State v. Donahue, 47810

• Decision Date: 13 December 1975
• Docket Number: No. 47810,47810
• Citation: 543 P.2d 962,218 Kan. 351
• Parties: STATE of Kansas, Appellee, v. Elton D. DONAHUE, Appellant.
• Court: Kansas Supreme Court

Page 962

543 P.2d 962

218 Kan. 351

STATE of Kansas, Appellee, v. Elton D. DONAHUE, Appellant.

No. 47810.

Supreme Court of Kansas.

Dec. 13, 1975.

Syllabus by the Court

1. In a criminal case, evidence that an accused made false or conflicting statements concerning his whereabouts at the time of a crime is admissible to show consciousness of guilt and unlawful intent.

2. The determination of the mental competency of a witness at the time he is produced for examination is addressed largely to the discretion of the trial court and its determination of such question will not be disturbed except for abuse of discretion.

3. Admissibility of physical evidence is within the sound discretion of the trial court and is to be determined by the court on the basis of its relevance, connection with the accused and the crime charged.

4. The prompt striking of improper statements or answers to improper questions, coupled with the trial court's admonition to the jury to disregard the same, cures any error where it does not affirmatively appear that substantial rights of the accused were prejudiced.

James W. Wilson, of Hodge, Wood & Wilson, Wichita, argued the cause and was on the brief for the appellant.

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

KAUL, Justice:

Defendant-appellant (Elton D. Donahue), appeals from convictions by a jury of two counts of aggravated kidnapping (K.S.A. 21-3421), two counts of rape (K.S.A. 21-3502), two counts of robbery (K.S.A. 21-3426), and one count of aggravated sodomy (K.S.A. 21-3506).

The state's evidence established that on the evening of July 10, 1973, two Wichita State University coeds went to the Flicker Lounge, located near the university campus, to meet the boy friend of one of the girls. The girls went to the lounge in an automobile owned by one of them and parked in the parking lot, at the rear of the lounge, about 8:30 p. m. They remained at the lounge until about 11 p. m., when they left by the back door and walked to the parking lot. As they were proceeding to their automobile they passed three young black men who were loitering in the parking lot. After the girls had entered the automobile the three men approached the vehicle. The three men were later identified as the defendant, Elton D. Donahue, Anthony R. Garrett, and Donald G. Ponds. Garrett pointed a hand gun at the girl who was in the driver's seat and forced his way into the front seat. Donahue and Ponds entered the automobile on the passenger's side. One of the men told the girls that they only wanted to drive around for a while. One of the girls offered to give the men the automobile and their money if the men would let them go. The offer was refused.

Garrett drove the automobile away from the parking lot and after driving the streets of northwest Wichita for a short time parked the automobile in a vacant lot. At this point the girls offered the men their money, hoping they would be released. The men removed all of the money from the girls' purses. The girls were forced to undress, both girls were raped and one girl was forced to perform oral copulation on Donahue. The girls were then permitted to dress. The men then drove around with the girls for a short time, finally leaving the girls in the automobile near a school in northwest Wichita. The girls drove home and reported the occurrence to the Wichita Police Department, giving descriptions of the three men and their clothing.

As a result of police investigation the next day defendant Donahue, Garrett and Ponds were arrested. Shortly after his arrest Donahue was interviewed by Detectives Jerry Bullins and Beverly Artman at the police station. Defendant was advised of his constitutional rights and given a written statement thereof. Defendant signed a waiver of his rights in the presence of the detective. Defendant agreed to talk with the detectives and stated that he knew nothing of the kidnapping-rape-robbery-of the two girls because he was at home in the company of a friend-Carter Butler-during the evening in question.

Immediately after the interview with defendant, Detective Bullings went to the home of Carter Butler and inquired of him as to his activities on July 10, 1973. Bullins testified that Butler said that he had called Donahue about 4 or 5 p. m. on July 10; that Donahue stated that he was going out that evening with Donald Ponds to 'mess around.' Butler also told Bullins that he had spent the night at his aunt's house and did not see Donahue at all. Butler was called as a state's witness at the trial.

The three men were tried jointly at a trial beginning December 10, 1973. Ponds and Garrett were convicted of two counts of aggravated kidnapping and two counts of rape. The jury was unable to reach any verdict on Donahue. Defendant was retried in January 1974 and found guilty as previously indicated and thereafter perfected this appeal. Ponds and Garrett also filed an appeal which is decided this day. (See State v. Ponds and Garrett, 218 Kan. 416, 543 P.2d 967.)

In the first of three points specified on appeal defendant claims error in the admission into evidence of the testimony of Detective Bullins and Carter Butler contradicting defendant's statement that he had been with Butler on the evening in question.

Defendant argues that it was prejudicial error to admit the testimony of Bullins and Butler since he had not filed an alibi or taken the stand; and that he must have put his own credibility in issue by taking the stand before the admission of such evidence is permissible. Defendant asserts that the admission of such evidence contravenes K.S.A. 60-423 and 60-424, which constitutes our codification of the constitutional privilege against self-incrimination. Defendant advances the further argument that under K.S.A. 60-420, 60-421 and 60-422, he must first take the stand as a witness and place his own credibility in issue before it can be attacked in this manner. In support of this latter proposition defendant cites State v. Gunzelman, 210 Kan. 481, 502 P.2d 705; State v. DeLespine, 201 Kan. 348, 440 P.2d 572; and State v. Motley, 199 Kan. 335, 430 P.2d 264.

Defendant's constitutional self-incrimination claim concerning his statement made to Detective Bullins is without merit. The statement that he was with Butler was made after defendant had been fully advised of his constitutional rights and had executed a written waiver thereof. Defendant makes no claim that his statement was involuntary or coerced. Defendant's principal argument on this point is that an accused must first, by his own testimony, put his credibility in issue before it can be attacked. The cases cited by defendant (Gunzelman, DeLespine and Motley) are not in point. These cases stand for the often stated proposition that evidence of other offenses may not be elicited for the first time on cross-examination of the accused for the purpose of attacking his character or credibility unless the accused has first introduced evidence of his good character or submitted evidence for the sole purpose of supporting his credibility. Defendant's statement in question here was exculpatory and had nothing to do with previous offenses. The issue presented was before this court in similar context in the recent case of State v. Norwood, 217 Kan. 150, 535 P.2d 996. As in the case at bar, the statement in question was exculpatory in nature and offered by the state in conjunction with an inconsistent statement by Norwood to a detective. In the Norwood case Mr. Justice Owsley speaking for the court had this to say:

'. . . Both statements were relevant to a material issue in the case; i. e., his whereabouts during the time of the crime. In view of the fact these statements were inconsistent, we believe it was relevant as tending to show defendant's guilt. False exculpatory statements made by a defendant are admissible to show a consciousness of guilt and unlawful intent, (United States v. Tager, 481 F.2d 97 (10th Cir. 1973).) In an early Kansas case this court stated:

". . . It is always competent to show the statements and claims made by a person charged with crime with reference thereto, and to show that such statements are false. The fact that a defendant in a criminal case resorts to falsehood is a circumstance which may, in connection with other facts in the case, tend to prove guilt.' (State v. Oliver, 55 Kan. 711, p. 714, 41 P. 954, p. 955.)

'The former testimony of the defendant was properly admitted for the purpose approved herein and no error has been shown.' (p. 155, 535 P.2d p. 1002.)

In the instant case the statement of the accused concerned his whereabouts at the time of the crime. The testimony of Butler and Detective Bullins tended to show that the statement made by defendant was false and falls within the rule that when a defendant in a criminal case makes a false exculpatory statement evidence thereof is admissible to show consciousness of guilt and unlawful intent. (1 Wharton (13th Ed.), Criminal Evidence, § 215, pp. 458-459; United States v. Tager, supra; and State v. Norwood, supra.)

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