State v. Crowley, 48174

• Decision Date: 23 July 1976
• Docket Number: No. 48174,48174
• Citation: 220 Kan. 532,552 P.2d 971
• Parties: STATE of Kansas, Appellee, v. Cletis L. CROWLEY, Appellant.
• Court: Kansas Supreme Court

Page 971

552 P.2d 971

220 Kan. 532

STATE of Kansas, Appellee, v. Cletis L. CROWLEY, Appellant.

No. 48174.

Supreme Court of Kansas.

July 23, 1976.

Syllabus by the Court

1. The trial court may declare a mistrial when it finds the jury is unable to agree on a verdict (K.S.A. 22-3423(1)(d)). Determination of the length of time a jury should be kept together and the probability of agreement of the jurors upon a verdict rests within the sound discretion of the trial court under the facts and circumstances of the particular case.

2. Where a jury has been dismissed because of failure to agree on a verdict, jeopardy has not attached and the defendant may be placed on trial again on the same charge.

3. Burglary and larceny are crimes involving dishonesty, and conviction of these offenses may be shown for the purpose of impairing the credibility of a witness.

4. A lawyer should not under the guise of being carried away in the heat of combat, attempt to place improper matter before a jury.

5. Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted.

6. The extent of cross-examination is generally within the discretion of the trial court and in the absence of a clear abuse of that discretion no prejudicial error results.

7. In a prosecution for possession of heroin, it is held: (1) The fact defendant was tried four times before he was convicted did not constitute double jeopardy or the inflicting of cruel and ususual punishment; and (2) the trial court did not err in (a) the admission or exclusion of evidence (b) denying motions for mistrial or (c) instructing the jury as to the element of intent.

Richard L. Hilton, Wichita, argued the cause and was on the brief for appellant.

Stephen E. Robison, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., were with him on the brief for appellee.

HARMAN, Commissioner:

Appellant Cletis L. Crowley was charged with the offense of possession of heroin (K.S.A. 1975 Supp. 65-4127a.). After a fourth jury trial he was convicted and sentenced and he now appeals.

The prosecution evidence revealed the following. On September 27, 1973, Detective Fulton of the Wichita police department was advised by a confidential informant that heroin was being sold at a house located in the 1800 block on North Kansas street in Wichita. The informant was unable to give the exact address of the house but stated a Cadillac bearing California license plates would be parked at the house where the heroin allegedly was being sold. Detective Fulton and Detective Ralston drove an unmarked police car to the area about 11:15 p. m. of that day. In the middle of the 1800 block they saw a Cadillac with California plates backed into a driveway. Parked in front of the Cadillac was a green Oldsmobile.

As Fulton drove by the parked vehicles he saw one person in the driver's seat of the Oldsmobile and at least one person standing in the yard. He stopped the unmarked police car in the next block and the two officers commenced surveillance of the area. A few minutes later they saw the Oldsmobile pull out of the driveway and come south down Kansas toward them. Fulton saw only one person in the car as it went by. Shortly thereafter the Oldsmobile slowed down, veered toward the curb, then straightened out and continued on. The detectives turned around and began following the Oldsmobile. The officers activated red lights and a siren. A high speed chase through the streets ensued. Another officer who had been in radio contact with the two detectives established a road block, which the driver of the Oldsmobile maneuvered through. This officer identified the driver as appellant Crowley. Appellant suddenly stopped the Oldsmobile, got out of it and ran. Detective Ralston saw him throw a plastic bag across the street. Ralston retrieved the bag and with Fulton chased appellant on foot and captured him. Inside the plastic bag were twelve balloons. Laboratory analysis revealed each ballon contained heroin.

Appellant testified he had met Anthony Mathenia, owner of the Oldsmobile, on the night in question. They attempted to locate Milton Butler, who owned the Cadillac parked at the house on North Kansas. Appellant and Mathenia arrived at the house about 11:10 p. m. Appellant did not get out of the car because he sensed an unmarked police car in the area. Mathenia and Butler talked with each other in the front yard. Appellant protested he wanted to go home. Mathenia let him drive the automobile but Butler went along in order to bring the car back. As appellant drove south toward 16th street he pulled over to the west curb and Butler rolled out of the car. Appellant continued on. As appellant was trying to get the car door solidly closed he niticed the plastic bag between the seat and the door and at the same time noticed the police in pursuit. Appellant testified that he panicked, he tried to evade the police because he needed time to think and then he tried to dispose of the bag when he stopped. He contended throughout that the heroin was not his-inferring it belonged to Butler or Mathenia-he had not known it was there and never intended to possess it. He was then on parole which he feared might be revoked if heroin were found in his possessionl.

Appellant's first contention is that bringing him to jury trial a fourth time constituted double jeopardy and cruel and unusual punishment in violation of his constitutional rights. Appellant's first trial ended when the trial court declared a mistrial because the jury was unable to reach a verdict. At his second trial the prosecution, without laying a proper foundation, presented evidence of appellant's prior conviction of possession of heroin. Upon appellant's motion the trial court declared a mistrial because of this error. During the third trial after the jury had been deliberating some time it announced it was hopelessly deadlocked. A poll of the individual members in open court confirmed this fact. Both the state and appellate requested that the jury be sent back for further deliberations. The trial court complied with these requests. After deliberating further for one day plus two hours and still announcing itself as hopelessly deadlocked and unable to agree on a verdict, the jury was discharged and a mistrial declared.

Appellant's complaints are bottomed on the fact he did not consent to the order declaring mistrial in the third trial. Consent by a defendant to an order declaring a mistrial is not essential so as to avoid the defense of former jeopardy where mistrial is properly ordered as here. A trial court may declare a mistrial when it finds the jury is unable to agree on a (K.S.A. 22-3423(1)(d)). Determination of the length of time a jury should be kept together and the probability of agreement of the jurors upon a verdict rests within the sound discretion of the trial court under the facts and circumstances of the particular case (State v. Blockyon, 195 Kan. 405, 407 P.2d 519). Our rules relating to former jeopardy are now contained in K.S.A. 21-3108 (State v. McKay, 217 Kan. 11, 535 P.2d 945). So far as material here that statute provides that a prosecution is barred if the defendant was formerly prosecuted for the same crime on the same facts if the former prosecution was terminated without the consent of the defendant after he was placed in jeopardy, except where the termination occurred because it was impossible for the jury to agree on a verdict. The exception applies here. After first announcing it was hopelessly deadlocked the jury was required to deliberate further for more than one day, at which time it announced itself as still unable to agree on a verdict and hopelessly deadlocked. Under these circumstances the trial judge did not abuse sound discretion in declaring a mistrial. Appellant's first trial was in February, 1974. His last trial commenced July 22, 1974. Each of the four trials was conducted accoring to law. These actions by the state did not constitute the infliction of cruel and ususual punishment in violation of the federal or state constitutions.

Appellant asserts the trial court should have declared a mistrial in several instances, as requested, because of various improprieties. One was eliciting, over objection, upon cross-examination of appellant's witness Mathenia, of the fact the witness had been convicted of burglary and larceny upon two occasions and of burglary upon another. Burglary and larceny are crimes involving dishonesty and conviction of these offenses may be shown for the purpose of impairing the credibility of a witness (State v. Price, 215 Kan. 718, 529 P.2d 85). The intent with which the burglary in the third conviction was committed is not shown in the record. That conviction therefore may or may not have evinced dishonesty. If it did not it was improperly admitted (K.S.A. 60-421). However, if there was error in this regard it was, under the circumstances, nonprejudicial. Similarly, it was of no consequence that the state elicited from the witness Mathenia the fact he was then a resident of the county jail.

Appellant also complains of the following which occurred during the state's cross-examination of Mathenia:

'Q. Sir, have you ever had any background with drugs?

'MR. HILTON: To which I object as being incompetent, irrelevant, and immaterial.

'THE COURT: The objection to the last question is sustained.

'MR. RUMSEY: Your Honor, I know that he has.'

Drug offenses per se do not involve dishonesty or false statement in their commission; hence K.S.A. 60-421 renders convictions for those offenses inadmissible for the purpose of impairing the credibility of a witness (State v. Belote, 213 Kan. 291, 516 P.2d 159). The question put to the witness was improper and the trial court sustained the objection. That should have been the end of the matter. A lawyer should not under...