State v. Howell

• Decision Date: 10 December 1977
• Docket Number: No. 48931,48931
• Citation: 573 P.2d 1003,223 Kan. 282
• Parties: STATE of Kansas, Appellee, v. Richard HOWELL, Appellant.
• Court: Kansas Supreme Court

Page 1003

573 P.2d 1003

223 Kan. 282

STATE of Kansas, Appellee, v. Richard HOWELL, Appellant.

No. 48931.

Supreme Court of Kansas.

Dec. 10, 1977.

Syllabus by the Court

1. The record is examined in an action wherein defendant was convicted of (1) aggravated assault, (2) aggravated burglary, (3) rape, and (4) sodomy, and it is held the trial court did not commit error in (a) refusing to grant a severance of count one from counts two, three and four of the information; (b) refusing to grant separate trials, and (c) finding there was sufficient evidence to support the verdict.

Ernest H. Moulos, Wichita, argued the cause and was on the brief for appellant.

Stuart W. Gribble, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., Stephen M. Joseph, Asst. Dist. Atty., and Bradley Bergman, legal intern, were with him on the brief for appellee.

HOLMES, Justice:

This is a direct appeal by defendant-appellant from convictions, by a jury, of (1) aggravated assault (K.S.A. 21-3410), (2) aggravated burglary (K.S.A. 21-3716), (3) rape (K.S.A. 21-3502), and (4) aggravated sodomy (K.S.A. 21-3506). In the information defendant was charged in count one with aggravated assault " . . . with a deadly weapon, to-wit: a knife, and with the intention to commit the crime of rape and aggravated sodomy . . . " ; in count two with aggravated burglary " . . . with the intent to commit rape and aggravated sodomy . . . " ; in count three with rape; and in count four with aggravated sodomy.

The events leading to count one of the information took place on September 4, 1976, and involved Mrs. S, while the events leading to counts two, three and four took place August 27, 1976, and involved Mrs. P. Defendant's main point on appeal is that the court committed error in not granting a separate trial as to count one from the trial on the other three counts.

On August 27, 1976, Mrs. P and her young son and daughter were living in a southeast area of Sedgwick County. Between 12:00 and 12:30 a. m. Mrs. P was sleeping on the couch in her living room when she heard a knock at the front door. Her children were asleep in their bedrooms. She went to the front door and found a young man standing on the front porch. At trial, she identified this person as the defendant.

The defendant asked Mrs. P for a drink of water. At first she refused but then relented after the defendant argued with her. Mrs. P went to the kitchen, got a glass of water, and returned to the living room where she found the defendant now standing inside the house. The defendant was holding a small paring knife in his hand; it was pointed at Mrs. P. The blade of the knife was two or three inches long and it had a wooden handle. The defendant said, "I want to go into the other part of the house and let's check each room." The defendant followed Mrs. P through each room of the house and then told her to go to her bedroom.

Once they were in the bedroom, the defendant ordered Mrs. P to take her clothes off and, while still holding the knife, had sexual intercourse with Mrs. P. He then forced her to perform oral sodomy. After announcing, "I'll be back at 7:00 tomorrow night," the defendant left the house.

Mrs. P immediately got her children out of bed and drove to her sister's house a few blocks away where her brother-in-law called the sheriff's department. On the way to her sister's house, Mrs. P saw the defendant on a street corner two blocks from her home. It was later determined that defendant lived in the immediate area.

Eight days later, on September 4, 1976, and two blocks from Mrs. P's home, Mrs. S was standing in her front yard when she saw a young man talking to her neighbor. Mrs. S watched the man walk across the street and knock on the doors of two homes. There was no response at those homes. She then saw him walk back across the street and go to the doors of several more houses. Mrs. S entered her house and shortly after there was a knock at her front door. Her ten-year-old son answered the door.

Mrs. S's son came to the bedroom and said there was a young man at the door who had asked to speak with her. She told her son to say she could not come to the door. Her son left the bedroom but returned in a few seconds saying, "Mother, he says that it's an emergency." Mrs. S then went to the front door. The young man was standing in the doorway partially in the house. When he saw Mrs. S he stepped back onto the porch, between the screen door and the inside door. Mrs. S partially closed the inside door and inquired what he wanted, and he then asked if she had a gas can. Mrs. S said she did not and suggested he try across the street. The man then told Mrs. S to look down. When she did, she saw he was holding a paring knife, with a three inch blade and a wooden handle, pointed at her. She immediately slammed the door, called the sheriff's department and reported what had happened. The man was arrested a few minutes later by a sheriff's officer and immediately taken back to Mrs. S's home. She identified the young man as the defendant.

Defendant made timely motions to sever count one from the others and for separate trials but such motions were overruled. He took the stand during trial to present testimony in support of his alibi defense as to counts two, three and four and exercised his right to remain silent as to count one. This course was greatly facilitated by counsel for both parties in that neither counsel asked any questions of the defendant about the events of September 4, 1976. Defendant, therefore, was not required to affirmatively assert his fifth amendment rights in front of the jury.

Defendant contends that when he desired to take the witness stand in support of his alibi defense as to counts two, three and four but desired to assert his right to remain silent as to count one, he was prejudiced when he was forced to defend both cases in one trial.

The dangers inherent in such a situation are set out in Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987, (1964) where the court states 118 U.S.App.D.C. at page 326, 335 F.2d at page 989:

"Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination. But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count. If he testifies on one count, he runs the risk that any adverse effects will influence the jury's consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant's silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent."

The same court has been careful to point out that the accused's election to testify on some but not all of the charges at trial does not automatically require a severance. (Bradley v. United States, 140 U.S.App.D.C. 7, 16, 433 F.2d 1113, 1122 (1969); Blunt v. United States, 131 U.S.App.D.C. 306, 312, 404...