State v. Green, 46909

• Decision Date: 07 April 1973
• Docket Number: No. 46909,46909
• Citation: 211 Kan. 887,508 P.2d 883
• Parties: STATE of Kansas, Appellee, v. Robert GREEN, Appellant.
• Court: Kansas Supreme Court

Page 883

508 P.2d 883

211 Kan. 887

STATE of Kansas, Appellee, v. Robert GREEN, Appellant.

No. 46909.

Supreme Court of Kansas.

April 7, 1973.

Rehearing Denied May 22, 1973.

Syllabus by the Court

1. A new trial should not be granted on the ground of newly discovered evidence unless the district court is satisfied the evidence would probably produce a different verdict.

2. Where a new trial is sought on the basis of the recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial judge passing on the motion for a new trial. Any suggestion to the contrary in State v. Keleher, 74 Kan. 631, 87 P. 738, is disapproved.

3. Appellate review of an order denying a new trial is limited to whether such denial was an abuse of the trial court's discretion.

4. Where a witness after trial makes an extrajudicial statement that his trial testimony was false, and later judicially recants such trial testimony, his extrajudicial statement has no probative value on the issue of the credibility of his recanting testimony.

5. In a first degree murder case where a material prosecution witness recanted his trial testimony on a motion for a new trial the record is examined and it is held: The trial court did not abuse its discretion in refusing to give credence to the recanting testimony or in overruling the motion for a new trial.

Lynn R. Johnson, of Schnider, Shamberg & May, Kansas City, argued the cause, and Charles S. Schnider, Kansas City, was with him on the brief for appellant.

Margaret W. Jordan, Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and James A. Wheeler, Former County Atty., were on the brief for appellee.

FOTH, Commissioner:

This case concerns the responsibility of a trial court when the state's prime witness in a murder case recants his trial testimony after a guilty verdict has been returned and sentence has been pronounced.

On December 16, 1970, a jury found Robert E. Green, the defendant-appellant, guilty of first degree murder. After a suicide attempt in the county jail, he was referred to the Larned state hospital for determination of his mental condition at that time. In due course he was returned to the court with a report that he was capable of understanding his position and assisting his counsel in further proceedings in the case. On March 29, 1971, his motion for a new trial was overruled and he was sentenced to life imprisonment.

On May 21, 1971, a supplemental motion for a new trial was filed, based in part on a claim of newly discovered evidence. A hearing was held on this motion on June 29, 1971, at which the recanting testimony in question was presented. The following day the motion was overruled, and this appeal followed. The sole issue before this court is whether the trial court erred in this final ruling, denying the supplemental motion for a new trial.

Because of the narrowness of the issue presented much of the trial evidence is omitted from the record. While a datailed account of the sordid affair on which the conviction is based is unnecessary to our decision, a brief summary of the principal testimony is required to appreciate the ruling complained of.

The recanting witness was one Larry Frames, in the summer of 1970 a young twenty-two-year-old defendant Green were twenty-twonty-year-old defendant Green were friends of long standing. They both lived in Kansas City, and they had been in prison together. Green had struck up a telephone acquaintance with fifteen-year-old Glenda Williams through the 'hot line,' an alleged public service operation of a Kansas City radio station whereby callers of the advertised telephone number were able to converse with each other.

On June 2, 1970, the defendant arranged his first date with Glenda, who was to find a date for Frames. Glenda would that night be murdered by choking, beating and drowning. When Frames and Green arrived in Olathe they determined that Glenda's first choice for Frames' date was too young, even for Frames. Eventually they found a sixteen-year-old named Pat and prevailed on her to go riding with them.

The quartet drove around Johnson county for some time, stopping once at a cemetery to tell ghost stories. The girls from time to time asked in vain to be taken home. The inevitable showdown came on a county road near a bridge over a swollen stream. The girls at first demurred to the demands made upon them and threatened to walk home. Glenda remarked that she had made note of the car's license plate. This prompted a forcible seizure of the girls and their restoration to the car. There the girls were stripped and Frames had intercourse with Pat in the back seat. It is as to the subsequent events that the various narratives differ.

At trial Frames, Pat, and the defendant, all testified that the couples then traded placed and the defendant Green unsuccessfully attempted to have intercourse with Glenda. Frames described Green's efforts in graphic detail, Pat said only that Glenda was crying, while Green merely said that Glenda had repulsed his advances.

Frames went on to tell the jury that he and Green then had a discussion of their future actions, and that Green said they'd have to kill the girls. Frames waited on the bridge while Green went back to the car and told Glenda that Frames wanted to talk to her. Glenda went onto the bridge where Frames choked her and then threw her over the bridge and into the water. When he reported back to Green, Green said he'd better make sure. The two of them, according to Frames, went down to the water where the still struggling Glenda was further choked, beaten with a stick, and eventually drowned by Frames' holding her head under while Green held her arms.

Pat, who for some reason survived the evening, testified that Green's comment before Glenda was thrown from the bridge was that he couldn't let her go-she knew too much. Further, that when Frames returned to the car without Glenda, Green asked if he had finished it, and then got out saying he was 'going to go make sure.' She stayed in the car, and never did see what went on while the two men were down by the stream.

Green's story was that he thought Frames was just going to scare the girls; that he was surprised and shocked when Frames said he had killed Glenda; and that he went down to the stream to see if he could save her, only to find that she was already dead.

In addition to the trial testimony of the three survivors summarized above, the record also reflects that of Frames' married sister. On June 3, 1970, the morning after the murder, her brother called her to come to the house of the defendant's brother. There she found, among others, Frames, Pat, and the defendant. After talking to Frames she went upstairs to talk to the defendant. According to her, the defendant at that time related how Glenda had refused to 'co-operate' with him and had screamed and threatened to call the police. After Green slapped her, Frames threw her off the bridge and reported that he had killed her. Green told her how he went to make sure she was dead, hit her with a stick when he found she was still alive, and eventually held her arms back with her sweater while Frames held her head under water.

At the hearing of June 29, 1971, on the supplemental motion for a new trial, Frames assumed the entire burden of the murder. He reversed his trial testimony in that he now claimed: that it was he, and not Green, who first grabbed the girls and stopped them from walking home; that it was he, and not Green, who first suggested measures to prevent the girls from talking; and that it was he, and not Green, who went back to make sure Glenda was dead.

In his post-trial version Frames also claimed he never told Green he intended to kill Glenda, but only to scare her; that Green was shocked when he heard that Frames had killed her, and wanted to save her; that while Green was positioning the car so its lights would aid the rescue efforts he, Frames, beat and choked her some more in an effort to finish her off; that Green wanted him to stop but he told Green if he interfered he would kill him too; and that despite this threat Green later went into the water to pull Glenda out, only to find that she was dead.

As may be seen, Frames' new testimony constituted a complete about face, absolving Green of responsibility in all the essential elements of the murder. Frames also recanted on two portions of his testimony dealing with events before and after the murder itself. First, he asserted that Green and Glenda were never in the back seat at any time during the evening. At trial, it will be recalled, Frames had given full particulars as to Green's attempted rape of Glenda in the back seat. He now denied this testimony answer by answer. His new testimony contradicted not only his own but that of Pat, who had testified that Glenda was crying while they were back there, and that of Green himself, who had said they were in the back seat for ten to fifteen minutes while he attempted to have intercourse with Glenda. The second peripheral denial involved Green's disposal of one of Glenda's tennis shoes after the survivors got to Kansas City. At trial Frames and Pat had both testified that they saw Green take the shoe out of the house and come back without it. Frames further testified that he had taken the shoe into the house, and told how Green had said he tried to burn it but it was too wet, so he threw it down a sewer. On the motion for new trial Frames testified that this was all a fabrication-the last time he saw the shoe it was still in the car.

Before giving this last testimony of June 29, 1971, Frames had told of the events in question on at least three prior occasions of which the trial court was aware. The first version was in a statement to investigating officials on June 4, 1970, just two days after the murder. In that statement he placed the major share of culpability on Green, while minimizing his own...