State v. Jones

• Decision Date: 09 April 1977
• Docket Number: No. 48238,48238
• Parties: STATE of Kansas, Appellee, v. Thaddeus JONES, Appellant.
• Court: Kansas Supreme Court

Page 1021

563 P.2d 1021

222 Kan. 56

STATE of Kansas, Appellee, v. Thaddeus JONES, Appellant.

No. 48238.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. The right to request a separate trial is a right which may be waived.

2. When two or more defendants are jointly charged with a crime the granting of a separate trial for any one defendant lies within the sound discretion of the trial court.

3. It is the obligation of the appellant to designate a record sufficient to present his points to this court and to establish error.

4. On a proper showing of need, an indigent defendant in a criminal proceeding is entitled to have a transcript of portions of previous trial proceedings prepared at state expense, subject to a determination by the trial court that such transcript is necessary for the indigent to present his defense adequately.

5. In determining whether an indigent defendant in a criminal proceeding is entitled to a transcript of a prior proceeding prepared at the state's expense, the court may consider the availability of alternative devices that would fulfill the same functions as a transcript.

6. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence.

7. Voluntary and spontaneous statements of an accused, and not the result of an interrogation, are admissible.

8. The fact a juror takes notes during trial does not create error per se; a defendant must show that there has been prejudice of his substantial rights.

9. An accused's right of cross-examination, secured by the confrontation clause of the Sixth Amendment, is violated where a codefendant does not testify and an extrajudicial statement implicating both defendants is admitted into evidence.

10. The failure to make an objection contemporaneous with the introduction of erroneous evidence precludes this court from reviewing the error even when it infringes upon defendant's constitutional rights.

11. A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion. (Following State v. Gustin, 212 Kan. 475, Syl. 3, 510 P.2d 1290.)

12. The granting of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court, and such motion is not ordinarily granted unless the trial court is satisfied that such new evidence would produce a different verdict. The credibility of the evidence offered in support of the motion is for the trial court's determination.

Michael B. Roach, of Boyer, Donaldson & Stewart, Wichita, argued the cause and was on the brief for appellant.

Stephen M. Joesph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellee.

OWSLEY, Justice.

This is a direct appeal from jury convictions for two counts of aggravated robbery (K.S.A. 21-3427), and one count of unlawful use of a credit card (K.S.A. 21-3729). Defendant Thaddeus Jones has acquiesced in the conviction for unlawful use of a credit card and has limited his appeal to the convictions for aggravated robbery.

On January 27, 1975, two black males entered the LaSheek Hair Fashions beauty salon in Wichita, Kansas. Armed with a knife, one of the men approached the owner of the business, Faye L. Frank, and demanded money. They took a bank bag containing checks and twenty-seven dollars in cash, plus Mrs. Frank's billfold containing between fifteen and twenty dollars, her checkbook and several credit cards. A patron of the salon was also robbed of a billfold containing five or six dollars and several credit cards.

The next day Jones and James Miller entered Michael's Mens Wear store in Wichita. They told a salesman they needed some clothing and tried on several items. Eventually several items were selected. A salesman prepared a sales slip for $184.79. Miller presented a Master Charge card for payment. It was one taken in the beauty shop robbery the previous day. Miller said the card was issued to his uncle. As was customary with large credit purchases the salesman telephoned the Master Charge office for verification. Master Charge informed him the card was stolen and called police. Before police arrived at the store, Jones walked out. When police arrived and learned what had transpired they arrested Miller and radioed other officers to pick up Jones. He was apprehended a few minutes later and brought back to the store. Jones denied having been in the store or knowing Miller. Further, he denied any knowledge of the stolen credit card. Jones and Miller were informed of their Miranda rights en route to the police station.

On January 29, 1975, Jones was placed in a line-up and the two victims identified him as one of the robbers. Police subsequently determined that his accomplice was not James Miller. Later that day charges were filed against Jones and Dennis Shaw.

I. Severance of Defendants

As his first claim of error defendant Jones states he should have been given a trial separate from codefendant Shaw.

Defendant and Shaw were charged jointly with the two aggravated robberies. Defendant faced the additional count of unlawful use of a credit card. Before trial Shaw moved for a separate trial. His motion was denied. Shaw renewed his motion at the start of trial and it was again denied. Defendant did not join in either motion or present to the court his own motion for severance. The argument has no merit for two reasons.

First, K.S.A. 22-3204 indicates that a trial court may order a separate trial 'for any one defendant when requested by such defendant or by the prosecuting attorney.' This defendant did not request a separate trial and thus waived the right to make such a request. (State v. Madden, 90 Kan. 736, 136 P. 327.)

Second, 22-3204 does not give a defendant an absolute right to a separate trial, but leaves the matter to the sound discretion of the trial court. The defendant must show actual prejudice. (State v. Sully, 219 Kan. 222, 547 P.2d 344; State v. Norwood, 217 Kan. 150, 535 P.2d 996; State v. Cameron & Bentley, 216 Kan. 644, 533 P.2d 1255.) The only prejudice alleged by defendant was the fact that both defendants were black and 'evidence as to one black male cannot but prejudice a jury as to another black male being tried at the same time.'

The defendants were tried on offenses which arose out of the same set of circumstances, required the same mode of trial and the same evidence. It was proper for them to be tried together. (State v. Williams & Reynolds,217 Kan. 400, 403, 536 P.2d 1395; State v. Ralls, 213 Kan. 249, 257, 515 P.2d 1205.)

II. Free Transcript

Defendant complains of error because he was not provided with a free transcript of the preliminary hearing.

Defendant has failed to provide this court with a record adequate to review this point. The record contains nothing to indicate a request for transcript was ever made. It is the obligation of the appellant to designate a record sufficient to present his points to this court and to establish the error. (State v. Wilson & Wentworth, 221 Kan. 359, 363, 559 P.2d 374; State v. Farris, 218 Kan. 136, 542 P.2d 725.)

Assuming defendant made a motion for a transcript and it was denied by the trial court, he has failed to show his rights were prejudiced. The right of an indigent defendant to have access to a transcript of a prior hearing has been discussed by this court on several occasions. See State v. Jordan, 220 Kan. 110, 551 P.2d 773; State v. Wheeler, 215 Kan. 94, 523 P.2d 722; State v. Greene, 214 Kan. 78, 519 P.2d 651; State v. McVeigh, 213 Kan. 432, 516 P.2d 918; State v. Julian, 212 Kan. 169, 509 P.2d 1123; State v. Kelley, 209 Kan. 699, 498 P.2d 87. These cases recognize that an indigent defendant must be provided with the basic tools for an adequate defense when they are needed and available for a price to other defendants. A transcript of a prior proceeding is one such tool. However, a defendant need not be provided a transcript at the state's expense if other viable alternatives are available. These include the use of discovery tools, readback of reporter's notes when the reporter is readily available, and sharing transcripts which are available to the prosecution.

From the state of the record it does not appear defendant explored any of the alternatives which might have been available to him, nor does it appear the failure to provide a free transcript prejudiced his rights.

III. Defendant's Statement

The day after defendant and James Miller were arrested in Michael's Mens Wear store, they were placed in a line-up by the Wichita police. The two victims identified defendant as one of the robbers. After the line-up was concluded, defendant motioned to the police officer who conducted the line-up to come over to defendant. The officer walked over to him, whereupon defendant asked the officer if either he or Miller had been identified in the line-up. The officer said, 'Yes.' Defendant then stated, 'Miller wasn't with me on the robbery.'

During the course of the trial the court held a Jackson v. Denno hearing outside the presence of the jury. The police officer who conversed with defendant testified and set forth the above conversation. Defendant also testified. He did...