State v. Hill, 46050

• Decision Date: 03 March 1973
• Docket Number: No. 46050,46050
• Citation: 507 P.2d 342,211 Kan. 287
• Parties: The STATE of Kansas, Appellee, v. Randall Clair HILL, Appellant.
• Court: Kansas Supreme Court

Page 342

507 P.2d 342

211 Kan. 287

The STATE of Kansas, Appellee, v. Randall Clair HILL, Appellant.

No. 46050.

Supreme Court of Kansas.

March 3, 1973.

Syllabus by the Court

1. Rulings of trial court on defense requests for discovery of evidence in state's possession are within the discretion

of the trial court and will not be set aside on appeal absent a showing of abuse of discretion.

2. Prosecuting attorneys are under a positive duty, independent of court order, to disclose to defendant exculpatory evidence.

3. Evidence suppressed by prosecution must be clearly and unquestionably exculpatory and suppression clearly prejudicial to defendant to cause reversal of a conviction.

4. Evidence favorable to defendant sought by discovery motion must be material to either guilt or punishment of accused, and burden is on accused to show that information he seeks is material to preparation of his defense or that state actually suppressed evidence favorable to him.

5. Statements of witnesses in prosecution's possession are not official documents nor part of any court record and are not subject to discovery by defendant before trial.

6. Pretrial statements of witnesses, in possession of the state, are available to the defense only after the witnesses have testified on direct examination at the preliminary hearing or in the trial of the case.

7. Absent a showing of need to perpetuate testimony due to unavailability of witness for trial, defendant has no right to depose witness before trial.

8. Charges in the information in substantially the same language as the statutes violated are sufficient.

9. When charges in the information are clarified by facts brought out at the preliminary hearing there is no need for amplification by a bill of particulars, absent a showing of surprise or prejudice.

10. A plea in abatement filed after arraignment and granting of a continuance to defense is untimely.

11. Defendant cannot claim marital privilege to suppress testimony against him by his putative spouse after satisfactory proof is presented that their marriage is invalid.

12. Allowing witness to claim privilege against self-incrimination in presence of jury is not prejudicial error when witness is not a co-defendant nor charged with any crime and questions asked and refused do not attempt to establish any vital element of charges against defendant or add critical weight to prosecution's case.

13. Allegations in prosecutor's opening statement that certain facts will be proven but which are not proven by anticipated witness are not erroneously left before the jury when supported by testimony of other witnesses.

14. Defendant is entitled on cross-examination to the addresses of the witnesses for the prosecution as a matter of due process.

15. Whether questions which tend to harass, annoy, humiliate or endanger the personal safety of witness go beyond the bounds of proper cross-examination is within the discretion of the court.

16. An accused is not deprived of constitutional rights or due process by a unitary trial wherein a jury determines guilt and in the same proceeding determines the penalty.

17. The record is examined and it is held: The court did not err in (1) denying in part defendant's motion for discovery of documents and things for inspection, copying and photographing; (2) excluding as irrelevant newsmen's testimony; (3) denying defendant's challenge to the array and motion to quash the venire; (4) allowing unitary trial of guilt and punishment by same jury; (5) admitting tape recordings into evidence; (6) admitting photographs of and evidence seized from the car in which the murder occurred and defendant's home; (7) ruling state was not guilty of misconduct in failing to reveal location of death car and photographs; (8) causing witness to claim privilege against self-incrimination in presence of jury; (9) refusing to compel witness to reveal his address on cross-examination; (10) denying defendant's motion for conditional examination, motion to quash the information, motion for bill of particulars, motion in abatement, motion to suppress, motions for mistrial, and motion for in camera inspection of state's files.

A. J. Focht, of Smith, Shay, Farmer & Wetta, Wichita, argued the cause and was on the brief for appellant.

Keith Sanborn, County Atty., argued the cause, and Vern Miller, Atty. Gen., and Stephen M. Joseph, Wichita, were with him on the brief for appellee.

OWSLEY, Justice:

This is an appeal from convictions on charges which arose from criminal acts of defendant, including assault, robbery, kidnapping at gunpoint, and murder, perpetrated April 13, 1969, in Wichita.

Defendant, Randall Clair Hill, and his victim, Robert C. Koon, also known as Bob Evans, arrived at the Red Slipper Club in Wichita about 6:00 p. m. on Sunday, April 13, 1969. Although the private club had not yet opened for business that day, they were admitted by one of the owners and were served drinks. About 8:30 p. m. they were joined by acquaintances Homer Hoffine, Cecil Jordan, and Jacqueline (Jackie) Casto. A short time later they were joined briefly by Sharon Higgins, also known as Sharon Hill, defendant's putative wife, was gave defendant a handgun and left. Hill put the gun under his belt and concealed it by pulling his sweater over it.

An argument developed between Hill and Evans over some money Evans left on the bar. Hill told Evans he was going to take the money and did so. They then began arguing about Evans' relationship with Sharon. At defendant's suggestion, they went outside to fight and settle the matter. The barmaid saw them fighting on the sidewalk in front of the Red Slipper and several witnesses observed a bleeding cut over Evans' eye when they re-entered the club. Prior to going outside with Hill, witnesses observed Evans in possession of a large sum of currency. Evans told Jackie Casto that Hill pistol-whipped him and that he could not leave because Hill had all his money.

Hill, Evans, Jordan, Hoffine, and Casto sat around the same table and Hill continued to accuse Evans of intimacies with Sharon. Hill pulled the gun out of his belt and hit Evans on the head with it. This again cut Evans. Hill told Evans they should leave and he (Hill) should kill him for his relationship with Sharon. Evans expressed reluctance to leave with him, saying Hill would have to kill him then and there if he was going to. Hill stated he would kill Jackie Casto if Evans did not go with him. Hill threw his car keys on the table and gestured with his gun to the effect that Cecil Jordan was to go with them and drive Hill's car. Hill marched Jordan and Evans out of the Red Slipper at gunpoint.

Outside, Hill ordered Evans to put his hands up and told Jordan to get in and drive the 1969 Plymouth Roadrunner. Hill opened the door on the passenger side, forced Evans to get into the front seat, lean forward and put his hands on the instrument panel. Hill then got into the back seat behind Evans, gun in hand, and instructed Jordan to drive to 1234 Alturas in Wichita, Hill's residence.

Sharon and another witness, Patty Whetstone, were in the parking lot of the Red Slipper at this time and observed these events. They immediately drove to a nearby telephone and called the Wichita Police Department, describing the car and occupants and telling the dispatcher they had better catch the car because one of the occupants was drunk and holding a gun on another. Sharon called again later to correct the street location of the car. These conversations were recorded by a police tape recorder.

On the way to Hill's house, where Evans was staying temporarily, Evans asked Hill to give back forty dollars of his money and to let him catch a bus out of town. Hill agreed. They continued to Hill's house to get Evans' suitcase. They parked in the drive and Hill sent Jordan into the house to get Evans' suitcase and to remove his gun from it. When Jordan returned to the car, he had the suitcase in one hand and Evans' gun in the other. Hill grabbed the gun from Jordan and told him to put the suitcase in the trunk of the car. Jordan did so then went back to lock the front door of the house. Returning to the car, Jordan heard a gun discharge inside the car and saw the bullet go through the windshield, lodging in the garage door. Jordan opened the driver's door and asked what happened. Hill said he shot Evans because he admitted to sexual relations with Sharon and they must take his body to the country to bury it. Hill ordered Jordan to drive and warned him to be careful or he would shoot him, too.

They drove to a rural area of Sedgwick County and stopped by an open field. Jordan got out of the car and opened the passenger door. Evans' body fell out sideways, half in and half out of the car. Hill started to get out of the car from the right rear door and stopped directly over the upper half of Evans' body. He put the gun to Evans' head and shot him twice more. Hill got completely out of the car and ordered Jordan to drag Evans' body to the side of the road and cover it with brush.

They then drove back to Wichita to find a shovel with which to bury Evans' body, eventually returning to defendant's house on Alturas Street. Hill broke the right side of the Plymouth's windshield so the bullet hole would be destroyed. They went into the house and changed clothes, Hill attempting to clean the blood off the clothes he had been wearing. Sharon called and Hill told her to come home. Hill and Jordan later left in her red 1967 Ford to retrieve Evans' body. With Hill driving they picked up the body and proceeded to a deserted farm with which Hill was familiar near Wilson, Kansas, and buried the body under a stock tank. They returned to Wichita early in the morning of April 14, 1969.

Later in the morning of April 14, 1969, they returned to the location on 63rd Street South in rural Sedgwick County where they first left Evans' body to recover his jacket. They found...