State v. Dill, 50066

• Decision Date: 19 January 1979
• Docket Number: No. 50066,50066
• Citation: 3 Kan.App.2d 67,589 P.2d 634
• Parties: STATE of Kansas, Appellee, v. Charles DILL, Appellant.
• Court: Kansas Court of Appeals

Page 634

589 P.2d 634

3 Kan.App.2d 67

STATE of Kansas, Appellee, v. Charles DILL, Appellant.

No. 50066.

Court of Appeals of Kansas.

Jan. 19, 1979.

Syllabus by the Court

1. In passing on a motion for acquittal, a trial judge must determine whether a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he finds that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.

2. Acts done or declarations made before, during or after the happening of the principal fact may be admissible as part of the Res gestae where they are so closely connected with it as to form in reality a part of the occurrence.

3. Testimony relating to the classifications of drugs stolen in a pharmacy burglary does not fit within the Res gestae rule, for it is not an act or declaration, nor does it form part of the events surrounding the burglary and theft.

4. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence.

5. "Relevancy" does not necessarily mean that the evidence bears directly on the case.

6. Decisions relating to the admissibility of evidence on the grounds of relevancy rest largely within the discretion of the trial court.

7. If the probative value of relevant evidence is outweighed by the danger that the jury might be unduly prejudiced by it, the evidence should be excluded.

8. A comment on an accused's failure to testify in his own behalf is impermissible because it makes the exercise of the fifth amendment rights too costly.

9. A comment on an accused's failure to testify does not constitute prejudice per se, and does not require automatic reversal.

10. Before holding that a comment on an accused's failure to testify constituted harmless error, the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt.

11. Factors to be considered in determining whether a comment on the accused's failure to testify was harmless include the quantum of evidence presented against the defendant, the pervasiveness of the comment, and whether the comment was made deliberately and flagrantly.

12. In determining whether prosecutorial misconduct constitutes reversible error, the standard for the reviewing court is this: Can the court declare that the errors had little, if any, likelihood of having changed the result of the trial?

13. When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor's part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that the remarks of the prosecutor were likely to have little weight in the minds of the jurors?

Jan A. Way and Jay H. Vader, of Jenkins, Way, Turner & Vader, Chartered, Kansas City, for appellant.

Glenn E. Casebeer, Asst. Dist. Atty., Kansas City, Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., for appellee.

Before FOTH, C. J., and REES and SWINEHART, JJ.

SWINEHART, Judge:

The defendant appeals from a jury conviction of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701).

The facts, briefly stated, are that DeGoler's Pharmacy was burglarized in the early morning hours of December 11, 1977. The property taken was $200 in cash, an assortment of drugs and a radio. The pharmacy was equipped with a silent burglar alarm system, and when the burglars entered at approximately 4:45 a. m., the alarm was set off. Police officers responding to the alarm arrived on the scene within minutes.

The first officer to arrive, Officer Foster, testified that he saw three persons running from the scene. In addition to Officer Foster, Officer Barnhart responded to the alarm. This officer was at that time investigating a possible burglary in a store located in the Indian Springs Shopping Center. As he left the store he saw an individual climbing a fence between the shopping center parking lot and I-635. The pharmacy is located directly across the street from the shopping center. Orville Street is an east-west thoroughfare just to the north of the pharmacy building and to the south of the boundary lines of the shopping center. I-635 is a north-south highway which runs along the east side of both the shopping center complex and the medical building where the pharmacy is located.

Officer Foster testified that he saw three suspects running toward the Indian Springs Shopping Center, and as he pursued them in his car to the Indian Springs parking lot, he apprehended one of the suspects (not the defendant). He testified that he was unable to give any description of the other two by race, size, sex or clothing description and could only say that one of the two had fuzzy hair. Officer Barnhart observed only one individual running through the parking lot. He saw the person climb a fence between the shopping center parking lot and I-635. At that time he was some distance from the area where he observed the individual climbing the fence. He drove his car across the parking lot, immediately got out of his car and jumped the fence, pursuing on foot the person he saw climb the fence. Officer Barnhart testified that he never lost sight of that person from the time he saw him climbing the fence until he captured him approximately one-eighth or one-fourth of a mile away from the scene of the burglary. The individual that Barnhart caught was this defendant. The defendant, when captured, was not in possession of any fruits or instrumentalities of the crime. However, the officer testified that he observed the defendant discard some gloves near the spot where he was captured. The evidence indicated that there were no fingerprints linking this defendant to the burglary. Neither the defendant nor the other captured individual ever made any statement indicating that this defendant had participated in the burglary.

Much evidence was presented at the trial, apparently designed to show that the burglary was a professional job, that the drugs stolen were on either the state or federal controlled substances lists, and that many could be resold on the street. This testimony was elicited from the pharmacist, Mr. DeGoler, and a narcotics officer from the vice squad who further testified that the drugs stolen had not been stolen randomly but appeared to have been carefully selected by the burglars.

The only evidence that the defendant presented in his behalf was the testimony of his wife. She testified that she and the defendant had been driving in the area of the shopping center and were on I-635 when they began arguing. She stopped the car and made him get out.

In addition to the above evidence presented at the trial and the factual situation involving this burglary and theft, two comments made by the prosecutor are relevant to this appeal. The prosecutor made the following statement during closing arguments:

"(A)nd there never was any explanation of why the gloves were thrown away. What I am saying to you is that the defendant had an opportunity to refute the State's evidence, instead of attacking it, and they never took that opportunity to refute it.

"Mr. Way says it's difficult to prove you were not somewhere. No, it isn't, ladies and gentlemen. Mr. Tredway (the other arrested defendant) was available and he could have testified that he doesn't know Mr. Dill and that Mr. Dill wasn't up there, but the defense didn't call him. Mr. Tredway is charged with the crime by the State of Kansas and he is not our friend."

During closing arguments the prosecutor further said:

"We know what happened out there that night. Someone broke in and someone took hard narcotics. I want to parade Mr. Dill in front of you. Come up here, Mr. Dill. Take off your jacket."

The attorney for the defendant objected to the first comment on the ground that the other defendant's (Mr. Tredway) case had no relevance to this case. The objection was sustained. However, the court did not admonish the jury to disregard the statement. As to the other comments of the prosecuting attorney set forth above, the defendant's attorney made a prompt objection, which the trial court quickly sustained. The sustaining of the objection by the trial court interrupted defendant's counsel before he had stated a reason for the objection. Again, the trial judge did not admonish the jury to disregard the statement.

The defendant lists as his grounds for appeal: (1) The prosecutor's closing argument denied the defendant his constitutional right to due process by commenting on his failure to testify when he had an opportunity to refute the state's evidence concerning the gloves; (2) The prosecutor's misconduct during the closing arguments prejudiced the defendant's right to a fair trial when he endeavored to parade the defendant in front of the jury and asked him to take off his jacket; (3) The court erred in admitting evidence regarding the classification of the drugs taken in the theft; (4) The court erred in denying the defendant's two motions for a directed verdict.

Considering these matters in reverse order, the standard to be applied by the trial judge in determining whether or not to grant a motion for acquittal is well stated in State v. Gustin, 212 Kan. 475, 510 P.2d 1290 (1973), at Syl. P 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 guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he...