State v. Myers
| Decision Date | 02 November 1974 |
| Docket Number | No. 47398,47398 |
| Citation | 527 P.2d 1053,215 Kan. 600 |
| Parties | STATE of Kansas, Appellee, v. Clinton J. MYERS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal from a conviction for attempted aggravated burglary, the record is examined and it is held: (1) The trial court did not err in (a) denying appellant's motion to dismiss by reason of delay in being taken before a magistrate (b) receiving in evidence three previous convictions, a hammer, punches and a pistol (c) denying motions to discharge because of insufficiency of evidence (d) excluding jurors' affidavits and denying motion for new trial on the grounds the jury disregarded the court's instructions not to consider appellant's failure to testify and that the court's instructions to the jury were inconsistent, conflicting and confusing (e) admitting into evidence statements of appellant made to the arresting officers; and (2) prejudice is not shown in the state's failure to give earlier notice of its intention to invoke the provisions of the habitual criminal act.
Robert V. Talkington of Conderman & Talkington, Iola, argued the cause and was on the brief for appellant.
James M. Immel, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
HARMAN, Commissioner:
Clinton J. Myers was convicted by a jury of the offense of attempted aggravated burglary. New trial was denied, Myers was sentenced under the habitual criminal act (K.S.A. 1973 Supp. 21-4504) and now appeals.
Myers was charged jointly with one Charles L. Nading in the commission of the offense in question. Severance was granted and each was tried separately. We recently affirmed Nading's conviction (State v. Nading, 214 Kan. 249, 519 P.2d 714).
The prosecution's evidence in the case at bar was essentially the same as that in Nading. We can do no better than repeat our summarization there:
'. . . Mrs. Mary Hansen was asleep in her residence at 423 North State street in Iola during the early morning hours of April 8, 1972. Present in her house with her were her children and a girl. At about 4:00 a. m. Mrs. Hansen awoke, sensing something was wrong. She got up and checked on the girl and her children. When she returned to her bedroom two men were standing close together right outside her bedroom window. There was a street light in the area located on the west side of the Hansen house. Mrs. Hansen went to the kitchen, got a drink of water and returned to her bedroom where she could see the men right outside her bedroom window again. She was frightened but she waited a short while to ascertain whether the men were just passing through her yard. She then went to the kitchen, called the police and returned to her bedroom where she could see the two men 'rounding the front porch again as though they had circled the house.' About five minutes elapsed from the time Mrs. Hansen first saw the two men until police arrived.
'Two Iola patrolmen responded to the police radio dispatcher's call, arriving near the Hansen house in an unlighted police car. These officers noticed two men near a window of the Hansen home. One officer, who had alighted and gone on foot around the house from the other direction, testified both men had their hands around the window frame and it looked as though they were attempting to remove the storm window from the house. This officer saw the two men go to the rear entrance to the house where one of them opened the screen door and the other tried to open the inside door by turning the knob. At this point the officer remaining in the police vehicle turned on the patrol car lights and the two men started to run. They ran close to Mrs. Hansen's automobile which was parked in a driveway and as they did so one officer observed them throwing some objects under the Hansen car. The men were immediately apprehended by by the two officers. One was . . . Charles L. Nading, the other was Clinton J. Myers. The two stated they had hitchhiked to Iola and that they were just 'prowling' around. When arrested (Nading) was wearing a camouflaged colored hat, brown coveralls, cowboy boots and jersey gloves. It was a warm night-temperature was about sixty-five to sixty-seven degrees. The arresting officer was wearing a short sleeved shirt and didn't need gloves to keep his hands warm.
(pp. 249-250, pp. of 519 P.2d 715-716.)
Supplementing the foregoing, the record here reveals that at the time appellant Myers was arrested he was clad in a heavy brown coat and was wearing jersey gloves, tennis shoes and blue jeans.
Appellant did not testify.
Several contentions raised here are identical to those presented in Nading and decided in favor of the prosecution. These are: 1. The trial court erroneously denied appellant's motion to dismiss because of delay in being taken before a magistrate. 2. The trial court erroneously received as a part of the prosecution's case in chief evidence of three previous convictions (two for second degree burglary and larceny in connection therewith and one for second degree burglary). 3. The trial court improperly received in evidence the hammer, punches and pistol found by the arresting officers under the vehicle parked in the Hansen driveway. 4. The evidence was insufficient to support the finding of guilt. Under authority of Nading, we find no merit in these specifications of error.
Appellant complains the jury disregarded the court's instruction not to consider the fact he did not testify. In support of his motion for new trial he proffered the affidavits of several jurors, the extent of which on this point was that during the jury's deliberations comment was made that appellant did not testify at trial or offer explanation of his presence on the Hansen premises. The trial court declined to consider the affidavits and denied new trial. For assertion of error appellant relies on State v. Rambo, 69 Kan. 777, 77 P. der did not testify. After conviction a juror testified upon defendant's motion for 563. There a defendant on trial for murnew trial that during deliberation of the verdict he mentioned to the other jurors that defendant did not testify, and stated that if anybody put anything like that (meaning a charge of murder) upon his shoulders he would talk for himself, and further explained he meant "if anybody blamed anything on me that I was not guilty of, I would think my own talk (meaning testimony) would do me more good than anybody else's." (Syl. 1.) The juror further stated the fact the defendant did not testify was not considered by him in arriving at a verdict. This court ordered new trial, holding that such general denial did not overcome the obvious fact, apparent from the juror's testimony, that the refusal of the person on trial to testify was considered by him to defendant's prejudice.
The holding in Rambo has never been followed by this court. In State v. Dreiling, 95 Kan. 241, 147 P. 1108, it was questioned and in State v. Dye, 148 Kan. 421, 83 P.2d 113, it was overruled sub silentio when we ruled:
'A juror cannot be heard to impeach his verdict by saying that in the deliberation he or any other member of the jury took into consideration the matter of the defendant having failed to testify in his own behalf when the jury was instructed not to do so.' (Syl. 2.)
Meanwhile, the matter at issue has been codified. K.S.A. 60-441 provides:
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