State v. Norwood, 47646

• Decision Date: 10 May 1975
• Docket Number: No. 47646,47646
• Citation: 217 Kan. 150,535 P.2d 996
• Parties: STATE of Kansas, Appellee, v. Larry D. NORWOOD, Appellant.
• Court: Kansas Supreme Court

Page 996

535 P.2d 996

217 Kan. 150

STATE of Kansas, Appellee, v. Larry D. NORWOOD, Appellant.

No. 47646.

Supreme Court of Kansas.

May 10, 1975.

Syllabus by the Court

1. When an accused has made conflicting statements as to his whereabouts at the time of a crime, such statements are admissible to show his consciousness of guilt or unlawful intent, even though one of the statements was made on the witness stand at a former trial.

2. In an appeal from a conviction of theft (K.S.A. 21-3701) of stereo equipment from an apartment in Wichita, Kansas, the record is examined and it is held: The trial court did not err in denying defendant a separate trial and in failing to grant a new trial for (1) prejudicial conduct of the trial judge, (2) prejudicial argument of the prosecutor in his closing statement, (3) erroneous rulings on the admission of evidence, and (4) errors in instructing the jury; and did not err in denying a motion for acquittal on the ground the evidence was insufficient to establish defendant's guilt beyond a reasonable doubt.

Leonard F. Watkins, Jr., El Dorado, argued the cause, and Russell Shultz, Wichita, was with him on the brief for appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Clifford L. Bertholf, Asst. Dist. Atty., were on the brief for appellee.

OWSLEY, Justice:

This is an appeal from a criminal conviction of theft as defined by K.S.A. 21-3701. Appellant-defendant Larry Norwood and co-defendant Gary Bogguess were charged jointly in a two count information with the crimes of burglary (K.S.A. 21-3715) and theft (K.S.A. 21-3701(a)). A joint trial was held and on June 12, 1972, the jury returned verdicts in which Norwood was found guilty of theft, but not guilty of burglary; and Bogguess was found guilty of burglary, but not guilty of theft. Motions for a new trial, filed by each defendant, were granted by the trial court. Their motions for separate trials were denied and defendant were again tried jointly, with Norwood being found guilty of theft and Bogguess guilty of burglary. Subsequent motions for a new trial or judgment of acquittal were overruled and Norwood perfected this appeal, raising twelve points of error which he claims denied him his constitutional right to a fair trial.

This case arose out of the theft of various items of stereo equipment from a duplex apartment rented by Carl Davis, Fred Johnson, and Charles Ervin. The other apartment in the duplex was rented by Davis' sister, Ernestine Hollimon. Mrs. Hollimon testified that she returned to her home shortly before 8:00 o'clock on the evening of February 16, 1972. She heard 'banging' noises next door and, assuming her brother was home, she went to his apartment. When she arrived, she almost 'got run over' by Larry Norwood who was racing from the apartment with a speaker under each arm and some tape cartridges in his hand. She testified that as Norwood went by her she heard someone from the house ask, 'Did you get the other speaker?' Mrs. Hollimon also stated that she saw two other persons standing in the doorway to the apartment, one of whom she later identified as co-defendant Bogguess.

A police officer arrived on the scene a few minutes later and Mrs. Hollimon told him she had seen Norwood and another man take the stereo equipment from her brother's apartment. The officer found Bogguess and another man outside the apartment and Mrs. Hollimon was able to identify Bogguess as the other person she saw taking the stereo equipment.

Carl Davis testified that on the day before the burglary both defendants had been in his apartment listening to music on the stereo that was later stolen. He further stated that he and his two roommates had gone out on the night in question, leaving the apartment unoccupied. When they returned, the back door had been broken open and several items of stereo equipment were missing.

Mrs. Hollimon testified she had known Norwood since high school and she had seen him often since then. She stated the last time she had seen Bogguess was when they were both in high school.

Norwood first claims he was prejudiced by various acts of misconduct on the part of both the trial judge and the prosecutor. Norwood contends the trial judge acted in such a manner that his bias in favor of the state was clearly apparent to the jury. At one point in his brief he states, 'One evidence of his bias towards the state is evidenced in the fact that in his discreationary (sic) rulings were always such that the state benefited and the defendant lost. Such conduct in its self (sic) is sufficient to show partiality.' The argument is without merit. Ruling in favor of the state on procedural matters at trial is no more evidence of bias in favor of the state than would the mere fact of ruling for the defendant be evidence of partiality to the defendant. Ruling in favor of a party does not in itself indicate bias or partiality.

As specific evidence of judicial misconduct Norwood points to two segments of the trial in which the trial judge allegedly behaved in a biased manner. In the first instance he complains the trial judge assisted the prosecutor in framing a question to a witness. On direct examination of Charles Ervin the prosecutor asked him, 'What was the value . . . to you of the Home unit and the speakers?' Defense counsel objected to the form of the question and the prosecutor was ordered to rephrase it. Despite repeated efforts to properly state the question, objections were sustained by the court. Finally, the trial judge said he would allow the question if the prosecutor would not use the word 'price.' After rephrasing the question in accord with the court's suggestion, the prosecutor was able to elicit testimony to the effect that in Ervin's opinion the stereo was worth $120.00.

The second example of alleged bias on the part of the trial judge occurred during the closing arguments. Norwood complains that whereas the defense counsel was admonished by the trial judge when he strayed into the area of punishment, the prosecutor was not similarly warned when his argument strayed outside the evidence.

A defendant in a criminal trial is entitled to a fair and impartial trial. This includes the right to a trial before a fair and unbiased judge. The purpose of a trial in a criminal case is to ascertain the truth or falsehood of the charges against the defendant, and it is a part of the duty of the trial judge to see that the full truth is developed by the evidence. (State v. Jones, 204 Kan. 719, 466 P.2d 283.) In order to achieve this purpose we have held it to be proper for the trial judge to use whatever means that reasonably appear necessary, under the circumstances, to develop fully the truth of the matter in issue. Such conduct by the trial judge does not constitute ground for a new trial unless it appears his action is of such a prejudicial nature it would tend to reasonably influence the minds of the jury against the defendant, thus denying him the right to a fair and impartial trial. (State v. Bean, 179 Kan. 373, 295 P.2d 600.)

In State v. Atherton, 151 Kan. 370, 100 P.2d 63, we approved the trial judge's conduct in asking a witness 'a few helpful questions designed to expedite the trial' touching on the subject of value. Similarly, in the instant case the trial judge assisted the prosecutor in phrasing a question as to value when confusion was created by general objections to the form of the question. Not only was no prejudice shown by defendant, but it appears the trial court's conduct was a highly commendable effort to expedite trial and develop the full truth. Our examination of the entire record satisfies us the complaint of defendant as to the actions of the trial court did not result in any prejudice to defendant's right to a fair trial.

We cannot agree with Norwood's contention that the prosecuting attorney was guilty of prejudicial misconduct. He complains of the prosecutor's remarks in his closing argument. At one point the prosecutor implied one of the state's witnesses, Mrs. Hollimon, was subjected to 'a lot of harassment.' Norwood claims any suggestion of harassment is without a basis in evidence and therefore improperly included in the closing argument. He also objects to the prosecutor's statement to the jury that, 'This is your community, ladies and gentlemen. What you do here today in reaching your decision in this case is what we call justice.'

It is true that misconduct on the part of a prosecutor by going outside the record in the heat of final argument may be so gross and flagrant as to deny the accused a fair trial and require a reversal. (State v. Murrell, 215 Kan. 10, 523 P.2d 348; State v. Kelley, 209 Kan. 699, 498 P.2d 87.) Yet, in the absence of a showing that the objectionable statement made by the prosecutor was injurious to the defendant and was likely to affect the jurors to his prejudice, we will not require the granting of a new trial. (State v. Murrell, supra.)

Norwood has failed to convince us the prosecutor's comments in any way prejudiced his right to a fair trial. At most, the statements concerning the harassment of a witness and the effect of a verdict on the community were improper statements, but not of such magnitude as to constitute prejudicial error. Accordingly, the trial court did not err in failing to grant a new trial or declare a mistrial as a result of the prosecutor's closing argument.

Norwood next contends the trial court erred in admitting rebuttal testimony of a state's witness when such testimony was no more than a restatement of his testimony in the state's case-in-chief. The testimony was given by Detective Lewis Brown on rebuttal in response to the question of whether he had ever told Bogguess he was out to get Norwood. Detective Brown replied in the negative.

Rebuttal testimony is, generally speaking, evidence presented in denial of some fact which...