State v. Quick

• Decision Date: 17 January 1981
• Docket Number: No. 52112,52112
• Citation: 229 Kan. 117,621 P.2d 997
• Parties: STATE of Kansas, Appellee, v. Ronald W. QUICK, Appellant.
• Court: Kansas Supreme Court

Page 997

621 P.2d 997

229 Kan. 117

STATE of Kansas, Appellee, v. Ronald W. QUICK, Appellant.

No. 52112.

Supreme Court of Kansas.

Jan. 17, 1981.

Syllabus by the Court

In a prosecution for aggravated robbery, the record in examined and it is held the trial court committed reversible error in permitting the accused to be cross-examined concerning a prior conviction when such was not within the scope of the direct examination and the accused had not introduced evidence for the purpose of supporting his own credibility or good character.

Robert L. Taylor, Hutchinson, argued the cause and was on brief, for appellant.

Timothy J. Chambers, Asst. County Atty., argued the cause and Joseph L. McCarville, III, Asst. County Atty., and Robert T. Stephan, Atty. Gen., were with him on brief, for appellee.

HOLMES, Justice:

Ronald W. Quick appeals from his second conviction by a jury of aggravated robbery growing out of the same crime. K.S.A 21-3427. In State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979), his first conviction was reversed and the case remanded for a new trial. In a retrial of the case Quick was again convicted and now appeals the most recent conviction which, unfortunately, must be reversed.

In the prior appeal we summarized the facts as follows:

"At 7:00 p.m. on May 10, 1978, a man walked into the F & S Liquor Store in Hutchinson, Kansas. Stella Stewart was the only employee on duty. The man pulled a handgun and demanded money. The man received approximately $130.00. He then left the store and crossed the street in the direction of a motel.

"Mr. Richard Peterson and his wife were playing with a 'frisbie' in the driveway of the motel. Mr. Peterson testified that he saw a passenger leave his vehicle, cross the street to the liquor store, and hurriedly return to the car shortly thereafter. He identified the defendant as that man and was positive it was the defendant because he had worked with defendant at a roofing company in Hutchinson. Peterson testified the driver in the car started to 'take off' before the defendant was completely inside the car. The car was an orange colored Ford Pinto. Mrs. Stewart, the clerk, was able to identify the defendant at the trial by two moles on his face. Defendant was arrested in Hutchinson two days later. He has continued to maintain his innocence.

"At the trial defendant testified in his own behalf as follows: He is a painter by trade. He did not commit the crime. At the time of the robbery he lived in Nickerson, Kansas. He was in the home of a friend, Noel Dawkins, at 7:00 p.m. on the evening the robbery occurred. He has never owned an orange Ford Pinto automobile and did not ride in one on the evening of May 10, 1978.

"His friend, Noel Dawkins, testified at the trial. He verified defendant's presence at his house from 6:30 to 7:30 that particular evening. Another friend, Marion Russell Walton, also testified at the trial. He accompanied the defendant when the defendant visited Noel Dawkins. They were at the Dawkins home from 6:30 to 7:35 p.m. on the evening of the robbery. The defendant owned and was driving a green Chevrolet automobile that evening. Defendant also produced two other witnesses who testified a green Chevrolet automobile came to the Dawkins residence around 7:00 p.m. on the evening of May 10, 1978. The alibi evidence was substantial." p. 309, 597 P.2d 1108.

Additional evidence was developed in the trial of the present case. The alibi of the defendant was bolstered by testimony from his father as to the time Quick left home and returned on the night of the crime and also corroborated testimony of other alibi witnesses as to what the defendant was wearing and driving that night. The clothing testified to by defendant's father and other alibi witnesses did not match that of the robber as testified to by Mrs. Stewart or Mr. Peterson.

Robbin Gresham, whose testimony had been excluded from the first trial, testified that one David Fors, who bore a considerable resemblance to the defendant, had admitted to her that he (Fors) had committed the crime for which defendant Quick was charged and convicted. She also testified that one Kathy Gore, a friend of Fors, owned an orange Pinto automobile and that she had seen Fors driving the orange Pinto.

Gary Kepka, an inmate of the Reno County jail and a former friend of Fors also testified that Fors had admitted the robbery and indicated he could do it again. On cross-examination, Kepka admitted that Fors had testified against him in his trial for felony theft.

On rebuttal for the State, David Fors testified he knew a girl named Kathy who owned an orange Pinto, but he denied any connection with the liquor store robbery. He also admitted knowing Robbin Gresham and Gary Kepka but denied he ever told them that he perpetrated the robbery.

Defendant testified that at 6:00 p.m. on the night of the robbery, he had called one Beatrice Dean from his home in Nickerson to inquire about a church meeting. The purpose of the testimony was to establish the time the defendant claimed he left his home in Nickerson to go to the home of Noel Dawkins. The brief statement was not such that would put the character of the defendant in issue. K.S.A. 60-421 and 60-447. State v. Bright, 218 Kan. 476, 543 P.2d 928 (1975).

On cross-examination, over continuing objections by defense counsel, the prosecutor was allowed to question the defendant at length about his whereabouts during the day of May 10, 1978. The examination centered around a trip to Newton that the defendant had taken to clear up the matter of some small insufficient fund checks with the Harvey County attorney. The prosecutor repeatedly questioned the defendant about his check crimes and eventually drew from him that he had pled guilty to a check charge in Harvey County. At each objection the prosecutor would advise the court that he was proceeding to test the "memory" of the defendant. On that basis the court allowed the questioning to continue. So far as we can determine, the "memory" of the defendant was not an issue and if it was then such grounds could only go to the credibility of the defendant. The only issue in the case was one of identity. In addition, the questioning was clearly outside the scope of the direct examination. After testimony which covers several pages in the transcript the prosecutor changed horses and advised the court his examination about prior crimes was now being done to establish motive, although in his brief in this court he says it was not offered under 60-455 but could have been.

The first point we will consider on appeal is that it was error for the trial court to allow the State to bring into evidence for the first time on cross-examination of the defendant, evidence of prior crimes when the defendant had not put his character or credibility in issue. We agree.

K.S.A. 60-421 provides:

"Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility."

K.S.A. 60-447 provides:

"Subject to K.S.A. 60-448 when a trait of a person's character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a ) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b ) in a criminal action evidence of a trait of an accused's character as tending to prove guilt or innocence of the offense charged, (i ) may be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii ) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character."

K.S.A. 60-455 provides:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-455 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

At the outset, a careful review of all the defense testimony reveals that the defendant did not attempt to introduce evidence admissible solely for the purpose of supporting his credibility or for the purpose of establishing his good character. A few references were made to his attendance at church but were in connection with his attempt to prove his alibi and his activities at the time the crime took place. The prosecution, however, in cross-examination of some of defendant's witnesses dwelt upon the church-going habits of the defendant in an obvious attempt to later allege that his character had been brought into issue by the defense. In one instance the prosecutor questioned Beatrice Dean, who had posted the bond for the defendant, about her opinion of defendant's character. He also attempted to question the defendant about his opinion of his own good character. This was one of the rare occasions on which a defense objection was sustained. The self-serving cross-examination by the prosecution cannot form the basis for a later claim defendant had placed his good character in issue thereby allowing that same prosecution to introduce evidence of prior crimes.

As the record and briefs are confused as to whether the State elicited the prior crimes testimony...