State v. Dearman
| Decision Date | 21 January 1967 |
| Docket Number | No. 44474,44474 |
| Citation | 198 Kan. 44,422 P.2d 573 |
| Parties | STATE of Kansas, Appellee, v. Larry J. DEARMAN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
It is reversible error to permit a jury to draw an inference adverse to one accused of crime from his reliance upon his constitutional right to silence and to the advice of counsel.
Larry D. Kirby, Wichita, argued the cause, and was on the brief, for appellant.
Martin E. Updegraff, Deputy County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief, for appellee.
This is a criminal action in which the defendant appeals from a conviction for first degree robbery in violation of G.S.1949 (now K.S.A.) 21-527. He was thereafter sentenced pursuant to the provisions of G.S.1949 (now K.S.A.) 21-530 and 21-107a. Appeal has been duly perfected.
The appellant specifies various trial errors relating to the admission of evidence and statements made by counsel in closing argument, and he also specifies the overruling of his motion for a new trial.
The facts indicated by the evidence may be briefly stated as follows:
On the evening of January 2, 1965, Larry J. Dearman (defendant-appellant), Harvey D. Loyd and Jack Ashley were together and went to Griff's Burger Bar, behind which they parked Ashley's 1956 Chevrolet. The three proceeded through the back door. Loyd was carrying a gun in his hand and told the three employees of Griff's Burger Bar to lie down on the floor. Whereupon, the appellant asked who the night manager was, and upon identifying himself the night manager was directed by the appellant to open the safe. Thereafter, the manager was also made to lie down on the floor, face down, and all of the employees were tied. Approximately $900 in money was taken from the safe by the three robbers. During the robbery Ashley and the appellant wore clothing about their faces so they were not identifiable, but Loyd did not.
On the 4th day of January, 1965, at approximately 1:30 p. m., the appellant and Loyd were arrested in the city of Wichita while in a 1965 Chevrolet which they had rented from a local rental agency. A jacket, identified as the appellant's, was found lying on the back seat of the 1965 Chevrolet automobile, and in the coat pocket was a gun-a beretti, caliber 7.65. It was identified as the holdup gun.
Detective Stewart, one of the arresting officers, was asked on the witness stand before the jury whether he interrogated the appellant, and he replied:
Ashley, one of the participants in the robbery, testified on behalf of the state, giving all of the details which occurred on the evening in question, from the time they first met until the time they had divided and disposed of the money. Most of the evidence admitted over objection, and concerning which the appellant complains on appeal, was presented by the state to corroborate Ashley's testimony.
The evidence discloses that the appellant called his brother on the telephone while in jail and told his brother he had some money at a place called 'Carl's farm' near Wichita, where the appellant had worked in the past, and that the appellant needed a tooth brush and tooth paste.
When the appellant's brother arrived, Detective Williamson arranged for the meeting of the appellant and his brother, and advised the appellant concerning his right to remain silent, that anything he said could be used against him, and that he had a right to an attorney. The appellant's brother then informed the appellant that the officers knew who the third man was in the robbery. The appellant then asked Detective Williamson who it was, and he was told 'Whitey.' The appellant then asked, 'Who the hell is Whitey?' Detective Williamson then took out a picture and showed it to the appellant, after which the appellant said, 'You got the wrong goddamned man.'
The appellant contends that the trial court erred in admitting testimony of Officer Stewart regarding the appellant's refusal to make any statements prior to consultation with an attorney. The appellant also complains that the court erred in permitting the county attorney in his closing argument to make reference to such refusal.
On this point the county attorney in his closing argument said:
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