State v. Henderson, 45644
| Decision Date | 11 April 1970 |
| Docket Number | No. 45644,45644 |
| Citation | 468 P.2d 136,205 Kan. 231 |
| Parties | , 64 A.L.R.3d 375 STATE of Kansas, Appellee, v. Larry J. HENDERSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The law requires honest, loyal, genuine, and faithful representation of a defendant by his attorney, whether employed or court-appointed, but counsel is never required to stultify himself by tendering evidence or making any statement which he knows to be false as a matter of fact in an attempt to obtain an acquittal at any cost.
2. A lawyer's professional duty requires him to be honest with the court and to conform his conduct to recognized legal ethics in protecting the interests of his client.
3. The announced intention of a client to commit perjury, or any other crime, is not included within the confidences which an attorney is bound to respect.
4. The matter of permitting counsel to withdraw and appointing new counsel is for the trial court, in its sound judicial discretion, to decide. As long as the trial court has a reasonable basis for believing that the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel.
5. Ordinarily a trial court does not err in refusing to admit evidence tending to connect a third person with the offense where the prosecution relies upon direct evidence for conviction.
6. Violation of a court's order for separation of witnesses does not disqualify a witness from testifying in the case, and the court, within its discretion, may admit his testimony.
7. The record is examined in a criminal prosecution wherein the defendant was convicted of first degree robbery (K.S.A. 21-527) and possession of a pistol after conviction of a felony (K.S.A. 21-2611), and it is held: the trial court did not err in (1) refusing to allow court-appointed counsel to withdraw; (2) not allowing the defense to cross-examine two state's witnesses and to call defense witnesses regarding the true identity of the robber; (3) permitting a police officer to remain in the courtroom, and thereafter testify, in violation of the court's order for separation of witnesses; and (4) overruling defendant's motion for new trial.
Frederick L. Haag, Wichita, for appellant.
David P. Calvert, Deputy County Atty., Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., on the brief, for appellee.
This is a direct appeal in a criminal action wherein the defendant, Larry J. Henderson, was convicted by a jury of first degree robbery (K.S.A. 21-527) and possession of a pistol after conviction of a felony (K.S.A. 21-2611). Following denial of defendant's motion for new trial, the district court sentenced him under the habitual criminal act to consecutive sentences of twenty-five and fifteen years, respectively, in the state penitentiary.
The questions presented relate to alleged trial errors defendant contends denied him a fair trial, namely, that the court erred (1) in refusing to allow court-appointed counsel to withdraw; (2) in not allowing the defense to cross-examine two state's witnesses and to call defense witnesses regarding the true identity of the robber; and (3) in allowing a police officer to remain in the courtroom, and thereafter testify, in violation of the court's order for separation of all witnesses.
The charges of which defendant was convicted stemmed from an armed robbery of a Wichita dry cleaning establishment between 3:30 and 5:00 p. m. on March 9, 1968. The robber, armed with a pistol and dressed in dark pants, white shirt, and a blue cardigan sweater, entered the cleaning shop, pointed the gun at two women employees, one of whom was the manager and part owner, and demanded they open the cash register. Upon the robber's threat that he would shoot her, the manager opened the register and the robber removed approximately $150.
As the robber departed, a customer by the name of James Gott entered the shop. On being told that the shop had just been robbed, Mr. Gott rushed outside and saw the robber fleeing in a black automobile. Mr. Gott and his wife gave chase in their automobile until the robber came to a stop, abandoned his car, and continued his flight on foot. At this point Mrs. Gott jumped out of her car and ran to a nearby house to telephone the police; her husband continued the chase and glimpsed the robber running into a house on West Kincaid.
When the police officers arrived, they entered the house into which the robber had disappeared and arrested the defendant. One of the officers, in looking around outside the house, found a sweater in the eaves trough similar in color and material to the one worn by the robber, with a pistol wrapped inside it. Armed with a search warrant, the officers subsequently searched the house and recovered the money from an ice tray in the refrigerator where it had been placed by Joyce Eshom, who lived in the house and to whom defendant had handed the money before he was apprehended.
The defendant was taken to the police station where later that evening the manager of the cleaning shop, her employee, and the Gotts identified him in a lineup as the robber. Following arraignment and waiver of preliminary hearing, defendant was bound over to district court for trial.
On September 16, 1968, the district court appointed Mr. D. Keith Anderson, of Wichita, to represent defendant. During the three days immediately following his appointment, Mr. Anderson had at least five conferences with the defendant concerning the facts and merits of the case, and conducted an investigation in preparation for trial. On Friday, September 20, four days prior to commencement of trial, Anderson again consulted with his client and presented to him the theory of defense consistent with the facts as previously related to him by defendant and the circumstances disclosed by his investigation. Defendant rejected Anderson's theory and insisted the case be tried upon a concocted 'story' which defendant, for the first time, related to Anderson. Believing the 'story' to be totally false, Anderson advised the defendant he would not be a party to perjury. Defendant replied he was willing to run the risk of perjury, and insisted the trial proceed on the basis of his 'new' version.
The following morning, Saturday, September 21, Anderson concluded that because of the serious ethical conflict in which he found himself involved, he could not represent the defendant in the fashion demanded, and so advised David P. Calvert, the deputy county attorney. Since trial was set for Tuesday (the 24th), time in which to formally present a motion to withdraw was insufficient. Thus, Anderson, accompanied by Calvert, personally contacted Judge B. Mack Bryant, before whom the case was scheduled to be tried, and Judge Howard C. Kline, administrative judge of Sedgwick county, whose decision governed the granting of a withdrawal of court-appointed counsel, at their respective residences and made oral application to withdraw. In support of his request Anderson advised Judge Bryant and Judge Kline of defendant's avowed intention to present perjured testimony and of his demand that his attorney assist him in the unethical conduct of the trial, but divulged no confidential attorney-client communications. The request was denied and Anderson was directed to proceed to trial, making whatever statement he considered necessary in the record to protect himself ethically.
On Sunday, Anderson again consulted with defendant, fully advising him of all that had transpired the preceding day. At docket call the following morning (Monday) defendant instructed Anderson to request a jury trial and to proceed with his case on the basis of the 'new' version. He also told Anderson he believed Anderson had betrayed the attorney-client relationship between them by his actions the preceding Saturday. Anderson advised defendant that if he was dissatisfied with him as counsel, he should so announce in court and request appointment of another attorney. According to Anderson, defendant refused, 'indicating that I had prejudiced his rights and he desired that prejudicial error to remain unaltered for purposes of appeal should a conviction result.'
When the case came on for trial Tuesday, September 24, and prior to the impaneling of the jury, Anderson recited the above facts and again asked leave to withdraw and for new counsel to be appointed. Anderson stated to the court defendant then refused to cooperate with him in preparation for trial, and further refused to divulge what his testimony would be. The court denied the request, after which Anderson said he was prepared to represent the defendant to the best of his ability. Anderson at that time also presented a motion in limine, which, after argument, was overruled. A jury was impaneled and sworn. After completion of the state's case, Mr. Anderson again renewed his motion to withdraw, and the following colloquy took place outside the presence of the jury:
To continue reading
Request your trial
-
Nix v. Whiteside
...1976); State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976); Thornton v. United States, 357 A.2d 429 (D.C.1976); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970); McKissick v. United States, 379 F.2d 754 (CA5 1967); In re King, 7 Utah 2d 258, 322 P.2d 1095 (1958); In re Carroll, 244 S......
-
State v. Ferguson, 68131
...give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel (State v. Henderson, 205 Kan. 231, 468 P.2d 136)." 216 Kan. at 394, 532 P.2d 1058. Although the district court had been advised that any other attorney likely would encounter ......
-
State v. Marshall and Brown-Sidorowicz, P. A.
...873 (1976); State v. Champ, 218 Kan. 389, 543 P.2d 893 (1975); State v. Cantrell, 201 Kan. 182, 440 P.2d 580 (1968); State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970). There is no prejudicial error when a statement of a prosecutor is provoked and made in response to previous statements ......
-
State v. Carr
...involving eyewitness identification testimony. E.g., State v. Brown, 230 Kan. 499, 500, 638 P.2d 912 (1982); State v. Henderson, 205 Kan. 231, 239–40, 468 P.2d 136 (1970); State v. Potts, 205 Kan. 42, 44, 468 P.2d 74 (1970). “Hooker failed to show that the two people who allegedly made thre......
-
Representing a Criminal Defendant Who Intends to Commit Perjury at Trial: Caught Between a Rock v. Arkansas and a Hard Place
...perjury). 28. See e.g., People v. Schultheis, 638 P.2d 8, 11 (Colo. 1981); Johnson v. United States, 404 A.2d 162, 164 (D.C. 1979). 29. 205 Kan. 231, 468 P.2d 136 (1970). 30. Id. at 232-33. 31. Id. at 233. 32. Id. at 233-35. 33. Id. at 236. 34. Id. at 234. 35. Id. at 237, citing K.S.A. 60-4......
-
Disciplinary Opinions
...system while navigating the administration of justice. See People v. Schultheis, 638 P.2d 812 (Colo. 1981) citing State v. Henderson, 468 P.2d 136 (Kan. 1970). B. THE LAWYER'S MENTAL The Hearing Board finds that Respondent acted knowingly when she misled Judge Colt about Judge Acker's posit......
-
Legal Malpractice Forum
...5. This is the so-called "future crimes" doctrine which is an exception to the attorney-client privilege. See State v. Henderson, 205 Kan. 231, 237, 468 P.2d 136, 141 (1970). See generally, Matter of Doc., 551 F.2d 899, 901 (2d Cir. 1977). 6. See ABA Comm. on Professional Ethics Opinions, N......