State v. Finley

• Decision Date: 06 November 1971
• Docket Number: Nos. 46001,46002,s. 46001
• Citation: State v. Finley, 208 Kan. 49, 490 P.2d 630 (Kan. 1971)
• Parties: STATE of Kansas, Appellee, v. John B. FINLEY, Appellant.
• Court: Kansas Supreme Court

Page 630

490 P.2d 630

208 Kan. 49

STATE of Kansas, Appellee, v. John B. FINLEY, Appellant.

Nos. 46001, 46002.

Supreme Court of Kansas.

Nov. 6, 1971.

Syllabus by the Court

1. When particular circumstances manifest a necessity for so doing, the trial court may, in its sound discretion, declare a mistrial, discharge the jury, and require a defendant to stand trial before another jury when failure so to do will defeat the ends of justice to either or both parties.

2. Where the trial court determines the declaration of a mistrial to be a manifest necessity in a criminal prosecution, wherein a third party communicates with a juror who, in a judicial proceeding, confesses that he has become influenced by such communication to the extent that he cannot give a fair trial, a reprosecution is not barred by reason of double jeopardy.

3. Evidence of offenses independent of but similar to the crime with which a defendant is charged is admissible under proper instructions limiting the purpose thereof, where it tends to prove intent, plan, pattern of conduct or mode of operation and remoteness in time of such evidence, otherwise admissible, affects the weight and probative value and not the admissibility of such evidence.

4. In charging a jury in a criminal case it is the duty of the trial judge to define the offense charged, stating to the jury the essential elements of the crime, either in the language of the statute or in appropriate and accurate words of his won.

5. In a prosecution for burglary of a dwelling house of another in the daytime the 'intent to commit some felony or any larceny therein' is a necessary element of burglary in the third degree.

6. Offenses of burglary and larceny in connection therewith, charged in the same count of an information pursuant to the provisions of K.S.A. 21-524 (repealed, L.1969, Ch. 180, Sec. 21-4701) are, nevertheless, separate and distinct criminal offenses.

7. Under an information charging the defendant with burglary and grand larceny in connection therewith, the defendant's conviction of grand larceny, supported by substantial, competent evidence, may be sustained, notwithstanding that his conviction on the burglary charge is reversed.

8. In an appeal from convictions in a consolidated trial of two counts of burglary in the third degree, two counts of grand larceny and one count of possession of burglary tools, the record is examined, and for reasons set forth in the opinion, it is held: (1) The judgments on the convictions for burglary in the third degree are reversed, and (2) no reversible error being shown regarding the judgments and sentences imposed for the offenses of grand larceny and possession of burglary tools, such judgments are affirmed.

Jim Lawing, of Jim Lawing, chartered, Wichita, argued the cause and was on the brief for the appellant.

J. Stewart McWilliams, Deputy County Atty., argued the cause, Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for the appellee.

KAUL, Justice.

Defendant, John B. Finley, appeals from convictions in a consolidated trial of two separate informations. In the first information defendant was charged with burglary and larceny in connection therewith pertaining to the dwelling house of Elmer Childress in Wichita. In the second information defendant was charged with burglary and larceny in connection therewith pertaining to the dwelling house of Bill G. Rigsby, and in a second count with the possession of burglary tools in violation of K.S.A. 21-2437 (repealed L.1969, Ch. 180, Sec. 21-4701 (now K.S.A.1970 Supp. 21-3717)).

Defendant was convicted of all five offenses. After previous notification to defendant, the State produced evidence of two prior felony convictions and defendant was sentenced to concurrent life sentences on each of the five charges pursuant to the provisions of K.S.A. 21-107a (now K.S.A.1970 1970 Supp. 21-4504).

On appeal defendant assigns nine points of error. Even though we find the conviction for burglary must be set aside and a new trial had for reasons hereafter stated, we deem it necessary to consider several points relating to other matters raised.

Defendant's first point is directed at the trial court's denial of his plea of former jeopardy based on the fact that a previous trial on these charges was aborted by the trial court's declaration of a mistrial.

Defendant's first trial commenced on October 20, 1969, and proceeded to the submission of the case to the jury on October 23, 1969. The jury was unable to arrive at a verdict and was permitted to separate during a recess for the night.

Following the adjournment of court on October 23, Mr. Zavala, a member of the jury, was contacted by one Pat Cordova, who was later identified as a girl friend of defendant. According to Zavala's testimony, taken the following morning, Mrs. Cordova followed him from the courthouse, where she had been attending the trial as a spectator, and approached Zavala when he and his wife stopped at a place known as Atlantic Mills to pick up some merchandise while he was on his way home from court. At that time Mrs. Cordova told Zavala that the defendant was not guilty, but that she could not talk further with Zavala for fear that she would get in trouble. Arrangements were made for Mrs. Cordova to call Zavala at his home at 7 o'clock that evening. Zavala arranged a meeting with Mrs. Cordova then informed the police who arrested Mrs. Cordova shortly after the meeting. Apparently, Zavala also informed the trial judge of the incident by telephone later in the evening.

When court convened the following morning Zavala was directed to come forward and be sworn as a witness in the presence of the other members of the jury. The court then announced that it had been informed by a telephone call from the juror who was now taking the witness stand. Zavala was then interrogated concerning his meetings and conversations with Mrs. Cordova by the court and counsel for both thd State and defendant. Zavala testified that he had been influenced and that if he sat on the jury he would not be giving the defendant a fair chance.

At the conclusion of Zavala's testimony, the trial court addressed the jury in pertinent part as follows:

"The jury, I think, now realizes it is necessary to declare a mistrial in the case. I suppose that needs no further explanation, and since this was brought about by no fault of the prosecution, the Court declares this defendant has not been placed in jeopardy and he may be retried on these charges, or on amended charges. * * *"

During the course of its comments the trial court advised defendant's counsel as follows:

'THE COURT: Do you have anything to say Mr. Lawing?

'MR. LAWING: No, your honor. I am sure the Court knows what to do in this case.'

The court then declared a mistrial and discharged the jury.

An amended information was filed and the case was recalendared for trial. In the meantime, defendant filed a motion for discharge on the ground that he had been in jeopardy for the same offenses at the previous trial. Defendant's motion was overruled; the trial ensued resulting in the convictions from which this appeal is taken.

Based on the circumstances surrounding the declaration of the mistrial, defendant on appeal contends that his constitutional right of protection from being twice put in jeopardy for the same offenses has been violated.

Defendant argues that since no misconduct on his part brought about the situation any declaration of a mistrial without his consent constitutes jeopardy and bars reprosecution.

In response to defendant's contention the State asserts (1) that the circumstances clearly established the necessity of a mistrial and (2) that the response of defendant's counsel to the court's query was tantamount to consent by the defendant.

Circumstances warranting the discharge of a jury prior to verdict are set out in K.S.A. 60-248(f):

'The jury may be discharged by the court on account of the sickness of a juror, or other accident or calamity, or other necessity to be found by the court requiring their discharge, or by consent of both parties, or after they have been kept together until satisfactorily appears that there is no probability of their agreeting.' (Emphasis supplied.)

It should be noted that at the time of the instant trial, the foregoing statute was made applicable to the trial of criminal cases by K.S.A. 62-1412 (repealed, L.1970, Ch. 129, Sec. 22-4604; State v. Blockyou, 195 Kan. 405, 407 P.2d 519). Ordering of mistrials in criminal cases is now governed by K.S.A.1970 Supp. 22-3423.

Although, Mrs. Cordova was identified as a girl friend of defendant, the record does not establish that she contacted Zavala at the instigation of defendant. Nevertheless, we believe that jury tampering by a third person, when established by judicial determination, is of such gravity as to necessitate a mistrial. Particularly where, as in this case, a juror confesses that he has been influenced so that he could not give a fair trial.

In State v. Hansford, 76 Kan. 678, 92 P. 551, the charge was statutory rape. On the second day of the trial one of the jurors disclosed that he entertained a prejudice growing out of an incident that occurred in his father's family, which was revived in his mind by the testimony given in the case. After hearing the statement of the juror, the trial court, over defendant's objection, declared a mistrial. When the case was again brought on for trial the defendant filed a plea of former jeopardy, the denial of which was the basis for defendant's appeal.

In considering disqualification of a juror as grounds for a mistrial with respect to jeopardy, Chief Justice Johnston spoke for the court in this language:

'* * * When a juror, as in this case, confesses to an incurable prejudice which disqualifie(d) him from exercising the functions of a juror or acting impartially as between the parties a continuance of the trial...