State v. Gross, 48234

• Decision Date: 11 December 1976
• Docket Number: No. 48234,48234
• Citation: 221 Kan. 98,558 P.2d 665
• Parties: STATE of Kansas, Appellee, v. Jerome A. GROSS, Appellant.
• Court: Kansas Supreme Court

Page 665

558 P.2d 665

221 Kan. 98

STATE of Kansas, Appellee, v. Jerome A. GROSS, Appellant.

No. 48234.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. It is fundamental that a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action.

2. A mere allegation of a conflict of interest of counsel is not sufficient to show a denial of an accused's constitutional rights to the effective assistance of counsel.

3. An attorney has an ethical duty to fully inform a client of facts underlying a possible conflict of interest.

4. To constitute a denial of an accused's constitutional rights it must clearly appeal that the representation afforded accused by his counsel was wholly ineffective and inadequate.

Ray Hodge, of Hodge, Wood & Wilson, Wichita (court-appointed), argued the cause and was on the brief for the appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist Atty., Stephen E. Robison, Asst. Dost. Atty., and Gary Blanton, Legal Intern, were on the brief for the appellee.

KAUL, Justice:

Defendant-appellant, Jerome A. Gross, appeals from convictions by a jury of burglary (K.S.A. 21-3715) and misdemeanor theft (K.S.A. 21-3701(a)). The charges stemmed from the burglary of an automobile parked on a street in southeast Wichita.

The evidence at trial disclosed that on March 18, 1975, Danny Lloyd and Everett Miller (also referred to as Eddie Miller), met at defendant's house at approximately 10 p. m., accompanied by two girls. The group went to a bar in south Wichita to drink beer. After playing pool and drinking 'quite a bit of beer,' they returned to defendant's house where they discussed the subject of stealing.

Witnesses for the state testified 'Everybody wanted to go out stealing,' including the defendant. Defendant procured some screwdrivers and the three men left the defendant's house in Miller's pickup truck and drove to the area of the Rainbo Bakery on South Minnesota Street where the truck was parked. Thereafter, all three began breaking into automobiles parked in the vicinity. A police car arrived on the scene and Danny Lloyd was apprehended-Miller and defendant eluded the police. The police investigation revealed that a 1971 Chevrolet Nova, owned by Kenneth L. Powell and parked in front of his residence, had been burglarized and two stereo speakers removed. The speakers were found by the police in the Miller pickup truck which was parked nearby. Other stolen property was also discovered in the truck.

Everett Miller, a juvenile, admitted stealing a bicycle and putting it in the truck. He was on probation for this offense at the time of defendant's trial. Danny Lloyd, also a juvenile, admitted taking a radio out of an automobile and also stealing a bicycle and was on probation for these offenses at the time of defendant's trial.

On March 20, 1975, defendant was arrested and taken to the police station. After being informed of his Miranda rights defendant gave a statement to Detective Moore. Moore testified that defendant admitted participating in the incident and that he had entered a small automobile and removed some stereo speakers. Defendant took the witness stand at trial, admitted being in the area when the crimes were committed, and that Lloyd and Miller attempted to get into some of the parked automobiles. He denied having a conversation about stealing or participating in any of the criminal activities. He testified that he did not recall telling Detective Moore about the taking of the stereo speakers and stated, 'Detective Moore could be mistaken about that.'

Defendant raises two points on appeal. He first contends the trial court erred in failing to instruct the jury on voluntary intoxication (K.S.A. 21-3208(2)), even though no instruction was requested at trial. Defendant's contention is without merit. The record discloses that during direct examination of Detective Moore, the prosecution, anticipating a defense of intoxication, sought to elicit evidence of other crimes committed by defendant. The state's position was that such evidence was admissible under K.S.A. 60-455 for the limited purpose of proving the specific intent required for proof of the crimes charged against defendant. Defendant's trial counsel lodged an objection against the evidence of other crimes in these words:

'. . . It's not the Defendant's intent to introduce that argument into it's defense regarding intent-not being his intent due to intoxication to break into any cars. That will not form any part of Defense's case. . . .'

The trial court sustained defendant's objection and no evidence of prior offenses was introduced in this connection. The record further discloses that during a conference on instructions the court stated:

'The Court did have one on intoxication, number 11, which I am taking out by agreement. . . .'

The court announced that the intoxication instruction would be deleted and this ruling was not objected to. Under this state of the record, it is clear that deletion of the instruction was invited by defendant as part of his trial strategy and cannot form the basis of a valid complaint on appeal. Assuming, arguendo, failure to instruct on intoxication was error, defendant cannot now be heard to complain. This court has stated many times that a litigant who invites and leads a trial court into error will not be heard on appeal to complain of that action. (State v. Carter, 220 Kan. 16, 551 P.2d 821, and cases cited therein.)

Moreover, it appears doubtful whether an intoxication instruction was warranted under the evidence. While Miller, Lloyd and defendant all testified that considerable beer had been consumed, the defendant, nevertheless, testified:

'. . . I knew what I was doing that evening and if I had stolen somethin(g) I would remember it. I am sure that I didn't steal anything. I'm sure that I did not break into a car.'

Everett Miller also testified:

'Jerome did not have nearly as much to drink as did Danny Lloyd. Jerome was not at all that intoxicated.'

We find no merit in defe...