State v. Davis, 56869

• Decision Date: 11 April 1985
• Docket Number: No. 56869,56869
• Parties: STATE of Kansas, Appellee, v. Donald E. DAVIS, Appellant.
• Court: Kansas Supreme Court

Page 1321

697 P.2d 1321

237 Kan. 155

STATE of Kansas, Appellee, v. Donald E. DAVIS, Appellant.

No. 56869.

Supreme Court of Kansas.

April 11, 1985.

Syllabus by the Court

1. The credibility of an accomplice is subject to attack and great leeway should be accorded the defense in establishing the witness's subjective reason for testifying. On the other hand, it lies within the sound discretion of the trial court to determine the propriety and scope of the examination, and, absent a showing of a clear abuse of the exercise of the power of discretion, there is no prejudicial error. The trial court must allow inquiry into whether the accomplice, who has turned State's witness, was offered any "arrangement or deal" by the State in exchange for his testimony. However, the court need not allow inquiry into the differences in penalty provisions which resulted from the accomplice's plea bargaining if this would allow the jury to hear the penalty in store for the defendant if he is found guilty.

2. The admission of rebuttal and surrebuttal evidence lies within the sound discretion of the trial court and the trial court's ruling will not be reversed absent a clear abuse of the exercise of that discretion. Also, the decision to reopen a case in order to receive additional evidence is a matter within the discretion of the trial court.

3. The trial court's denial of the admission of surrebuttal evidence, when it is material to the defense and will not unnecessarily delay the trial, is an abuse of discretion.

4. K.S.A. 60-420 allows any party, including the party calling the witness, to introduce extrinsic evidence "concerning any conduct by him or her or any other matter relevant" for the purpose of attacking the witness's credibility. Accordingly, it is error for a trial court to exclude rebuttal testimony which does not relate to specific instances of conduct and which is offered for the sole purpose of showing a witness's statements were false, thereby undermining his credibility.

Carl E. Cornwell, of Kansas City, argued the cause, and Keith C. Sevedge, of Kansas City, was with him on the brief for the appellant.

Wesley K. Griffin, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for the appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Donald E. Davis (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427).

The facts will be briefly stated since the defendant does not challenge the sufficiency of the evidence. Around 9:30 p.m. on April 26, 1983, Robert Johnson was walking along a street in downtown Kansas City, Kansas, when a car pulled up beside him. There were three men in the car. The driver leaned over and asked directions, which Johnson gave. Johnson then started walking away, but the driver called him back. At this point, the driver pointed a gun at Johnson and demanded that Johnson hand over the portable stereo he was carrying. When Johnson hesitated, the front seat passenger got out and took the stereo from him and told him that it would be best to go on and forget about the whole thing. Johnson testified that the driver kept the gun pointed at him the entire time. The front seat passenger never got between him and the gun. He also testified that he didn't hear any conversation among the three in the car. He noticed that the man in the back seat was trying to hide his face with his hands.

Within an hour after the robbery, three suspects were arrested who fit the description Johnson had given police. That same night, Johnson identified Donald Coty as the driver, Eddie Davis as the back seat passenger, and the defendant as the front seat passenger who took the stereo. Johnson also identified the gun that was found in the suspects' car as the gun that had been pointed at him.

The suspects were given Miranda warnings at the time of their arrest. All three denied having any involvement with the robbery. The defendant did admit that the gun found in the car belonged to him and that he had purchased it earlier that day.

At trial, the defendant presented an "entrapment" defense. He testified that on the night of the robbery, he had gone in a car with Coty and his Uncle Eddie to purchase some liquor and marijuana. Coty was driving and he was also holding the money given him by the other two for the purpose of buying the liquor. When Coty saw the victim walking along with the stereo, he said he "had to have the radio." The defendant testified that he tried to talk Coty out of committing the robbery. Coty ignored him, and drew his pistol and demanded the stereo from the victim. When the victim hesitated, Coty told the defendant to get out and grab it. Coty then pointed the gun at the defendant's head and said, "If you don't get out, I'll shoot you." At this point, the defendant got out of the car and took the stereo from the victim. Coty then drove to a nearby house and sold the stereo for $35. Coty allegedly kept all the proceeds from the sale.

The defendant testified that he did not willingly participate in the armed robbery; he acted out of fear of Coty. The defendant denied any involvement in planning the robbery. He did admit lying to the police about his knowledge of the crime. He said he had lied because he was afraid to "snitch" on Coty.

Eddie Davis' testimony was basically the same as the defendant's. He added that Coty had yelled at the defendant when he told him to get the stereo. Although Eddie Davis had originally been charged with aggravated robbery, the charges had been dismissed prior to the defendant's trial.

Donald Coty also testified for the defense. Prior to testifying, he had pled guilty to the reduced charge of attempted robbery. At the defendant's trial, Coty maintained his innocence. He claimed it was the defendant who had actually pulled the gun and committed the robbery.

The first issue raised by the defendant is whether the trial court erred in limiting defendant's examination of Donald Coty.

Coty had originally been charged with aggravated robbery while armed with a dangerous weapon. Following plea negotiations, Coty pled guilty to attempted aggravated robbery. At Davis' trial, defense counsel wished to question Coty about the reasons he took the lesser charge, the negotiations of the plea, and the penalty provisions of both the original and reduced charges. The State objected only to questions concerning the penalty provisions as this would allow the jury to hear the penalty in store for the defendant if they found him guilty of aggravated robbery.

The Court sustained the objection, stating:

"I don't have any problem with you going over with the witness what he was originally charged with and what occurred as far as plea negotiations are concerned and what he initial--ultimately wound up pleading guilty to. But I would think that by allowing you to make a big deal about the reduction and what all the possible consequences and ramifications of that plea are, it takes away from the question in this case, and that is the innocence or guilt of your client, and puts in some information that the jury may or may not consider about the disposition of Mr. Coty's case."

Following this ruling, defense counsel questioned Coty about his original charge, the plea, and the plea bargaining. Mention was made of a plea to a lesser charge and the possibility of probation. Coty testified that he had not been promised anything by the State for testifying against the defendant.

The credibility of an accomplice is subject to attack and great leeway should be accorded the defense in establishing the witness's subjective reason for testifying. United States v. Harris, 462 F.2d 1033 (10th Cir.1972); State v. Corn, 223 Kan. 583, 575 P.2d 1308 (1978); State v. Ramsey, 228 Kan. 127, 612 P.2d 603 (1980). On the other hand, it lies within the sound discretion of the trial court to determine the propriety and scope of the examination and, absent a showing of a clear abuse of the exercise of the power of discretion, there is no prejudicial error. United States v. Walton, 552 F.2d 1354 (10th Cir.1977); State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981). See also 81 Am.Jur.2d, Witnesses § 560, pp. 561-64.

In the case at bar, the jury was informed that the witness had been charged as a codefendant and resolved his case through plea bargaining. The information that the witness had thereby avoided the risk of conviction of the more serious charge was also before the jury. This court has previously held that inquiry into whether the witness was offered any "arrangement or deal" by the State in exchange for his testimony is crucial. State v. Wheeler, 215 Kan. 94, 523 P.2d 722 (1974); State v. Ramsey, 228 Kan. at 130, 612 P.2d 603. In this case, defense counsel was afforded the opportunity to inquire whether or not Coty had made any such "deal" with the State. Coty testified that he had not.

We hold that the trial court did not abuse the exercise of its power of discretion in limiting the examination, and the defense counsel was afforded reasonable latitude in examining the witness.

The defendant next contends that the trial court erred in denying his proffer of surrebuttal evidence.

After the defense had rested, the trial judge allowed the State to present a rebuttal witness. The witness was a book-in officer from the jail where Coty had been held after his arrest. The witness testified that Coty had only $5.23 in his "property bag" which was returned to him when he was released from jail. The State apparently sought to show that Coty had not sold the stereo for $35, or had not pocketed all of the proceeds himself.

On cross-examination, the witness admitted that he knew only how much money Coty had when he was released, and he did not know how much Coty might have had when he was initially placed in custody.

Following this testimony, the State rested...