State v. Kirk, 46682

• Decision Date: 20 January 1973
• Docket Number: No. 46682,46682
• Citation: 505 P.2d 619,211 Kan. 165
• Parties: STATE of Kansas, Appellee, v. Foree KIRK, Appellant.
• Court: Kansas Supreme Court

Page 619

505 P.2d 619

211 Kan. 165

STATE of Kansas, Appellee, v. Foree KIRK, Appellant.

No. 46682.

Supreme Court of Kansas.

Jan. 20, 1973.

Syllabus by the Court

1. Before testimony of a witness given at a former trial may be read in evidence by the prosecution, over the objection of the defendant, it must be made to appear the witness who gave such testimony cannot be produced by the exercise of reasonable diligence.

2. The record in a criminal prosecution is examined and, as more fully set forth in the opinion, it is held: The district court erred in admitting into evidence, over the objection of the defendant, the testimony of a witness given at a former trial because the state failed to establish a proper foundation that the witness was unavailable.

Charles S. Scott, of Scott, Scott, Scott & Jackson, Topeka, argued the cause and was on the brief for appellant.

Larry B. McGrath, County Atty., argued the cause, and Vern Miller, Atty. Gen., and James W. Morrison, Asst. County Atty., were with him on the brief for appellee.

FATZER, Chief Justice:

The appellant, Foree Kirk, was convicted by a jury of the offense of aggravated robbery as defined in K.S.A.1972 Supp. 21-3427. The Information alleged that on October 3, 1970, Kirk robbed Joseph Earl Anderson, d/b/a Anderson's Fine Foods, 610 North Fifth Street, Manhattan, of $550 by threatening the check-out clerk, Lena Magnus, with a pistol.

The appellant's trial commenced on February 8, 1971, and the district court declared a mistrial on February 10, 1971, because the jury could not arrive at a unanimous verdict.

The appellant was again placed on trial commencing May 24, 1971, and he was found guilty by the jury, as charged. Subsequently, he filed motions to vacate the verdict and for a new trial. Both posttrial motions were overruled on June 14, 1971, and the appellant was sentenced to serve not less than seven and one-half nor more than life imprisonment for the offense.

The state's evidence consisted primarily of eyewitness testimony of Lena Magnus, Joseph Anderson and his wife, and the testimony of an alleged co-conspirator, James Harris. A summary of the facts necessary for a decision follows:

The testimony of the Andersons and Mrs. Magnus was consistent. It reflected the Andersons were the owners of Anderson's Fine Foods; that Mrs. Magnus was one of their employees, and on the date in question she was the check-out counter cashier; that at approximately 2:30 p. m. an older black man came into the store and purchased crackers and a can of sardines and paid for them; that he then walked to the back of the store to the meat counter where he purchased a small quantity of meat; that the Andersons were present, and there were four customers in the stores to the knowledge of Lena Magnus.

A young black man then entered the store and looked down one of the aisles. Later, Mrs. Magnus noticed him with a writing tablet, and it appeared he was drinking a cup of coffee. The older black man came up the aisle and placed the package of meat he had purchased on the check-out counter. The young black man then stepped up to the counter, placed the tablet on the counter, pulled a pistol from his jacket pocket, and said, 'this is a holdup.' Mrs. Magnus was threatened, and the older man became passive. Mrs. Magnus was directed to put the contents of the cash register into the sack. She complied, and the holdup man ordered her not to move, and he and the older man ran out the door. Mrs. Magnus ran to the back of the store screaming she had been robbed.

Both Anderson and his wife identified the appellant in a lineup at the Manhattan Police Department and he was again identified by them from the witness stand. Mrs. Magnus also made an independent in-court identification of the appellant as the one being in the store on October 3, 1970.

James Harris, also known as George Smith, an alleged accomplice of the appellant, appeared as a witness for the state at the appellant's first trial; he had been granted immunity from prosecution by the state in an inquisition in which he was subpoenaed to appear. Immediately after testifying at the first trial, Harris left the state for parts unknown. The state sought to have Harris' testimony at the first trial used in the second trial. Following a lengthy hearing out of the presence of the jury, the district court admitted evidence by the state for the purpose of establishing a foundation to permit Harris' testimony at the first trial, to be read to the jury.

John Fay, a member of the Riley County bar, was called as a witness. He had represented Harris at the inquisition and had assisted in securing immunity from prosecution for Harris when he turned state's witness. He testified Harris was no longer in the state of Kansas, and claimed attorney-client privilege as justification for not being at liberty to disclose Harris' whereabouts, either to the county attorney or to anyone else. He indicated he had Harris' last mailing address which was in a state on one of the coasts of the country, and that he assisted the county attorney and deputy sheriff Ray Markwald in making arrangements and providing funds for Harris and his family to leave Manhattan prior to the conclusion of the first trial. Fay stated the first and only time the county attorney had asked him for Harris' address was the morning the second trial commenced.

Markwald testified he received a subpoena on May 21, 1971, to be served on Harris, three days before the second trial commenced. He stated he gave the subpoena to Sheriff Anderson who attempted to find Harris at his former Manhattan address, but to no avail. Markwald also testified he was present when Harris was transported by bus from Manhattan prior to the conclusion of the first trial, and to his knowledge arrangements had been made through the county attorney's office for Harris' bus fare.

Andrew Dubish, a detective of the Manhattan Police Department, testified he had sought Harris' whereabouts from several confidential informants, and that no one knew where Harris was. He stated he had not contacted Fay as to Harris' whereabouts and did not recall whether the county attorney had indicated Harris was to be a witness at the trial until the morning of the second trial when Dubish was asked to attempt to locate Harris.

The county attorney testified he provided lodging in a Manhattan motel for Harris and his family on February 5, 1971, prior to the commencement of the first trial.

As reflected in the testimony of both Fay and McGrath, Harris was in fear for the safety of himself and the members of his family. An agreement had been made with Harris whereby he would be permitted to leave Manhattan immediately upon testifying so he would not be subjected to possible abuse and physical harm as a result of his testimony. Those arrangements were carried out prior to the determination of appellant's first trial which ended in a hung jury. By the time the first trial had ended, Harris had already left the jurisdiction and McGrath did not require him to post bond as a material witness prior to leaving the state.

The state made a proffer of Harris' testimony given at the appellant's first trial. Over the objections of the appellant that the state did not lay a proper or sufficient foundation for the admissibility of the testimony, the district court admitted Harris' testimony.

The substance of Harris' testimony was that he was the older black man at the check-out counter when the robbery occurred. He stated he participated in the crime and shared in the proceeds. Having been granted immunity from prosecution for his participation in the holdup, he then fingered the appellant. The appellant was identified as the young black man who robbed Mrs. Magnus at gunpoint, thus corroborating the testimony of Joseph Anderson, his wife, and Lena Magnus.

The appellant took the stand and evidence offered by him consisted mainly of an attempt to establish an alibi for the time in question. Testimony was offered by the appellant's aunt and his girl friend, who is now his wife, to the effect that he was at the home of his aunt with his aunt's husband between 2:00 and 2:30 p. m. on the afternoon the Anderson store was robbed, and his wife testified he came home about 3:00 p. m. on the afternoon in question. The appellant's testimony corroborated that of his aunt and his wife. He also produced a witness purporting to establish his good character.

The appellant contends the district court erred in admitting Harris' testimony given at the former trial, because the state did not lay a proper foundation to establish it made a reasonable effort to procure his attendance at the second trial. This court has considered the admissibility of the testimony of an absent witness given at a former trial, or at a preliminary hearing, on many occasions. The rule adopted in this state may be found in State v. Washington, 206 Kan. 336, 479 P.2d 833, where it was said:

'Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a 'good faith effort' to obtain the witness's presence at trial (Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P.2d 695; State v. Guthrie, 192 Kan. 659, 391 P.2d 95; State v. Brown, 181 Kan. 375, 312 P.2d 832; State v. Bonskowski, 180 Kan. 726, 308 P.2d 168; State v. Streeter, 173...