State v. Grauerholz, 53635

• Decision Date: 03 December 1982
• Docket Number: No. 53635,53635
• Citation: 232 Kan. 221,654 P.2d 395
• Parties: STATE of Kansas, Appellee, v. Alvin F. GRAUERHOLZ, Appellant.
• Court: Kansas Supreme Court

Page 395

654 P.2d 395

232 Kan. 221

STATE of Kansas, Appellee, v. Alvin F. GRAUERHOLZ, Appellant.

No. 53635.

Supreme Court of Kansas.

Dec. 3, 1982.

Syllabus by the Court

1. The manner in which exhibits are handled at trial is within the trial court's discretion, and the court's decision will not be disturbed because of the manner in which the exhibits were handled except in cases of abuse.

2. This court has consistently refused to adopt any test other than the M'Naghten test for insanity, and we steadfastly adhere to our prior opinions on the subject.

3. When the evidence is challenged as being insufficient to support the verdict, the standard of review which we must apply is whether the evidence, viewed in the light most favorable to the prosecution, convinces us that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

4. Where the crime charged is completed, there is no call for an instruction on attempt.

5. In an appeal from a conviction of two counts of felony theft, the record is examined and it is held: The trial court did not err in refusing to permit the jury to examine each exhibit as it was received in evidence, in refusing to permit defendant to call and examine jurors during argument on the motion for new trial, or in its instructions to the jury. Further, the crimes charged were not barred by the statute of limitations, the conduct of a psychiatrist who examined defendant on motion of the prosecution did not violate defendant's constitutional rights, this court will not abandon the M'Naghten rule, and the evidence adequately supports the verdict and judgment.

Tom Crossan, Independence, argued the cause and Robert C. Claus, Independence, was with him on the brief for appellant.

William J. Craven, Lawrence, argued the cause and was on the brief of guardian/conservator for appellant.

Sally Davis Pokorny, Asst. County Atty., and Glenn E. Casebeer, Asst. County Atty., argued the cause, Robert T. Stephan, Atty. Gen., was with Sally Davis Pokorny on the brief for appellee.

MILLER, Justice:

The defendant, Alvin F. Grauerholz, appeals from his conviction by a jury in Montgomery District Court of two charges of felony theft, K.S.A. 21-3701, arising out of substantial shortages of funds in two estates of which he was executor. The issues presented are: whether it was error not to permit exhibits to be shown to the jury during trial; whether the conduct of a psychiatrist who examined the defendant violated defendant's constitutional rights; whether Count I of the information was barred by the statute of limitations; whether it was error to refuse to let defendant call and examine jurors during the hearing on his motion for a new trial; whether this court should abandon the M'Naghten rule and adopt the A.L.I. rule; and whether the evidence was sufficient to support the verdict.

Alvin F. Grauerholz was for many years a practicing attorney in Coffeyville, Kansas. On January 14, 1975, he was issued letters testamentary as executor of the estate of General George Wark, deceased. Count I of the information charges the defendant with the theft of funds from that estate. The evidence disclosed that from February 4, 1975, to and including February 9, 1979, the defendant wrote, signed, and negotiated various checks upon the Wark Estate trust account. The funds received (more than $53,000) were deposited in either the defendant's trust account or in his office account. His secretary prepared all checks for payment of the funeral bill, taxes, and other usual expenses of an estate; she did not prepare nor did she have any knowledge of the checks written by the defendant. In 1977, defendant caused to be prepared and filed a preliminary accounting for the Wark estate. No irregular withdrawals, transfers of funds from the estate trust account, or other irregularities were disclosed. When the matter came on for final settlement, defendant appeared in court without any bank statements or other supporting records; he secured a continuance, appeared on the appointed day, but still failed to bring the records with him. He testified that some $13,000, which should have been in the Wark estate trust account, was not there but was in his office trust account; the latter statement was not true--the funds were not in defendant's office trust account. Defendant attributed the problem to his bad bookkeeping. On January 23, 1980, he was removed as executor of the Wark estate. It was later determined by the administrator de bonis non c.t.a., that there was a shortage in the Wark estate of approximately $53,600.00.

Count II of the information charges the defendant with the theft of funds from the estate of Emily J. Patterson, deceased. He was the named executor, and letters testamentary were issued to him on October 24, 1978. He paid the funeral expenses out of the estate funds, then withdrew varying amounts which he deposited in his own general account or his law office account. He closed out the decedent's savings account in the amount of some $3,293.00. A check was written to the defendant by the First Federal Savings and Loan for the amount of this account; it was endorsed by him, but those funds never found their way into the Emily J. Patterson estate. The defendant was removed as executor of that estate and an administrator was appointed on March 20, 1980. The administrator testified that the defendant had withdrawn funds from the Patterson estate account in the amount of $10,200; that sum, together with the proceeds of the savings account, was missing. The defendant's total defalcation in the Patterson estate amounted to some $13,493.00.

The trial took approximately 13 days. All of the court records in the two estates were received in evidence, together with all of the checks, bank statements, and accounts. Defendant pled not guilty and not guilty by reason of insanity. Two psychiatrists testified for the defense that in their opinion the defendant was insane and did not know the difference between right and wrong at the time the thefts occurred. One psychiatrist testified for the State; he reached the opposite conclusion, voicing the opinion that the defendant knew the difference between right and wrong during all of the relevant time periods. The jury returned a verdict of guilty on both charges.

Defendant first contends that the trial court erred in refusing to allow counsel to pass all of the exhibits to the jury before submission of the case to the jury. The trial court refused to permit counsel to pass each exhibit to the jury upon introduction; however, counsel was permitted to read at length from each exhibit and to discuss each exhibit fully with the witnesses. Checks, endorsements, bank statements, deposit slips, accounts and the various probate files were read and discussed at length before the jury; the germane parts of all of the documents were thus fully presented to the jury during trial. All of the exhibits were sent with the jury to the jury room and remained there during deliberations.

Defendant relies primarily upon an Indiana case, Micks v. State, 249 Ind. 278, 230 N.E.2d 298 (1967), wherein the appellate court criticized the trial court for interpreting an exhibit for the jury, rather than permitting the exhibit to be read in full or passed to the jury so that each juror could make his or her own interpretation. We do not find the opinion persuasive under the facts of this case, where the exhibits were read at length and fully discussed, and where the exhibits themselves were ultimately sent to the jury room where the jurors could examine them at their leisure. The case is clearly distinguishable.

We have held, in a recent case, that the manner in which exhibits are handled at trial is within the trial court's discretion, and the court's decision will not be disturbed because of the manner in which the exhibits were handled except in cases of abuse. State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980). The trial court here exhibited extreme patience and granted counsel wide latitude in reading and discussing the exhibits in minute detail.

The exhibits ranged from very material items, such as cancelled checks and bank statements, to those that were inconsequential if not immaterial, such as a turn-of-the-century family album and mid-1930's dues cards. Had the trial court permitted each of the jurors to examine each of the hundreds of exhibits, the trial would have been greatly extended and regularly interrupted, without benefit to either defendant or the State. As is the normal practice in this state, the exhibits were sent to the jury room at the time the jurors retired to deliberate. See State v. Fenton, 228 Kan. at 667, 620 P.2d 813, and State v. Poulos and Perez, 230 Kan. 512, 514, 639 P.2d 477 (1982). We find no abuse of discretion and no error.

Defendant next contends that his right to be represented by counsel, to be secure from self-incrimination, and other constitutional and statutory rights were violated to such an extent that he was denied a fair and impartial trial. His argument in support of this claim centers around the procedure followed in requiring him to submit to a mental examination, and the report of the physician who examined him.

During a pretrial conference in March, 1981, the state requested that defendant be given a mental examination pursuant to K.S.A. 22-3219(2), which provides, in applicable part, that:

"A defendant who files a notice of intention to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by whom such examination shall be made.... A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney."

The State asked that ...