lineups. Defendant's counsel was present at both of the lineups. Following the second lineup (June 29, 1970), complaints were filed against the defendant charging him with the robberies of Duckwall's and Public Finance. It appears that defendant had been in custody on a charge of unlawful possession of a firearm (K.S.A.1972 Supp. 21-4204) to which he entered a plea of guilty on July 27, 1970.

Defendant's first trial took place in division No. 1 of the Sedgwick district court, commencing on September 28, 1970. Prior to trial the court heard defendant's motion to suppress any evidence concerning the lineup identifications of defendant and to exclude prospectively any in-court identifications of defendant by witnesses who attended either or both of the lineups. In support of his motion defendant argued that the lineups were unconstitutionally suggestive and further that the state's refusal of defendant's counsel to be present during the postlineup interviews constituted a denial of defendant's right to counsel. After hearing the testimony of several witnesses, defendant's motion was denied.

The case then proceeded to trial. After calling six witnesses to testify in its case in chief the state rested. Whereupon defendant, in the presence of the jury, announced that he wished to change his plea from not guilty to guilty on count 2 of the information. The state announced that it would dismiss count 1. At this point the court interrogated defendant at length concerning the voluntariness of his plea and discussed with defendant the sentence which might be imposed.

Defense counsel requested that any sentence imposed be ordered by the court to be served concurrently with a sentence presently being served by defendant. The state offered no objection to defendant's request. The court further inquired of defendant whether he was aware that the question of concurrent or consecutive service of sentence was discretionary with the court. Defendant replied in the affirmative. Following this colloquy, the court announced that the service of sentence would be consecutive rather than concurrent with the sentence defendant was presently serving. At this point defendant objected and withdrew his plea of guilty to count 2, claiming that he had made a deal for concurrent service of sentence. Defendant's counsel also moved for a mistrial.

At this juncture, the court directed the defendant to take the stand and requested defense counsel to examine defendant concerning his claim of a deal for concurrent service. In the course of this interrogation matters pertaining to possible alibi evidence and other matters were injected in the unorthodox proceeding. Eventually, the court discharged the jury and declared a mistrial by reason of the fault of defendant.

Defendant's second trial was had in division No. 4 of the district court of Sedgwick County, commencing on October 16, 1970. Defendant was convicted on both counts. However, on December 10, 1970, defendant's motion for a new trial was sustained on the ground that defendant had been unable to secure the attendance of an alibi witness.

The trial, from which this appeal was perfected, was set for January 1971. In the meantime, the defendant again filed a motion to suppress evidence of lineup identifications and to exclude prospectively any in-court identifications of defendant by witnesses who had attended either or both of the lineups. This motion was heard and denied by the administrative judge of the district court. However, the administrative judge sustained a further motion of defendant to exclude evidence of prior offenses by defendant which might be offered by the state under K.S.A. 60-447 and 60-455.

Following these proceedings this third trial of defendant commenced on January 25, 1971, in division No. 7 of the district court. The jury rendered a verdict of guilty on both counts and defendant was sentenced under the Habitual Criminal Act (K.S.A.1972 Supp. 21-4504) to imprisonment for terms of not less than twenty nor more than forty-two years on each count to be served consecutively.

Defendant specifies numerous points of error on appeal. He first contends the trial court erred in failing to sustain his motion for a new trial for the reason that the evidence failed to support the verdict on either court on the information. He states his position to be that the evidence, although legally adequate to support the jury's finding of guilt, was so lacking in convincing power that the trial judge should have been dissatisfied with the verdict and given the case to another jury. Defendant's challenge of the convincing power of the evidence is no more than an attack upon the weight of the evidence. As such, the defendant's argument does not merit serious consideration. This court has often said that it is the function of the trier of facts, not that of a court of appellate reivew, to weigh evidence and pass upon the credibility of witnesses. (State v. Franklin, 206 Kan. 527, 479 P.2d 848; and State v. Shaw, 195 Kan. 677, 408 P.2d 650.) Defendant was identified by three eyewitnesses as one of the robbers in the Public Finance robbery and by two eyewitnesses in the Duckwall robbery. His defense of alibi with respect to...