State v. Hall, No. 61955

• Court: United States State Supreme Court of Kansas
• Writing for the Court: SIX
• Citation: 246 Kan. 728,793 P.2d 737
• Decision Date: 31 May 1990
• Docket Number: No. 61955
• Parties: STATE of Kansas, Appellee, v. Gary Lee HALL, Appellant.

Page 737

793 P.2d 737 246 Kan. 728 STATE of Kansas, Appellee,
v.
Gary Lee HALL, Appellant. No. 61955. Supreme Court of Kansas. May 31, 1990.

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Syllabus by the Court

1. Admissibility of evidence of other crimes under K.S.A. 60-455 is to be determined by the trial judge prior to the trial and outside the presence of the jury. In ruling on the admissibility of the proffered evidence, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine that fact is a disputed, material fact; and (3) balance the probative value of the prior crimes evidence against its tendency to prejudice the jury.

2. The timing of any limiting instruction to be given upon the admission of K.S.A. 60-455 testimony is best left to the discretion of the trial court.

3. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may be offered to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove.

4. Where the accused testifies on his or her own behalf, the biographical data will naturally be more extensive than that of an ordinary witness. A defendant is entitled, like any other witness, to let the jury know who he or she is so it may properly fit defendant into the pattern of events brought out at the trial. When the testimony of either the defendant or any other witness for the defense goes beyond those bounds and attempts to characterize the defendant's past life as blemish-free, or

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makes reference to specific prior incidents, defendant foregoes, to that extent, the protection of K.S.A. 60-447(b).

5. Drug offenses are not crimes involving dishonesty and, therefore, cannot be admitted for the purpose of impeaching the credibility of a witness.

6. Felony theft by obtaining or exerting unauthorized control over property, K.S.A. 21-3701(a), and obtaining by threat control over property, K.S.A. 21-3701(c), when considered in the abstract, are felonies inherently dangerous to human life and will sustain a conviction for murder in the first degree under the felony-murder rule.

[246 Kan. 729] 7. In a prosecution for theft, it is not error for the trial court to fail to instruct on unlawful deprivation of property as a lesser included offense where the record presented contains no evidence of any intent of defendant to restore the property to its owner.

8. A trial court's response to a jury's request for supplemental instructions is not an abuse of discretion when both counsel agreed to such response.

9. The allegation that the defendant had ineffective counsel will not be considered for the first time on appeal.

10. An information which omits the word "permanently" in charging theft in violation of K.S.A. 21-3701(a) has omitted an essential element of the crime and is fatally defective. Reversal of a conviction on that offense is required under the case law existing at the time of the trial of the instant case.

11. The frequency with which the Kansas appellate courts are required to consider questions of possible prejudice to defendants arising out of claimed defects in complaints, informations, or indictments reveals the need on the part of some prosecutors to exercise more care in the initial preparation of the charging document.

12. Prospectively, for all informations filed after the date of this opinion, we adopt the following rule: Information defect challenges raised for the first time on appeal shall be reviewed by applying (1) the reasoning of K.S.A. 22-3201(4) complaint/information/indictment amendment cases as expressed in State v. Switzer, 244 Kan. 449, 769 P.2d 645 (1989), State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), and State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988), as that reasoning relates to jurisdiction and the substantial rights of the defendant; (2) the "common-sense" test of State v. Wade, 244 Kan. 136, 766 P.2d 811 (1989), and State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987); and (3) the rationale of United States v. Pheaster, 544 F.2d 353 (9th Cir.1976), cert. denied 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977). Of paramount importance, we shall look to whether the claimed defect in the information has: (a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any way defendant's ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant's substantial rights to a fair trial under the guarantees [246 Kan. 730] of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 10. If a defendant is able to establish a claim under either (a), (b), or (c), the defective information claim, raised for the first time on appeal, will be allowed. All prior cases decided contrary to this rule are overruled.

13. When an information filed in the trial court after the date of this opinion is claimed for the first time on appeal to be defective:

(a) The sufficiency of the information should be determined on the basis of practical rather than technical considerations. Common sense is a better guide than arbitrary and artificial rules.

(b) The information is sufficient, even if an essential averment is faulty in form, if by a fair construction the essential averment may be found within the text. All parts of the pleading must be looked to in determining its sufficiency.

(c) Defects in the institution of the prosecution or in the information, other than lack of jurisdiction or the failure to charge a crime, are waived if not raised by motion prior to trial.

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(d) K.S.A.1989 Supp. 22-3208(3) states that lack of jurisdiction or the failure of the information to charge a crime shall be noticed by the court at any time during the pendency of the proceedings.

(e) After the verdict or finding of guilty or after a plea of guilty or nolo contendere, the proper procedure for a defendant who contends either that the information does not charge a crime or that the court was without jurisdiction of the crime charged is to utilize the statutory remedy extended by the legislature for these two specific situations--a K.S.A. 22-3502 motion for arrest of judgment.

(f) K.S.A. 22-3503 authorizes the trial court to arrest judgment without motion whenever the trial court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained, if filed.

(g) If a defendant fails to challenge the sufficiency of the information or the jurisdiction of the trial court by motion for arrest of judgment pursuant to K.S.A. 22-3502, the issue may be raised in the appellate court for the first time, subject to the rule announced in Syl. p 12 and corresponding parts of this opinion.

(h) The orderly resolution of criminal law issues requires the timely raising of claims relating to the validity of an information. Tardily challenged informations are to be construed liberally in favor of validity. The validity of an information is to be tested by reading the information as a whole. The information is sufficient, first, if it alleges the elements of the offense charged and fairly informs the defendant of the charge and, second, if a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. The elements of the offense may be gleaned from the information as a whole. An information not challenged before verdict or finding of guilty or pursuant to K.S.A. 22-[246 Kan. 731] 3502 by a motion for arrest of judgment will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.

John Shirley, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

B. Kay Huff, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Gary Lee Hall, appellant, was on the brief, pro se.

SIX, Justice:

Gary Lee Hall appeals from his convictions of first-degree murder and two counts of theft.

The issues considered in the context of this criminal appeal are: (1) Was the information defective? (2) Did the trial court err in admitting evidence of Hall's prior crimes and bad character? (3) Did the trial court err in limiting cross-examination of the State's major witness (Hall's ex-wife)? (4) Did the trial court err in failing to instruct the jury on unlawful deprivation of property and in giving supplementary instructions on a question raised during deliberations? (5) Was defendant denied effective assistance of counsel? We have considered the defendant's pro se brief as well as the briefs filed by counsel for defendant and for the State.

We reverse Count II, the theft of cattle, because we find the State's failure to allege that Hall intended permanent deprivation resulted in the omission of an essential element of the crime from the information. We affirm all other issues. We also address in some detail, in the later portion of the opinion, the question of defective information claims and establish a new prospective rule for testing such claims when raised for the first time on appeal.

Facts

On February 4, 1984, Delbert Angleton was assigned to haul a load of cattle to Leoti, Kansas. He was driving a Kenworth tractor and an American Livestock trailer belonging to his employer, Star-Kan Truck Lines. A fellow truck driver encountered Angleton in the early morning hours of February 5, 1984, on Highway 54 approximately

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25 miles west of Wichita. He and [246 Kan. 732] Angleton spoke on the citizens' band (CB) radio. Angleton was going west. The usual route to Leoti was west from Wichita on Highway 54. Angleton did not arrive in Leoti on February 5, as had been anticipated.

Ten or twelve days later, the rig that...