State v. Freeman

• Decision Date: 11 December 1965
• Docket Number: No. 41828,41828
• Citation: 195 Kan. 561,408 P.2d 612
• Parties: STATE of Kansas, Appellee. v. John Thomas FREEMAN, Appellant.
• Court: Kansas Supreme Court

Page 612

408 P.2d 612

195 Kan. 561

STATE of Kansas, Appellee. v. John Thomas FREEMAN, Appellant.

No. 41828.

Supreme Court of Kansas.

Dec. 11, 1965.

Rehearing Denied Jan. 6, 1966.

Syllabus by the Court

1. K.S.A. 60-404 codifies the prior law of this state requiring timely and specific objection for a reversal to result because of the erroneous admission of evidence. As a corollary, objections to the admissibility of evidence will not for the first time be considered on appeal.

2. Where an accused is placed in a show-up at the police station and engaged in nonincriminating conversation for the purpose of voice identification, his constitutional right against self-incrimination is not thereby violated.

3. Where no federal constitutional violation is involved in the admissibility of evidence, the decision of Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, has no application.

4. An accused's oral confession made during a pretrial interrogation by law enforcement officers is not rednered involuntary and inadmissible because of the absence of counsel at the time it was made, under the facts more fully set forth in the opinion. (Following State v. Stubbs, 195 Kan. 396, 407 P.2d 215.)

5. The rule in this jurisdiction is that in a criminal case specifications of error not included in the grounds of the motion for new trial, and thus brought to the attention of the trial court, cannot be considered on appeal.

6. In an appeal from a conviction of robbery in the first degree (G.S.1949, 21-527), the record is examined, and for the reasons set forth in the opinion, it is held, the trial court did not err in: (1) admitting testimony concerning identification of the defendant by the sound of his voice; (2) determining that defendant's confession was freely and voluntarily made; (3) admitting rebuttal evidence; (4) overruling defendant's motion for new trial; and (5) failing to have the offical court reporter record voir dire examination of the jury and closing arguments of counsel.

B. L. Pringle, Topeka, argued the cause, and was on the brief for appellant.

Robert D. Hecht, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

O'CONNOR, Justice.

This is a direct criminal appeal wherein the defendant, John Thomas Freeman, was charged, tried and convicted in May 1959 of the offense of first degree robbery (G.S.1949, 21-527). Having been convicted of felonies on four previous occasions, he was sentenced to life imprisonment in the state penitentiary under the habitual criminal statute (G.S.1949, 21-107a). The defendant's appeal, having previously been dismissed by this court for failure to comply with certain appellate procedural rules, was reinstated in April 1965. Present counsel, who assisted court-appointed counsel at the trial, was appointed for the defendant on this appeal.

Preliminary to a discussion of alleged errors occurring at the trial, the evidence will be reviewed. There was conflict between the testimony of the state's witnesses and that of the defendant, but, as has been held, the credibility of witnesses and the weight of their testimony are not subjects for appellate review, and in considering the sufficiency of evidence to sustain a conviction, this court looks only to evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, the conviction stands. (State v. Greer, 163 Kan. 592, 593, 184 P.2d 991, and cases therein cited.) Under the rule stated, the following facts were established:

On September 12, 1958, about 7:30 p. m., Sutton's, Inc., a grocery store located in North Topeka, was robbed at gunpoint of over $19,500 by Freeman and his accomplice, Glenn Roy Maynard. Freeman approached the cashier's booth, pointed a gun at the cashier, Verna Brown, and demanded the money from the safe. The cashier complied with Freeman's demand and handed to him from the safe a bag containing the money. At the same time one of the cash registers was being robbed by Maynard. The two men then fled the supermarket in a 1950 black Chrysler automobile bearing Osage county license plates, No. 1382.

Later, on February 20, 1959, while in custody of the United States Marshal in Baltimore, Maryland, for reasons not reflected by the record, Freeman was interviewed by two Florida law enforcement officers, Montie Smith and Carl W. Christy, who were interested in an incident that occurred in Florida, the nature of which again is not a part of the record. During this interview Freeman orally admitted to Smith and Christy his participation in the Sutton robbery, the amount of money obtained and the disposition made of it.

Subsequently Freeman was returned to Kansas, and in a police line-up was positively identified by Mrs. Brown as the man who had robbed the store.

In his defense Freeman denied his guilt, denied ever having been in Kansas, except for a corner of the state, and claimed alibi.

The state rebutted Freeman's testimony, and particularly his purported alibi, by offering into evidence certain items of personal property bearing Freeman's fingerprints which were found in a 1957 Ford Thurderbird in Lebo, Kansas, on the day of the robbery, together with items discovered in a 1950 Chrysler automobile bearing Osage county, Kansas, license tags, No. 1382, found parked in Omaha, Nebraska, on September 24, 1958. All of these items were admitted into evidence over the defendant's objection and will be dealt with later.

It should be noted at this point the defendant's motion for new trial presented only two grounds, namely, the court admitted illegal testimony over the objections of the defendant timely made, and the verdict of the jury was contrary to the law and evidence. The motion was filed, argued and overruled immediately after the jury returned its verdict finding the defendant guilty. Defendant appealed from the order overruling his motion for a new trial, and those specifications which are fairly within the purview of the grounds of said motion will first be considered.

Freeman first contends the trial court erred in admitting the testimony of Mrs. Brown identifying him as a participant in the robbery. He asserts Mrs. Brown identified him on the basis of the sound of his voice, which was in violation of his constitutional right against self-incrimination. The record discloses that at the trial Mrs. Brown positively identified Freeman as the man who demanded the money from the safe at the time of the robbery. During her examination, however, she testified she first saw the defendant, after his return to Kansas at the police station in a show-up. She identified the defendant as the one who robbed her but wanted to hear him talk. The officers then engaged the defendant in conversation about his teeth. She said she was sure of her identification when she heard him speak. No objection was made by the defendant to Mrs. Brown's testimony regarding her identification of his voice. The state strenously urges that the defendant is now precluded from raising the matter on appeal.

K.S.A. 60-404, which provides:

'A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.' [Emphasis added.]

codifies the prior law of this state requiring timely and specific objection for a reversal to result because of the erroneous admission of evidence. (See Advisory Committee Notes, Gard's Kansas Code of Civil Procedure Annotated, § 60-404.) The statement is sometimes referred to as the contemporaneous objection rule. As a corollary to the rule, objections to the admissibility of evidence will not for the first time be considered on appeal. (See numerous cases cited in 1 Hatcher's Kansas Digest, Appeal & Error, § 332; 2 West's Kansas Digest, Appeal & Error, k204; 4 Jones on Evidence (5th Ed.) § 975.) The rule is a salutary procedural tool serving as a valuable aid in the orderly disposition of cases at the trial level. It also has a legitimate purpose in the appellate court, whose function is that of review rather than trial de novo.

The defendant, conceding that no objection was made to this testimony at the trial, contends, however, that under the holding of Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, he is not precluded from raising a federal constitutional question concerning the admissibility of evidence, although he did not comply with a state rule of procedure, namely, the contemporaneous objection rule. The constitutional claim raised in Henry dealt with evidence that was obtained as a result of an unlawful search. Inasmuch as we are of the opinion Mrs. Brown's testimony relating to her identification of the defendant by his voice is so clearly not a violation of his constitutional right against self-incrimination, no federal question is before us and the decision of Henry is inapplicable to the facts of the instant case. We reach this conclusion, although in doing so we are passing upon the admissibility of evidence to which objection was not timely made.

Defendant's astute counsel indicates, and our research reveals, no cases in this jurisdiction relating to whether or not voice communications by an accused for the purpose of identification violate his privilege against self-incrimination. We do, however, follow the well-established rule that testimony by a witness as to identity of an accused is admissible in evidence if based upon the accused's voice, features, or other distinguishing characteristics. (State v. Hill, 193 Kan. 512, 394 P.2d 106; State v. Nixon, 111 Kan. 601, 207 P. 854; State v. Herbert, 63 Kan. 516, 66 P. 235.) Also, see 22A C.J.S. Criminal Law § 652 b; 21 Am.Jur.2d, Criminal Law, § 368;...