State v. Kinne

• Decision Date: 21 October 1963
• Docket Number: No. 49480,No. 2,49480,2
• Citation: 372 S.W.2d 62
• Parties: STATE of Missouri, Respondent, v. Sharon KINNE, Appellant
• Court: Missouri Supreme Court

Page 62

372 S.W.2d 62

STATE of Missouri, Respondent, v. Sharon KINNE, Appellant.

No. 49480.

Supreme Court of Missouri, Division No. 2.

Oct. 21, 1963 Motion to Transfer to Court En Banc Denied Nov. 11, 1963.

James Patrick Quinn, Martha Sperry Hickman, Quinn, Peebles & Hickman, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Theodore C. Beckett, Special Asst. Atty. Gen., Jefferson City, for respondent.

BARRETT, Commissioner.

A jury has found that Sharon Kinne shot and killed her husband, James Kinne, that she was guilty of murder in the first degree and of necessity therefore fixed her punishment at life imprisonment. RSMo 1959, Secs. 559.010, 559.030, V.A.M.S. Upon the trial of her case the state waived the death penalty and for that reason over the appellant's objection, the court called a panel of thirty-four jurors rather than a panel of forty-seven, thus of course reducing the number of challenges by the defendant. The statute applicable to Jackson County and a defendant's peremptory challenges provides that 'If the offense charged is punishable with death, or by imprisonment in the penitentiary not less than for life, to the number of twenty, and no more.' RSMo 1959, Sec. 546.180, subd. 2(1)(a), V.A.M.S. At the January 1963 Session of this court it was decided, the punishment for first degree murder being 'not less than life,' that because of the refusal to call a panel of forty-seven jurors her conviction would necessarily have to be reversed. State v. May, 168 Mo. 122, 67 S.W. 566; State v. Yandell, 201 Mo. 646, 100 S.W. 466; State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079. The court was satisfied with that part of the opinion and it is not necessary to elaborate upon that phase of the appeal, it is sufficient to summarily say that for failure to follow the plain mandate of the statute and call a panel of forty-seven jurors the judgment must be reversed and the cause remanded for a new trial. After adoption of the opinion, however, a rehearing was granted as to a single specific matter, state's witness John Boldizs and whether the state prejudicially erred in its examination of him,--hence this opinion upon reassignment of the cause.

Boldizs was called as a state's witness and after cursory questions establishing that he too lived in Independence, was a service station attendant, married, and had known Sharon Kinne since high school days in 1956, he was asked whether he had had sexual relations with Sharon before and after her marriage--and his answer to both questions was 'Yes.' Then there were these questions and answers on direct examination:

'Q. Has she ever discussed her husband with you? That is, James Kinne?

'A. Yes. sir.

'Q. Was there anything ever said about your killing James Kinne for her?

'A. Yes, sir, in a joking way. (Emphasis supplied.)

'Q. What do you mean by that?

'A. Well, we was parked one night, and, I made a comment to her that I'd like to carry her off, and she said, 'Well, if'--you know, I'd like to carry her off if it wasn't for her husband, and she said, 'Well, I'll just give you a grand and we'll just get rid of him.''

Then the prosecuting attorney, without stating his purpose or reasons, and without attempting to refresh Boldizs' memory or avowedly to lay a foundation for impeachment asked this question:

'Q. Mr. Boldizs, you gave the Sheriff's office a statement in connection with the thousand dollar offer, did you not?

'A. (Nodding head).'

There were, of course, timely and specific objections throughout by defense counsel, objections to cross-examination and impeachment 'of their own witness,' objections of 'no surprise,' 'that his evidence is not unfavorable to the State,' that there was 'no entrapment' and 'no positive evidence given against them,' that Boldizs was not a 'hostile witness' and there was 'no entrapment.' And the prosecuting attorney continued:

'Q. And you also testified before the grand jury on June 27, 1960.

'A. Yes, sir.

'Q. And in your statement to the Sheriff's office, and in your statement before the--testimony before the grand jury, did you tell either of those that this was in a joking manner?

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'A. I believe I did. * * *' It was then developed that in a deposition taken by the appellant 'last Friday' he had said 'the conversation (with Sharon) was in a joking manner.' At that point state's counsel handed the court a copy of Boldizs' testimony before the grand jury on June 27, 1960 and the court said 'in view of that' it was proper for the state to cross-examine the witness. Defense counsel said, 'Do I understand that you are ruling, Your Honor, is to cross-examination, and not to impeachment?' The court replied, 'Why certainly.' But the state proceeded and established what Boldizs had said in his deposition:

'Well, we was parked out here at this particular spot off Phelps Road, and we was out there jacking around, and we was making out a little bit, and as near as I can recall, it come up--we was like making out, and I said, 'Man, like I'd like to carry you off if you wasn't married' and she said, 'Well, I'll just give you a grand, you can bump off my old man,' and I said, 'No, man, like we won't do that' and we laughed about it, and I said, 'Well, I'll find somebody for you' and this jazz, and then we proceeded to make out.'

And then the state read to Boldizs from his grand jury testimony concerning a conversation a week before Sharon's husband was killed:

'Q. Was there anything unusual?

'A. Yes, sir. It was approximately two weeks to four weeks before his death, we was talking, parked, we were talking about her husband I think, and she told me they had problems. She said, 'Would you kill my husband for $1,000?' And I said, 'No, hell no.' She said, 'Do you know somebody that would?' And I said, 'Yes, I know somebody.' She said, 'If you find somebody, let me know.' I said, 'Yes,' but I never did.

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'Q. Do you have a feeling she was serious in her request?

'A. I believe so now.'

Then as to these questions and answers before the grand jury state's counsel asked Boldizs whether the questions were asked and these answers given. He answered 'Yes' but asked state's counsel if he could 'interrupt' and he said, 'As you probably know, they pressured me quite severely through this thing.' He explained that at the time 'the Jones case was going strong,' police officers were threatening to charge him with the Jones murder, and he said 'at that time I would have signed anything they put up there as long as it said I didn't kill Patricia Jones.' And then the state's attorney asked Boldizs about 'picking Sharon up' once (probably in connection with the Jones case) and 'questioning her for the benefit of the Sheriff's office' and there were these questions and answers:

'Q. And during that conversation didn't she tell you not to tell the sheriff's office about this thousand dollar, this previous----

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'Q. Did she ask you not to tell the sheriff's office anything?

'A. She said I didn't have to say anything.

'Q. And she told you not to let them bully you?

'A. That is right.'

The state then established that Boldizs had been 'a witness in the other trial' (probably referring to the Jones murder trial) and that prior to that trial 'opposing counsel' had taken a question and answer statement from him 'And I wasn't present.' Then the state established that '30 or 40 days' ago Sharon's counsel had taken another statement from him 'And again you did not advise the prosecutor's office?' And then the prosecutor examined Boldizs as to whether in the statements procured by defense counsel he had said anything about 'wanting to carry her off,' and there was this question and answer:

'Q. And so you gave him a statement and simply volunteered the information that this was said in a joking manner?

'A. Yes.'

And then there were these questions and answers:

'Q. Do you recall telling Donald Boone (a truck driver and another state's witness) that Sharon had offered you a thousand dollars to kill her husband?

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'A. Yes, sir.

'Q. You did tell him?

'A. Yes.

'Q. Did you tell Donald Boone that it was a joking manner?

'A. I don't remember, it has been too long ago.'

On redirect examination by the state another subject was introduced and there were these questions and answers:

'Q. When you testified here last summer, you testified that you had given them (defense counsel) a statement, they had a court reporter take it down, that you did not tell them the truth because you didn't consider it any of their business----

'A. Yes, sir----

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'Q. So the transcript that Mr. Quinn has cross-examined you on, that is a copy of the statement that you gave that you said was a bunch of lies because you didn't consider it any of their business?

'A. The thing that you are referring to is they asked me about a tape recording and I told them 'no.'

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'Q. But you did lie to them at that time?

'A. Yes, sir.'

State's counsel then returned to Boldizs' sex relations with Sharon, before and after her marriage, and whether 'Sheriff's deputies had accused you of murder' and there were these additional questions and answers as to whether Sharon had offered him money to kill her husband.

'Q. The statement that you made that she had offered you a thousand dollars to kill her husband, or if you wouldn't do that would you find somebody to kill him, that was a voluntary statement on your part, wasn't it?

'A. Yes, sir.

'Q. No one else knew about that until you told them?

'A. Don Boone knew about it.

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'Q. So you voluntarily told them?

'A. Why sure.

'Q. And is it your testimony that you told them that she made that statement in a joking manner?

'A. Pardon?

'Q. Did you tell the Sheriffs that she made that statement in a joking manner?

'A. I think so. * * * I am almost certain I did.

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'Q. Did you tell the grand jury that this was made in a joking manner?

'A....