State v. Moore

• Decision Date: 17 January 1981
• Docket Number: No. 51990,51990
• Citation: 622 P.2d 631,229 Kan. 73
• Parties: STATE of Kansas, Appellee, v. Charles Edward MOORE, Jr., Appellant.
• Court: Kansas Supreme Court

Page 631

622 P.2d 631

229 Kan. 73

STATE of Kansas, Appellee, v. Charles Edward MOORE, Jr., Appellant.

No. 51990.

Supreme Court of Kansas.

Jan. 17, 1981.

Syllabus by the Court

1. When an accomplice testifies against the accused in a criminal case, and whether that testimony is corroborated or not, the better practice is for the trial court to give a cautionary instruction.

2. If the instruction is requested and is not given, the result is error. Whether that error is prejudicial and reversible, however, must be determined upon the facts of each individual case.

3. An appellate court, in determining whether or not prejudice has resulted, must consider the extent and importance of the accomplice testimony, and the extent of the corroborating evidence.

4. The granting or refusal of a change of venue in a criminal case lies within the sound discretion of the trial court.

5. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial.

6. Media publicity alone has never established prejudice per se. Defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury.

7. When the sufficiency of the evidence to support the conviction is raised on appeal, the test is whether the evidence adduced at the trial, when viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

8. In an appeal from convictions of kidnapping, aggravated robbery, and first degree murder, the record is examined and it is held : The trial court did not commit reversible error in failing to give a cautionary instruction as to the testimony of an accomplice; the trial court did not abuse its discretion in refusing defendant access to the address of one prosecution witness, or to the statement of a codefendant; and the trial court did not err in denying defendant a change of venue, in the receipt of a camera into evidence, in refusing to suppress defendant's statement, or in instructing the jury alternatively as to premeditated murder and felony murder since both were charged; and, when reviewed in the light of the applicable test, the evidence was sufficient to support the conviction.

Edward G. Collister, Jr., of Collister & Kampschroeder, Lawrence, argued the cause and was on brief, for appellant.

Michael J. Malone, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gregory L. Hammel, Asst. Dist. Atty., Lawrence, were with him on brief, for appellee.

MILLER, Justice:

This is an appeal as a matter of right by Charles Edward Moore, Jr., following his conviction by a jury in Douglas district court of kidnapping in violation of K.S.A. 21-3420, aggravated robbery in violation of K.S.A. 21-3427, and murder in the first degree in violation of K.S.A. 21-3401. Moore was sentenced to be confined not less than 30 years nor more than life for kidnapping, not less than 30 years nor more than life for aggravated robbery, and to life imprisonment for murder; the sentences for kidnapping and aggravated robbery to be served concurrently, the sentences for kidnapping and murder to be served consecutively, and all sentences to be served consecutively to prior sentences imposed on Moore in the state of Colorado. All of the charges grew out of the abduction, robbery, and slaying of Samuel C. Norwood on November 28, 1977, at Lawrence, Kansas. Many points are raised; each will be dealt with separately in this opinion.

We will first state generally the facts disclosed by the evidence; other facts will be discussed in connection with some of the points raised. Terry Avery, an accomplice of defendant, testified for the State. She left her home in Denver, Colorado, after an argument with her mother, in late November, 1977. She then met the defendant, who asked her to go with him to Lawrence, Kansas, where he planned to get some money from his grandmother. She left Denver with defendant and Lee Harris. The three arrived in Lawrence on November 27 and checked into the College Inn Motel. Avery said that Moore checked in, and then told Avery and Harris that he had registered them in as "Valerie" and "Sam." The three then drove downtown and looked over both the front and the back of the Woolworth store; Moore pointed out the exits to Harris. They then returned to the motel. The next morning all three went downtown. Moore bought some clothing for Avery at a dress shop, Fads & Fashions. The three then went to Woolworth's to get something to eat. Moore pointed out the store manager, who was sitting at the counter. A waitress recognized Moore, who had worked at the store at one time; she asked about his grandmother. Moore left the restaurant area and bought two tan suitcases.

The three then left the store and returned to the motel. Harris went out and returned with a roll of tape. Later, Avery overheard Moore and Harris discussing Woolworth's, and she knew that they intended to rob it.

That evening, all three drove downtown and parked in the lot behind Woolworth's. Moore sent Avery in to the store twice to see how many people were there. The assistant manager testified that Samuel C. Norwood, Woolworth's manager, left the store through the back door about 5:45 o'clock p. m. on November 28. He was carrying a Polaroid SX-70 camera which he had checked out from the store; he was on his way home to his son's birthday party, but he never arrived.

As Avery returned to the car the second time, she saw that Harris had Norwood by the arm. Harris and Moore pulled Norwood into the car and began asking him about the store. Norwood said that there wasn't much money in the store because he had just taken the receipts to the bank. Moore was in the back seat with Norwood, who was on the floor. Moore pulled a cap over Norwood's face, took his wallet from him and gave it to Harris. They then left the parking lot, with Harris driving and Moore giving directions. After several short stops, Moore drove over some railroad tracks and parked the car near some bushes. Avery could hear the sounds of a river. Harris and Moore pulled Norwood out of the car and Avery heard four or five shots. Harris and Moore re-entered the car. Harris, Moore and Avery then drove to Kansas City. Moore threw Norwood's wallet out of the window as they crossed over a viaduct. Harris kept Norwood's watch, and he and Moore kept the camera. They abandoned the car, with the keys in it, near the Kansas City bus station; Avery, Moore and Harris then boarded a bus and rode to Los Angeles.

Norwood's body was discovered in a brushy area just across the railroad tracks near an abandoned sand plant in Lawrence. The spot was close to the Kansas River. Norwood's hands were bound behind his back with white tape; he was lying face down, and blood was evident on the back of his head. Plaster casts were made of nearby tire tracks. The pathologist who performed an autopsy on the body concluded that death was caused by multiple gunshot wounds to the head. She found four entrance wounds and one exit wound, and five bullet fragments in the brain. She estimated the time of death as between 6 and 8 p. m. on November 28.

Some three weeks later, after she returned to Denver from California, Avery told her story, much as detailed above, to the Denver police. Thereafter, Harris and Moore were arrested. A Polaroid SX-70 camera was found in a suitcase bearing the name "Charles Moore," in the apartment where Moore was living. An automobile, located in Kansas City, Missouri, was identified as the vehicle used by Moore, Harris and Avery. The tires on that vehicle matched the plaster casts of the tracks found near the body. Moore was identified as having registered in at the College Inn Motel with Avery and Harris on November 27; Moore was identified as the person who purchased clothing for Avery at Fads & Fashions; Moore was identified as having been in Woolworth's restaurant area with another man and woman; and Moore was identified as having purchased luggage at Woolworth's, all on November 28.

ACCOMPLICE TESTIMONY

Moore first contends that the trial court erred in refusing to give a requested instruction on accomplice testimony. The requested instruction, PIK Crim. 52.18 (since revised), is as follows:

"An accomplice witness is one who testifies that he was involved in the commission of the crime with which the defendant is charged. You should consider with caution the uncorroborated testimony of an accomplice witness."

The trial court denied the requested instruction, pointing out that the testimony of Avery was corroborated. The court gave the following instruction on the credibility of witnesses:

"It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified." PIK Crim. 52.09.

Defendant argues that the failure to give the requested instruction was prejudicial error because the testimony of Avery was uncorroborated and was the only direct evidence linking defendant to the crime. The question in this case is whether the testimony was sufficiently corroborated to render the failure to give a cautionary instruction harmless error. We must therefore look at the areas of corroboration.

Avery said that the shooting occurred in a remote area, just across some railroad tracks, near a river, and that she heard four or five shots. Her description matched that of the area where the body was found. The pathologist confirmed the number of shots which found their mark. Avery said that the deceased said that he was on the way to attend his son's fifth birthday party; other witnesses testified that he was going home, to attend that function, when he disappeared. Avery testified as to the suitcase Moore purchased and kept, and she...