State v. Pearson

Decision Date18 February 1984
Docket NumberNo. 55306,55306
Citation234 Kan. 906,678 P.2d 605
PartiesSTATE of Kansas, Appellee, v. Timothy D. PEARSON, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. In a criminal action, prosecutors are under a positive duty, independent of any court order, to disclose all exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence the evidence withheld must be clearly and unquestionably exculpatory and the withholding of the evidence must clearly be prejudicial to the defendant.

2. In the absence of fraud or bad faith on the part of the State and its investigative agents, due process does not require the State to invite the accused to participate in or supervise testing procedures performed in the investigation of a crime, even where the amount of evidence to be tested is so small sufficient material will not remain to allow the defendant to conduct an independent analysis of the evidence.

3. When the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, the defendant should be granted a new trial only if the record establishes: (1) that evidence is withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial.

4. The defendant in a criminal action is obligated to exercise due diligence in seeking to uncover exculpatory evidence before trial.

5. In a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.

6. Under K.S.A. 21-3107(3) the district court has a duty to instruct on lesser included offenses only when there is evidence under which the defendant might reasonably have been convicted of the lesser offense.

7. The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of the attendant circumstances by the trier of fact. It will not be overturned on appeal unless clearly erroneous. The quantum of evidence necessary to prove voluntariness has been held to be by a preponderance.

Marvin R. Appling and Michael T. Harris, Wichita, argued the cause, and were on the brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Timothy D. Pearson (defendant-appellant) guilty of second-degree murder (K.S.A. 21-3402). The appellant contends the trial court erred in refusing to suppress blood test evidence and items seized in a search of the appellant's home, in the admission of gruesome photographs of the victim, and in failing to instruct on the lesser included offense of voluntary manslaughter.

The following brief facts are sufficient to detail the events leading up to the appellant's conviction. The nude body of the victim, a young married woman, was found in a field on the outskirts of Wichita, Kansas, the afternoon of March 31, 1982. She had suffered a fatal stab wound to the front of her neck. The victim was last seen alive at a bar in Wichita in the early morning hours of March 31st, where she had engaged in a conversation with the appellant and the bartender. She told them she was at the bar because she and her husband had been in a fight. The victim and appellant left the bar at about the same time as it was closing.

The next day two detectives went to the appellant's house to inquire whether he had any information about the victim which would aid them in their investigation of the homicide. The appellant was in the driveway working on a car. The detectives observed some "Pearl" brand beer cans in the car and one or two cans in the drive itself. Beer cans of this brand had been found near the victim's body. The detectives asked the appellant and his wife if they would come to police headquarters to answer some questions. They consented and were offered a ride by the detectives. A babysitter could not be located to care for the appellant's two small children so they were taken along to police headquarters.

At police headquarters the appellant agreed to talk to the detectives after being read his Miranda rights. The appellant also agreed to be fingerprinted and signed a form consenting to a search of his home. While the appellant was being questioned the detectives received information from forensics officers that the appellant's fingerprints matched those taken from the beer cans found near the victim. The appellant was then placed under arrest.

Dried blood found on a pair of appellant's blue jeans and one of his boots was analyzed by Mary Cortese, a serologist with the Kansas Bureau of Investigation, for the ABO typing and six enzyme systems, and compared with blood samples from the victim and appellant. The method of analysis used by the serologist is commonly referred to as the Multi-System analysis. The six enzyme systems tested for were EAP, AK, ADA, PGM, EsD and GLO-1. The following chart illustrates the comparison of the appellant's and victim's blood to the dried blood found on the blue jeans and boots:

                              ABO    EAP    AK   ADA   PGM   EsD    GLO-1
                            -------  ----  ----  ----  ----  ----  -------
                Victim         0     BA     1     1    2-1   2-1     2-1
                Defendant      B     B      1     1     1     1       1
                Blue Jeans     0     BA     1     1    2-1   2-1     no
                Left Boot     no                                     no
                            results  BA     1     1    2-1   2-1   results

Ms. Cortese testified that based on studies showing the percentage of the population having each of the factors present in the victim's blood, she determined only .6 percent of the population would have the victim's combination of blood factors. Human blood was also present on a knife found in a dresser drawer in a bedroom of the appellant's house, although not enough was present to conduct any testing.

Tire tracks in the field where the body was found matched the four different kinds of tread on the tires of the car driven by the appellant the night of the murder. Soil taken from the field was identical in composition to mud found on tires of the car. The victim's purse, blouse and other items of clothing were found in a trash dumpster located approximately three blocks from the appellant's house.

The appellant testified he met the victim at the bar and gave her a can of beer from his car in the parking lot. He then left the parking lot in his car to go home and did not see her again. He claimed that on the night of the murder he was not wearing the blue jeans or boots on which the bloodstains were found. He denied killing the victim or driving the car he was using into the field where the body was found.

The first issue raised by the appellant involves the preliminary hearing testimony of Mary Cortese and subsequent pretrial events. Ms. Cortese testified she removed four bloodstains from the pair of blue jeans by cutting the stained area from the jeans. She conducted the Multi-System analysis on the four stains to determine the ABO typing and six enzyme types. A small amount of blood found on one of the appellant's boots was tested for the six enzymes, but an insufficient amount of blood was present to determine the ABO type. The following exchange took place on cross-examination by defense counsel:

"A. I chose [to test] the six [enzymes] that are done routinely. That gives the best population frequency data, take those six enzymes, and then went back into the AB-O blood grouping. At that point we had no other sample to work with.

"Q. The type of sample that we did is one of destructive testing, is that correct? In other words, once you do the testing you have no other material to work with?

"A. In this case, that's correct.

"Q. So if we are to duplicate the same from the same stain work we would be unable to do so?

"A. That's correct.


"Q. Without getting it out do you recall whether there are other stains on State's Exhibit 17 [pair of blue jeans] which--in your opinion are blood--other than the ones removed obviously?

"A. I can't recall specifically, no.

"Q. Did you also use all the blood in the scrapings and cotton swab work off the one boot?

"A. I took what I thought was to be enough for my testing, and I don't think there is anything left, no."

Shortly before the case was to go to trial on August 30, 1982, Ms. Cortese was asked by the prosecuting attorney to recheck the fabric cut from the jeans to determine whether any bloodstain material remained on the fibers which could be tested. She discovered a small amount of stain material was indeed left. Defense counsel were informed immediately of this development. A continuance was granted by the court to allow the defense to test the available material.

An expert in forensic serology, Dr. Benjamin Grunbaum, was retained by defense counsel to review the findings of Ms. Cortese and analyze the bloodstain material remaining on the jean fibers. A motion was subsequently filed to suppress the evidence of the blood testing conducted by Ms. Cortese.

At the hearing on the motion to suppress, Ms. Cortese testified she utilized most of the bloodstain material contained in the fabric in performing her testing. She believed that on two of the patches there was enough bloodstain material left to duplicate some of the testing she had conducted. She was not certain, however, if there was...

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29 cases
  • State v. Armstrong
    • United States
    • Kansas Supreme Court
    • January 16, 1987
    ...introduced during trial is such that the defendant might reasonably have been convicted of the lesser offense. State v. Pearson, 234 Kan. 906, 918, 678 P.2d 605 (1984); State v. Hutton, 232 Kan. 545, 554, 657 P.2d 567 (1983); State v. Sullivan & Sullivan, 224 Kan. 110, 120, 578 P.2d 1108 (1......
  • State v. Bible
    • United States
    • Arizona Supreme Court
    • August 12, 1993
    ...consumed through testing is not dispositive. See, e.g., United States v. Castro, 887 F.2d 988, 999 (9th Cir.1989); State v. Pearson, 234 Kan. 906, 678 P.2d 605, 615 (Kan.1984); John P. Ludington, Annotation, Consumption or Destruction of Physical Evidence Due to Testing or Analysis by Prose......
  • People v. Young
    • United States
    • Michigan Supreme Court
    • August 5, 1986
    ...testified for the defense, Sensabaugh's publications cited by the court to support both prosecution and defense); State v. Pearson, 234 Kan. 906, 678 P.2d 605 (1984) (Grunbaum testifying for the defense); State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981) (Stolorow for the state, Grunbau......
  • State v. Haddock
    • United States
    • Kansas Supreme Court
    • June 9, 1995
    ...person to see her alive. Haddock, however, denied having any kind of altercation with his wife. The State argues that State v. Pearson, 234 Kan. 906, 678 P.2d 605 (1984), is analogous, and we agree. Pearson was convicted of second-degree murder of a young woman, whose body was later found i......
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