State v. Ford, 46675

• Decision Date: 04 November 1972
• Docket Number: No. 46675,46675
• Citation: 502 P.2d 786,210 Kan. 491
• Parties: The STATE of Kansas, Appellee, v. Theodore W. FORD, Appellant.
• Court: Kansas Supreme Court

Page 786

502 P.2d 786

210 Kan. 491

The STATE of Kansas, Appellee, v. Theodore W. FORD, Appellant.

No. 46675.

Supreme Court of Kansas.

Nov. 4, 1972.

Syllabus by the Court

1. When the trial court in a criminal action is satisfied from the evidence adduced by the state that it has made every reasonable effort to procure the attendance of a witness, and is unable to do so, the testimony of such witness, given at a previous trial of the accused which resulted in a hung jury, may be introduced at the trial and read to the jury.

2. Under the provisions of K.S.A. 60-420, a witness may be examined by any party, including the party who called him, for the purpose of affecting his credibility.

3. Where the recorded testimony of an unavailable witness given at a former trial is properly admitted into evidence, it is not error to admit also a prior contradictory statement of such witness with which he was confronted and about which he was cross-examined at the former trial.

T. L. O'Hara, Wichita, argued the cause and Bruce B. Fitts, Wichita, was with him on brief for appellant.

David P. Calvert, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on brief for appellee.

FOTH, Commissioner:

Appellant was convicted by a jury of aggaravated robbery and he appeals. This was appellant's second trial for this offense, his first having resulted in a hung jury. His appeal turns on the state's use at this second trial of the recorded testimony of a missing witness, one Emmett L. Dean, Jr., who had testified at the first trial. The facts of the crime are important only insofar as they are reflected in Dean's testimony.

The charge stems from the holdup at gunpoint of Lee's liquor store in Wichita the evening of December 11, 1970. The robbers were two in number: as Mr. Lee put it, 'one of them was dressed like a woman and this other one was dressed like an ordinary man.' The one dressed as a man is alleged to have been the appellant; the other, one Tommy Abraham. The net proceeds of the robbery comprised three bottles of liquor.

The following day investigating officers had the witness Dean in custody and took a statement from him of his activities on the night of the robbery. In this statement Dean recounted spending the evening in the intermittent company of appellant and Abraham. The trio at one point were driving around in Abraham's car, and there was some discussion of robbing a liquor store. Abraham was dressed in a woman's pant suit, 'hillbilly' hat and blue gloves, wore lipstick and other makeup, and carried a woman's handbag. They parked on a side street near the Lee liquor store, where appellant and abraham left Dean alone in the car. He was under the wheel when they returned and announced that they had just robbed a liquor store, and that he should drive if he didn't want to go to jail. Dean saw appellant with a gun, and Abraham later told him he had three bottles of liquor in his bag. Dean's statement also told of driving from the robbery scene to Abraham's house where the two robbers changed clothes, and of other activities until his arrest the next morning.

A tape recording was made of Dean's entire statement, which was later transcribed. The recording and the transcription each figure in this case.

At appellant's first trial Dean appeared as a witness. The morning before he testified he reaffirmed the truth of his earlier statement in a conversation with the detective who took it. On the witness stand, however, Dean told a wholly different story. In his new version Dean had borrowed Abraham's car and was driving it near 15th and Mosley when he was accosted by two strangers, a man and a woman. They talked him into giving them a ride, and he obliged; for half to three quarters of an hour they visited various parts of Wichita. Eventually their wanderings took them to the neighborhood of Lee's liquor store, where the persuasive couple induced Dean to park on a side street and wait for them while they took a three or four minute walk at about the time the store was robbed. Upon their return to the car he drove them back to 15th and Mosley and dropped them off. He never saw them again.

The prosecutor, needless to say, was amazed to hear about this nameless couple (the man 'said his name was Bill something') who, seemingly, must have committed the robbery the state had charged to the appellant and Abraham. Dean was forcefully reminded of his prior statement; he was quizzed about the questions asked and his answers to them in some detail. As to many of them Dean professed a complete lack of momory, as to others he denied the accuracy of the transcript.

Appellant's counsel cross-examined Dean at some length, particularly about the prior statement. His efforts were largely directed to discrediting the statement by suggesting that Dean was drunk when it was made and that it was coerced by threats from the detectives. He elicited from Dean that, regardless of what he may have said in the statement, his present testimony was the correct version.

The state then, through a detective, commenced to lay a foundation for the admission of the taped statement. Dean was excused from further attendance at the trial with the express consent of appellant, and after proper identification the tape recording was played to the jury.

That trial, as indicated, resulted in a hung jury. On retrial, Dean proved unavailable as a witness. Over appellant's objection the state introduced his testimony at the first trial, and also the impeaching statement-this time by way of the written transcript rather than by playing the tape.

Appellant's objection below and his main claim of error here are both based on his contention that the state failed to use 'due diligence' in it efforts to procure Dean's attendance. The rule requiring the state to use every reasonable effort to produce a missing witness before introducing his prior testimony is of long standing, and is recognied in such cases as State v. Washington, 203 Kan. 336, 479 P.2d 833, Syl. 2; and State v. Bonskowski, 180 Kan. 726, 308 P.2d 168.

Appellant argues that the state could not show reasonable diligence in any event because its subpoena for Dean was issued only on the morning the trial began. We believe his argument fails in the light of the state's evidence showing not only the effort made to produce Dean, but the background against which its reasonableness must be judged.

The first subpoena for Dean was issued March 25, 1971, for his appearance at appellant's first trial. The address on East 23rd Street which Dean had given the detectives was found to be empty, but he was eventually located at his place of work. There, on March 30, 1971, a deputy sheriff served him when his foreman called him to the office. He appeared in response to this subpoena and gave the testimony summarized above.

A second subpoena was issued April 15, 1971, for Dean's appearance April 19 at the trial of Appellant's companion Abraham. It was served on him the same day it was issued, at the same place and in the same manner as the first subpoena.

A third subpoena, the one in question here, was issued on April 27, 1971, for his appearance the next day. In the morning a deputy proceeded again to the office at Dean's place of employment, and the by now customary call was put out over the public address system for Dean to come to the office. When this failed to produce the usual result, an inter-office telephone call was made to Dean's foreman. At this point Dean was observed through the office window punching out at the time clock and leaving by the back door. The deputy promptly made an effort to head him off, but was unsuccessful. After a quick trip around the building the deputy concluded that Dean had 'disappeared real fast.'

For the next day and a half officers of the sheriff's office and police department attempted to locate Dean at the addresses he had given previously, at work, and at potential addresses they had secured on their own...