State v. Greer

• Decision Date: 07 December 1968
• Docket Number: No. 45139,45139
• Citation: 202 Kan. 212,447 P.2d 837
• Parties: The STATE of Kansas, Appellee, v. Roy T. GREER, Appellant.
• Court: Kansas Supreme Court

Page 837

447 P.2d 837

202 Kan. 212

The STATE of Kansas, Appellee, v. Roy T. GREER, Appellant.

No. 45139.

Supreme Court of Kansas.

Dec. 7, 1968.

Syllabus by the Court

1. Generally, an accomplice's extra-judicial confession inculpating the accused is inadmissible against the accused.

2. An extrajudicial statement of a third person is admissible against an accused who has admitted its trhth. This rule of evidence is codified in K.S.A. 60-460 (h) as an exception to the hearsay rule.

3. An incriminating statement of a third person which an accused has admitted to be true is admissible in evidence against the accused as his own statement by adoption.

4. No issue arises under the confrontation clause of the state and federal constitutions where it is the accused's adoptive statement which is being used against him rather than a statement dependent upon the credit of some third person not in court.

5. Technical objections to the trial court's instructions raised for the first time upon appeal will not be considered.

6. In an appeal from a conviction of robbery in the first degree, the record is examined and it is held: (1) Appellant's constitutional rights of confrontation were not infringed by the reception in evidence of a tape-recorded confession of an accomplice; (2) error may not be predicated upon technical objections to the trial court's instructions which objections are raised for the first time upon appeal; and (3) the record reveals sufficient competent evidence to sustain appellant's conviction.

Jerry G. Elliott, Wichita, for appellant.

A. J. Focht, Deputy County Atty., for appellee, and Robert Londerholm, Atty. Gen., and Keith Sanborn, County Atty., on the brief.

HARMAN, Commissioner:

Roy T. Greer was convicted by a jury of the offense of robbery in the first degree for which he was sentenced November 16, 1964, under the habitual criminal act. This is a direct appeal from that sentence, as authorized when the case was previously here in an abortive postconviction proceeding (Greer v. State, 199 Kan. 354, 429 P.2d 942).

Appellant and a woman, Bobbie Espinosa, were charged jointly with the ofense. Appellant was tried separately. According to the state's evidence the robbery victim drank beer at a club in Wichita during the early morning hours of July 19, 1964. There he met Bobbie and for an agreed fee arranged to have intercourse with her. He and Bobbie left the club in his truck to go to the country to consummate the bargain. En route, the appellant, driving an automobile, forced the victim's truck to the side of the road, beat him up and took his money.

On July 21 appellant Bobbie were arrested in connection with the offense. Each was separately questioned by investigating officers. Appellant declined to make any statement. Bobbie admitted complicity in the robbery, her oral statement being recorded by tape recording. Later the officers talked with appellant again and had him listen to Bobbie's tape-recorded admission. Appellant acknolwledged the truth of Bobbie's statement and then admitted his participation in the robbery. His confession was likewise tape recorded.

At trial the prosecution offered both tape recordings as part of its case in chief and both were received in evidence and reproduced for the jury's hearing. Appellant made no objection to the receipt of his own tape recording and upon appeal he raises no question as to its admissibility. He did object to receipt of Bobbie's taperecorded statement and this forms the basis for his principal complaints here. Appellant first contends he was thereby deprived of his constitutional right of confrontation with the witnesses against him (Kansas bill of rights, § 10; United States constitution, amendment 6).

Neither of the tape recordings is transcribed in the record. Upon oral argument counsel for both sides stated they had sought to obtain these tapes but were unable to locate them. However, counsel concede both tapes implicated appellant in the robbery.

Generally, an accomplice's extrajudicial confession inculpating the accused is inadmissible against the accused. This rule has usually been expressed in terms of the traditional hearsay rule excluding such testimony (see anno. 4 A.L.R.3d 678, et seq.) rather than in terms of the constitutional confrontation clause guaranteeing the right to meet the witness face to fact, although, of course, the constitutional right would appertain and has been recently applied in varying circumstances (see, for example, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476).

But there is a well recognized...