State v. Marquez

• Decision Date: 11 June 1977
• Docket Number: No. 48535,48535
• Citation: 565 P.2d 245,222 Kan. 441
• Parties: STATE of Kansas, Appellee, v. Charles Eugene MARQUEZ, Appellant.
• Court: Kansas Supreme Court

Page 245

565 P.2d 245

222 Kan. 441

STATE of Kansas, Appellee, v.Charles Eugene MARQUEZ, Appellant.

No. 48535.

Supreme Court of Kansas.

June 11, 1977.

Syllabus by the Court

1.To justify a departure from the general rule of inadmissibility of other crimes evidence under K.S.A. 60-455, the trial court should conduct a hearing in the absence of the jury to determine the probative value as to one or more of the eight elements set forth in the statute to which such evidence must be relevant.If a particular element, enumerated in the statute, is not an issue in the case, evidence of other crime to prove that particular element is irrelevant.

2.Where the felonious intent of a burglar is obvious from the breaking of a jewelry store window, from the theft of the jewelry and the flight of the burglar, evidence of other burglaries to prove intent should not be admitted because this element, enumerated in K.S.A. 60-455, is not really in dispute.

3.Preparation for an offense, one of the eight elements set forth in K.S.A. 60-455, consists in devising or arranging means or measures necessary for its commission.Accordingly, a series of acts that very logically convinces the reasonable mind that the actor intended that prior activities culminate in the happening of the crime in issue may have strong probative value in showing preparation.

4.Plan, one of the eight elements set forth in K.S.A. 60-455, refers to an antecedent mental condition that points to the doing of the offense or offenses planned.The purpose in showing a common scheme or plan is to establish, circumstantially, the commission of the act charged and the intent with which it is committed.Strictly speaking, the exception is limited to evidence which shows some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan or scheme directed toward the doing of the offense charged.

5.Something more than doing similar acts is required to have probative value in showing plan under K.S.A. 60-455, because the object is not merely to negative an innocent intent or show identical offenses, but to prove the existence of a definite project directed toward the doing of the offense charged.It is not necessary to prove that all transactions in question were precisely identical, since a well-knit scheme or plan might involve the commission of several distinct and dissimilar offenses and still have probative value to show the existence of a common scheme or plan.However, some offenses which are part of a common scheme or plan may exhibit identical or strikingly similar features.In admitting evidence of prior crimes or civil wrongs to show plan, the conclusion that the accused did the act in question is inferred basically from a structured design, not from the common features.

6.Error in the admission of evidence of prior crimes or civil wrongs is not reversible error unless it affects the substantial rights of the defendant.

7.In an appeal from a jury verdict which found the defendant guilty of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701), where evidence of prior convictions of burglary were admitted pursuant to K.S.A. 60-455, the record is examined and it is held: (a)The trial court erred in admitting evidence of prior crimes to show intent, preparation and plan because these elements were not issues in the trial of the case; (b) subject to the discretion of the trial court, evidence of the prior crimes could have been received, with proper instructions, to prove identity; and (c) taken as a whole, the erroneous admission of the prior burglary convictions to show intent, preparation or plan did not prejudice the substantial rights of the defendant.

Jeffrey O. Heeb, Lawrence, argued the cause, and was on the brief for appellant.

Michael J. Malone, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nancy P. Johnson, research assistant, were with him on the brief for appellee.

SCHROEDER, Justice.

This is an appeal from a jury verdict which found Charles Eugene Marquez(defendant-appellant) guilty of burglary (K.S.A. 21-3715) and felony theft (K.S.A. 21-3701).

The points on appeal challenge testimonial evidence and authenticated copies of two journal entries showing prior convictions of the appellant admitted pursuant to K.S.A. 60-455.

At approximately 12:41 a.m. on October 17, 1975, the window to the Guenther Jewelry Storeat 824 Massachusetts Street in Lawrence, Kansas, was broken and several display boxes containing jewelry valued at $120 were taken.Police Officer Donald Love discovered an iron pipe with an orange object on the pipe lying on the sidewalk beneath the broken window.Further investigation by Police Officer Kenneth Coultis revealed two jewelry boxes at the intersection of an alley and a nearby arcade.A search of the alley revealed other jewelry and jewelry boxes on top of a loading dock at a point where they found the appellant underneath the loading dock.The appellant had no jewelry in his possession, but a pair of gloves with glass embedded in them was found underneath the loading dock.Police Officers Fred D'Ercole and Gary Sampson testified the appellant took the gloves off while under the loading dock or while backing from underneath it.No hat or cap was found.The two officers testified Mr. Marquez did not appear to be intoxicated, although one officer detected what he believed to be an odor of alcohol.

When apprehended the appellant said he was hiding in the alley from several people because he had been involved in a disturbance earlier in the evening at the Depot Tavern.

Jeffrey Dover testified that while he drove down Massachusetts Street he observed a man carrying a pipe with an orange end on it for at least one minute.Mr. Dover said the man was wearing a stocking cap, a jacket and a pair of brown jersey gloves.He described the man as short and husky built, with a big, crooked nose.Mr. Dover returned to Massachusetts Street and reported what he had seen earlier to an officer.Mr. Dover remembered the nose and posture of the man he had observed carrying the pipe.Detective Schmille testified Dover had been arrested a month or six weeks earlier in a theft case.

Paul Medlock, a passenger in the Dover automobile, also identified the appellant as the man carrying the pipe with the "red thing on the end of it."Mr. Medlock, who had previously been convicted of the crime of attempted theft twice and forgery once testified he observed the individual from two and one-half minutes to four minutes and remembered the defendant's nose and the way he combed his hair that night.On November 4, 1975, both Mr. Dover and Mr. Medlock identified the appellant at a lineup conducted at the Shawnee County Sheriff's Office in Topeka, Kansas.

Detective Wayne Schmille testified he was investigating at the scene when officers said they found someone named Marquez hiding in the alley.Detective Schmille pulled out a picture of the appellant and said, "Hey, is it this guy?"Detective Schmille testified that he had half-a-dozen pictures that he was carrying in relation to other cases.

At trial the appellant testified he drank four to six beers at the Depot Tavern at 10th and Massachusetts, left and drank a half-pint of rum and then returned to the Depot Tavern for another beer where he spoke to two acquaintances.The appellant testified as he was drinking a black man and an Indian offered to sell him some marihuana.The appellant told them he had no use for marihuana and would not like to purchase any.The black man took offense and started coming toward the appellant.The appellant then went outside and started running.He glanced back and didn't notice anybody following him.Nevertheless, he turned into the alley, spotted the loading dock and got underneath it.He said because he was intoxicated he passed out.The next thing the appellant remembered was a police officer waking him with a light.

The appellant testified he had used marihuana when he was younger and he had been "picked up" for possession of marihuana two weeks prior to October 17, 1975.He further said he lived approximately 100 yards from the loading dock where he was found.

The county attorney for Seward County, Tom Smith, testified concerning evidence which showed the appellant had pled guilty to charges in 1972 of night-time burglary and theft at a meat market, and to charges in 1973 of night-time burglary of a tavern, both committed in the downtown business area of Liberal, Kansas.In both cases a tire iron or some tool was used to break into the business premises, neither of which had a burglar alarm.The trial court found the preparation for the incidents was very similar; that having a weapon (tool) of some sort and forcing the door open or the roof open might be similar.The court did not think the evidence went to identity.The court thought the evidence went to intent, preparation, plan and probably absence of mistake, and if it were offered for those purposes the court would admit the evidence.The evidence was offered accordingly and admitted.The trial court instructed the jury that evidence of the prior crimes could be considered solely for the purpose of proving the defendant's intent, preparation and plan.

On January 7, 1976, the jury found the defendant guilty on both counts.A motion for a new trial was denied, and appeal has been duly perfected.

The appellant contends the testimony and authenticated copies of journal entries showing the prior crimes were inadmissible under K.S.A. 60-455.The appellant argues the evidence does not establish intent, preparation or plan.

Kansas policy on admitting evidence of prior crimes and civil wrongs is codified in K.S.A. 60-455 which reads:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to...