State v. Campbell
| Decision Date | 24 July 1972 |
| Docket Number | No. 46031,46031 |
| Citation | 210 Kan. 265,500 P.2d 21 |
| Parties | STATE of Kansas, Appellee, v. Robert B. CAMPBELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. While the death penalty in a criminal action cannot be constitutionally imposed by a jury, from which jurors have been removed because they are opposed to capital punishment, a sentence of life imprisonment imposed by a 'death qualified' jury does not infringe upon the constitutional rights of a criminal defendant, and there is no presumption a jury so qualified is unrepresentative on the issue of guilt absent proof to the contrary.
2. In a criminal action the admission into evidence of the results of a blood grouping test made upon a sample of the defendant's blood, even if erroneous, is not prejudicial where such evidence is irrelevant to the issue of the defendant's innocence or guilt.
3. The granting or denial of a motion for funds to provide supporting services to an indigent defendant in a criminal action is a matter resting 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. Under K.S.A.1971 Supp. 22-4508 the trial court must determine that investigative services for an indigent defendant are 'necessary' before granting funds for such purpose.
5. In a criminal action the request of an indigent defendant for funds to provide supporting services is to be measured by the requirements of due process, the test of which is 'fundamental fairness.'
6. Exhibits, be they pictures or otherwise, which are relevant and material to the matters in issue, are not rendered inadmissible merely because they may be shocking or gruesome, even though the defendant concedes the victim's death and its cause.
7. A conspiracy is not terminated when an attempt is made to conceal the offense. The acts and declarations of one conspirator in the prosecution of the crime or in its concealment are considered the acts and declarations of all, and are evidence against all. (Following State v. Borserine, 184 Kan. 405, 337 P.2d 697.)
8. Evidence of a conspiracy involving several persons to commit the crime for which one is separately charged in an indictment or information is admissible to show a conspiracy between the one separately charged and the others, although the others are not joined in the indictment or information and no conspiracy is charged therein. (Following State v. Borserine, 184 Kan. 405, 337 P.2d 697.)
9. In a criminal action proof which the prosecuting attorney anticipates in the trial of a case frequently fails to come up to expectations, and the tendency is to permit the prosecuting attorney a reasonable latitude in stating to the jury the facts he proposes to prove. Where no substantial prejudice results, and there is nothing to show the prosecuting attorney acted in bad faith, appellate courts usually refuse to reverse or remand a case for trial because of a reference by the prosecuting attorney to matters which he subsequently made no attempt to prove, or for some reason or another was unable to prove.
10. In a criminal action charging a defendant with felonious assault and first degree robbery, where there is but a single act of violence or intimidation, and that act which was an essential element of the first degree robbery conviction was also relied upon as constituting the separate crime of felonious assault, the two separate convictions cannot be carved out of the one act of criminal delinquency, and the felonious assault charge must be dismissed as duplicitous.
11. Under K.S.A. 62-1016 any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.
12. The physician-patient privilege under K.S.A.1971 Supp. 60-427 does not exist in felony cases, nor may it be asserted in an action in which the condition of the patient is an element or factor of the claim or defense of the patient.
13. The trial court's denial of the appellant's request for instructions on lesser included offenses because the offenses were committed under duress exerted upon him by his co-conspirators is proper, where no evidence of duress is presented in the trial.
14. In a criminal action charging the defendant with felonious assault, kidnapping, murder and robbery, the record is examined and it is held: (a) None of the points asserted by the defendant for reversal, either in isolation or in combination, indicates that he was denied a fair trial or that his rights were substantially prejudiced to warrant the granting of a new trial; (b) the failure of the trial court to dismiss the felonious assault count at the close of the state's evidence was erroneous, and requires that the conviction be reversed and the sentence be vacated as to such count; and (c) the judgment and sentence on the counts of kidnapping, murder and robbery must be affirmed.
Christopher J. Redmond, of Redmond & Redmond, Wichita, argued the cause and was on the brief for appellant.
Keith Sanborn, County Atty., argued the cause, and Vern Miller, Atty. Gen., and Stephen M. Joseph, County Atty. Legal Intern, were with him on the brief for appellee.
This is a criminal action in which Robert B. Campbell (defendant-appellant) was charged with the offenses of assault with felonious intent (K.S.A. 21-431), first degree kidnapping (K.S.A. 21-449), first degree murder (K.S.A. 21-401) and first degree robbery (K.S.A. 21-527).
A jury found the defendant guilty of the four crimes with which he was charged. The defendant was sentenced to two terms of life imprisonment, one for the crime of murder and the other for the crime of kidnapping. The defendant was also sentenced to confinement for a period of not less than ten years nor more than twenty-one years for the crime of robbery, and for a period not exceeding ten years for the crime of felonious assault. The trial court ordered the four sentences to be served consecutively.
The defendant has duly perfected an appeal from the judgment and sentences of the district court of Sedgwick County, Kansas.
A recitation of the facts as disclosed by the evidence presented at trial is essential for an understanding of the issues.
The appellant and his cousin, John Hendren, arrived at the home of Chester Mefford in Wichita, Kansas, at approximately 5:00 o'clock p. m. on February 12, 1969. During the course of the visit Mefford's attention was drawn to a window by a passing automobile. After looking out the window, Mefford stated the passing auto belonged to a Kenneth Ketter, who, according to Mefford, had been causing him some trouble. Mefford asked Hendren if they could follow Ketter in Hendren's car and Hendren replied in the affirmative.
The trio followed Ketter's auto for some time, then lost sight of it, and eventually spotted it parked at an APCO service station located at the intersection of Kellogg and Pattie Streets in Wichita.
At this time, Hendren stopped his auto across the street and they began watching the station. When Hendren told Mefford and the appellant he had to proceed home, Mefford borrowed a dime, left the car, and placed a phone call from a nearby pay phone. Upon his return to the car, Mefford stated that two guys were coming by to pick him up soon. Sometime after 6:00 o'clock p. m. a 1966 Pontiac GTO arrived with three persons in it. They were Ralph Cluck (the owner and driver), John Phillips and Preston Haze. They had come in response to Mefford's call.
The appellant and Mefford joined Cluck, Phillips and Haze in the GTO and the five undertook various sidetrips not material to this appeal. Eventually the group stopped at a tavern on South Hydraulic Street in Wichita which they left at approximately 8:45 o'clock p. m. Appellant and the others returned to the APCO service station to find Ketter's auto was gone. After stopping, the appellant and Phillips entered the station and made inquiries about Ketter. When the pair returned to Cluck's auto, the appellant boasted that he had found out everything about Ketter except his social security number. The appellant had been told Ketter lived only one-half block from the service station, at 414 1/2 Pattie Street.
The five left the service station and drove down the alley behind Ketter's home two or three times. They next proceeded to take Preston Haze home.
After dropping Haze off at his home, Mefford stated he was going to return to Ketter's house that night. The appellant then sid he had a pistol at his house, whereupon the four proceeded to the appellant's house.
The appellant's pistol was not there; however, he did pick up a .410 gauge shotgun.
Cluck next drove to the home of the appellant's mother where the appellant obtained his pistol from his wife's car. The pistol was a .22 caliber Ruger automatic.
As the four were returning to Ketter's house they observed Ketter leaving in his auto. They followed him to a nearby grocery store where they watched him for a short time. The appellant suggested they leave, return to Ketter's house, and wait for him to return. They decided to do so and Cluck parked on Lewis Street at the end of the alley which ran behind Ketter's house.
Cluck remained in his car while the appellant, Mefford and Phillips got out and walked down the alley to Ketter's house. The appellant carried his pistol part of the way and then gave it to Phillips. After they had waited in the doorway at the rear of Ketter's house a short time, Ketter drove down the alley and parked his car in the driveway.
As Ketter was getting out of his car, the appellant walked over to him and engaged him in conversation. Then, without warning, the appellant knocked Ketter to the ground, whereupon Mefford held Ketter's feet and the appellant held Ketter's shoulders while Phillips beat Ketter...
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