State v. Potts, 45573
| Decision Date | 11 April 1970 |
| Docket Number | No. 45573,45573 |
| Citation | 468 P.2d 78,205 Kan. 47 |
| Parties | STATE of Kansas, Appellee, v. Max POTTS, Appellant. |
| Court | Kansas Supreme Court |
1. When contradictory statements are introduced in evidence for the purpose of impeaching a witness, the presence of the defendant when the contradictory statements were made is not necessary to make the statements admissible since the purpose of showing them is not to bind the defendant but to impeach the witness.
2. It is the rule in this state that where it appears a party is genuinely surprised by adverse testimony from his own witness, the trial court may, in its discretion, allow the party calling the witness to cross-examine and to interrogate him as to prior contradictory statements.
3. The mere fact that a witness has railed to testify as expected does not warrant impeachment by proof of prior statements in conformity with what he was expected to testify but the testimony given must be affirmative, contradictory and adverse to the party calling him.
4. Where a party has been entrapped or deceived by an artful or hostile witness, he may examine such witness as to whether he had not previously made contrary statements and may, in the discretion of the court, be permitted to show what such contrary statements were.
5. Technical objections to the trial court's instructions and argument of counsel raised for the first time on appeal will not be reviewed.
6. Where questions and answers are read to a witness from a previous statement for the purpose of impeachment and included in the record, and there is no claim that they were not read accurately, there is no necessity for introducing the statement itself before comment thereon in closing argument.
7. In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it in which he may use illustrations and appeal to the jury with all the power and persuasiveness which his learning, skill and experience enable him to use.
8. The question of the mental competency of a witness to testify is addressed to the sound discretion of the trial court.
Clark R. Mandigo, of McDonald, Tinker, Skaer, Quinn & Herrington, of Wichita, argued the cause and was on the brief for appellant.
James W. Wilson, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.
HATCHER, Commissioner.
This is an appeal from a conviction of second degree robbery.
On the evening of January 23, 1968, two young men, Gregory Mitchell and Steve Shirack, went to northeast Wichita in search of some 'fun.' Shortly after arriving in the area they met Hughie Sanders. The rest of the evening was spent riding around in Hughie Sanders' car looking for a 'fun house.' During the course of the evening a portion of several different bottles of whiskey were consumed by the riders of the automobile. In their search, their travels took them to several different locations. At each location one or all of the riders would exit the auto and later return.
At their next to last stop, Max Potts, the defendant, joined the three and they went to a house near the intersection of 26th Street and Mosley. When the four occupants arrived at this house they got out of the car. Steve Shirack and Gregory Mitchell led the way. After leaving the automobile Gregory Mitchell was knocked to the ground by Max Potts, and his billfold, keys and other property were taken. The other boy was held at knife point by Hughie Sanders. After the robbery Potts and Sanders drove off in the car. The victims made their way to a filling station where the police were called. Potts and Sanders were later identified through a line-up and later in court by each victim.
Potts was tried and convicted of second degree robbery. He has appealed.
Hughie Sanders, who had remained in jail since his arrest and failure to make bond, was put on the witness stand as a witness for the state. The state being dissatisfied with Sanders' testimony proceeded to read at length the questions and answers from a statement made by Sanders and recorded by a court reporter after Sanders' arrest. The statements read were incriminating and directly identified Potts as the robber.
The appellant contends:
'The extended reading of Hughie Sanders' extrajudicial statement to the jury violated the defendant's right of confrontation guaranteed under the sixth and fourteenth amendments to the Constitution of the United States and under Section Ten of the Bill of Rights of the Kansas Constitution.'
A determination of the contention requires a consideration of the statement and the circumstances under which the questions and answers therein were read.
When Hughie Sanders was made a witness by the state, it was no doubt believed that his testimony would be in line with his previous statement. However, when questioned about the preliminaries leading up to robbery on the evening of January 23, 1968, his answers were very evasive. He answered that he did not know or that he could not remember.
Counsel for the state requested permission to ask leading questions. The court declared the witness to be hostile and evasive and granted permission. We extract the following:
'Q. Hughie, what else do you remember about that night?
(Emphasis supplied.)
Again he was questioned:
'Q. (By Mr. Foster) Your lawyer asked you the next question, 'And you later got some more booze?' And your answer was, 'Yeah.' Your lawyer asked you, 'And then what happened?' And you said, 'Well, we took them out in the country.' And your lawyer asked you, And your answer was, 'You had been with them for some little time yourself before Max Potts--' Your answer was, 'Yes.' He then finished and said, 'Got together with you all?' And you answered, 'Yes.' Turning now to page 4, 'Yes,' and you said, 'Yes."
His answer was, 'I don't remember.'
Hughie Sanders was then questioned:
'Q. All right. Do you remember going into the north part of town on the other side of 21st Street?
'A. Yeah.
'Q. Okay. What happened then?
'A. Well, I usually drive there and pick up my sister from work. She used to work out there on 37th Street, somewhere in there. I used to go out there all the time.
'Q. Do you remember being there this night last January with Max Potts and these two blond headed boys?
'A. I never did go with him.
'Q. You never did go there?
'A. (No further response.)
'Q. Referring to Page 4 of the transcript, your lawyer asked you the question, 'Where did you first see Max Potts?' And you answered, 'On the corner of Murdock and Ohio.' Your lawyer asked, 'Did he get into your car?' And you said, 'Yeah.' Your lawyer asked you, 'Then where did you go?' You said, 'Went out to the north part of town.' Your lawyer asked you, 'How far north, approximately?' You said, 'Oh, about-just on the other side of 21st Street.'
'MR. FOSTER: I refer the Court's attention to Page 4 again of the transcript.
'' (Emphasis supplied.)
We conclude with the following:
'MR. FOSTER: Directing the Court's attention to Page 5 of the transcript--
'Q. (By Mr. Foster) Your lawyer asked you, 'What were you going into the house for?' And your answer was, 'Oh, supposed to have been a house of prostitution.' Your lawyer said, 'Had someone told these people Shirack and Mitchell that it was a house of prostitution?' And you said, 'We all was advised it was a house of prostitution.' Your lawyer said, 'Advised by whom?' And you said, Do you remember those questions being asked you?
'A. (Witness shakes head in the negative.)
'Q. Okay. He then asked you, 'You say Potts hit one of the two people?' And you said,
'Do you remember that question and answer?
'A. Who had some money on him?
'Q. One of these two blond headed boys by the name of Mitchell and Shirack. You told us Potts knocked him down, but Potts told you he didn't...
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State v. Rice, 71971
...446, 452, 485 P.2d 1338 (1971) (declarant refusing to testify not "available" under K.S.A. 60-460[a] ). Rice relies on State v. Potts, 205 Kan. 47, 468 P.2d 78 (1970), and State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959. Both cases are readily distinguishable. In Potts, we held the tr......
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