State v. Frames
| Decision Date | 03 November 1973 |
| Docket Number | No. 46956,46956 |
| Citation | 515 P.2d 751,213 Kan. 113 |
| Parties | STATE of Kansas, Appellee, v. Larry W. FRAMES, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Two witnesses or one witness and corroborating circumstances are necessary to establish the fact of perjury, and therefore the uncorroborated testimony of one witness as to the falsity of a sworn statement is not enough to support a conviction for perjury.
2. The purpose of a bill of particulars in a criminal action is twofold: (1) To inform the defendant as to the nature of the charge and the evidence against him to enable him to prepare his defense, and (2) to enable the defendant to avoid further prosecution for the same offense.
3. A bill of particulars is nothing more than a statement of facts which collectively describe the offense set forth generally in the complaint, information or indictment.
4. Under K.S.A.1971 Supp. 22-3201(5) where the state furnishes a bill of particulars it is restricted in its proof at the trial to the particular items specified in the bill.
5. It is not necessary for the prosecution to prove each and every factual statement contained in the bill of particulars. So long as the state proves all of the necessary elements of the particular crime charged, then the evidence is sufficient to convict regardless of whether every statement in the bill of particulars is proved.
6. On a trial for perjury the materiality of the alleged false testimony is generally a question of law for the court. But if left to the jury and their verdict determines the question of materiality as the court should have instructed them, no prejudicial error is done to the substantial rights of the defendant (following State v. Lewis, 10 Kan. 157.).
7. The record is examined in a criminal action in which the defendant was convicted of perjury and it is held: The trial court did not commit prejudicial error (1) in its instructions to the jury; (2) in denying defendant's request for funds to hire an expert to determine the existence of community prejudice; (3) in permitting the assistant county attorney to appear as counsel for the state when he might have been a potential witness; and (4) in admitting into evidence defendant's prior testimony.
Robert C. Londerholm, Hackler, Londerholm, Speer, Vader & Austin, Olathe, argued the cause, and was on the brief for appellant.
Richard S. Wetzler, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Margaret W. Jordan, Dist. Atty., were with him on the brief for appellee.
This is a direct appeal by the defendant in a criminal action in which he was convicted by a jury of the offense of perjury under K.S.A.1970 Supp. 21-3805. This case is the aftermath of a tragic murder which occurred in Johnson county in June of 1970. The factual circumstances surrounding the murder are set forth in full in State v. Green, 211 Kan. 887, 508 P.2d 883. In June of 1970 the defendant, Larry W. Frames, and Robert Green were charged with the murder of Glenda Kay Williams. Frames pled guilty to the first-degree murder charge and was sentenced to life imprisonment in November 1970. After two mistrials, Robert Green was tried for the third time in December of 1970. The defendant, Frames, did not testify at Green's first two trials. After Frames entered his plea of guilty to first-degree murder, he took the stand and testified against Green at the third trial. There Frames testified in substance that Green was an active, if not the motivating force, in Miss Williams' murder. As a result of Frames' testimony, Green was convicted of murder in the first degree. Green filed a motion for a new trial on the grounds of newly discovered evidence. In support of Green's motion, Frames made a complete about face and absolved Green of all responsibility for the murder. On June 29, 1971, on the hearing of the motion, Frames testified under oath that he alone had conceived and perpetrated the murder of Miss Williams and that Green had not in any way assisted in its commission. Frames recanted on portions of his prior testimony dealing with events both before and after the murder itself.
Before giving this last testimony on June 29, 1971, Frames had made statements relating the events in question on at least three prior occasions. The first version was in a statement to investigating officers on June 4, 1970, just two days after the murder. In that statement Frames placed the major share of culpability on Green, while minimizing his own role. The second was on November 18, 1970, at the time Frames pled guilty to first-degree murder. At that time Frames was placed under oath and was examined and cross-examined about the events of the fatal evening. His account then was highly incriminating of Robert Green and was substantially the same as that given at the trial. The third account was his trial testimony given at Green's trial in December 1970.
The trial court rejected Frames' new testimony and denied Green's motion for a new trial. The correctness of that decision was the subject matter of the appeal in State v. Green, supra. A few days after the hearing on Green's motion for a new trial in district court, the defendant Frames was charged with perjury on complaint of the assistant county attorney Mark L. Bennett, Jr. The defendant was convicted of perjury by a jury on February 8, 1972. The defendant was sentenced under the habitual criminal act for a sentence of not less than five years or more than life, the sentence to run consecutively to his life sentence imposed in the murder case. The defendant has appealed his conviction of perjury, alleging that the trial court committed prejudicial trial errors. We will consider the points raised by the defendant, adding such additional factual matters as are necessary for their determination.
The first point of error asserted by the defendant is the overruling of his motion to exclude from the consideration of the jury certain statements of the defendant which the state contended constituted perjury. After the defendant was charged with perjury he filed a motion for a bill of particulars. The trial court sustained the motion. In compliance with the order the state filed a bill of particulars setting forth a number of answers to questions propounded to the defendant by his attorney Thad Nugent and answers to questions propounded to the defendant by the assistant county attorney, Mark L. Bennett, Jr., at the hearing on the motion for a new trial of Robert Green held on June 29, 1971. The bill of particulars referred specifically to pages and lines of the transcript of Frames' testimony at that hearing. The defendant contends here that the trial court erred in overruling his motion in which he requested that certain of the statements set forth in the bill of particulars should be excluded from the consideration of the jury since, as a matter of law, the evidence produced by the state in support of the charge was not sufficient to establish perjury.
It is the position of the defendant that many of his statements contained in the bill of particulars covering the circumstances surrounding the murder, were not in fact controverted by the state and, as to other statements, the evidence of the state was not sufficient to establish perjury under the rule of law which governs the quantum of proof necessary to establish perjury. This rule, which pertains only to the crime of perjury, is stated in State v. Schroeder, 201 Kan. 811, 443 P.2d 284, as follows:
'. . . The pertinent rule in Kansas is that two witnesses or one witness and corroborating circumstances are necessary to establish the fact or perjury, and therefore the uncorroborated testimony of one witness as to the falsity of a sworn statement is not enough to support a conviction for perjury . . .' (pp. 815, 816, 443 P.2d p. 289.)
The defendant takes the position that in order to meet its burden the state was required to present direct testimony from two witnesses as to the falseness of the defendant's statements or, alternatively, direct testimony from one witness and additional corroborative evidence. The defendant argues that each statement contained in the bill of particulars is a separate charge which the state must establish by specific evidence; hence he argues that on motion of the defendant the trial court should have excluded from the consideration of the jury those statements in the bill of particulars which had not been established by that quantum of state's evidence necessary for conviction.
To determine the validity of defendant's position we must examine the nature and effect of a bill of particulars in a criminal action. K.S.A.1971 Supp. 22-3204(5) provides for a bill of particulars in a criminal proceeding and states as follows:
The purpose of a bill of particulars is twofold: (1) To inform the defendant as to the nature of the charge and the evidence against him to enable him to prepare his defense, and (2) to enable the defendant to avoid further prosecution for the same offense. (Anderson, Wharton's Criminal Law and...
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