State v. Humphrey

• Decision Date: 14 June 1975
• Docket Number: No. 47649,47649
• Citation: 217 Kan. 352,537 P.2d 155
• Parties: STATE of Kansas, Appellee, v. Roy HUMPHREY, Appellant.
• Court: Kansas Supreme Court

Page 155

537 P.2d 155

217 Kan. 352

STATE of Kansas, Appellee, v. Roy HUMPHREY, Appellant.

No. 47649.

Supreme Court of Kansas.

June 14, 1975.

Syllabus by the Court

1. The discovery provisions under the criminal code should be liberally construed and the scope of discovery should be as full and complete as is reasonably possible. under the circumstances.

2. K.S.A. 22-3213, which provides that after a witness called by the state has testified the court shall order the prosecution to produce any statement of the witness in the possession of the prosecution, should be construed so as to require the state to provide to the defense such a statement which is in the possession of the law enforcement agencies including the police, the county attorney, or the attorney general of the state of Kansas.

3. K.S.A. 22-3212 places in the trial court a broad discretion to require the prosecuting attorney to disclose to the defendant documents and other tangible objects which are or have been within the possession or control of the prosecution. In order to obtain such discovery the defendant has the burden of showing the materiality of the information and that the request is reasonable.

4. Under the factual circumstances of this case where the state's sole witness was an undercover agent for the attorney general, the credibility of the witness presented a material issue of substantial proportion with respect to the preparation of a defense on behalf of the defendant. In the absence of some good reason, it was an abuse of discretion for the trial judge to refuse to order the prosecution to produce information pertaining to the witness's prior convictions for crimes involving dishonesty or false statement which would have been admissible under K.S.A. 60-421 to impair the witness's credibility.

5. In a criminal action the defendant has not only the right to compulsory process for obtaining witnesses to testify in his behalf but also the right, either personally or by attorney, to ascertain what their testimony will be.

6. Under K.S.A. 60-407 in the absence of a statutory privilege a witness must appear in response to a subpoena and make available any subpoenaed information to the defendant or his counsel.

7. K.S.A.1972 Supp. 60-427 which provides for the physician-patient privilege requires that a claim of privilege be made by the patient or a person authorized to claim the privilege for him. It cannot be claimed by the physician for the benefit of the patient.

8. K.S.A.1972 Supp. 60-427 limits the applicability of the physician-patient privilege to civil actions and misdemeanors. It does not exist in felony cases.

9. Under K.S.A. 60-422(d) evidence of specific instances of misconduct of a witness relevant only as tending to prove a trait of his character is inadmissible where offered for the sole purpose of attacking the credibility of the witness.

10. The record is examined in a criminal action in which the defendant was charged with the illegal sale of narcotics and it is held that the trial court erred (1) in refusing to require the state to provide the defense with a copy of any statement or report of a witness in the possession of the attorney general, (2) in refusing to require the county attorney to provide the defense with information pertaining to prior convictions of the state's sole witness for crimes involving dishonesty or false statement, and (3) in quashing a subpoena duces tecum in which the defense sought to obtain the witness's medical records. It is further held that the trial court did not err in excluding evidence of specific instances of a witness's misconduct or in refusing to instruct the jury on the defense of entrapment or on a lesser included offense.

Ross J. Wichman, of Ryan & Kent, Chartered, Hays, argued the cause, and Bruce W. Kent, Norton, was with him on the brief for appellant.

Simon Roth, Jr., County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Don C. Staab, Asst. County Atty. were with hom on the brief for appellee.

PRAGER, Justice.

This is a direct appeal in a criminal action in which the defendant was convicted of one count of illegal sale of amphetamines and two counts charging unlawful sale of marijuana. The defendant was tried by a jury in the district court of Ellis county and has appealed to this court claiming trial errors.

With the exception of the testimony of a Kansas Bureau of Investigation chemist who identified the drugs, the prosecution was based soledly upon the testimony of John Eckhart, a special agent of the Kansas Attorney General. In September of 1973 in the course of his employment as a special agent Eckhart was assigned to the Hays, Kansas, area for the purpose of gathering evidence and assisting in the control of alleged illegal trafficking in drugs. Eckhart, as special agent, signed the complaint which initiated the prosecution against the defendant-appellant, Roy Humphrey. At the preliminary hearing and again at the trial Eckhart testified that he first met the defendant Humphrey in a bar in Hays on September 1, 1973. Eckhart stated that later that month the two met at a party and subsequently went to defendant's home where they smoked some marijuana and Eckhart purchased some amphetamine tablets and marijuana. Eckhart further testified that on October 2, 1973, the two again met at a bar in Hays and, at the request of Eckhart, defendant again sold him some marijuana. Eckhart further declared that the substances purchased on each occasion were tested at the KBI laboratory and were identified as amphetamines and marijuana. At the trial in district court the defendant did not testify in his own behalf. His entire defense was based upon on attack upon the credibility of Eckhart. This was done through cross-examination of Eckhart and the testimony of Eckhart's former wife and three other acquaintances.

From the moment the case was filed counsel for the defendant attempted by appropriate motions to obtain information about Eckhart which might raise questions about Eckhart's credibility. Counsel's attempts to obtain such information were futile. Many of the defendant's points of claimed error on this appeal are based upon the restrictions on discovery of information imposed by the trial court. In all there are 34 trial errors claimed on the appeal. Many of them are repetitious and go to the same basic issues. Essentially the errors claimed are in three categories:

(1) Restrictions imposed by the court on the discovery of information about John Eckhart;

(2) limitations on the introduction of evidence affecting the credibility of John Eckhart; and

(3) claimed errors in the court's instructions.

We will first consider whether or not the trial court denied the defendant a fair trial by its pretrial orders limiting the defendant in his discovery of information adversely affecting Eckhart's credibility.

Following the filing of the complaint signed by Eckhart, the matter was set for a preliminary hearing. Eckhart took the stand and testified regarding the purchase of amphetamines and marijuana from the defendant Humphrey. At the conclusion of the preliminary hearing on November 1, 1973, the defendant was bound over for trial in the district court. On November 8, 1973, the county attorney filed an information. It appearing that the defendant was indigent, counsel was appointed to represent him in the proceeding. On February 28, 1974, counsel moved the court for an order pursuant to K.S.A.1973 Supp. 22-3213 for the production and delivery to defendant of all written statements, records and information regarding the background, conduct or testimony of John S. Eckhart, the witness for the prosecution at the preliminary hearing. A hearing on this motion was held on March 7, 1974. The court stated that it had a standing order which required the county attorney to make available to the defendant all records pertaining to the investigation and all witnesses' statements contained in the county attorney's file. Counsel for the defendant specifically requested any written statements or reports made by John Eckhart to the attorney general as well as to the county attorney. The trial court overruled the defendant's motion and refused to compel the county attorney to obtain statements and reports made by Eckhart which might be under the control of the Kansas attorney general. The defendant contends on this appeal that the trial court's ruling was in error and that in view of the fact that Eckhart was the sole and only witness relied upon by the state to prove the sale, it was crucial that defendant's counsel have available to him any prior statements or reports made by Eckhart in the course of his employment by the attorney general.

The defendant relies upon K.S.A.1973 Supp. 22-3213 which provides in paragraph (2):

'. . . After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement . . . of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified . . .' (Emphasis supplied.)

The scope of 22-3213 was recently considered by this court in State v. Stafford, 213 Kan. 152, 515 P.2d 769. In Stafford we held that where the government chooses to rely on a witness for proof of the essentials of a criminal charge it cannot insulate him from thorough cross-examination by any claim of governmental privilege or sovereign right to secrecy. We further held that a police officer called by the state to testify on direct examination as to facts revealed by his investigation of an alleged crime is a witness within the meaning of 22-3213(2) and the defendant is entitled to the production of any statement or report made by the officer in the possession of the prosecution relating to the subject matter of the witness' testimony. We concluded that the refusal of the magistrate and the trial court to...