State v. Holloway

• Citation: 219 Kan. 245,547 P.2d 741
• Decision Date: 06 March 1976
• Docket Number: No. 48004,48004
• Parties: STATE of Kansas, Appellee, v. Kenneth L. HOLLOWAY, Appellant.
• Court: Kansas Supreme Court

Page 741

547 P.2d 741

219 Kan. 245

STATE of Kansas, Appellee, v. Kenneth L. HOLLOWAY, Appellant.

No. 48004.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. Where one is charged with the commission of a crime no jeopardy attaches in a preliminary hearing, and the state may refile its complaint after the discharge of the accused resulting from the first preliminary hearing.

2. A preliminary examination is not a trial of a defendant's guilt; it is rather an inquiry whether the defendant should be held for trial. Its principal purpose is a determination of whether a crime has been committed and whether there is probability that the defendant committed the crime. Its main object is to apprise the accused of the nature of the crime or crimes charged against him, and to apprise him partially, at least, of the sort of evidence he will have to combat when he is subjected to formal prosecution in the district court.

3. Where an accused in a criminal action is discharged after a preliminary hearing, the state upon refiling the complaint and at the second preliminary hearing may properly introduce evidence not introduced at the first preliminary hearing.

4. An accused in a criminal case may not successfully challenge the jury panel on any ground which does not involve corruption, serious misconduct or palpable disregard of the law.

5. Although the law requires that a jury panel be truly representative of a cross-section of the community in which a defendant is to be tried, a Negro defendant in a criminal case is not constitutionally entitled to be tried by a jury on which there is a member, or members, of his race, and he is entitled to relief only upon proof presented by him which discloses a purposeful discrimination to exclude members of a class from the jury panel.

6. The contemporaneous objection rule long adhered to in this state requires timely and specific objection to the admission of evidence in order for the question of admissibility to be considered on appeal.

7. The term 'reasonable doubt' is sufficiently clear so that an instruction on reasonable doubt does not have to be given to the jury. However, the giving of an instruction on reasonable doubt does not result in prejudicial error, and this court on appeal will not reverse a conviction merely because a reasonable doubt instruction was given to the jury.

8. Where counsel for the defendant in a criminal case effectively uses the transcript of a preliminary hearing to cross-examine the state's witnesses by showing a discrepancy in their testimony, a requested instruction by counsel for the defendant, that the transcript of the preliminary hearing prepared by the official court reporter is to be given the highest presumption of accuracy, is properly denied by the trial court. The credibility of a witness is a question for the jury, to be weighed and decided after the jury observes the demeanor of the witness at the trial of the accused. An instruction to the jury on the credibility of the witnesses is the proper instruction to be given under these circumstances.

9. At the trial of a defendant in a criminal action evidence used to impeach or rehabilitate a witness affects only the credibility of the witness and may not be considered as substantive evidence.

10. Where the defendant in a criminal action charges the prosecuting attorney with making an improper closing argument at the trial, the record on appeal must set forth statements made by the prosecuting attorney concerning which complaint is made or the situation precludes appellate review.

11. Where the defendant in a criminal action charges that he was unable to assist in his defense at the trial because he was under the influence of the drug methadone, which he alleged for the first time in his motion for a new trial, and there is nothing in the record to establish that during the trial the defendant was under any disability whatever, his uncorroborated charge asserted as a point on appeal is not subject to appellate review.

12. The record on appeal in a criminal action is examined and it is held: The trial court properly overruled the defendant's motion for judgment of acquittal because the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, is sufficient to warrant that a reasonable mind might fairly conclude guilt beyond a reasonable doubt.

Robert D. Overman, Martin, Cooper, Churchill & Friedel, Wichita, argued the cause, and was on the brief for appellant.

Stephen E. Robison, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.

SCHROEDER, Justice:

This is an appeal in a criminal action from a jury verdict which found Kenneth L. Holloway (defendant-appellant) guilty of aggravated robbery. (K.S.A. 21-3427.) Numerous points for reversal are asserted on appeal.

On February 15, 1974, Galen Achten the manager of the Bostonian Shoes Store, 115 East Douglas, Wichita, Kansas, and Roderick McPherson, a friend, were in the store near closing time. At about 4:15 p. m., three black males entered the store and looked at shoes for 45 minutes. At about 5:00 p. m., as McPherson was locking the door, one man, identified as the defendant Holloway, pulled a gun on him. The other two men tied up Mr. Achten and Mr. McPherson. They took $330 and fled.

At the time the trio initiated the robbery, Mr. Achten was talking on the telephone with his girl friend. She overheard the robbery in progress on the telephone and called the police. The Wichita Police Station is only one block south of the Bostonian Shoes Store. Wichita Police Lieutenant Gary Burgat was leaving the station shortly after 5:00 p. m. when he heard the police radio broadcast the robbery. At that time he saw a blue Buick speed by bearing license number SG V 13522, which he recorded on a piece of paper. That license number was issued for a Buick owned by David E. Wilson, codefendant in this action. A short time later the Buick was stopped. Wilson and Holloway were arrested. At that time Holloway had $182 in cash on his person and Wilson had $82 in cash on him. No gun was found in the car nor was the third robber ever arrested.

Within a short time after the robbery, Mr. Achten identified two mug shots, the defendant and David Wilson as the robbers. Mr. McPherson, when handed the two mug shots, also identified the defendant and Wilson as the robbers. Fingerprints taken from the store matched those of Wilson.

A preliminary hearing was held on April 13, 1974. The state presented only the testimony of Gary Achten and Roderick McPherson. After the hearing the appellant and Wilson were released because of lack of positive identification. Following their discharge Holloway and Wilson attempted to get the money taken from them after the arrest. They approached Officer Gary Davis who told them the money would have to be returned by the jail. Mr. Holloway then in the presence of Wilson allegedly made the following remark, 'Man, we have just committed the perfect crime and they won't give us our money back.'

A second preliminary hearing was held on August 2, 1974, where information concerning Wilson's fingerprints, Lieutenant Burgat's observation of the tag number, and the defendant's statement to Officer Davis was introduced for the first time. The testimony at the first preliminary hearing was also admitted in evidence. As a result of the second preliminary hearing the defendants were bound over for trial. A jury was selected, the evidence was presented and the defendants found guilty. On appeal the appellant Holloway raises eight points.

The appellant first contends error was committed at the second preliminary hearing by permitting the introduction of evidence known and available to the state at the time of the first preliminary hearing, but not introduced by the state at the original hearing.

Since no jeopardy attaches in a preliminary hearing, the state may refile its complaint after the discharge of a defendant resulting from the first preliminary hearing. (State v. Bloomer, 197 Kan. 668, 421 P.2d 58, cert. denied, 387 U.S. 911, 87 S.Ct. 1697, 18 L.Ed.2d 631, and State v. Boone, 218 Kan. 482, 543 P.2d 945.)

It is noted the appellant's motion to quash the information did not raise the issue of the sufficiency of the evidence at the second preliminary hearing. That issue is not here for review. (State v. Smith, 215 Kan. 34, 532 P.2d 691.) The issue on appeal is whether the state, after refiling the complaint, may properly introduce evidence not introduced at the first preliminary hearing.

We hold this to be permissible. The state need not present its entire case at a preliminary hearing; all that is required is a showing from the evidence that a felony has been committed and there is probable cause to believe the accused committed the crime. (K.S.A. 22- 2902(3).) In the case of In re Mortimer, 192 Kan. 164, 386 P.2d 261, the court said:

'. . . (A) preliminary examination is not a trial of a defendant's guilt; it is rather an inquiry whether the defendant should be held for trial. Its principal purpose is a determination of whether a crime has been committed and whether there is a probability that the defendant committed the crime. Its main object is to apprise the accused of the nature of the crime or crimes charged against him, and to apprise him partially, at least, of the sort of evidence he will have to combat when he is subjected to formal prosecution in the district court. . . .' (Emphasis added.) (p. 166, 386 P.2d p. 263.)

Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737, dealing with improper suppression of exculpatory evidence by the state at the trial is not applicable in this case.

The appellant next contends he was denied a fair and impartial trial by a jury of his peers because the method of selecting the...