State v. Hutchison

• Citation: 615 P.2d 138,228 Kan. 279
• Decision Date: 18 July 1980
• Docket Number: No. 51266,51266
• Parties: STATE of Kansas, Appellee, v. Kenneth HUTCHISON, Appellant.
• Court: United States State Supreme Court of Kansas

Page 138

615 P.2d 138

228 Kan. 279

STATE of Kansas, Appellee, v. Kenneth HUTCHISON, Appellant.

No. 51266.

Supreme Court of Kansas.

July 18, 1980.

Syllabus by the Court

1. Whether the editing of a confession or a statement of a codefendant by excising all references to a defendant can successfully avoid a violation of the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), must be determined on a case by case basis.

2. Some guidelines as to when editing a confession or statement by excision may be acceptable are set forth in the opinion.

3. Under the facts and circumstances more fully set forth in the opinion we hold the admission in evidence of a confession of a codefendant edited by excision was proper where: (1) the two codefendants gave parallel or interlocking confessions which, when edited, contained no reference to the other codefendant, (2) any suggestion of the other codefendant's involvement in the crime charged was removed from the other's confession, (3) the members of the jury were not advised that the statements, which were read into evidence, had been edited; and (4) an instruction to the jury was given limiting consideration of each confession to the confessor.

4. Robberies committed at the same time from different persons are distinct crimes and will support separate charges and convictions.

5. The phrase "law of the case," as applied to a decision of an appellate court in an earlier appeal in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided.

6. The general rule of statutory construction is that a statute will operate prospectively unless its language clearly indicates that the legislature intended that it operate retrospectively.

7. The foregoing rule of statutory construction is modified where the statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties.

8. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.

Craig Shultz of Shultz, Fisher, Monnat & Shultz, Wichita, argued the cause and was on the brief for appellant.

Michael Barbara, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellee.

FROMME, Justice:

Kenneth H. Hutchison was tried and convicted on two counts of aggravated robbery and one count of aggravated burglary. He was acquitted on a murder charge. His codefendant, John Purdy, was tried and convicted in a joint trial on all similar counts including murder. Separate appeals were perfected. We are concerned here with the appeal of Kenneth H. Hutchison. We will consider the four points raised but first the facts.

On September 1, 1977, in the evening, John Purdy, Jack Jeffries, Jessica Finn and the defendant were riding around in Wichita and drinking beer. Jeffries was driving his father's pickup truck. Jessica advised the others of a large sum of cash which was said to be in the home of Robert Humphrey on West Kellogg in Wichita. The four proceeded to the home of Robert Humphrey. Jeffries and Finn remained in the vehicle. The defendant Hutchison cut the screen to open the screen door. Purdy then kicked the door open and entered the house. Purdy was armed with a .44 magnum handgun and Hutchison was armed with a .357 handgun.

Unknown to Purdy and Hutchison, Robert Humphrey and his fiancee, Nadine Schoenhoff, were in the house and were just retiring. It was approaching midnight. Humphrey and Schoenhoff heard the door being forced open. Humphrey obtained a handgun from near his bed and proceeded to crawl into the next room in an attempt to surprise the intruders. He had reached a position beside a desk when Purdy located him. Purdy reached over the desk and shot him in the back. Humphrey reacted by rising to a kneeling position, whereupon Purdy shot him in the chest. Humphrey was killed. Purdy removed Humphrey's wallet from his person.

Hutchison and Purdy next approached Nadine Schoenhoff who had remained in the bedroom and was screaming hysterically. They asked Schoenhoff where the money was and when she denied knowledge of any money Purdy ordered her to lie on the floor and keep her eyes closed. Apparently unsatisfied with her actions, Purdy then kicked her in the face, grabbed her purse, and both he and Hutchison fled to the truck. The four individuals then drove away. Later they divided the cash and Hutchison and Jessica disposed of the wallet and purse.

Two weeks later Hutchison was picked up on a juvenile court probation infraction. This eventually led the police to information implicating John Purdy. Written confessions were obtained from both Hutchison and Purdy. These young men were jointly tried and convicted. Separate appeals followed, and we are presently concerned with the appeal of Hutchison.

It should be noted that in a criminal proceeding a previous voluntary statement by the accused relative to the offense charged is admissible only as against the accused under K.S.A. 60-460(f ) as an exception to the rule which excludes hearsay evidence. State v. Sullivan & Sullivan, 224 Kan. 110, Syl. P 3, 578 P.2d 1108 (1978).

At the joint trial of Purdy and Hutchison the confessions of both codefendants were read in evidence. These confessions form the basis for the first claim of error. Neither of the defendants testified at trial and the trial court, recognizing the limitations on the use of confessions as set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), required the State to delete all references to the other codefendant in the respective confessions before permitting the statements to be read in evidence. So, we are confronted for the first time in Kansas with the question of when, if ever, and under what conditions it may be proper to admit confessions from which references to codefendants have been deleted.

The process of editing a codefendant's confession by excising references to another accused is referred to in some cases as "redaction." (It will be referred to herein as editing or excising.) When the Bruton rule was first declared the United States Supreme Court in footnote No. 10, appearing at 391 U.S. 134, at 88 S.Ct. 1626, recognized the existence of the practice of editing confessions as a viable alternative to holding separate trials for codefendants when one or more of them had given statements or confessions. The footnote did not indicate either approval or disapproval of the practice. In the case of State v. Purdy, 228 Kan. 264, 615 P.2d 131, this day decided, this court approved the admission of Hutchison's confession from which all reference to Purdy had been deleted. At this joint trial both confessions were edited to remove reference to the other codefendant and were admitted with limiting instructions for the jury to consider each confession only as to the guilt or innocence of the confessor.

In Purdy Mr. Justice Herd sets forth an exhaustive review of both federal and state cases to illustrate when the editing of a confession by excision may be acceptable as a viable alternative to separate trials for codefendants if one or more of them have given statements or confessions which are to be used at a joint trial. Without here reviewing all the cases covered in Purdy the following guidelines seem to emerge:

(1) Whether editing a confession or statement by excision will successfully avoid a violation of the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, must be determined on a case by case basis. See cases cited in State v. Purdy, 228 Kan. p. 267, 615 P.2d pp. 134, 135, this day decided.

(2) It is elementary that if the codefendant testifies at the trial the accused's right of confrontation and cross-examination is satisfied and rules excluding the statement of the codefendant do not apply. Cantrell v. State, 206 Kan. 323, 324, 478 P.2d 192 (1970), cert. denied 402 U.S. 924, 91 S.Ct. 1390, 28 L.Ed.2d 663 (1971).

(3) Editing may be proper when any suggestion of the codefendants' involvement in the crime charged can be eliminated from the confession or statement. United States v. Hernandez, 608 F.2d 741, 749 (9th Cir. 1979).

(4) In order for editing to be proper it should not be revealed to the jury that the statement is in excised form. United States v. Danzey, 594 F.2d 905 (2nd Cir.), cert. denied 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979).

(5) Generally, an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant. United States v. Belle, 593 F.2d 487, 493 (3rd Cir. 1979).

(6) An edited statement of a codefendant if clearly inculpatory as to the defendant and vitally important to the prosecution's case against the defendant should not be admitted in evidence. United States v. Knuckles, 581 F.2d 305, 313 (2nd Cir.), cert. denied 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978).

An examination of the confession of John Purdy clearly indicates that Kenneth Hutchison's Sixth Amendment rights of cross-examination and confrontation were not materially affected by permitting the edited version of Purdy's confession to be read to the jury at the joint trial. The participants in the evening's festivities included four persons who were acting in concert. When references were made in Purdy's confession to the names of those who participated, the name of Hutchison could be deleted, leaving the other names without affecting the grammar or the substance of the edited confession. After editing the confession by striking all reference to Hutchison the pronouns "we" and "they" were properly used for they referred to Purdy, Jack Jeffries and ...