State v. Mims, 48477

• Decision Date: 14 May 1977
• Docket Number: No. 48477,48477
• Parties: STATE of Kansas, Appellee, v. David L. MIMS, Appellant.
• Court: Kansas Supreme Court

Page 531

564 P.2d 531

222 Kan. 335

STATE of Kansas, Appellee, v. David L. MIMS, Appellant.

No. 48477.

Supreme Court of Kansas.

May 14, 1977.

SYLLABUS BY THE COURT

1. An unsolicited, unresponsive remark concerning unrelated offenses made by a state's witness in response to a proper question by the prosecutor in a criminal prosecution does not mandate the declaration of a mistrial where the response of the witness is stricken and the jury properly admonished.

2. The failure of a party to produce evidence which is available to him may give rise to an inference that the evidence would have been adverse to him.

3. Before the testimony of an absent witness given at a former trial may be used in a second trial it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial.

4. The inability of a witness to appear must be established by a ruling of the trial court or by agreement of counsel. The sufficiency of proof of unavailability is a question for the trial court within its discretion and its ruling will not be disturbed unless an abuse of discretion is shown.

5. Under the provisions of K.S.A. 22-3423, the trial court may order a mistrial if false statements of a juror on voir dire prevent a fair trial. The determination thereof is in the discretion of the trial court and failure to grant a mistrial because of misstatements of a juror on voir dire will not constitute reversible error unless abuse of discretion is shown.

6. Any point specified on appeal which is neither argued nor briefed is deemed to have been abandoned.

7. In a prosecution for aggravated battery and attempted aggravated robbery, the record is examined and, for reasons appearing in the opinion, it is held prejudicial error has not been made to appear.

Robert V. Wells, Kansas City, argued the cause and was on brief, for appellant.

Harry G. Miller, Deputy Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on brief, for appellee.

KAUL, Justice:

Defendant-appellant, David L. Mims, appeals from convictions by a jury of aggravated battery (K.S.A. 21-3414) and attempted aggravated robbery (K.S.A. 21-3301 and 21-3427).

The state's evidence disclosed that on December 6, 1974, at approximately 11 p. m., defendant entered a tavern Known as Harry's Place in Kansas City, demanded money and shot the bartender, David Harris, in the face at close range with a handgun. Defendant's first trial ended in a mistrial resulting from a hung jury. At his second trial defendant was convicted on both counts charged in the information and thereafter perfected this appeal.

For his first point on appeal defendant claims error in the denial of his motion for a mistrial based on a statement made by Detective Richard Delich during his direct examination as a witness for the state in its case in chief. Detective Delich arrived at the scene shortly after the shooting. When asked concerning his investigation, Delich testified as follows:

'Mr. Miller: As a result of your investigation at the scene, who or what did you begin looking for in connection with the shooting?

'Mr. Delich: We began looking for an orange Volkswagen.

'Mr. Miller: Did you have anybody in mind at that time?

'Mr. Delich: I did.

'Mr. Miller: And who was that?

'Mr. Delich: Pertaining to some time before this incident, we had several occasions of holdups where an orange Volkswagen was used. I was informed by _ _'

At this point defendant's counsel approached the bench and requested a mistrial for the reason the detective's reference to the orange Volkswagen was an attempt to link defendant with several unsolved crimes. At the conference before the bench, the prosecutor stated that he was surprised by the detective's unsolicited statement. The court overruled defendant's motion, struck the objectionable testimony and admonished the jury to disregard it.

In his brief on appeal defendant argues that the fact evidence was introduced by mistake does not cure the defect and further that it was not cured by the court's admonition to the jury. We cannot agree with defendant's position. It is clear from the record the objectionable evidence came as an inadvertent statement of a witness and was an unforeseeable and unresponsive answer to a proper question. The occurrence here is almost identical with that occurring in State v. Mitchell, 220 Kan. 700, 556 P.2d 874, wherein Detective Rainey, in testifying for the state, inadvertently referred to a prior arrest of defendant for an unrelated offense. In disposing of the issue in Mitchell we said:

'If any error was committed by Detective Rainey's remark, we hold the unsolicited and unresponsive remark constituted harmless error under the circumstances. (State v. Robinson, 219 Kan. 218, 547 P.2d 335; State v. Bradford, 219 Kan. 336, 548 P.2d 812; and State v. Childs, 198 Kan. 4, 11, 422 P.2d 898.) These cases dealt with an unforeseeable and unresponsive answer to a proper question. The cases recognize it is impossible for the court in advance to exclude an improper answer to a proper question. Therefore, the cases seem to turn on whether a limiting instruction was given and the degree of prejudice. In the case at bar any possible prejudice to the appellant was cured by the cour's admonition to the jury. (State v. Bradford, supra, 219 Kan. at 338, 548 P.2d 812; State v. Holsey, 204 Kan. 407, 464 P.2d 12.)' (p. 703, 556 P.2d p. 878.)

In the case at bar Detective Delich's statement was inadvertent. Any possible prejudice to the defendant was cured by the court's admonition to the jury.

Defendant's next contention concerns the prosecutor's comment on the fact that defendant failed to call more witnesses in support of his alibi defense. Defendant testified that on the night of the crime he was in the company of a number of friends and relatives. However, defendant caused no subpoenas to be served to compel the attendance of these alibi witnesses and, with the exception of his wife, had made no attempt to contact them. Under these circumstances the prosecution was not outside the bounds of fair comment in pointing out to the jury that none of these persons had been called to the stand by defendant.

A similar question was presented in State v. Wilkins, 215 Kan. 145, 523 P.2d 728, wherein we stated:

'When the theory of the defense is based upon facts within the personal knowledge of a particular person or persons available as witnesses and no attempt to secure their testimony is made the failure to produce available evidence may give rise to an inference that it would be adverse to the party who could have produced it. . . .' (pp. 150-151, 523 P.2d p. 733.)

See, also, State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374; State v. Robinson, 219 Kan. 218, 547 p.2d 335; and State v. Austin, 209 Kan. 4, 495 P.2d 960.

For his third point on appeal defendant claims the trial court erred in refusing to permit him to read to the jury the transcript testimony of his witness, Damon Harlan, given at defendant's first trial. Harlan's testimony at the first trial had been offered in support of defendant's alibi defense. 'Unavailable as a witness' is defined in K.S.A. 60-459(g). Under the statute, the controlling test of unavailability established by our several cases dealing with the subject is the so-called reasonable diligence rule. In the recent case of State v. Steward, 219 Kan. 256, 547 P.2d 773, we held:

'The inability of a witness to appear must be established by a ruling of the trial court or by agreement of counsel. The sufficiency of proof of unavailability is a question for the trial court within its discretion and its ruling will not be...