State v. Porter, 51704

• Decision Date: 18 July 1980
• Docket Number: No. 51704,51704
• Citation: 228 Kan. 345,615 P.2d 146
• Parties: STATE of Kansas, Appellee, v. Milton PORTER, William Green, and Vernon Smith, Appellants.
• Court: Kansas Supreme Court

Page 146

615 P.2d 146

228 Kan. 345

STATE of Kansas, Appellee, v. Milton PORTER, William Green, and Vernon Smith, Appellants.

No. 51704.

Supreme Court of Kansas.

July 18, 1980.

Syllabus by the Court

1. The process of editing a defendant's statement or confession to excise or delete incriminating references to a codefendant is known as redaction. Following State v. Purdy, 228 Kan. 264, 615 P.2d 131 this day decided.

2. It is unreasonable to assume that in all cases the mere deletion of a defendant's name from a codefendant's incriminating statement is going to protect the complaining defendant from being implicated in the minds of the jury, when the statement refers to other participants in the crime and the other defendants are sitting at the same counsel table charged with the same crimes.

3. The erroneous admission of a codefendant's statement in violation of the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), may be harmless error where the statement is merely cumulative to other overwhelming evidence against the complaining defendant.

4. A confession by an accused relative to the offense charged is admissible only against the confessor and in a joint trial of codefendants it is necessary that an instruction be given to the jury limiting the use and purpose of the confession to a determination of the guilt of the confessor. However, the failure to give such an instruction may be harmless error if there is other independent, overwhelming evidence of guilt.

5. Where alleged juror misconduct claimed as prejudicial is known to the party or his counsel prior to rendition of a verdict, and no objection is made, nor the matter brought to the court's attention, the party cannot later assert the misconduct as grounds for a new trial. Following State v. Buggs, 219 Kan. 203, Syl. P 4, 547 P.2d 720 (1976).

6. In determining whether a defendant's right to a speedy trial under K.S.A. 22-3402 has been violated, any period of delay resulting from a continuance granted at the request of the defendant is to be excluded in computing the time for trial under the statute.

7. The constitutional issue of denial of effective assistance of counsel will not be considered on a direct appeal where the issue was not presented to or determined by the district court.

Donald E. Bucher, Kansas City, argued the cause and was on the brief for appellants Milton Porter and William Green.

Joseph P. Perry, Bonner Springs, argued the cause and was on the brief for appellant Vernon Smith.

Philip L. Sieve, Chief Deputy Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

HOLMES, Justice:

This is a consolidated appeal from a jury verdict finding appellants, Milton Porter, William Green and Vernon Smith, each guilty of two counts of aggravated robbery (K.S.A. 21-3427).

On the 23rd day of April, 1979, two black men entered an APCO service station in Kansas City, Kansas, and robbed two station attendants at gunpoint. During the time that the robbery was taking place, Wendell Kilian, a security manager for Sears, Roebuck & Co., was leaving the Sears store which is located approximately fifty yards from the APCO station. Kilian noticed in the parking lot a blue car which was occupied by two black males who were looking in the direction of the APCO station. The motor of the car was running. Kilian became suspicious and drove past the car twice, noting the license tag number. He then observed two black males run from the station and get into the blue car which departed from the Sears lot at an unusually high rate of speed. Shortly thereafter a police officer saw the car run a stop sign and the officer turned on his emergency lights in an attempt to stop the car which sped away. A high speed chase ensued ending when the car hit a telephone pole. Two men riding in the car jumped out and ran from the scene. Police from a backup car chased these two through a residential area and eventually arrested Milton Porter who was found hiding under a parked car. Smith, the driver of the car, and Green, a passenger, were arrested at the crash site. The fourth individual has not been identified or apprehended as far as we know.

The three defendants were arraigned on June 8, 1979, and trial began on September 10, 1979. Green and Porter were represented by Richard Keithley and Smith by Gerald Jeserich. All three were tried together and all three have appealed, alleging various points on appeal.

The first and major point on appeal by Porter and Smith is that the trial court erred in admitting codefendant Green's extrajudicial statements into evidence. Since Green did not testify Porter and Smith contend that their Sixth Amendment right of confrontation was violated and further contend that the failure of the trial court to give a limiting or cautionary instruction to the effect that Green's statement could not be considered as evidence against Smith and Porter is reversible error.

Green's oral statement was introduced through the testimony of Sergeant Clyde Blood of the Kansas City, Kansas, Police Department. His testimony follows:

"Q. What happened then after Mr. Green here indicated that he did understand his rights. Did he indicate at that point whether he talked to you about the APCO robbery?

"A. Well, after he signed his rights, he indicated that he was involved in the robbery of the APCO station with three other parties.

"Q. Okay. Did he indicate to you how this robbery came to pass?

"A. Well, he had met he was with two parties and met another party at a Kentucky Fried Chicken store at 36th, I believe, and State Avenue. At that time they discussed the robbery of the APCO station."

At this point the proceedings were interrupted and both defense counsel renewed their objections, which had been made earlier at an in camera hearing held to determine the admissibility of the statement. The objections were overruled and the testimony continued.

"Q. (By Mr. Sieve) Sergeant, you were to a point there where you said that the Defendant Green said he had gotten together with three other people and I think you said they were planning this robbery. Go ahead then with what Mr. Green told you?

"A. Well, they discussed the robbery while they were at the Kentucky Fried Chicken Store. One of the parties supplied one or two hand guns. I don't recollect I think it was two. They were both, I believe, revolvers. They proceeded in a motor vehicle to the area of Sears and Roebuck where they parked the vehicle in a lot adjacent to the Sears and Roebuck Store. At that time Mr. Green and another accomplice walked to the APCO Station and the robbery was executed and they left the area and returned to the Sears lot and got into the car and left.

"Q. Okay. And did he indicate to you what happened to him shortly thereafter leaving the Sears lot?

"A. Well, they were engaged in a short pursuit with uniformed police vehicles and apprehended, but I didn't don't recollect the details of that pursuit or apprehension."

Defendants' objection to the admission of this evidence is based on the decision of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The rule of Bruton is well recognized by this court and was summarized in State v. Mims, 220 Kan. 726, 733, 556 P.2d 387 (1976), as follows:

"In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the United States Supreme Court held that an accused's right of cross-examination secured by the confrontation clause of the Sixth Amendment is violated where a codefendant does not testify and his extra-judicial confession inculpating the accused is admitted into evidence, notwithstanding jury instructions that the codefendant's confession must be disregarded in determining the accused's guilt or innocence. In Bruton the United States Supreme Court stated that under the traditional rules of evidence, a codefendant's confession inculpating the accused is inadmissible against the accused as hearsay and that the major reason underlying the confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses. The rule of Bruton has been well recognized by this court. (State v. Greer, 202 Kan. 212, 447 P.2d 837; Cantrell v. State, 206 Kan. 323, 478 P.2d 192; State v. Oliphant, 210 Kan. 451, 502 P.2d 626.)"

See also State v. Rodriguez, 226 Kan. 558, 601 P.2d 686 (1979); State v. White & Stewart, 225 Kan. 87, 587 P.2d 1259 (1978); State v. Edwards, 224 Kan. 266, 579 P.2d 1209 (1978); State v. Sullivan & Sullivan, 224 Kan. 110, 578 P.2d 1108 (1978); State v. Purdy, 228 Kan. 264, 615 P.2d 131, this day decided; and State v. Hutchison, 228 Kan. 279, 615 P.2d 138, this day decided.

Prior to the admission of the oral statement of Green, the trial court held an in camera hearing to determine its admissibility. The trial judge found that the statement could be introduced into evidence as long as all references to Porter and Smith were omitted. This process is known as redaction, which was defined by this court in Purdy as the "process of editing a defendant's statement or confession to excise or delete incriminating references to a codefendant . . ." Syl. P 1. The case at bar, along with Purdy and Hutchison, is the first to come before this court dealing with redaction. Purdy and Hutchison involve written, interlocking statements while the statement in the present case was an oral one which was not reduced to written form. In Bruton, the United States Supreme Court recognized the use of redaction in various jurisdictions without specific approval or disapproval. Bruton v. United States, 391 U.S. at 134 n.10, 88 S.Ct. at 1626-1627 n.10. There are, however, numerous federal and state cases dealing with the use of edited statements in trials of joint codefendants. For a summary of the rationale of many of ...