State v. Guthrie

• Decision Date: 11 April 1964
• Docket Number: No. 43414,43414
• Parties: STATE of Kansas, Appellee, v. James A. GUTHRIE, Appellant.
• Court: Kansas Supreme Court

Page 95

391 P.2d 95

192 Kan. 659

STATE of Kansas, Appellee, v. James A. GUTHRIE, Appellant.

No. 43414.

Supreme Court of Kansas.

April 11, 1964.

Syllabus by the Court.

1. When the trial court in a criminal action is satisfied from the evidence adduced by the state that is has made every reasonable effort to procure the attendance of a witness, and is unable to do so, the testimony of such witness, given at a previous trial of the accused which resulted in a hung jury, may be introduced at the trial and read to the jury.

2. The requirements of Section 10 of the Bill of Rights of the Constitution of Kansas, providing that the accused shall be allowed to meet the witness face to face, have been complied with where an accused in a criminal action has met the absent witness face to face at a previous trial which resulted in a hung jury.

Ernest McRae, Wichita, for appellant.

Keith Sanborn, County Atty., and William M. Ferguson, Atty. Gen., and Robert Hoffman, Asst. Atty. Gen., on the brief, for appellee.

SCHROEDER, Justice.

This is an appeal by the defendant in a criminal action wherein he was convicted on two counts of first degree robbery and subsequently sentenced to two consecutive forty-two year terms at the Kansas State Penitentiary.

The only question on appeal is whether the trial court erred in permitting the testimony of an officer given at a previous trial to be read in evidence.

The facts concerning the point here for review are not in dispute.

On April 16, 1962, the appellant was tried on the charges against him consisting of two counts of robbery in the first degree. After hearing the evidence the jury deliberated until April 18, 1962, when they were discharged after advising the court they were hopelessly deadlocked, and trial of the matter was reset.

During the trial of April 16th, the state called Detective Lieutenant Charles Prowse, who testified to the oral and written confessions of the appellant given during an interview with the appellant while in a jail at Kingman, Arizona. It was through this officer that certain exhibits and the written confession of the appellant were admitted in evidence.

Following the trial of April 16th a retrial was scheduled for April 23rd, after which it was rescheduled for April 30th. On April 27, 1962, the county attorney served upon counsel for the appellant a motion for a continuance or, in the alternative, a ruling by the trial court as to the admissibility of the transcript testimony of Detective Lieutenant Charles Prowse as an absent witness.

In support of the motion, which had been filed on April 27th, an affidavit was filed by the county attorney setting forth the fact that Lieutenant Prowse was absent from the state and could not be located; it further recited the fact that Lieutenant Prowse testified during the April 16th trial, and that his testimony was material to the prosecution of the case; and that Lieutenant Prowse would be in the city within a period of two or two and one-half weeks.

On April 30, 1962, at the hearing on the motion, counsel for the appellant refused to consent to a continuance or the reading of the testimony of Lieutenant Prowse given at the previous trial. The court set the trial to commence on May 2, 1962, thus permitting the county attorney to bring Alex R. Lindquist, an officer from Phoenix, Arizona, to the state of Kansas as a necessary witness. The court further ruled that it would admit the stenographic notes of the previous trial to be used as the deposition of Lieutenant Prowse in the trial of the matter.

At the trial of the matter on May 2, 1962, the reading of Lieutenant Prowse's testimony was admitted, and at each and every opportunity counsel for the appellant raised objection, thus squarely presenting the issue on appellate review.

After the appellant's arrest in the state of Arizona he made a written confession in his own handwriting, concerning the two offenses with which he is charged, in the presence of Officer Lindquist of the Kingman, Arizona, police department and Officer Prowse associated with the Wichita police department. Both officers signed as witnesses to the written confession.

At the second trial of the appellant on May 2, 1962, Officer Lindquist testified as to the written confession of the appellant. The confession was admitted in evidence without objection by the appellant through Officer Lindquist's testimony. The loaded pistol was taken from beneath the driver's seat by Officer Lindquist from the stolen Texas automobile driven by the appellant at the time of his arrest in the state of Arizona. The appellant admitted to Officer Lindquist that he used the loaded pistol in the robberies in Wichita. Both the loaded pistol and evidence concerning the appellant's admission with respect thereto were admitted in evidence without objection by the appellant.

The victims in the two liquor store robberies in the city of Wichita with which the appellant is charged appeared in person at the trial to testify, and, in the course of their testimony, identified the appellant as the person who robbed them.

It may therefore be said the county attorney had fully established a prima facie case on behalf of the state without the written statement of Officer Prowse.

The question remains whether it was error for the trial court to admit the written testimony of Officer Prowse given at the previous trial.

Preliminary to a discussion of the issue presented, it may be said G.S. 1949, 60-2934, made applicable to criminal cases by G.S.1949, 62-1414, was used by the county attorney in an effort to procure a continuance of the case. He fully complied with its provisions, but the trial court refused to grant a continuance, and the appellant refused to consent that on the trial the facts alleged in the affidavit could be read and treated as the deposition of the absent witness. Under theses circumstances further consideration of the statute is immaterial to the issue presented.

The appellant contends he was denied his constitutional right to be confronted by the witness against him face to face.

Article 10 of the Bill of Rights of the Kansas Constitution provides:

'In all prosecutions, the accused shall be allowed to * * * meet the witness face to face, * * *.'

This point has been before the court on numerous occasions. The question has arisen in many cases where the transcript of a preliminary hearing has been read and introduced at the time of trial.

The following was said in State v. Bonskowski, 180 Kan. 726, 308 P.2d 168:

'In the argument respecting the claim now under consideration no attempt is made to avoid or challenge the long established rules of this jurisdiction (1) that when the State has made every reasonable effort to procure the attendance of a witness, and is unable to do so, the testimony of such witness, given at the preliminary examination, may be introduced at the trial, State v. Chadwell, 94 Kan. 302, 146 P. 420; (2) that the requirements of Section 10 of the Bill of Rights of the Constitution of this State, providing that the accused shall be allowed to meet the witness face to face, have been complied with where a defendant has met the absent witness face to face at his preliminary hearing, State v. Harmon, 70 Kan. 476, 78 P. 805; or (3) that when the trial court is satisfied from the evidence adduced by the State that it has made every reasonable effort to procure the attendance of a witness and is unable to do so, it is not error for the court to admit on the trial of the action the testimony of a witness given at a preliminary examination. State v. Streeter, 173 Kan. 240, 241, 245 P.2d 1177. * * *' (180 Kan. p. 728, 308 P.2d p. 170.)

If the testimony of an absent witness given at a preliminary hearing may be introduced at the trial, a fortiori, the testimony of an absent witness given at a previous trial of the accused which resulted in a hung jury may be introduced at the trial, provided a proper foundation is established for its admission. Here the appellant, through counsel, had full opportunity to cross examine Officer Prowse at the previous trial where his testimony was recorded.

The limitation upon the right of the state to use the testimony of an absent witness given at a former trial is dependent upon the foundation laid for the admission of such testimony. Thus, in State v. Brown, 181 Kan. 375, 312 P.2d 832, where the court was faced with the question of an absent witness, it was said:

'In the instant case it cannot be denied that the witness, Mrs. Ruth M. Brakey, was under oath or that the defendant had a right to cross-examine the witness at the preliminary hearing. What is of greater concern, however, is whether or not the testimony of the witness was available. This is dependent upon the foundation laid for the admission of such testimony at the trial of the defendant.

'It must be made to appear that the witness who gave such testimony at the former hearing cannot by the exercise of reasonable diligence be produced. * * *' (181 Kan. p. 391, 312 P.2d p. 845.)

The interpretation given the question before the court, both with respect to Section 10 of the Bill of Rights and 60-2934, supra, is well summed up in State v. Tyler, 187 Kan. 58, 353 P.2d 801, where State v....