State v. Jackson

• Decision Date: 13 July 1968
• Docket Number: No. 45261,45261
• Citation: 443 P.2d 279,201 Kan. 795
• Parties: STATE of Kansas, Appellee, v. Jerry JACKSON, Appellant.
• Court: Kansas Supreme Court

Page 279

443 P.2d 279

201 Kan. 795

STATE of Kansas, Appellee, v. Jerry JACKSON, Appellant.

No. 45261.

Supreme Court of Kansas.

July 13, 1968.

Rehearing Denied Sept. 9, 1968.

Syllabus by the Court

1. The procedural safeguards securing to the accused the privilege against self incrimination during custodial interrogation do not apply to cross-examination of a defendant who has taken the witness stand in his own defense.

2. When the defendant takes the stand as a witness he takes his integrity and character with him, and he cannot complain because he is subjected to the same inquiries and tests as other witnesses.

3. Where a defendant on trial for robbery in the first degree and forcible rape testified that he was not at the scene of the crime, it is not error for the state to cross-examine him as to why he did not make the statement during or following his arrest, and where he denies having had an opportunity it was not error to show in rebuttal that he was asked to make a statement but refused.

4. A matter about which a defending witness is properly questioned is a proper subject for comment by the prosecuting attorney in his closing argument.

5. It is not error per se for a juror to take notes during the trial and it clearly does not belong to that class of misconduct where a new trial must be peremptorily granted without a showing of prejudice to substantial rights.

6. The question of whether jurors should take notes during the trial should be left to the sound discretion of the trial court.

7. In a prosecution for robbery in the first degree and forcible rape, the record is examined and it is held, (1) there was sufficient evidence to support the verdict of guilty on both charges and (2) it was not error to refuse to grant a new trial because of threats of violence under the circumstances set out in the opinion.

Charles S. Scott, Topeka, argued the cause and was on the briefs, for appellant.

Robert D. Hecht, County Atty., argued the cause and was on the briefs, for appellee.

HATCHER, Commissioner.

This is an appeal from a conviction of robbery in the first degree and forcible rape.

The facts constituting the sordid offenses will be briefly summarized.

On April 27, 1967, a young woman and her male companion were parked in an automobile on 53rd Street approximately 200 yeards east of Topeka Boulevard in Shawnee County, Kansas. A gray Chevrolet automobile drove by the parked car, stopped, and the occupants thereof got out and came back. The male companion was drawn from the parked automobile, struck about the head with a black jack and made to lie in the roadway where he was beaten, kicked and robbed of his wallet and wrist watch. The young woman was forced into the back seat of the car and raped at least three times.

The watch taken from the male companion was a certain brand watch with an identifying burn on the band. Observed by the victims, during the commission of the offenses, were knives and a black jack. Upon a completion of the physical assaults, the headlights of the automobile were kicked out and the wires under the hood pulled loose. The youths then left in their automobile.

The victims of the crime proceeded to a nearby filling station. While there a merchant policeman drove into the service station and radioed a complaint. Soon a deputy sheriff arrived and while the incident was being related and they were preparing to return to the victims' automobile they observed a gray 1958 Chevrolet coming down the highway. The officer followed the vehicle until other officers were able to converge and the automobile was stopped in the vicinity of 17th Street and Kansas Avenue, Topeka, Kansas. The automobile was stopped and one of the occupants was identified by the victim as one who had attacked her. The occupants of the automobile were arrested. Found in the automobile were knives, black jacks, a straight edge razor and the wrist watch belonging to the male companion of the victim of the rape.

When the defendant was booked at the county jail $16.00 was found on him.

The defendant, Jerry Jackson, was tried and convicted of robbery in the first degree and forcible rape. He was tried as aiding and abetting in the forcible rape and not as having actually engaged in the act.

The defendant has appealed raising numerous trial errors.

The appellant took the stand in his own defense and stated that he never left the automobile in which his codefendants were riding and knew nothing about what took place at the victims' automobile. On cross-examination he was asked if the had made such a statement before the trial and he replied that he had not had an opportunity to do so. A deputy sheriff was then called who testified that the appellant had been advised of his rights and requested to give a statement but refused to do so.

The appellant contends that Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, have established a new body of law which prohibits the state from making inquiry of the defendant on cross-examination as to whether he was given an opportunity to make a statement concerning the alleged offense for which he was being tried. The appellant further contends that the Fourteenth Amendment to the Constitution of the United States, which now incorporates the Fifth Amendment, prohibits the state from capitalizing on the accused's election to remain silent while under arrest.

We do not understand Escobedo and Miranda to be subject to such application. The two cases did not deal with the cross-examination of an accused after he had taken the witness stand in his own defense. They dealt with procedural safeguards effective to secure the privilege against self incrimination during custodial interrogation. Specifically they held that before a statement of an accused who is being held for interrogation by a law enforcement officer can be used as evidence he must have been warned, in clear and unequivocal terms, that he has a right to remain silent, that any statements he makes may be used as evidence against him and that he has the right to the presence of an attorney at all times during the interrogation. This so-called constitutional warning has no application where the accused takes the stand to testify in his own defense as the appellant did in this case.

The defendant was warned before the law enforcement officers attempted unsuccessfully to interrogate him.

When a defendant takes the stand as a witness, he takes his integrity and character with him and he cannot complain because he is subjected to the same inquiries and tests as other witnesses. The extent to which he may be cross-examined lies largely in the discretion of the trial court (State v. Wilson, 108 Kan. 433, 195 P. 618) subject to the limitations provided by K.S.A. 60-421. (See, also, State v. Stewart, 179 Kan. 445, 296 P.2d 1071; Unruh v. Kansas Turnpike Authority, 181 Kan. 521, 313 P.2d 286.)

The appellant contends that whether or not he had an opportunity to tell his story before the trial was a collateral issue and should not have been used as the basis for rebuttal impeachment. We cannot agree. The appellant told a story which kept him away from the immediate scene of the crime. If the story was believed by the jury an acquittal would necessarily result.

The state had the right to...