State v. Davis, 46727

• Decision Date: 03 November 1973
• Docket Number: No. 46727,46727
• Citation: 515 P.2d 802,213 Kan. 54
• Parties: STATE of Kansas, Appellee, v. Johnnie B. DAVIS, Appellant.
• Court: Kansas Supreme Court

Page 802

515 P.2d 802

213 Kan. 54

STATE of Kansas, Appellee, v. Johnnie B. DAVIS, Appellant.

No. 46727.

Supreme Court of Kansas.

Nov. 3, 1973.

Rehearing Denied Dec. 20, 1973.

Syllabus by the Court

1. Relevancy to prove some material fact is not the only test of admissibility of evidence of past crimes provided by K.S.A. 60-455.

2. The probative value of evidence of past crimes must first be weighed against its prejudicial nature, and even though relevant to some issue of material fact it must not be admitted if the risk of prejudice to defendant is greater than the probative value of the evidence.

3. When a defendant charged with sale of narcotics denies participation in the sale, remains silent, and through counsel states entrapment will not be raised as a defense, evidence of past crimes to disprove entrapment is irrelevant and immaterial.

4. We have examined the record and find the court did not err in its instructions to the jury on presumption of innocence, burden of proof, reasonable doubt, and defendant's failure to take the witness stand, but did err in admitting evidence of past crimes.

Oneil Davis of Lewis & Davis, Wichita, argued the cause and was on the brief for appellant.

Clifford Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Patrick Sirridge, legal intern, were with him on the brief for appellee.

OWSLEY, Justice:

Defendant, Johnnie B. Davis, was convicted on two counts of selling heroin in violation of K.S.A. 1971 Supp. 65-2502 (now K.S.A. 65-4124) and sentenced to two concurrent terms of nine years to life imprisonment.

Defendant did not take the witness stand and the facts leading to his arrest were established by testimony of Henry Mar, Jr., an agent for the attorney general, and William L. Phillips, an informant. They went to the apartment building where defendant lived and observed him enter the building. Mar frisked Phillips and Phillips went into the building. Phillips testified he went to defendant's apartment, gave him $100.00, and waited there a short time while defendant went elsewhere to purchase heroin. Mar, who was outside the apartment building waiting for Phillips, testified he saw defendant leave the building and return a short time later. Defendant returned and shortly thereafter Phillips emerged from the building with a foilwrapped packet. Both Phillips and Mar initialed the packet for identification and its contents were later identified as heroin. Phillips testified he bought the heroin from defendant. This general procedure was followed on two different occasions-July 4, 1971, and July 10, 1971, and these incidents are the bases of the two counts of selling heroin for which defendant was prosecuted and convicted. After the state presented its evidence against defendant, but before resting, the court allowed the state to recall Phillips, the informant, for the purpose of testifying to previous contacts with defendant. He testified he made two prior purchases of heroin from defendant in 1970. Defendant objected in chambers to the recalling of Phillips on the ground additional testimony was irrelevant and immaterial to prove defendant guilty of the two sales with which he was charged. Defendant argued to the trial court he was not claiming entrapment; therefore, intent and predisposition were not at issue. Defendant further argued the testimony of Phillips as to prior purchases had no corroborative value, added nothing to his credibility, and was highly prejudicial. The court overruled defendant's objections and allowed the testimony of alleged prior contacts and sales to be placed before the jury to show 'prior relationships' between witness and defendant. The court later instructed the jury it was evidence limited to their determination of 'defendant's intent, knowledbe, or absence of mistake or his identity.'

Defendant contends the court abused its discretion in admitting Phillips' testimony as to two prior sales of heroin in 1970. The state contends the evidence of prior crimes was relevant and admissible for two reasons: (1) to show defendant's intent and rebut a possible defense of entrapment; and (2) as evidence relevant to the issue of defendant's identity.

We cannot accept the state's first argument, that it was admissible in the state's case in chief to rebut a possible defense of entrapment; to do so would allow the state to anticipate any number of affirmative defenses as an excuse for parading evidence of past crimes before the jury. The issues to which past crimes may be relevant may never arise. In this case, intent was not at issue unless defendant made it so by claiming entrapment.

When events initiated by a solicitation by the police culminate in criminal charges, it normally raises a question of entrapment for the jury. (State v. Reichenberger, 209 Kan. 210, 495 P.2d 919; State v. Farmer, 212 Kan. 163, 510 P.2d 180; State v. Einhorn, 213 Kan. 271, 515 P.2d 1036, this day decided.) We do not mean that entrapment is automatically at issue because of police solicitation. In view of defendant's denial of any participation in the acts charged, his decision to remain silent, and other assurances by his counsel that entrapment would not be raised as a defense, the evidence of past crimes to disprove entrapment was irrelevant and immaterial.

K.S.A. 60-455 reads as follows:

'Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.'

This statute is not autonomous on the admissibility of evidence of past crimes since it is subject to the provisions of other rules relating to the admission of evidence.

Kansas case law makes it clear the majority of prosecutors and trial courts have read K.S.A. 60-455 as though the exception in the last sentence were the rule, and when the proffered past crimes evidence bore some relevance to motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, the gates of admissibility automatically swung open under the theory proper instruction would correct any error of judicial discretion and would limit the jury's consideration of the evidence to its proper role.

Relevancy as the single test of admissibility is disapproved from the very beginning of the evidence code. K.S.A. 60-407(f) provides all relevant evidence is admissible except as otherwise provided by statute. K.S.A. 60-455 is such an exception generally prohibiting evidence of past crimes and takes precedence over 60-407(f). K.S.A. 60-455 is subject to several statutory exceptions allowing past crimes evidence to be used to prove traits of character under very limited circumstances as provided by K.S.A. 60-447 and K.S.A. 60-448. Since no character trait is at issue in this case we can disregard them except to note than their provisions dominate those of K.S.A. 60-455. A third exception to the general rule of K.S.A. 60-455, that evidence of other crimes is inadmissible to prove the crime charged, is contained within the provisions of the statute itself: '. . . but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact. . . .' The more important test of admissibility under that exception to the general prohibition is the phrase, 'subject to section(s) 60-445,' which takes precedence over 'relevant to prove.' The evidence must first pass the test of judicial discretion provided in K.S.A. 60-455:

'Except as in this article otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had...