State v. Fisher

• Court: Kansas Supreme Court
• Writing for the Court: FATZER; PRAGER; MILLER
• Citation: State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (Kan. 1977)
• Decision Date: 09 April 1977
• Docket Number: No. 48359,48359
• Parties: STATE of Kansas, Appellee, v. Donald F. FISHER, Appellant.

Page 1012

563 P.2d 1012

222 Kan. 76

STATE of Kansas, Appellee, v. Donald F. FISHER, Appellant.

No. 48359.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. The exercise of judicial restraint in allowing admission of evidence under K.S.A. 60-460(a) is implicit in this exception to the hearsay rule.

2. Prior hearsay statements of a 'turncoat witness' are admissible as substantive evidence under K.S.A. 60-460(a).

3. A witness may not properly be found to be a 'turncoat witness' without first having testified at trial contrary to prior statements.

4. Admission of a declarant's out-of-court statement does not violate thr right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Section Ten of the Bill of Rights of the Kansas Constitution as long as the declarant has been called and testifies as a witness and is subject to full and effective cross-examination.

5. In a criminal proceeding, the declarant must testify at trial before hearsay evidence of his out-of-court statements may be admitted under K.S.A. 60-460(a).

6. It is constitutionally impermissible for the state to elicit evidence at trial of the accused's silence at the time of his arrest and after he had received the Miranda warnings.

7. Compliance with the contemporaneous objection rule (K.S.A. 60-404) is necessary to preserve a claim of error, even upon federal constitutional grounds, on appeal.

8. The record in a criminal action in which the appellant was convicted of indecent liberties with a child and aggravated sodomy is examined, and as more fully set forth in the opinion, it is held: (1) the district court did not err in admitting hearsay statements of Carla Davis under K.S.A. 60-460(a); (2) the district court committed reversible error in allowing the admission of hearsay statements of Adelie Fisher under K.S.A. 60-460(a); (3) timely and specific objection is necessary to preserve a point on appeal (K.S.A. 60-404); (4) the district court did not err in admitting evidence of other crimes (K.S.A. 60-455); and (5) the district court did not err in denying the appellant's motion for judgment of acquittal.

William D. Mize, District Public Defender, Salina, argued the cause and was on the brief for appellant.

William Rex Lorson, Saline County Atty., of Salina, argued the cause and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

FATZER, Chief Justice.

This is an appeal from a conviction by jury of the crime of indecent liberties with a child and aggravated sodomy, contrary to the provisions of K.S.A. 21-3503, as amended, and K.S.A. 21-3506, respectively.

The complainant, Carla Davis is the stepdaughter of the defendant-appellant, Donald F. Fisher. At the time of the alleged offenses, she was 11 years old. The offenses for which the appellant was convicted are alleged to have occurred on July 12, 1975, and August 10, 1975. The information was filed on September 26, 1975. Trial was had to a jury on October 15, 1975; a verdict of guilty was returned, and the appellant was sentenced on October 31, 1975. This appeal followed.

On the evening of August 10, 1975, Carla and her mother, Mrs. Adelie Fisher, came to the Saline County Sheriff's Office about 9:30 p. m. Deputy James Preston talked with Carla for about an hour and a half. In the course of their conversation, Carla told of several instances in which her stepfather had sexually molested her. The appellant was arrested the following day and charged with two crimes based on what Carla told the deputy.

At trial, Carla was the state's first witness. She testified that the story she told the deputy on August 10, 1975, was a lie-that the appellant did not do the things she said he did.

After some thirty minutes of direct examination, the court asked counsel to approach the bench. There followed a lengthy discussion, first out of the jury's hearing at the bench, then in chambers. The court stated Carla was obviously a hostile witness, and it had expected to have been faced with a tender of exception to the hearsay rule. The parties had apparently anticipated the complaining witness might change her story on the stand because they had filed briefs on the hearsay question prior to trial.

After extended discussion, the court determined Carla Davis and Mrs. Fisher were turncoat witnesses and that, as such, it was proper to let other witnesses testify as to what Carla and Mrs. Fisher had told them, as an exception to the hearsay rule. In accordance with that ruling, Deputy Preston was permitted to testify as to the story Carla had related to him during the evening of August 10, 1975, as to the two offenses for which defendant was charged. Another deputy, Ron Lister, was later permitted to testify about an incident involving Carla and the appellant that Mrs. Fisher had related to him on August 10, 1975. Mrs. Fisher was present but did not testify at the trial.

The appellant contends the district court committed reversible error by permitting hearsay statements of Carla Davis and Mrs. Fisher to be admitted into evidence under K.S.A. 60-460(a) through the testimony of the two sheriff's deputies. The first prong of the appellant's argument is that the district court's ruling was an abuse of discretion.

K.S.A. 60-460 provides:

'Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:

'(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness; . . .'

This exception to the hearsay rule, if literally interpreted, could largely circumvent the general principle that the testimony of witnesses at trial shall be taken orally in open court. K.S.A. 60-243; Fed.R.Crim.P. 26. If the exception were not applied discriminately, the state might, for example, be tempted to present its case at a preliminary hearing when the defense often is not well prepared to cross-examine effectively, and then simply introduce a transcript at trial rather than all the witnesses.

Exercise of judicial restraint in allowing admission of evidence under 60-460(a) is implicit in this exception to the hearsay rule. This has not gone unnoticed by Judge Gard:

'. . . (This exception) could be subject to abuse if it were not for the discretionary power of the trial court to separate the grain from the chaff and control the admission of evidence of out-of-court statements admissible only under this exception, and reject it if better evidence is available and no good purpose is served by receiving it.' S. Gard, Kansas Code of Civil Procedure 465 (1963).

The exception has been criticized as increasing the pressures to secure out-of-court statements, facilitating the manufacture or shading of evidence, raising the possibility a criminal defendant may be convicted on the basis of an out-of-court statement and because cross-examination is inadequate in such a situation. Fowkes and W. Harvey, 4 Vernon's Kansas Statutes Annotated, Code of Civil Procedure 416 (1965).

In the instant case, the district court carefully considered the question before making its ruling. It had the benefit of trial briefs and oral arguments on the point. The basis for the district court's ruling is clear:

'I think in this case before you can use the hearsay rule, if you don't have a turncoat witness the Court isn't going to let you use the exception. If you have a turncoat witness I think it is appropriate for the Court to permit it. Think it boils down to that. . . .'

We have no dispute with the district court's finding that Carla was a turncoat witness. The court observed some thirty minutes of Carla's direct examination; Carla was evasive, hostile and denied the truthfulness of her prior statements which were the basis for the charge against the accused. The state's tender of evidence in chambers was to the effect that Carla's prior statements were in complete contradiction to her testimony at trial and at the preliminary hearing. This was the traditional turncoat witness situation, and the court did not err in ruling Carla's prior hearsay statements were admissible as substantive evidence under 60-460(a). See, State v. Lott, 207 Kan. 602, 485 P.2d 1314; S. Gard, Kansas Code of Civil Procedure 466 (1963).

However, it was an abuse of discretion for the district court to allow hearsay statements of Mrs. Fisher to be admitted under 60-460(a) based on a finding she was a turncoat witness. Mrs. Fisher was available to testify at trial, but was never called. The state's tender of proof was that the testimony Mrs. Fisher would give at trial would be completely contradictory to the prior statements. This was an insufficient basis for permitting the use of the 60-460(a) exception. It was an abuse of discretion for the district court to find Mrs. Fisher was a turncoat witness without her first testifying contrary to her prior statements.

The second prong of the appellant's argument that the admission of the hearsay statements under K.S.A. 60-460(a) was reversible error is that, under the circumstances of this case, his constitutional right of confrontation was violated.

The course of events at trial has been set out above. Briefly, after Carla testified, the court ruled prior hearsay statements of Carla and Mrs. Fisher would be admitted under K.S.A. 60-460(a). Thereafter, the hearsay statements were admitted through the testimony of sheriff's deputies. Carla was not recalled for cross-examination. Mrs. Fisher was available at the trial, but was not called to testify by either the state or the defendant.

The Sixth Amendment to the United States Constitution provides in pertinent part:

'In all criminal prosecutions, the...