State v. Johnson, 53344

• Decision Date: 03 April 1982
• Docket Number: No. 53344,53344
• Citation: 643 P.2d 146,231 Kan. 151
• Parties: STATE of Kansas, Appellee, v. Stanley JOHNSON, Jr., Appellant.
• Court: Kansas Supreme Court

Page 146

643 P.2d 146

231 Kan. 151

STATE of Kansas, Appellee, v. Stanley JOHNSON, Jr., Appellant.

No. 53344.

Supreme Court of Kansas.

April 3, 1982.

Syllabus by the Court

1. In cases of in-custody interrogation, police officers have the duty to take effective means to notify a person of his right to silence and to assure that the exercise of that right will be scrupulously honored. The critical safeguard required is the person's right to cut off further interrogation elicited by express questioning or its functional equivalent in the form of any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response.

2. A trial court, exercising its discretion in ruling upon a motion to strike the testimony of a witness for failure of the prosecution to produce a statement pursuant to K.S.A. 22-3213(2), should consider why the statement was not produced; if it was lost, the facts and circumstances surrounding the loss; the negligence or fault on the part of the State; the nature, relevance and importance of the statement; the risk of prejudice to the defendant; the essentiality of the testimony to the State; and the other evidence in the case.

3. When two witnesses for the prosecution give cumulative testimony on the same subject to impeach the defendant's testimony, and the testimony of both witnesses is relevant, no error results for the admission of cumulative evidence, if relevant, rests in the judicial discretion of the trial court.

4. In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to testimony of a doctor as to the cause of death even though they may appear gruesome.

5. The marital privilege declared in K.S.A. 60-423(b ) and 60-428 applies to communications transmitted between spouses, and under K.S.A. 60-437 such privilege may be waived if the judge finds that the person claiming the privilege, without coercion, trickery, deception, or fraud practiced against him or her, made disclosure of any part of the matter to a third person.

6. A prosecutor may appeal to the jury with all the power and persuasiveness his learning, skill, and experience enables him to use so long as his comments are confined to the evidence and reasonable inferences drawn therefrom. However, he is an officer of the court and is guilty of gross misconduct if he asserts facts to be true which he knows, or should have known, to be false.

7. In applying the Kansas harmless error rule (K.S.A. 60-2105) in line with the state and federal constitutional requirements, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.

Ronald E. Wurtz, Topeka, argued the cause and was on the brief for appellant.

Randy M. Hendershot, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief for appellee.

FROMME, Justice:

Stanley Johnson, Jr. was convicted by a jury of first degree murder (K.S.A. 21-3401) and of aggravated robbery (K.S.A. 21-3427). He raises six points on appeal.

The victim, William Juett, lived in an upstairs apartment at 1118 Kansas Avenue, Topeka, Kansas. On October 20, 1980, at 5:38 p. m. a citizen stopped a police officer and reported that blood had dripped into a first floor apartment at 1118 Kansas Avenue. Officers entered the Juett apartment and found Juett lying on the floor in a pool of blood. The coroner determined the time of death to be around 9:00 p. m. on October 19, 1980, and that the victim may have lived from one to five hours after the attack. An autopsy disclosed five stab wounds in the chest, a split forehead, and bruises on the face. The hemorrhage of blood from these wounds caused his death.

A police investigation disclosed that the victim kept rather large amounts of currency and cash on hand. The defendant was observed by a neighbor leaving the victim's apartment between 3:00 and 5:00 p. m. on October 19th. He entered a cab with a suitcase. Later he returned to the apartment house and carried out a vacuum cleaner. The cab driver testified he picked up a black male at the victim's address, and the man was carrying a vacuum cleaner, a briefcase, and a bag of pennies. The cab driver picked the defendant's picture from a photographic lineup. He further testified he dropped the man off in the 1600 block of Van Buren. Defendant's residence was at 1628 Van Buren.

A vacuum cleaner and tape recorder were found at defendant's address. The victim's conservator identified the vacuum cleaner as belonging to Juett, and the serial number on the tape recorder matched the serial number on a tape recorder box found in Juett's apartment. Two towels found in Juett's apartment contained human blood compatible with defendant's blood type. When the defendant was questioned, one hand had been injured from a cut.

Defendant's mother lived in an upstairs apartment across the hall from Juett's apartment. A pair of men's shoes was discovered in defendant's mother's apartment. They had traces of human blood on them. A partial latent palm print was found on the top of Juett's kitchen stove. Comparison of prints disclosed it was made by defendant.

Girtha Hollingsworth, defendant's common-law-wife, testified at trial that the defendant brought home the vacuum cleaner and a brief case on October 19th. She testified defendant brought home some money at that time, took the family to dinner, paid various bills, and gave $100.00 to her. Mrs. Hollingsworth's daughter Sarah testified that the defendant borrowed $2.50 from her before leaving the house on Sunday, October 19th. When she next saw the defendant at 10:00 p. m. that evening he showed her $350.00 to $400.00. She further testified that her mother told her the defendant had $929.00. Another daughter Alnita testified that when the defendant returned to the house at 5:00 p. m. he brought the vacuum cleaner and showed her a large amount of money. Defendant gave her the tape recorder.

Defendant steadfastly denied killing Mr. Juett and at trial testified he had cut his hand on a broken aquarium and also injured this hand while cutting up chicken. He testified that he washed Juett's windows in the apartment on Saturday, the 18th. He further testified that on the 19th he visited his mother who lived in the same apartment building. Some time after 3:00 p. m. on the 19th he observed a man leaving Juett's apartment building with blood stains on his shirt and pants. Defendant said he later took out the trash and found the vacuum cleaner and tape recorder while rummaging in the trash. He opened the wound in his hand while looking through the trash so he went to Juett's apartment in search of a band-aid. When no one answered his knock, he entered the unlocked door and found Juett on the floor with towels covering his face and chest. He removed the towels and discovered Mr. Juett was not breathing. He became scared and left. He testified the money he had on Sunday the 19th was his Christmas savings. He decided to use it when the welfare agency would not pay the delinquent gas bill. Additional testimony will be discussed in connection with each point raised by defendant.

Defendant-appellant contends the trial court erred in refusing to suppress statements made by him to the police on October 22nd. This was the second time he was interrogated. He was taken from his home to police headquarters and again advised of his "Miranda rights." He was then asked to tell the officers again of his activities on Sunday, the 19th. Defendant refused saying he had already told them everything and didn't want to go over it again. He was asked if he cared to take a polygraph test and he said he would. However, he asked to call his lawyer before taking it. He was handed a telephone directory and he used the phone but was unable to locate his attorney. He then changed his mind about taking the polygraph test. The request made was to call his attorney in regard to taking the polygraph test. It was not a specific request for the presence of his attorney during further interrogation.

Later that morning defendant was waiting in an outer office in the county courthouse. Lt. Tom Sargent of the police department happened by, apparently by chance and not design. They knew each other and Lt. Sargent struck up a conversation with defendant. The conversation covered a wide range of subjects. During this conversation it was defendant who initiated the discussion as to the Juett death. Defendant was again advised of his rights, waived them, and again told his story to Lt. Sargent.

Defendant relies on Edwards v. Arizona, 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981), but that case is distinguishable in that defendant in the case at bar did not express a desire to deal with police only through counsel, and the trial court's finding that defendant initiated subsequent conversation with Lt. Sargent is supported by the evidence. According to Lt. Sargent, the conversation was relaxed, over cigarettes and coffee. Defendant confessed to no wrongdoing, but made damaging statements which were changed by him at trial. Defendant told of cleaning the windows and mopping the floors in Juett's apartment on the 18th. He further stated he had purchased the vacuum cleaner and tape recorder from an unknown Negro male.

It was these statements made by defendant on the 22nd which the trial court refused to suppress after a Jackson-Denno hearing. Defendant relies on the fact that the questioning continued after he had previously advised the police he did not want to repeat the statements he had made the day before, and he relies on the additional fact that he asked to call his lawyer before taking a...