State v. Cantrell
| Decision Date | 11 May 1968 |
| Docket Number | No. 44716,44716 |
| Citation | 440 P.2d 580,201 Kan. 182 |
| Parties | The STATE of Kansas, Appellee, v. Albert Lonzo CANTRELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in a criminal case where the appellant and his accomplice, at their request and the request of their counsel, were jointly tried together and found guilty by a jury of burglary and larceny in connection with the burglary, is examined, and, as more fully set forth in the opinion, it is held: The district court did not err in the admission or exclusion of evidence and timely and properly instructed the jury on all the issues involved, and the appellant was not denied a fair trial.
Gwinn G. Shell, Garnett, argued the cause and was on the brief for appellant.
Wayne Loughridge, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.
The appellant and his accomplice, Janet Louise Weinman, were charged in separate informations with burglarizing the McCollam grocery store in Kincaid, Kansas, and committing larceny therein, at about 1:00 a. m. on the morning of February 2, 1966. At the request of the defendants and their attorneys, their cases were tried together to the same jury, and both defendants were found guilty of burglary and larceny in connection with a burglary. The district court overruled motions for a new trial for both parties. This appeal followed. The companion case is reported as State v. Weinman, 201 Kan. --, 440 P.2d 575, this day decided. Mr. Gwinn G. Shell, a member of the Anderson County Bar, was appointed to prepare and present the appeal to the supreme court on behalf of the appellant.
On February 2, 1966, Ray Emmons, an agent for the Kansas Bureau of Investigation, drove into Kincaid at about 1:00 a. m. He was familiar with the town and the location of the business buildings. He observed an automobile parked at the side of the McCollam grocery store. The bank was across the street from the parked car. Emmons stopped his car in the middle of the street, turned the lights off, and walked to the bank building to see if it was secure. Ascertaining that it was, he returned to his car. At about that time, he observed two persons walking around the corner of the McCollam store building toward the parked car which had attracted his attention. When the two persons saw Emmons, they reversed their direction and ran. Emmons called to them to halt and moved to a position where he could see the front door of the store building and the path of the flight of the two persons. Emmons fired a shot into the air and again called for the two persons to halt. They did not stop and when he last saw them, they were running into a vacant lot. As they ran from him on a brick sidewalk, Emmons observed items dropping from their person.
Emmons kept the parked car under observation and called for additional help by radio. The sheriff of Anderson County, Agent David E. Johnson of the K.B.I. and some neighboring police officers arrived to assist him. A search of the path travelled by the fleeing persons was made. Packages and cartons of cigarettes, razor blades, bananas and other items were found on the sidewalk. A large wooden handle screwdriver and a tool called a 'lock ring breaker' which resembles a pry bar and used in changing truck tires, were also found on the sidewalk and along the flight of the persons observed by Emmons.
A search of the store revealed the front door of the building had been pried open. A soft-drink vending machine with a metal front cover, had been forced open to permit access to the coin container. Cartons of cigarettes and other items were missing from the store.
There was a light cover of snow on the ground and the temperature was near zero. It was possible to locate and follow the path of the two persons in the snow. Around noon on February 2, 1966, the appellant and Miss Weinman were located hiding in a barn loft about five miles from the McCollam store and were arrested.
The officers determined by radio communication that the license tag on the automobile parked by the side of McCollam's store was a stolen Missouri license plate. The car was registered in the name of Janet Louise Weinman, the appellant's companion. Later in the day, a search warrant was obtained and the car was searched by the sheriff and the K.B.I. agents. Tools similar to those found on the sidewalk, a box of coins and currency, and other items were found and removed from the car.
The metal cover from the vending machine was processed in the K.B.I. laboratory, together with the screwidriver found on the sidewalk by the store. An examiner from the laboratory expressed an opinion that, supported by photographs of his microscopic examination, the marks appearing on the metal cover were made by the screwdriver found at the scene.
The appellant and Miss Weinman were charged in separate complaints with burglary in the second degree and larceny in connection with a burglary. Preliminary examinations were had and both defendants were bound over for trial in the district court. On February 18, 1966, separate informations were filed in the district court in each case.
On February 28, 1966, the defendants appeared in their respective cases to reduce the appearance bond. At that time, Mr. Orville Cole, a member of the Anderson County Bar, appeared with the defendants and the bond was reduced from $10,000 for each defendant to $7,000. Thereafter, and on March 7, 1966, the defendants appeared with Mr. Cole and he was permitted to withdraw as their attorney.
On March 18, 1966, the appellant and Miss Weinman appeared in the district court with their attorney, Mr. Charles A. Elliott, Mission, Kansas, a member of the Johnson County Bar. Both defendants waived the reading of the information and entered pleas of not guilty. Each case was set for trial on the morning of May 9, 1966.
On the morning of May 9, 1966, Mr. Elliott informed the court that arrangements had not materialized for him to be employed as counsel for the defendants. Since Mr. Elliott was present, and Mr. Earle D. Jones, also a member of the Johnson County Bar, was present in court, the court appointed Mr. Elliott to represent the appellant and appointed Mr. Jones to represent Miss Weinman. As indicated, both the defendants and their attorneys requested in open court that they be tried together.
At the trial all the items taken from Miss Weinman's car upon the search warrant were identified by the officers and some of them were admitted in evidence. Through oversight, other items taken from the car were not offered until after the state rested its case. When offered at that time, the district court refused to admit them over the objection of counsel for the defendants since they were not afforded an opportunity to cross-examine the witnesses.
The appellant and Miss Weinman both testified they left Kansas City enroute to Miami, Oklahoma, to get married, and they described the route taken from Kansas City to Kincaid. They testified they had parked their car to look for a telephone when it was discovered by Agent Emmons, and that they thought Emmons was the ex-husband of Miss Weinman who was attempting to kill them-that explanation was not offered to the police officers at the time of their arrest.
The appellant principally contends he did not have a fair trial since witnesses for the state made 'repeated reference' to his 'record' during the two-day trial, when he had not introduced evidence tending to prove a trait of his character, or for the purpose of supporting his credibility. He argues the district court erred in failing to declare a mistrial, and to grant a new trial when the matter was presented.
The point is presented in the record as follows: After the appellant and Miss Weinman were arrested they were interrogated separately by the K.B.I. agents. Emmons and Johnson interviewed the appellant together and they advised him he did not have to make any statement if he did not want to; that anything he might say could be used against him in court, and that he had the right to have an attorney of his own choice present to advise him prior to making any statement.
The first reference to the appellant's 'record' occurred at the first day of the trial when Emmons testified the only statement the appellant made was, '(h) e gave us his record, and name and address, description * * * that's all.' No objection was made to the testimony and no attention was given it by anyone until the next day when Johnson started to relate the interview with the appellant. He testified the appellant stated his name and address. Thereupon, the court declared a recess and asked the defendants and their counsel, the county attorney, and Johnson to come to his chambers. The court instructed the county attorney to advise Johnson he should not refer to the appellant's 'record' in any respect, meaning his criminal record.
The second reference to the 'record' was made when the trial resumed and Johnson continued with his testimony. He testified he first identified himself to Miss Weinman and talked to her; that he advised her she would probably be charged with burglary; that she did not have to make a statement if she did not care to; that any statement she made could be used against her in court, and that she was entitled to have an attorney of her own choice present if she so desired before making any statement. He testified that Miss Weinman stated the parked car was her automobile; that she and the appellant left Kansas City about 9:00 or 10:00 o'clock, and she described the route of their travel. He...
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