State v. Jolly

• Decision Date: 22 January 1966
• Docket Number: No. 44236,44236
• Citation: 410 P.2d 267,196 Kan. 56
• Parties: The STATE of Kansas, Appellee, v. Harrison JOLLY, Appellant.
• Court: Kansas Supreme Court

Page 267

410 P.2d 267

196 Kan. 56

The STATE of Kansas, Appellee, v. Harrison JOLLY, Appellant.

No. 44236.

Supreme Court of Kansas.

Jan. 22, 1966.

Syllabus by the Court

1. In this jurisdiction, alleged errors in the admission of evidence are not subject to appellate review unless there has been timely and specific objection made thereto.

2. Specifications of error not contained in a motion for new trial and presented to the trial court in oral argument are not subject to consideration on appeal.

3. Inculpatory statements made by an accused contemporaneously with his detention or arrest, under circumstances not coercive, are not rendered inadmissible because he may not have been made aware of his right to remain silent and of his right to counsel.

4. The offense of being an accessory after the fact, as defined in K.S.A. 21-106, is separate and distinct from, and is not included within, the crime of robbery in the first degree, as set forth in K.S.A. 21-527.

5. The record in an appeal from a conviction of first degree robbery is examined, and for the reasons set out in the opinion, it is held: (1) The trial court did not err (a) in the admission of evidence, (b) in its instructions to the jury, (c) in overruling defendant's motion for directed verdict, (d) in overruling defendant's motion for new trial; and (2) the substantial rights of the defendant are not shown to have been prejudiced.

James Yates, Kansas City, argued the cause, and was on the brief for appellant.

William L. Roberts, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Leo J. Moroney, County Atty., were with him on the brief for appellee.

FONTRON, Justice.

The defendant, Harrison Jolly, has appealed from a conviction of robbery in the first degree in violation of G.S.1949 (now K.S.A.) 21-527. For the sake of clarity, the appellant will be referred to throughout this opinion as the defendant or the accused, and the appellee as the state.

The evidence introduced by the state at the trial showed, in brief, that on the day of the robbery, the victim, Russell B. Thomas, obtained two bags of money from a bank and proceeded to drive to his store; on the way, he noticed through his rearview mirror that he was being followed by two colored men in a pink Cadillac car; as he parked off the alley behind his store, Thomas was robbed at gun point of the two bags of money and his car keys by Marvin Fuller, the accused's codefendant; at this point Thomas did not see the accused.

A short time thereafter, the pink Cadillac, owned and driven by the defendant, was spotted by Kansas City police officers and a high-speed chase ensued during which two revolvers, two hats and at least one of the bags of money were thrown from the car. Eventually, the defendant stopped his car and both he and his companion jumped out and ran, despite police commands to halt. Shots followed, and the defendant was hit and wounded while his companion escaped. On being approached by the officers as he lay on the ground, the defendant was asked if he had participated in the robbery and he replied that he had.

The defendant testified, albeit without corroboration, that on the morning of the robbery he first took his friend, Fuller, to see about a job change, after which he commenced to follow the Thomas car because Fuller said he saw a friend in that station wagon and would like to catch him; that when Thomas turned into the driveway, he, the defendant, drove around on the street side, where Fuller asked to be let out and said he would not be gone long; that he let Fuller out and parked around the corner; that Fuller went in the building, returned about ten minutes later and told accused to take him home; on reaching the intersection of Seventh Street and the boulevard he noticed the red light of a police car and Fuller then, for the first time, told defendant that the police were after him and that he had stuck up that place back there; that defendant panicked and told Fuller to leave but instead Fuller threw out the money and some other stuff; that they drove a little further when Fuller said he wanted out and that as the car pulled to the curb, Fuller jumped and ran and the defendant jumped, too, because he didn't know what to do; that he was shot, but that he did not tell the police officer he had participated in the robbery.

After the jury returned a verdict of guilty, the defendant filed a motion for a new trial, which was presented and overruled. The instant appeal was then perfected. The several specifications of error will be discussed seriatim.

It is first contended that the court erred in permitting the police officer to testify that the defendant said he had participated in the holdup. This contention must fail for three reasons.

In the first place, the record shows no objection was made to the testimony. K.S.A. 60-404 provides, in substance, that no verdict shall be set aside, or judgment based thereon be reversed, because of erroneous admission of evidence, unless the record reveals that an objection, specifying the ground thereof, was timely interposed. This statute merely restates the practice which has long existed in this state. (See Advisory Committee Notes, Gard's Kansas Code of Civil Procedure, annotated, p. 367.)

This court has consistently adhered to the rule that alleged errors in the admission of evidence will not be reviewed on appeal in the absence of timely objection made thereto. Fleming v. L. D. Latham & Co., 48 Kan. 773, 30 P. 166; Moyer v. Dolese Brothers Co., 162 Kan. 484, 178 P.2d 270; State v. Gates, 196 Kan. 216, 410 P.2d 264, this day decided. This contemporaneous objection rule serves a legitimate and useful purpose in the orderly administration of justice at both trial and appellate levels. (State v. Freeman, 195 Kan. 561, 408 P.2d 612.)

Secondly, this claim of error was not contained in defendant's motion for new trial nor is it shown to have been presented to the trial court when the motion was argued. For these reasons, also, the question is not subject to review. (State v. Burnett, 189 Kan. 31, 367 P.2d 67; State v. Ryan, 193 Kan. 672, 396 P.2d 363; State v. Gates, supra.) This is true even though the defendant contends that his constitutional rights were violated. (State v. Aeby, 191 Kan. 333, 336, 381 P.2d 356; State v. Malone, 194 Kan. 563, 568, 400 P.2d 712.)

Finally, even if the admissibility of the now challenged testimony was properly before this court, we believe the circumstances shown of record do not bring this case within the ban of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. The colloquy between the police officer, Kilburn, and the accused took place immediately upon Kilburn's arrival at the spot where the defendant lay wounded. The discourse was very brief and appears to have been spontaneous. Kilburn testified as follows:

'I first asked the man if he was hurt badly and he said he thought so. I then asked him if he participated in the holdup at 12th and Minnesota; he said that he did; I then sent my partner after the ambulance for him. I then asked him who the other man was and he didn't answer me.'

When this conversation occurred, the defendant had not been accused of this or any other holdup. Suspicion of having participated in this robbery had not become focused on him. Clearly, the few words spoken, which are non-coercive in character, were not designed to elicit a confession from the defendant, but were simply part of a legitimate and necessary investigation into a recently committed crime of violence.

We believe the recorded facts bring this case within the ambit of United States v. Cone, 2 Cir., 354 F.2d 119, and United States v. Robinson, 2 Cir., 354 F.2d 109, both of which hold admissible inculpatory statements made during brief, casual, non-coercive questioning at the time of or shortly after an arrest.

A somewhat analogous case is People v. Green, 46 Misc.2d 812, 260 N.Y.S.2d 941, where a New York court ruled admissible a brief conversation between a police officer and the accused held in a hallway where the accused and certain stolen property were found. In its opinion, the court cites People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852, to the effect that the exclusionary rule should not be extended to render inadmissible inculpatory statements obtained by law enforcement officers contemporaneously with an arrest even though the person arrested is not made aware of his privilege to remain silent and of his right to a lawyer.

The defendant next argues that it was error to permit the state to refer repeatedly to his refusal to make a statement two days after the incident occurred and while he was confined in the hospital. The record shows but two references to the refusal. Officer Shannon testified that when he first sought to talk with the accused at the hospital, the latter was under sedatives and was in no condition to talk and that two days later he returned, at which time the accused, on being advised of his rights, refused to talk. The court ruled that evidence inadmissible. Later, on cross-examination, the accused was asked about his refusal to make a statement, but the subject was not pursued after an objection was raised. Although the accused states in his brief that the prosecution referred to this subject in final argument, the record does not substantiate that claim.

The defendant has not shown that he was substantially prejudiced by the state's actions in the above regard. Not only is there no evidence of repeated references to the subject, but the court sustained the objections interposed by the defense. The sole authority cited by accused is State v. Peterson, 102 Kan. 900, 171 P....