State v. Gauger

• Decision Date: 09 March 1968
• Docket Number: No. 44749,44749
• Citation: 438 P.2d 455,200 Kan. 515
• Parties: STATE of Kansas, Appellee, v. Robert A. GAUGER, Jr., Appellant.
• Court: Kansas Supreme Court

Page 455

438 P.2d 455

200 Kan. 515

STATE of Kansas, Appellee, v. Robert A. GAUGER, Jr., Appellant.

No. 44749.

Supreme Court of Kansas.

March 9, 1968.

Syllabus by the Court

1. Where a witness admits giving a prior written statement but cannot remember the contents thereof, or neither admits nor denies the same, there is ample foundation for admitting the statement itself for impeachment purposes, or at least the impeaching portion thereof.

2. In closing argument to the jury, counsel is allowed considerable latitude in discussing the evidence and commenting on the credibility of witnesses where his remarks are based on facts appearing in the evidence, but it is error for him to read or even refer to the contents of a witness' prior written statement not in evidence for the purpose of impeachment.

3. Misconduct of the county attorney in closing argument will not always require the granting of new trial unless such misconduct has resulted in prejudice to the extent that the accused has been denied a fair trial.

4. The offense of assault with intent to rob (K.S.A. 21-431) is included in the offense of first degree robbery (K.S.A. 21-527), and under K.S.A. 62-1444 a conviction of first degree robbery bars prosecution for assault with intent to rob when the same act of violence or intimidation is relied on to sustain both convictions.

5. Where a single act of violence or intimidation, which is an essential element of a first degree robbery conviction, is also relied on as constituting the separate crime of assault with intent to rob, two separate offenses cannot be carved out of the one criminal delinquency.

6. In an appeal from conviction and sentence of first degree robbery (K.S.A. 21-527) and assault with intent to rob (K.S.A. 21-431), the record is examined, and for the reasons set forth in the opinion, it is held: (1) A new trial must be granted because of the prejudicial effect of the county attorney's closing argument to the jury, and (2) under the evidence defendant could not be convicted of two separate, distinct offenses.

William R. Brady, Topeka, argued the cause, and was on the brief for appellant.

James N. Snyder, Jr., Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Joseph J. Dawes, Jr., County Atty., were with him on the brief for appellee.

O'CONNOR, Justice.

The defendant, Robert A. Gauger, Jr., was convicted by a jury of first degree robbery (K.S.A. 21-527) and assault with intent to rob (K.S.A. 21-431). His motion for new trial was overruled, and he was sentenced to the state reformatory on each charge, the sentences to run concurrently. He now appeals.

Two points are raised: (1) the propriety of the county attorney's closing argument to the jury, and (2) whether or not, under the evidence, two separate, distinct offenses were committed.

On September 25, 1965, Virgil Ballard, the victim, who resides at the domiciliary barracks at Wadsworth VA Hospital, went to the boarding home of defendant's uncle, Bill Gauger, about 9:00 a. m. Ballard spent most of the day, in company with several other men, drinking wine while sitting and talking around a wooden table in the yard. During this time the defendant and one Frazer Garrett were cleaning out a clogged sewer line located about twenty or thirty feet from where the men were sitting. Sometime after noon, according to Ballard's testimony, the defendant joined the men around the table. After drinking with them for a period of about three hours, the defendant, without any provocation, jumped up, hit Ballard on the back of the head, knocked him to the ground, and, at knife point, rifled his pockets, took between ten and fifteen dollars from him, and left the premises. As Ballard fell he struck at the knife and cut his right hand.

After the assault Ballard went across the street to a friend's house, where he and his friend continued to drink until early the following morning. About 4:00 a. m. Ballard returned to Wadsworth and sought treatment for his wounded hand from Dr. Thomas G. McCullough. Later in the day Ballard reported the incident to a guard at the hospital. In turn, the guard called the Leavenworth police, and thereafter charges were filed against the defendant.

Ballard's account about seeking treatment for his hand was supported by the testimony of the doctor, and the hospital guard substantiated Ballard's testimony about reporting the incident.

In his defense the defendant denied he hit Ballard or took any money out of his pockets, denied he sat at the table and drank with the men, and claimed it was several days after September 25 he first learned he was accused of robbing and assaulting Ballard. Defendant's version of the incident was that as Ballard was getting up from the table about 1:00 or 1:30 p. m. he rocked back and forth and fell forwards; that Ballard tried to catch himself on the table, his right hand hit the edge of the table, and he fell to the ground; that two of the men who were sitting at the table picked Ballard up and set him in a chair. Defendant went over to the table to pick up some of the empty wine bottles, and it was then he noticed some blood on the table and Ballard's cut hand. Defendant described the table as being wooden, with a steel or aluminum edging, and nails sticking up from the top. After noticing Ballard's bleeding hand, defendant obtained a rag and gave it to Garrett, who wrapped Ballard's hand. Ballard was then taken by Pat Finch, one of the men seated at the table, to Finch's house across the street.

Defendant's testimony was supported by that given by Garrett and George Nason, one of the men who had spent the day drinking with Ballard. Both Garrett and Nason testified they gave statements to the police concerning the incident at Bill Gauger's place. On cross-examination Garrett admitted portions of his testimony (some of which are not material to the point raised) were probably contrary to those in his statement to the police, and Nason said he could not remember what he told the police.

On direct examination Garrett testified that he helped the defendant work on a sewer line, that defendant worked at the job from 9:00 a. m. to 3:30 in the afternoon, and that at no time during the day did he see the defendant strike Ballard or have a knife and threaten him. Garrett was cross-examined as follows:

'Q. * * * Why didn't you tell the police that that was the type of work you were doing when you gave them that statement, this digging?

'A. I thought I mentioned it in there.

'Q. Isn't it true the only thing you mentioned in this statement you gave them was you were mopping the floors inside the house and you didn't see a thing?

'A. Well, I didn't see anything out there going on.

'Q. No, you didn't did you?

'A. I saw some men out there; I told them that.

'Q. Is it not true that you gave this statement to the police on the 29th of September, 1965?

'A. I sure did.

'Q. That after you got through mopping the floors in the morning, the morning of the 25th--

'A. Yes, sir.

'Q. (Reading from defendant's written statement to the police) '--I went outside to hang up the mop--'

'A. Yes, sir.

'Q. '* * * No, I did not see Bobby Gauger strike Mr. Ballard. Yes, something could have happened out there while I was in the other rooms of the house mopping the floors, but I doubt it. Yes, Mr. Ballard could have gotten cut by a knife and I wouldn't have known anything about it.' Is this not the statement you gave the police?

'A. It is possible I didn't know anything about it.'

Similarly, Nason testified that defendant did not strike Ballard or threaten him with a knife, and on cross-examination he said he saw Garrett and the defendant working on the sewer line most of the day. In response to further questions by the county attorney, Nason said he told the police what had happened, and was interrogated as follows:

'Q. Is it true that your statement (to the police) stated that, 'Bobby Gauger was nowhere around the table. No, I never even saw him in the yard.' You told that to the police, didn't you?

'A. I don't know.

'Q. You don't know?

'A. No, I don't.

'Q. Will it do you any good to take a while and try to remember what you told them?

'A. I don't know what I told them.' (Emphasis added.)

No objection was interposed by defendant's counsel to the cross-examination of the witnesses by the county attorney. It is further noted the state made no effort to introduce into evidence the prior statements of either Garrett or Nason, nor did any witness testify what Garrett and Nason told the police.

Against this backdrop is defendant's assertion that the trial court erroneously permitted the county attorney in his closing argument to comment on and read from the prior statements of Garrett and Nason.

The pertinent parts of the county attorney's closing argument are:

'* * * Among these statements were statements given by the witnesses for the defendant, Frazer Garrett and George Nason. You heard their testimony today, and you have heard their statements that were given immediately, or very shortly after this occurrence.

'MR. BRADY: Your Honor, I don't believe there was any evidence of any statements that were given.

'MR. CHAPMAN: Your Honor, first, Garrett admitted making the statement, and the second one thought he did or didn't remember.

'MR. BRADY: The jury didn't hear the statement.

'MR. CHAPMAN: I read it to them, Your Honor.

'THE COURT: I will overrule the objection. Go ahead.

'(MR. CHAPMAN:) . . . Nason told you on the stand that he saw Bobby Gauger that whole day doing nothing but work on that trench; he didn't do anything but work on that trench, and you recall that we bore down on this to find out just what he did say he saw. He saw him doing nothing but working on that trench. His statement to the police was that Bobby Gauger was nowhere around. 'I never even saw him in the yard.' He is the same man that went through all this, then, this morning saying that he saw him do...