State v. Guffey

• Decision Date: 11 April 1970
• Docket Number: No. 45565,45565
• Citation: 468 P.2d 254,205 Kan. 9
• Parties: STATE of Kansas, Appellee, v. Perry F. GUFFEY, Appellant.
• Court: Kansas Supreme Court

Page 254

468 P.2d 254

205 Kan. 9

STATE of Kansas, Appellee, v. Perry F. GUFFEY, Appellant.

No. 45565.

Supreme Court of Kansas.

April 11, 1970.

Rehearing Denied May 11, 1970.

Syllabus by the Court

In an appeal from a conviction of robbery in the first degree, the record is examined ant it is held prejudicial error is not shown:

1. In failing to record orientation remarks or instructions given to the venire before the case was called for trial.

2. In limiting the extent and scope of voir dire examination.

3. In directing defendant's opening statement to be made following the submission of the prosecution's evidence.

4. In denying defendant's request for exclusion of prosecution witnesses.

5. In restricting cross-examination of prosecution witnesses.

6. In that defendant's counsel failed to secure physical possession of police officers' investigation notes for use in cross-examination under circumstances related in the opinion.

7. In admitting into evidence certain moneys described in the opinion.

8. In giving an instruction pertaining to the jury's consideration of evidence not presented.

9. In imposing sentence under the Habitual Criminal Act.

Orval L. Fisher, Wichita, for appellant.

James Z. Hernandez, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and Russell E. Grant, Deputy County Atty., were with him on briefs for appellee.

KAUL, Justice.

Defendant, Perry F. Guffey, appeals from a conviction of robbery in the first degree (K.S.A. 21-527). The questions presented concern various rulings and the conduct of the trial court during the course of the trial.

Defendant was charged with the robbery of two Wichita grocery stores, the Red Bud Store No. 9, on January 28, 1968, and the Dillon Store on February 7, 1968, and with two counts of possession of a firearm after previous conviction of a felony. Defendant was convicted of the Dillon robbery and acquitted of the other three charges.

The evidence disclosed that about 7 p. m. on January 28, 1968, two persons approached the courtesy booth of the Red Bud Store where Gary Willcutt, a store employee, was at work. Willcutt asked if he could be of service and the party, later identified as defendant, revealed a small pistol in his hand and stated to Willcutt 'This is a stick-up. Turn around.' Thereafter, defendant had Willcutt open the cash register and defendant's companion entered the courtesy booth, took the money out of the cash register, put it in a paper sack, and defendant and his companion left the store. Willcutt called the police and an investigation of the robbery was immediately commenced.

Around 8:30 p. m. on February 7, 1968, a robbery occurred at the Dillon Store which was perpetrated in much the same manner as in the case of the Red Bud Store robbery. The defendant and his companion approached the courtesy booth where Donald Loibl, a store employee, was on duty. The Dillon courtesy booth adjoins the express lane check out. Sidney Fox and Kathy Monte, store employees, were behind the counter on the express lane when defendant and his companion approached the employees and advised them 'This is a stick-up' or 'This is a hold-up' and ordered them to 'Turn Around.' Fox was then ordered to open the two cash registers adjacent to the express lane; and defendant's companion took the money from both registers, put it in a paper sack which he had in his hand, and the two left the store after directing Fox, Monte and Loibl to face the opposite direction.

During the course of the Dillon robbery Rose Tucker, (now Rose Knola) a customer and also an acquaintance of Kathy Monte, approached the cashier's stand and inquired about some nylon hose which she intended to purchase. Mrs. Knola observed that a robbery was in progress, left the store by way of the front door, and called the police. After taking the money from the cash registers, defendant and his companion left the store.

The day following the Dillon robbery, officers of the Police Department showed the store employees and Mrs. Knola approximately one hundred photographs. Each witness went through the photographs at separate times and places, and each selected the same photograph as representing the defendant, who was described as the taller of the two robbers and the one who held the pistol and gave all the commands.

The following day a line-up was held in the Sedgwick County Sheriff's Office. The line-up was staged in two sections consisting of six persons in each of two 'show-up' lines. In the second show-up line defendant was identified as the man with the pistol by the four witnesses to the Dillon robbery and also by Mr. Willcutt of the Red Bud Store.

Defendant makes no complaint concerning the arrangements for the line-up, but each witness was subjected to exhaustive cross-examination concerning identification.

Defendant was arrested early the morning of February 9 by Sergeant Charles E. Stewart and Detective William Hannon, of the Wichita Police Department. After his arrest, defendant was advised by Stewart as to his rights, including his right to call a lawyer. Stewart testified that defendant answered that he understood those things. Defendant was taken to the station interviewing room where he was again advised concerning his rights by Officer William Hannon. Defendant told Stewart and William Hannon that he would like to talk to them about the charges, but he wanted to talk to Major Floyd Hannon first. Defendant was then taken to Major Hannon's office where defendant when asked why he did it said 'I needed the money.' According to Sergenat Stewart's further testimony defendant said that he had thrown the gun into the river over by McLean Boulevard after the Dillon robbery; and that the gun was only a toy pistol.

During the course of the trial Stewart and William Hannon were examined out of the presence of the jury, as to the voluntariness of defendant's admission; and the testimony of Stewart and Hannon in this regard was later received in evidence, about which defendant makes no complaint on appeal.

While the details are not furnished us, it appears from the record a full preliminary hearing was had at which defendant was represented by his retained counsel and the testimony of the state's witnesses was submitted.

The trial in district court extended over four days; and from the voluminous record on appeal, it is evident the case was thoroughly tried and defendant afforded a vigorous defense by the zealous efforts of his competent and industrious counsel. As we have indicated, the trial ended in a conviction of the Dillon Store robbery and an acquittal of the other three counts.

Defendant's counsel makes six specifications of error. However, in his brief he extends his arguments to include an attack on the trial court's conduct of the trial at almost every stage. We shall consider defendant's contentions as they relate to the chronological progress of the trial.

The first alleged impropriety concerns orientation by the trial court of the entire jury venire prior to the docket call of the case. Defendant suggests that since he requested a complete trial transcript and no record of the court's orientation remarks were included, then it must be assumed the orientation remarks were not recorded by the court reporter.

From our examination of the record we find no mention made of this matter until defendant's motion for a new trial, following completion of the trial. Defendant fails to demonstrate specifically how he was prejudiced, but merely asserts the remarks should have been made a part of the trial record. We are informed that it is the custom generally for judges of the Sedgwick District Court to give orientation remarks to the array of jurors prior to docket calls scheduled for the respective divisions of the court.

Recognizing the desirability of some form of orientation for a new jury panel, the committee in preparing Pattern Instructions For Kansas prescribed seven instructions which might be used in orientation (PIK 1.01 to 1.07, inclusive). Whether these instructions were followed by the court in this case, is, of course, not shown. If the instructions were followed it should have been noted in the record; if the orientation remarks were given extemporaneously by the court it would have been the better practice to make a record. (State v. Earsery, 199 Kan. 208, 428 P.2d 794.)

In any event, if defendant felt aggrieved his remedy was to challenge and move to quash the venire prior to trial; his failure to make any objection at this point precludes any objection after trial or on appeal. (Advance-Rumley Thresher Co. v. Schawo, 126 Kan. 563, 268 P. 738)

Defendant next complains concerning rules of the trial court pertaining to voir dire examination.

The rules referred to deal with the scope of voir dire examination and the conduct and decorum required of counsel in conducting examination on voir dire. A time limitation of thirty minutes is established for each side.

In general the rules proscribe arguing the case, establishing rapport; questioning concerning theories of law, or what verdict might be returned and given consideration. Collective questioning whenever possible is directed and counsel is warned against use of first names or familiarity.

We are unable to pinpoint any specific conflict with general rules of law (47 Am.Jur.2d, Jury, § 195, p. 785) or with our Rules Nos. 117 and 119 (Supreme Court Rules Nos. 117 and 119, 201 Kan. XXXI), pertaining respectively to courtroom decorum and local rules of district courts.

We note the rules referred to are not included in the 'Rules of Court for the District Court of Sedgwick County Kansas' on file with the Clerk of this Court. Our Rule No. 119 and K.S.A. 60-267 authorize, within specified limitations, the judge or judges to make rules for their respective judicial district. Neither the rule nor the statute contemplate nor authorize separate...