State v. Nott

• Decision Date: 06 September 1983
• Docket Number: No. 55217,55217
• Citation: 669 P.2d 660,234 Kan. 34
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellant, v. Clemens C. NOTT, Jr., a/k/a Dean Nott, Appellee.

Page 660

669 P.2d 660

234 Kan. 34

STATE of Kansas, Appellant, v. Clemens C. NOTT, Jr., a/k/a Dean Nott, Appellee.

No. 55217.

Supreme Court of Kansas.

Sept. 6, 1983.

Syllabus by the Court

1. In a criminal trial, a defendant has the absolute right not to be called as a witness (Fifth Amendment to the United States Constitution; Kan. Const. Bill of Rights; § 10, K.S.A. 60-423[a ] ). The defendant may waive that right and take the witness stand.

2. Where two defendants are jointly tried, each defendant has a separate absolute right not to be called as a witness and neither defendant can call the other as a witness in their joint trial absent a waiver of the right by the defendant sought to be called.

3. Rules relative to motions for severance of joint criminal trials predicated on one defendant's desire to call the other as a witness are stated and discussed.

4. K.S.A. 60-439 is discussed and held applicable only to comments by court or counsel in the trial in which the privilege was asserted.

5. In an appeal by the State on a question reserved, the record is examined and it is held: (1) under the circumstances herein the defendant's refusal to answer questions directly relating to the commission of the charged crimes on Fifth Amendment grounds, when called as a witness by defense counsel in the severed trial of two codefendants, was truly inconsistent with his testimony at his own subsequent trial setting forth an alibi defense; (2) the trial court erred in prohibiting the State from cross-examining defendant for impeachment purposes on his prior inconsistent testimony.

William C. O'Keefe, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellant.

James A. Patton, Hiawatha, argued the cause and was on brief, for appellee.

McFARLAND, Justice:

This is an appeal by the State on a question reserved pursuant to K.S.A. 22-3602(b )(3). The question on which determination is sought is whether the trial court improperly prohibited the State from cross-examining defendant Clemens C. Nott relative to his invocation of the Fifth Amendment to the United States Constitution in the earlier trial of two codefendants.

The relevant facts are as follows. On December 13, 1981, the Wetmore High School was burglarized and school property valued in excess of $100 was stolen. Five individuals were charged with said burglary and theft. They were Gerald L. Cavin, Allen Cavin, Steven L. Whitaker, Rodney L. Kirk and the defendant herein, Clemens C. Nott. Defendant Nott was advised of his Miranda rights at the time of his arrest on April 27, 1982, and made no statement to the arresting officers. Although each defendant was separately charged, a joint preliminary hearing was held on May 13, 1982, wherein each defendant was bound over for trial. On May 18, 1982, as a result of plea negotiations, the Cavin defendants plead guilty to burglary. The three remaining defendants, Whitaker, Kirk and Nott, then sought separate trials. Over the objection of the State, the district court ordered Whitaker and Kirk to be tried together, with Nott to be tried separately.

The Whitaker-Kirk trial commenced on October 25, 1982. The following day, counsel for defendants Whitaker and Kirk called Nott as a defense witness. When called to the stand to testify, Nott invoked the Fifth Amendment and refused to answer any of the questions propounded to him by defense counsel relative to the burglary and disposition of the stolen goods. The precise questions addressed to Nott will be set forth later in the opinion. The State did not inquire of the witness. Whitaker and Kirk were found not guilty on both counts.

Nott's trial commenced at the conclusion of the Whitaker-Kirk trial. On October 29, 1982, Nott took the stand and presented an alibi defense--he testified he was in Topeka at the time of the commission of the crimes. No notice of alibi defense had been filed pursuant to K.S.A. 22-3218, but the same was unnecessary as only the defendant himself gave alibi testimony. Prior to its cross-examination of defendant Nott, the State requested a recess out of hearing of the jury. The State advised the court and defense counsel it intended to cross-examine Nott as to his taking the Fifth Amendment in the Whitaker-Kirk trial two days previously. The trial court treated the matter as a motion in limine and prohibited the State from any inquiry relative to defendant's testimony in the prior trial. Defendant Nott was acquitted on both charges. The State has appealed on a question reserved and seeks determination of the propriety of the trial court's order restricting the State's cross-examination of the defendant.

The question before us may be stated as follows: Where a defendant is called as a witness by codefendants in their separate trial and declines to answer questions relative to his participation in the charged crimes on the basis of the Fifth Amendment privilege against self-incrimination, but testifies to an alibi defense in his own subsequent trial, may the State attack defendant's credibility by inquiring on cross-examination as to defendant's assertion of the Fifth Amendment in the codefendants' trial on the basis the prior testimony is an inconsistent statement?

The issue is one of first impression in Kansas. In view of the vast number of reported cases concerning the Fifth Amendment right against self-incrimination, it seems incredible this precise issue is not the subject of well settled law, but such is the case.

A preliminary matter in the proper determination of this issue is the question of Nott's legal status in each of the trials.

In a criminal trial, a defendant has the absolute right not to be called as a witness. Fifth Amendment to the United States Constitution; Kan. Const. Bill of Rights, § 10. In Kansas this right had been made statutory law as well as by the enactment of K.S.A. 60-423(a ) which provides:

"Every person has in any criminal action in which he or she is an accused a privilege not to be called as a witness and not to testify." (Emphasis supplied.)

If a defendant desires to testify in his or her own trial, he or she may do so. In so doing defendant waives the right not to be called as a witness in his or her trial. Where two codefendants are jointly tried, each defendant has a separate absolute right not to be called as a witness. In such circumstances one codefendant (or the State) cannot call the other codefendant as a witness absent a waiver by said defendant of his or her right not to be called as a witness. Such a waiver, if made, is complete subject only to the procedural rules relative to the scope of cross-examination, redirect examination, etc., and such other limitations as may be imposed by a trial court in appropriate circumstances. Obviously the waiver by a defendant of his or her right not to be called as a witness can have serious consequences and is a significant defense decision.

What then can one codefendant do when he or she desires to call the other codefendant as a witness, but the other codefendant will not take the serious step of waiving the right not to be called as a witness? The only thing he or she can do is to seek severance of the trials of the two defendants. If successful on this motion, such defendant may then call the former codefendant as a witness. The former codefendant is not a defendant in the trial in progress and hence has no right not to be called as a witness, and can only assert a witness's privilege against self-incrimination as grounds for refusing to answer specific questions. This situation has arisen many times. In United States v. Shuford, 454 F.2d 772 (4th Cir.1971), Shuford, Long and Jordan were jointly indicted on conspiracy charges. Long was known to be the government's chief witness and was never brought to trial. The court summarized the pertinent facts as follows:

"Before the trial began and again after the prosecution submitted its evidence, Shuford moved that Jordan's case be severed from his own so that he might have the benefit of Jordan's testimony. Jordan likewise moved to have his case severed and joined in Shuford's motion. Although Shuford testified in his own behalf, Jordan ultimately decided not to take the stand. According to Jordan's statement to the court in support of Shuford's second motion for severance, two considerations prompted his decision not to testify: First, he wanted to avoid cross-examination that would bring to light certain prior convictions of his, and second, he planned to stand on the insufficiency of the Government's evidence and feared that if he took the stand in his own trial, he might strengthen the case against him by placing his credibility and demeanor before the jury. Shuford's attorney, arguing the motion for severance, further asserted, apparently without dissent by Jordan, that Jordan was not adverse to testifying in Shuford's behalf at a separate trial, since his own defense would not thereby be jeopardized.

"Before ruling on the motions for severance, the trial judge, in an endeavor to meet Jordan's objections to taking the stand in the joint trial, offered to forbid the Government from raising Jordan's prior criminal record on cross-examination. Jordan, however, still remained unwilling to testify, preferring to challenge the sufficiency of the Government's case without exposing himself as a witness in his own behalf. The trial judge denied the severance motions." 454 F.2d at 775.

Jordan was not going to testify in his own behalf in his trial. Therefore, any testimony given by him in Shuford's trial could not have been used against him in his own trial, if the trials were severed. The trials were not severed and Shuford was convicted. On appeal he alleged trial error in refusing the severance. The appellate court agreed stating:

"No other witness testified regarding Shuford's instructions to Long. Indeed the only other potential witness with direct...