State v. Hill

• Decision Date: 14 July 1964
• Docket Number: No. 43886,43886
• Parties: STATE of Kansas, Appellee, v. Charles Ray HILL, Appellant.
• Court: Kansas Supreme Court

Page 106

394 P.2d 106

193 Kan. 512

STATE of Kansas, Appellee, v. Charles Ray HILL, Appellant.

No. 43886.

Supreme Court of Kansas.

July 14, 1964.

Syllabus by the Court

1. Photographs which are relevant to matters in issue are admissible in evidence even though they may be shocking or gruesome.

2. The means whereby or the manner in which an extrajudicial identification is made goes to the weight of the evidence rather than to its admissibility.

3. A report compiled by a law enforcement agency in the course of its investigation into a criminal offense is quasi private in character and it was not error for the court to refuse defendant's motions to require the state to produce such report in court for the defendant's inspection and use in cross-examination of a witness whose statement was contained therein.

4. Other matters complained of are examined and held to be without merit.

Richard F. Waters, Junction City, argued the cause, and was on the briefs for the appellant.

Donn J. Everett, County Attorney, Manhattan, argued the cause, and William M. Ferguson, Atty. Gen., Topeka, was with him on the briefs for the appellee.

FONTRON, Justice.

On March 4, 1962, at about 10:00 p. m., Doebele's IGA Foodliner at Manhattan, Kansas, was held up and robbed of approximately $780.00, and a number of Gruen wrist watches. At the time of the robbery, the only employee in the store, Myron D. Nelson, was in the office counting the cash to be placed in the safe. The robber, who wore a red mask, pointed a gun at Nelson and ordered him to lie down on the floor. On complying, Nelson was directed to crawl to the back room of the store and as he neared the back end of the store he was struck on the head with the gun. As a result of the blow, Nelson lost consciousness and remembered nothing until he awoke in the hospital.

Sometime later, the defendant, Charles Ray Hill, then a sergeant stationed at Fort Riley, was identified by Nelson as the robber, under circumstances to be discussed later in this opinion. A charge of first-degree robbery was lodged against the defendant and he was tried and convicted on that charge. After his motion for new trial was overruled, the defendant was sentenced for a term of not less than ten nor more than twenty-one years, and this appeal followed.

The evidence introduced at the trial was both direct and circumstantial in character. Mr. Nelson appeared as a witness and identified the defendant as being the masked man who had robbed the store and slugged him. The circumstantial evidence consisted of certain colored pictures or slides taken of Nelson's face and head shortly after the robbery, and various items of personal property linked in one way or another with the defendant. These will be considered in detail as we proceed.

The defendant first complains of the colored slides on two grounds: First, that they were given to the jury without having been admitted into evidence; and second, that they were irrelevant to the issue involved and, being inflammatory, were essentially prejudicial, particularly in view of the inconclusive nature of the other evidence against him.

The slides given to the jury and taken into the jury room were among the ten slides which collectively were offered by the state as plaintiff's Exhibit No. 6. The trial judge reserved his ruling on the state's offer until he could have an opportunity to view all of the pictures which comprised the exhibit, and the defendant now claims that Exhibit No. 6 was never formally admitted into evidence.

It may well be that the record fails to reflect the court's ruling on the state's offer and the formal admission into evidence of any part of the pictures. The counter abstract, however, contains the affidavits of Honorable Lewis L. McLaughlin, the trial judge, and Mr. Gordon L. Johnson, the court reporter. Judge McLaughlin's affidavit recites, in substance, that colored slides 6 to 15, inclusive, were offered by the county attorney as plaintiff's Exhibit No. 6, at which time he withheld ruling until he could have a chance to look at them at recess; that following the noon recess, he called both counsel into his chambers and ruled that slides 8, 10, 11, 13 and 14 would be admitted, and the balance excluded; and that no objection thereto was made for the record. Mr. Johnson's affidavit recited, in substance, that Judge McLaughlin handed him parts of Exhibit No. 6, as admitted into evidence, and that only slides 8, 10, 11, 13 and 14 were given to the jury for examination. Since the record appears to be wholly silent as to the court's ruling, the omission is one which would seem curable, in the manner here attempted, under the doctrine expressed in State v. Bennell, 137 Kan. 183, 19 P.2d 443.

The two affidavits clearly dispel any notion that the pictures received by the jury had not been admitted in evidence. In fact, defense counsel stated in oral argument before this court, that he would not dispute the contents of the affidavits but that he had no recollection of the slides being admitted and that he relied on the fact that the record does not disclose that they were admitted. However, the record now reveals as it appears before us, that the five pictures shown the jury had been admitted.

The contention that the colored slides themselves were inflammatory, and thus inadmissible, lacks merit. In this case, a crime of violence had been charged, the crime of robbery, of taking property belonging to Joseph Doebele by doing violence to the person of Myron Dale Nelson and by putting Nelson in fear of immediate injury to his person. The pictures clearly were material as tending to establish the violence which was alleged. The rule is well established in this as well as other jurisdictions that exhibits, be they pictures or otherwise, which are relevant and material to the matters in issue, are not rendered inadmissible merely because they may be shocking or gruesome. (State v. King, 111 Kan. 140, 152, 206 P. 883, 22 A.L.R. 1006; State v. Lytle, 177 Kan. 408, 280 P.2d 924; State v. Stubbs, 186 Kan. 266, 349 P.2d 936; State v. Turner, 193 Kan. ----, 392 P.2d 863.)

The foregoing conclusion disposes of any contention of prejudice which might have flowed from improper admission of the pictures. However, defense counsel in contending that special prejudice resulted because of the paucity of evidence, has questioned both by brief and oral argument the admissibility of other articles. We shall briefly note the suspect evidence. The articles were: First, a gun, not identified as the weapon used in the robbery. Although the defendant denied owning the gun, the weapon was found in the trunk of his car, and a fellow soldier, Sergeant Zoretic, testified that defendant gave him the gun and he put it in the car. Second, a red fuzzy or 'knitty' sweater of the same type material as that of the mask worn by the robber, the sweater being found in defendant's car and having been given to defendant, according to Zoretic, as a present. Third, two Gruen wrist watches, one a man's, the other a woman's which were of the type taken in the robbery. The man's watch was found among the defendant's property and the defendant told investigators he had bought it from a Junction City pawnshop the middle of January, while the woman's watch, according to Zoretic's testimony, had been handed Zoretic by defendant on about March 13, 1962, to give to his wife. Another bit of evidence not mentioned by the defendant consisted of three rolls of dimes found in defendant's car. Some rolls of coins were among the loot taken in the robbery.

While it may be true that the probative effect of the exhibits may not have been great, we nonetheless believe that they were admissible as circumstances to be considered by the jury in its consideration of the case. The weight and value of such evidence was for the jury to determine; the jury was entitled to assess its worth. It is also to be observed that while the record reflects that objection was made to the admission of the gun, no objection is shown to have been interposed to the admission of the sweater, the watches, or the rolls of coins. Consequently, whatever objection might have been made to the admission of the latter items must be deemed to have been waived. (Briley v. Nussbaum, 122 Kan. 438, 252 P. 223.)

A further complaint relates to an extrajudicial identification made of the defendant by Nelson at a police line-up. Nelson testified that the men in the line-up had red masks over their faces and were told to say, 'lie down on the end of the floor'; that he identified one of the men as the defendant Hill by his eyes, his eyebrows, stature, height, and build; and that he saw the defendant without the mask after the line-up and he was the same individual as the man in court. Two officers testified there were six men in the line-up and that Nelson identified the defendant. One of the officers testified that all six men were dressed alike in T-shirts and fatigue trousers and that Nelson identified Hill by the eyes and voice, while the other officer testified that all the men except Hill wore fatigue jackets and that Nelson did not mention Hill's voice.

The record does not show that any objection was made to such testimony at the time it was given, and defendant does not now contend that such evidence was itself inadmissible. He does complain, however, about the circumstances under which the extrajudicial identification was made. The bases of his complaints are that Nelson had previously been shown his, the defendant's, picture which influenced Nelson in his identification, and that at the line-up he, the defendant, was dressed differently than the other five men, and thus stood out 'like a sore thumb.' We consider neither of these contentions meritorious. First, it was not conclusively established that Nelson had been shown defendant's picture prior to the line-up. Nelson himself stated on the stand that he did not remember...