State v. Poulos
| Decision Date | 05 March 1966 |
| Docket Number | No. 44147,44147 |
| Citation | 196 Kan. 253,411 P.2d 694 |
| Parties | The STATE of Kansas, Appellee, v. George D. POULOS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action in which the defendant was charged, tried and convicted of third degree arson and subornation of perjury, is examined, and it is held: The district court did not err (a) in refusing to grant the defendant a change of venue, or in excusing a judge of another division of the district court from testifying at such hearing; (b) in permitting a witness for the state to testify over the objection of the defendant, and (c) in overruling the defendant's motion for a new trial.
T. M. Murrell, Topeka, argued the cause, and George A. Scott, Jack A. Quinlan and Kay McFarland, Topeka, and Charles D. Anderson and Warner Moore, Wichita, were with him on the briefs, for appellant.
Keith Sanborn, County Atty., Wichita, argued the cause, and Robert Londerholm, Atty. Gen., Topeka, and Richard K. Hollingsworth, and A. J. Focht, Deputy County Attys., Wichita, were with him on the briefs, for appellee.
The defendant, George D. Poulos, has appealed from a judgment rendered on a jury verdict finding him guilty of third degree arson in violation of K.S.A. 21-583 and subornation or perjury in violation of K.S.A. 21-702, 21-703 and 21-704.
In seeking reversal, the defendant briefs and argues three points: First, that the district court erred and abused its discretion in not granting him a change of venue, and in not permitting Judge Howard C. Kline to testify on behalf of the defendant; second, that the district court erred in permitting Jack Flournoy to testify over the objection of the defendant, and third, that the district court erred in not granting the defendant a new trial.
Briefly summarized, the information filed in the district court charged that commencing prior to April 12, 1962, and continuously thereafter until April 24, 1963, the defendant Poulos, Rex Rudolph Conn, James H. Dolan and Eugene Reuben McCroskey unlawfully and feloniously conspired to commit the crime of arson in the third degree by willfully setting fire to and burning a Lockheed Lodestar airplane valued at approximately $13,500, by placing a small satchel containing an explosive charge and fuse beneath the under surface of the airplane, and causing this device to explode and set fire to and burn the airplane. The second count charged the defendants with a conspiracy over the same period to conceal the arson offense alleged in Count 1 by using force and threats of force to intimidate Paul R. Luttrell to commit willful and corrupt perjury in a proceeding by which Luttrell falsely swore that Rex Rudolph Conn was in his presence at the time of the destruction of the airplane.
Subsequent to the filing of the information in the instant case, another information was filed in the district court charging the defendant Poulos and Rex Rudolph Conn jointly, with burglarizing the Town House Motor Hotel, Inc., in Wichita, in July, 1962, and with the larceny of four television sets therefrom. Subsequently, and on March 6, 1965, the defendant was convicted by a jury of those offenses and he has appealed, which is case No. 44,253, State v. Poulos, 196 Kan. ----, 411 P.2d 689, this day decided.
On September 24, 1964, and prior to a trial on the charges contained in both informations, the defendant filed identical motions for change of venue in each case pursuant to K.S.A. 62-1318 and 62-1319. On October 2, 1964, both motions for change of venue came regularly on for hearing in division No. 5, before Judge James J. Noone and Judge James V. Riddel, Jr., sitting in banc. After hearing evidence offered by the defendant and considering counter affidavits offered by the state, the judges, acting concurrently, denied each motion.
The instant case proceeded to trial on October 26, 1964, and ended on November 5, 1964, with the jury finding the defendant guilty as charged in Counts 1 and 2 of the information. The defendant's motion for a new trial was heard on November 19, 1964, and overruled. On November 23, 1964, the defendant was sentenced as a habitual criminal under the Habitual Criminal Act (K.S.A. 21-107a) on each count for a term of not less than fifteen years, the sentences to run concurrently.
Turning to the questions argued on this appeal, the defendant contends the district court erred in refusing to grant his motion for a change of venue. His motion contained the same language as the motion in case No. 44,253, and alleged the defendant could not obtain a fair trial in Sedgwick County for two reasons: First, that the inhabitants of the county were prejudiced against him, and second, that because he had been given widespread publicity through newspapers circulating in the county and through radio and television broadcasts of a derogatory nature, an impartial and unprejudiced jury could not be had in Sedgwick County. Each motion moved the court for an order transferring the case to the district court of Wyandotte County.
In support of his motion, the defendant attached an affidavit of Roger N. Wilson a newscaster for a Wichita radio station, identical in language as his affidavit attached to his motion in case No. 44,253, in which he stated he knew the defendant and because of publicity and rumor, the general reputation of the defendant reflected upon his character in a derogatory manner generally throughout the community, and, as a result of the defendant's reputation, it was not probable a jury could be selected to try the defendant upon the charges contained in the information, or in any other matter, which would not have a member or members who would not be prejudiced and biased against the defendant. Both motions were noticed for hearing on October 2, 1964, in division No. 5 of the district court of Sedgwick County.
At the hearing for change of venue, the defendant called as his first witness Mabel M. Snodgrass, the official court reporter for division No. 2, of the district court of Sedgwick County, who identified defendant's Exhibit 'A' as being her uncertified, uncorrected office copy of a transcript of a hearing held October 3, 1963, before Judge Howard C. Kline in another criminal case involving the defendant, containing the sworn testimony of witnesses and Judge Kline's statement finding upon his 'own knowledge' the defendant could not obtain a fair and impartial trial in Sedgwick County and granting a change of venue to the Saline County district court.
The defendant's second witness was Dale Dougherty, a reporter for the Wichita Eagle, and a resident of Sedgwick County for eighteen years. He testified that he reported the courthouse news; that he had seen stories in the local news media about the defendant; that within the last six months he had discussed the defendant's reputation with some persons and that his reputation and character were bad; that he did not know whether he agreed with the affidavit attached to defendant's motion and he was not sure what the result would be in impanelling a jury. third witness. He testified he had been a thrid witness. He testified he had been a news director for nine years for a Wichita television station and had resided in Sedgwick County 23 years; that he had read and heard news regarding the defendant, but had never heard him discussed by other people; that in his opinion it was not probable to select a jury which would not have members who would not be prejudiced and biased against the defendant; that his opinion was based upon the fact that an adequate opportunity for forming an opinion had been given to the citizens of Sedgwick County due to the fact that modern communications were so great and widespread; that this was true in every case, not just in the case of the defendant, as he had been treated no different in the news than anyone else who makes headlines frequently; that his station had not made or produced inflammatory utterances or articles about the defendant and he had made no effort to treat him any different than anyone else charged with a crime.
Judge Howard C. Kline was called as the defendant's fourth witness for the purpose of placing in evidence the statement of his ruling on October 3, 1963, and to ask him if he had heard or read anything about the defendant since that time that would have changed his opinion. The court, in banc, took judicial notice of Judge Kline's ruling in the prior case, but not the evidence at that hearing, and excused him from testifying.
The defendant's fifth witness was Roger N. Wilson who signed the affidavit attached to the defendant's motion for change of venue. He testified he had been a resident of Wichita for five years and was acquainted with the defendant; that he had made newscasts regarding the defendant but he had been treated no different than any other person about whom he had occasion to report; that based on the general reputation of the defendant in the community, half of the community felt the defendant was a man of unsavory reputation and the other half was of the opinion the defendant had a reputation roughly comparable to a Robin Hood and a man who was persected; that there was equal possibility or probability the state of Kansas and the defendant might not get a fair trial; that his opinion was not based on any current facts or circumstances but was only his impression of what others had said and he had overheard, and that there could be a good number of people who might wish to see the defendant in prison whether he was guilty or not, but he was not sure this was the feeling of the entire community or even the majority.
Following the introduction of the testimony, counsel proffered defendant's Exhibit 'A' to show Judge Kline's statement and the reasons for his ruling in 1963. The proffer was refused, and the defendant rested, offering no further testimony.
The state filed...
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State v. Myrick, s. 50,637
...jury, an important consideration in weighing a claim of prejudice. See State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977); State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. denied 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 164 (1966); United States v. Daddano, 432 F.2d 1119 (7th Cir. 1970), cer......
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State v. Randol, 47033
...that his evidence was totally and completely insufficient to permit the district court to order a change of venue. (State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. den. 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64.) 'Furthermore, prejudice must be established 'not as a matter of speculation ......
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State v. Lamb
...v. Goering, 179 Kan. 55, 293 P.2d 235.)' (p. 55, 446 P.2d p. 847.) The court then went on to say: 'In the recent case of State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. den. 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64, it was "The defendant's failure to present affirmative evidence that pre......
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State v. Paxton
...36, 289 P. 483). Two of our most recent expressions on the subject where the matter was explored in considerable depth are State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. denied 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64, and State v. Truner, 193 Kan. 189, 392 P.2d The rule is well establi......
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Probable Cause Affidavits Open in Kansas
...220 (1977); State v. Black, 221 Kan. 248 (1977); Green v. State, 221 Kan. 75 (1976); State v. Ayers, 198 Kan. 467 (1967); State v. Poulus, 196 Kan. 253, cert. denied, 385 U.S. 827 (1966); State v. Furbeck, 29 Kan. 532 (1883); State v. Arculeo, 29 Kan. App. 2d 962 (2001); State v. Moss, 7 Ka......
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Probable Cause Affidavits Open in Kansas
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