State v. Hooks

• Decision Date: 09 November 1968
• Docket Number: No. 45121,45121
• Citation: 202 Kan. 68,446 P.2d 770
• Parties: STATE of Kansas, Appellee, v. Roy William HOOKS, Appellant.
• Court: Kansas Supreme Court

Page 770

446 P.2d 770

202 Kan. 68

STATE of Kansas, Appellee, v. Roy William HOOKS, Appellant.

No. 45121.

Supreme Court of Kansas.

Nov. 9, 1968.

Syllabus by the Court

1. The Sixth Amendment to the Constitution of the United States and § 10 of the Bill of Rights of the Constitution of the State of Kansas guarantee to the accused in a criminal prosecution the right to be confronted with the witnesses against him.

2. In a criminal prosecution where the state took the deposition of a witness, and in its case in chief introduced the deposition into evidence over the defendant's objection, it is held that under the facts and circumstances, the defendant did not waive his constitutional right of confrontation, and the deposition was erroneously admitted into evidence.

Joseph Anderson, Mission, for appellant.

James A. Wheeler and Bill E. Haynes, Asst. County Attys., and Robert C. Londerholm, Atty. Gen., and James W. Bouska, County Atty., on the brief, for appellee.

O'CONNOR, Justice.

Roy William Hooks has appealed from his conviction by a jury of the offense of grand larceny.

The controlling question for our consideration deals with an accused's constitutional right to be confronted with witnesses against him.

Hooks was charged in an amended information with stealing approximately $95 from a cash register on or about December 29, 1965, in the Ranch Mart Liquor Store in Johnson county, said money being the property of C. R. Murray. Evidence was introduced at trial that on the evening of December 29, 'a colored chap,' identified as the defendant, entered the store at approximately 9:00 p. m. and ordered a half pint of liquor from the clerk, C. R. Murray. When Murray rang up the sale, thereby opening the drawer of the cash register, the customer put some change on the counter and some of it fell to the floor. Murray retrieved the money from the floor, gave the purchaser his change and closed the drawer. After the customer departed, Murray became suspicious, opened the cash register and discovered the $20 bill section empty. A check of the register disclosed a shortage of $95.25.

As part of the state's case in chief, the deposition of Mrs. Eula Gregory, residing in Tulsa, Oklahoma, was read into evidence. Mrs. Gregory related the details of a similar, attempted 'till-tapping' incident at the Funsville Toy Store located in the Ranch Mart Shopping Center in Johnson county on December 8, 1965, where she was working as a clerk. A purported photograph of the defendant was indentified by Mrs. Gregory as being the picture of one of two colored men who were in the toy store, the defendant being the one who attempted to reach into an open cash register drawer after the other man had 'dropped' some change on the floor.

Mrs. Gregory's deposition had been taken by an assistant county attorney approximately one week prior to trial for the reason that the witness was about to undergo throat surgery and would be unable to appear in person. Although the defendant himself was not present at the taking of the deposition, defendant's retained counsel was present and cross-examined the witness extensively. The deposition and photograph were admitted into evidence, over objection, for the limited purpose of 'lack of mistake' and 'to show method of opertation.' Counsel's numerous objections to the deposition, although grounded principally on the irrelevancy and prejudicial effect of the alleged unrelated incident about which the witness testfied, leave no doubt that he persistently resisted the admission of the deposition, and that his failure to object on the basis of the defendant's being denied his right to be confronted with the witness was, at most, inadvertent. (See Patterson v. Brown, 393 F.2d 733 (10th Cir. 1968).) From counsel's oral argument, and our search of the record, we are compelled to conclude that there is a total absence of any showing that the contemporaneous objection rule was deliberately bypassed as a part of defense strategy, or that the defendant's constitutional right of confrontation was intentionally and knowingly waived. (Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed 1461, 146 A.L.R. 357; cf., Mize v. Crouse, 399 F.2d 593 (10th Cir. 1968); Nelson v. People of State of California, 346 F.2d 73 (9th Cir. 1965).)

The Sixth Amendment to the Constitution of the United States provides that 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.' In Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, the Supreme Court held this right is a fundamental right and is made obligatory on the states by the Fourteenth Amendment.

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