State v. Kelley, 46658

• Decision Date: 10 June 1972
• Docket Number: No. 46658,46658
• Citation: 209 Kan. 699,498 P.2d 87
• Parties: STATE of Kansas, Appellee, v. Gary W. KELLEY, Appellant.
• Court: Kansas Supreme Court

Page 87

498 P.2d 87

209 Kan. 699

STATE of Kansas, Appellee, v. Gary W. KELLEY, Appellant.

No. 46658.

Supreme Court of Kansas.

June 10, 1972.

Syllabus by the Court

1. When the state affords a defendant a right, either by statute or constitutionally, the exercise of that right cannot be conditioned upon the defendant's ability to pay.

2. Pursuant to K.S.A.1971 Supp. 22-4509, an indigent defendant in a criminal proceeding is entitled to have a transcript of all or some part of a trial or other proceeding prepared at state expense, subject to a determination by the trial court that such transcript is necessary for the indigent to present his cause adequately.

3. In determining the necessity for a transcript as mentioned above, the court may consider the availability of alternative devices that would fulfill the same functions as a transcript.

4. In argument to the jury the prosecutor should not use statements calculated to inflame the passions or prejudices of the jury. He should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.

5. In a prosecution for kidnaping and rape the record on appeal is examined and it is held: The trial court did not err in (1) ruling a transcript of appellant's preliminary examination was not necessary for him adequately to present his defense; (2) permitting the late endorsement of the name of a prosecution witness on the information; or, (3) admitting a prosecution exhibit into evidence; further held, reversible error respecting the prosecution's closing argument is not shown.

Brian J. Moline, Wichita, argued the cause and was on brief for appellant.

Reese C. Jones, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on brief for appellee.

HARMAN, Commissioner:

Gary W. Kelley was convicted by a jury of one count of kidnaping in the first degree with bodily harm inflicted (K.S.A. 21-449), two counts of kidnaping in the second degree (K.S.A. 21-450) and one count of forcible rape (K.S.A. 21-424). He was acquitted of another count of kidnaping in the first degree. His motion for new trial was overruled. Two prior felony convictions were shown. Imposition of sentence upon the two convictions for second degree kidnaping was suspended. He was sentenced to life imprisonment for the first degree kidnaping and to fifteen years imprisonment (concurrent) for the rape. Mr. Kelley now appeals.

The sufficiency of the evidence to sustain the convictions is not challenged; however, some of it should be stated for an understanding of the trial errors asserted.

On June 13, 1970, a fourteen year old girl and four male youths, all of whom resided in Haysville, Kansas, drove to Wichita. About midnight the group parked their automobile in the parking lot of a tavern while one of the young men entered the tavern to see a friend. Meanwhile five older Wichita young men gathered about the Haysville vehicle. This group included Paul L. Lassley, Dale Schriner, John Berry, Charles Brantley and the appellant Kelley. When the operator of the Haysville vehicle returned to it from the tavern and attempted to drive it away the Wichita group blocked the passage and refused to allow the Haysville group to depart. The Wichita group then forcibly commandeered the Haysville automobile, together with its occupants, and drove it and their own vehicle to a sparsely populated area on the outskirts of Wichita. One of the Haysville boys escaped by jumping from the automobile as it was leaving the parking lot; this youth reported the abduction to the Wichita police.

The two automobiles were parked adjacent to a field which was bordered by a windbreak of trees. There the Wichita group took two of the Haysville boys across the road where they attempted to confine them in a half-completed stone house.

The Wichita group then attempted through the use of a knife to force the girl and the remaining Haysville youth to have sexual intercourse. When the youth refused he was struck with a board and rendered unconscious. Appellant then removed the girl's clothing and demanded she have sexual intercourse with him. The girl refused, saying she was menstruating and wearing a tampax. When the girl refused to comply with appellant's request to remove the tampax, appellant removed it and threw it outside the automobile. He then dragged the girl from the vehicle and forced her to the ground where he and Lassley attempted to have intercourse with her. When it was discovered the two Haysville boys had escaped from the house across the road appellant and Lassley forced the girl into the back seat of their automobile and drove it to a vacant lot. En route appellant had intercourse with the girl against her will. At the vacant lot the girl was further sexually abused by appellant and Lassley, the particulars of which need not be related. The girl was left lying there, from whence she went to the nearest residence to notify the police.

Appellant was convicted of second degree kidnaping of two of the Haysville boys and of first degree kidnaping and rape of the girl.

Appellant first asserts the trial court erred in denying his request for a transcript of his preliminary hearing. It appears that a reporter took notes at this proceeding. A transcript was initially requested of the administrative judge of the judicial district, and denied, and later of the trial judge immediately following the voir dire examination of the jury. Appellant bases his request here upon the provisions of K.S.A.1971 Supp. 22-2905(1). This particular statute is inapplicable to the type of transcript requested and supplies no authority for granting the request; this fact, however, furnishes no basis for disposition of the problem.

Prior to denying the request for a transcript the trial court made inquiry into the matter. The colloquy reflected by the record reveals that appellant's trial attorney, Mr. Fry, had represented appellant at the preliminary hearing, at which appellant had testified, and that Mr. Fry remembered the testimony. In making its ruling after defense counsel indicated the transcript was needed for effective cross-examination of any witness who might change his testimony, the trial court stated:

'The simple matter would be to bring in the reporter with the notes and have it testified to. You won't be precluded from doing that . . .. If there is something that a witness testified to in this case that you feel is at variance from his testimony in a preliminary hearing, the reporter's notes are available for impeachment purposes.'

In State v. Burgess, 205 Kan. 224, 468 P.2d 229 (decided April 11, 1970), we stated:

'Nor is there any substance to the charge that failure to provide the defendant with a transcript of the preliminary hearing impinged upon his constitutional rights. Neither our statutes nor our procedural rules impose such an obligation on the state, and no prejudice to the substantial rights of the defendant has been shown on this score.' (Emphasis supplied.) (p. 227, 468 P.2d p. 231.)

K.S.A.1971 Supp. 22-2904, which became effective July 1, 1970, provides with respect to preliminary examinations:

'Testimony reduced to writing. The magistrate may cause a record of the proceedings to be made and should do so when requested by the prosecuting attorney or the defendant or his counsel at least 48 hours prior to the time set for preliminary examination. The cost of preparation of such record shall be paid by the party requesting it. If neither party requests the record or the request is made by an indigent defendant, such costs shall be paid from the general fund of the county and taxed as costs in the case.'

Thus the legislature has expressly authorized either party to have a record of the proceedings of a preliminary examination prepared at his own expense. Preparation at state expense is contemplated in case of an indigent as it is now fundamental that when the state affords a defendant a right, either by statute or constitutionally, the exercise of that right cannot be conditioned upon the defendant's ability to pay (Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891). K.S.A.1971 Supp. 22-4509 makes that preparation conditional upon a determination by the trial court that such transcript is necessary for the indigent to present his cause adequately. In this connection it should be noted that any request by a defendant for a transcript should be made far enough in advance of trial to allow a reasonable amount of time within which to transcribe the notes and to avoid the necessity of suspending the trial pending production of the transcript.

In Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41, a request by an indigent for a free copy of a preliminary hearing transcript was denied in a state prosecution. Such copy could have been secured upon payment of a prescribed fee. Because of failure to supply a copy the court vacated the conviction as being obtained in violation of the equal protection clause of the fourteenth amendment to the federal constitution. The court did not explore the question of need for a transcript nor of any alternatives to its production.

The issue of a free transcript was most recently explored in Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (decided December 13,...