State v. Daugherty

• Decision Date: 05 March 1977
• Docket Number: No. 48139,48139
• Citation: 562 P.2d 42,221 Kan. 612
• Parties: STATE of Kansas, Appellee, v. Hal H. DAUGHERTY, Appellant.
• Court: Kansas Supreme Court

Page 42

562 P.2d 42

221 Kan. 612

STATE of Kansas, Appellee, v. Hal H. DAUGHERTY, Appellant.

No. 48139.

Supreme Court of Kansas.

March 5, 1977.

Syllabus by the Court

2. Under the provisions of K.S.A. 22-3204, when two or more defendants are jointly charged with any crime the granting of a separate trial for any one defendant lies within the sound discretion of the trial court.

2. Where two or more defendants are jointly charged with a crime and a defendant proceeds to trial without requesting a separate trial he is deemed to have waived any right to a separate trial and is foreclosed from claiming error in this regard on appeal.

3. A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilty beyond a reasonable doubt. If he concludes guilty beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion. (Following State v. Gustin, 212 Kan. 475 (Syl. 3), 510 P.2d 1290.)

4. Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.

5. In a prosecution for conspiracy under K.S.A. 21-3302, it is not necessary that a conspirator be shown to have a financial stake in the conspiracy. It is only necessary that he be shown not to be indifferent to the outcome of the conspiracy.

6. The introduction of a conspirator to another prospective participant in a conspiracy to commit arson constitutes both adherence by the accused to the conspiracy and an over act toward its accomplishment.

7. Evidence, obtained by the state as a result of information surreptitiously elicited from a defendant as a result of prior arrangements between law enforcement officers and a codefendant acting in the capacity of an informer, is inadmissible under the facts and circumstances set forth in the opinion.

Russell Shultz, Wichita, argued the cause and was on the brief for appellant.

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

KAUL, Justice:

Defendant-appellant, Hal H. Daugherty, appeals from a conviction of conspiracy to commit arson in violation of K.S.A. 21-3718 and 21-3302.

Defendant was charged in two counts of a seven count information which lodged charges against defendant Gerald L. Ray (sometimes referred to as Jerry Ray), Tommie Gene Padgett, Robert Leon Rowlett and Willard L. Gettle, Jr. All of the offenses were alleged to be connected with proposals to burn three buildings owned by Willard L. Gettle, Jr.

Willard L. Gettle, Jr., a Wichita businessman who owned and operated a business known as Wichita Beef, Incorporated, located at 2952 North Arkansas Street in Wichita, was the central figure in all of the events giving rise to the charges filed. Gettle also owned a building located at 400 North Hydraulic in Wichita and another building in Augusta, which were involved in the conspiracy charges.

The investigation covered the activities of Gettle, the four defendants charged and other parties connected with the schemes through the years 1971, 1972, and 1973. As a result of the investigation a seven count information was filed. Counts One, Five and Seven related to the 1971 burning of Gettle's building at 2952 North Arkansas Count One charged Ray with arson. Count Five Charged Ray and Daugherty with conspiracy to commit arson. Count Seven charged Ray with making terroristic threats against Gettle.

Counts Two, Three and Four related to the 1973 conspiracy to burn Gettle's building at 400 Hydraulic. Count Two charged Ray and Padgett with criminal use of explosives in transporting and possessing the turpentine they were going to use to burn the building. Count Three charged Ray and Padgett with possession of burglary tools and possession of the key to the building. Count Four charged Ray and Padgett with attempted arson of the building.

Count Six related to the 1973 conspiracy to burn Gettle's building in Augusta. Daugherty and Rowlett were charged in this court with conspiracy to commit arson.

The then attorney general (Vern Miller) became involved in the investigation in its early stages and thereafter directed the activities of the law enforcement officials involved. Miller granted immunity to Gettle. Soon after the trial began, Ray, as a result of plea negotiations, entered a plea of guilty and became a witness for the state. At trial, Padgett and Rowlett were acquitted as a result of their defense of entrapment. Defendant Daugherty was acquitted on the 1973 conspiracy charge (Count Six), but was convicted on the 1971 conspiracy charge relating to the 1971 burning of Gettle's building at 2952 North Arkansas in Wichita (Count Five).

The prosecution evidence, as in most conspiracy cases, is lengthy and complex. The state's case was generally structured around the testimony of Gettle and Ray and several law enforcement officers involved in the investigation.

The testimony of Gettle and Ray, pertinent to the points on appeal, commences with Gettle's testimony concerning a conversation with defendant which took place at either Gracie's Cafe or the Red Garter Lounge in Wichita during June 1971. Gettle testified that during this conversation the subject of fires in the Wichita area was brought up. Defendant told Gettle that several of these fires were 'set fires,' meaning arson. Gettle testified he told the defendant he was unhappy with the meat business, that he would like to get out of it; and the possibility of burning the business down was brought up. Defendant told Gettle he thought he could put him in touch with someone who could burn a building down. Defendant said the man's name was Jerry Ray.

Ray testified that in June 1971 Daugherty contacted him and asked if he would come to Wichita to meet a man who wanted some work done. Without further explanation Ray agreed to come.

Gettle further testified that he went to the Red Garter Lounge on numerous occasions following his conversation with defendant concerning the fires. On one such visit, approximately two weeks later, defendant introduced him to Jerry Ray. Ray testified that defendant called Gettle outside, introduced the two men to one another and then said, 'This is the gentleman I wanted you to meet that I called you about. You all go somewhere and talk.' Defendant then went away, leaving Ray and Gettle together to talk in private.

During the conversation Ray told Gettle he could put him in touch with someone who could burn Gettle's building and that he would call Gettle at a later date. Ray testified that after Gettle left he went back into the club and inquired of defendant: 'This man is talking about a fire. Do you think I could trust him?' Daugherty replied, 'Yes, you can trust him.'

In late June or early July 1971, Ray introduced Gettle to Tom Padgett at the Wichita airport. Padgett quoted a price of $20,000.00 for doing the arson job, told Gettle to consider it and let either Ray or him know what he finally decided.

Gettle testified he met with Ray a few days later and told him he was no longer interested in having the building burned. On this point the testimony of the two principal prosecution witnesses, Gettle and Ray, is in conflict. Regarding this same meeting, Ray testified Gettle did not say he did not want to go through with the plan. Ray further testified he subsequently received a call from Gettle and Gettle told him the people with whom he had been put in touch with 'wanted too much to burn the building.'

In any event, Ray subsequently introduced Gettle to two men named Guy and James and told Gettle they could do the job for him. Gettle testified the men offered to do the job for less money and when he still refused to go through with it, they told him he was in too deep to get out--

'. . . (I)f I did not go through with it, and I can't tell which one said it, either Guy or James, in fact they acted almost proud of it, that I could be dropped at a quarter of a mile away . . . I assumed that this meant I could be shot at a quarter of a mile away.'

Ray confirmed that such a threat was made to Gettle by James, who warned Gettle 'to stay cool about it. . . .'

Gettle testified the men told him they were going to go ahead with the job and that he would comply with their wishes. They demanded $1,500.00 in advance and a total amount of either $6,000.00 or $8,000.00. For his services Ray was supposed to receive five portable advertising signs from Gettle. Gettle paid the $1,500.00 to Ray and the four of them parted company, agreeing to meet again on July 20 at a Wichita motel. In the meantime, Gettle had his attorney raise the insurance coverage on the building by $30,000.00.

During the night of July 20-21, 1971, the building at 2952 North Arkansas was burned by Ray, James, Guy, Gettle and another unidentified man. After the fire was extinguished, Wichita Fire Inspector Robert Langley entered the building and discovered several turpentine soaked cloth 'trailers' or strips running throughout the building.

Within two or three days after the fire, Gettle told the defendant he was under a lot of pressure from the police and fire departments about the fire. Daugherty told him to 'keep calm, keep cool, that was all Gettle could do.'

Attorney General Miller testified that after he became involved in the investigation he received numerous telephone calls from Gettle in February 1973, but did not return them because he did...