State v. Johnson, 48776

• Decision Date: 05 November 1977
• Docket Number: No. 48776,48776
• Citation: 223 Kan. 119,573 P.2d 976
• Parties: STATE of Kansas, Appellee, v. James JOHNSON, Jr., and Phillip Taylor, Appellants.
• Court: Kansas Supreme Court

Page 976

573 P.2d 976

223 Kan. 119

STATE of Kansas, Appellee, v. James JOHNSON, Jr., and Phillip Taylor, Appellants.

No. 48776.

Supreme Court of Kansas.

Nov. 5, 1977.

Syllabus by the Court

1. Evidence disclosing that one charged with crime has asserted his constitutional right to remain silent cannot be used by the state against him as evidence of his guilt.

2. Where a police officer is called by the state to testify on direct examination as to the facts revealed by his investigation, the defendant is entitled to the production of any statement or report, including field notes, made by the officer in the possession of or available to the prosecutor relating to the subject matter of the witness's testimony in accordance with the provisions of K.S.A. 22-3213.

David R. Hills, Kansas City, argued the cause, and was on the brief for appellant, James Johnson, Jr., and Dennis L. Horner, Kansas City, argued the cause, and was on the brief for appellant, Phillip Taylor.

Dennis L. Harris, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice:

This is a direct appeal in a criminal action in which the two defendants, James Johnson, Jr. and Phillip Taylor, were jointly tried and convicted of aggravated robbery (K.S.A. 21-3427). The evidence was undisputed that a Vickers Service Station in Kansas City, Kansas, was robbed by two armed black males on the morning of November 11, 1975. The sole issue in the case was the identity of the defendants as the robbers who committed the offense. At the time the robbery occurred, the only person present on the premises to identify the robbers was John Smith, the operator of the filling station. His identification of the defendants as the robbers was subject to question. It was vigorously contested by the defendants. Each of the defendants had alibi witnesses. They testified that the defendants were at another place at the time the robbery occurred. Following their conviction, Johnson and Taylor appealed to this court claiming trial errors.

Both defendants have raised the same basic points on the appeal. Both question the sufficiency of the evidence to sustain their convictions. On this point the record shows that at the trial the victim, John Smith, identified the defendants as the individuals who robbed him on November 11, 1975. Such testimony was sufficient to permit the case to be submitted to the jury.

The first point raised on the appeal by the defendants is that the trial court improperly permitted the prosecutor repeatedly to get before the jury the fact that the defendants remained silent and refused to make a statement at the time they were arrested. The defendants contend that such conduct by the prosecutor was highly prejudicial for two reasons: (1) It permitted the jury to draw an inference that the defendants were guilty because they relied on their constitutional right of silence, and (2) it enabled the prosecution to use for impeachment purposes the defendants' silence at the time of their arrest and after they had received Miranda warnings, in violation of the due process clause of the Fourteenth Amendment. To bring this issue into proper focus, it is necessary to examine the record to determine what occurred at the trial. The matter of the defendants' silence at the time of arrest was first brought up during the direct examination of Detective Al Sanchez in the state's case in chief. Sanchez testified that on November 11th, the day of the robbery, he had a conversation with defendant Johnson, who was then in custody. He advised Johnson of his rights and asked if Johnson wanted to sign a waiver form and talk to Sanchez about the incident. Johnson stated he did not want to sign the form waiving his rights. The unsigned waiver of rights form was then marked as state's exhibit No. 3 and identified by Sanchez. Following this the prosecutor asked Sanchez if the defendant Johnson had refused to sign the waiver of rights and Sanchez answered in the affirmative. At the close of the state's evidence the prosecutor offered into evidence exhibit No. 3, the unsigned waiver, and the trial court admitted the exhibit in evidence over defendant's objection. At that time the trial judge indicated to counsel that he had a question as to the propriety of admitting the unsigned waiver form into evidence.

After the state rested, the defendant Johnson took the stand in his defense and testified that he told Sanchez he would not sign the waiver of rights or make a statement unless his mother was there and that Sanchez had refused to permit him to call his mother. Johnson then testified that he had told Sanchez where he had been at the time of the robbery. On cross-examination of Johnson the prosecutor directed Johnson's attention to the unsigned waiver form and asked Johnson if this was the form "you did not want to sign." Johnson's counsel objected to any further inquiry into the unsigned waiver because it was clearly for the purpose of prejudicing the jury because of the defendant's refusal to sign the same. The court let the question and answer stand. Immediately thereafter, the prosecutor again called Johnson's attention to the unsigned waiver and asked Johnson if Detective Sanchez had read it to him, to which question Johnson testified that he had.

As to defendant Phillip Taylor, the prosecutor questioned Detective Sanchez in regard to Taylor's refusal to make a statement following Taylor's signing a waiver of rights form. At the request of the prosecutor, Sanchez identified state's exhibit No. 4, the waiver of rights form signed by Taylor. Sanchez then testified as to Taylor's statements after the form was signed as follows:

"Q Did you talk with him afterwards?

"A After he signed that, I asked him if he knew anything of the robbery and he denied any knowledge of the armed robbery.

"Q Did you ask him where he was on the morning of November 11th?

"A No, sir, he would not give any information, he just said he knew nothing of it and that was it. After signing the waiver he was very uncooperative, and he was then taken back to the jail.

"Q The only report or information he gave to you about it was, 'I wasn't there'?

"A He didn't say he wasn't there, he only said that he knew nothing about it." (Emphasis supplied.)

In his final argument the prosecutor made the following observations:

". . . I asked each one of their witnesses, 'Did you ever make a statement? Did you ever put anything in writing? Did you ever tell the police? When was the first time you talked to anybody about this?', and you will recall their answers they talked to Mr. Hills (defense counsel) about a week ago. . . ."

Although the record indicates that the prosecutor was only referring to the defense alibi witnesses, the defendants insist that the reference could be construed as referring to Johnson's and Taylor's silence after their arrest. The prosecutor's use of the word "witnesses" could be interpreted as including the defendants, since each defendant had testified for the defense. It also should be noted that the trial court in its instructions told the jury that "no inference of guilt may be drawn from a defendant's failure to sign a waiver of rights form or give a statement to the police."

On the entire record we are convinced that the repeated reference by the prosecutor in the trial to the fact that defendant Johnson had failed to sign a waiver of rights form and make a statement and that the defendant Taylor, although signing a waiver, was thereafter uncooperative, was prejudicial and requires the granting of a new trial to the defendants. It is reversible error to permit a jury to draw an inference adverse to one accused of crime from his reliance upon his constitutional right to silence. (State v. Bowman, 204 Kan. 234, 461 P.2d 735; State v. Dearman, 198 Kan. 44, 422 P.2d 573.) In Bowman this court declared:

"In State v. Dearman, 198 Kan. 44, 422 P.2d 573, we stated at page 46, 422 P.2d 573, 575, of the opinion:

" 'Thus, when the appellant was placed under arrest by the officers in this case and said he wanted to see a lawyer, he was exercising a federal constitutional right. At this juncture he also had the constitutional right to remain silent.

" '. . . A similar case was before the United States Court of Appeals, First Circuit, in Fagundes v. United States, 340 F.2d 673 (1965). There the court said:

" ' " . . . Thus when Fagundes said when he was arrested and handcuffed that he wanted to see a lawyer he was exercising a federal constitutional right. And certainly at that juncture he had the constitutional right to keep silent . . . His assertion of one constitutional right, his right to counsel, and his reliance upon another constitutional right, his right to remain silent when charged with crime, we think cannot be used against him substantively as an admission of guilt, for to do so would be to render the constitutional rights mere empty formalities devoid of practical substance. . . . " (p. 677.)

" 'We think the foregoing decision is persuasive and hold that evidence disclosing that one charged with crime has asserted his constitutional right to counsel, and his constitutional right to remain silent, cannot be used against him substantively as an admission of guilt.'

"The federal decisions are to the effect that the prosecution may not use at a trial the fact that an individual stood mute, or claimed his privilege against self-incrimination, in the face of an accusation made at police custodial interrogation. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.)" (pp. 235-236, 461 P.2d p. 736.)

In this case the trial court over defendants' objection permitted the state to inject again and again before the jury the fact that the defendant Johnson had refused to sign a waiver of rights form and that the defendant Taylor, although signing such a...