State v. Reed
| Decision Date | 08 December 1973 |
| Docket Number | No. 47170,47170 |
| Citation | 516 P.2d 913,213 Kan. 557 |
| Parties | STATE of Kansas, Appellee, v. Cleveland REED, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is not necessary that an action or proceeding be pending at the time an attempt is made to deter a witness from giving evidence in order for a person to be guilty of corruptly influencing a witness under K.S.A.1972 Supp. 21-3806.
2. When a witness for the prosecution testifies to some part of an oral conversation with the defendant, the defendant may introduce evidence to show the rest of such conversation to establish his version of the conversation.
3. In a prosecution under K.S.A.1972 Supp. 21-3806 where the state relies upon means other than bribery or threat it should describe with particularity the 'other means' in the information in order to enable the defendant to know what he is charged with and to defend against the charge.
Russell Cranmer, Michaud, Cranmer, Syrios & Post, Wichita, argued the cause, and was on the brief for appellant.
Larry G. Kirby, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.
This is a direct appeal in a criminal action in which the appellant-defendant, Cleveland Reed, was convicted by a jury of the offense of corruptly influencing a witness as provided in K.S.A.1972 Supp. 21-3806. The record discloses the following factual circumstances: On August 19, 1972, Kitty Dorsey, an employee of the Holiday Laundry in Wichita, Kansas, observed Delores Reed, the common-law wife of Cleveland Reed, take a sum of money from the laundry premises. Delores Reed was subsequently arrested by the Wichita Police Department for theft. On August 22, 1972, while Delores Reed was in custody, Cleveland Reed went to the Holiday Laundry and had a conversation with Miss Dorsey. This conversation was the basis for the charge upon which the defendant Reed was convicted in the district court. The defendant and Miss Dorsey were not in agreement as to what was said during that conversation. Kitty Dorsey's version of the conversation was as follows: At the beginning Cleveland Reed said, 'Oh, so you're the one that put my wife in the hospital.' Reed told Miss Dorsey that the police had beaten Delores Reed and that she had lost a three-months baby. Reed advised Miss Dorsey that Delores Reed had told him that Kitty Dorsey gave the money to Delores Reed to do lesbian acts with her. He asked Miss Dorsey if she was a lesbian and she said 'no'. He then called her a lesbian and told her he was going to press charges against her. According to Miss Dorsey, Reed told her if she had a heart she would not let things go like that. He said that if he did not have such good virtues that he would strangle the life out of her and that he had just 'got out of the penitentiary' and that he would go back if he had to. He said if she had a heart she would not press the charge any further because Delores Reed had lost the baby. Reed told Miss Dorsey if she did press charges that she would live to regret it the rest of her life. Kitty Dorsey testified that she was scared and that at one point Reed started toward her and that she told Reed not to touch her. Reed said he was not threatening her; that was just the way it was. According to Miss Dorsey that terminated the conversation. Kitty Dorsey reported the threat to her mother who in turn called the Wichita Police Department. Subsequently Reed was arrested and charged with corruptly influencing a witness.
The defendant Reed's version of the conversation between Kitty Dorsey and himself differs from that presented by Kitty Dorsey. Reed's version was as follows: Reed went into the Holiday Laundry on August 22, 1972, where the conversation with Kitty Dorsey took place. According to Reed he stated to Kitty Dorsey, According to Reed his wife Delores had advised him that Kitty Dorsey had offered her money to commit lesbian or homosexual acts with her. Essentially it was Reed's version that he was angry because Kitty Dorsey had made homosexual or lesbian offers to his wife and that he had threatened her, not for the purpose of attempting to deter her from testifying as a witness against Delores Reed in a criminal proceeding, but solely to discourage Kitty Dorsey from taking his wife away from him in a lesbian relationship. The jury found the defendant Reed guilty as charged and sentence was imposed. The defendant has brought a timely appeal to this court claiming a number of trial errors.
The defendant contends that the trial court erred in denying his motion of acquittal made at the close of the state's case. The thrust of defendant's argument is that a person cannot be guilty of corruptly influencing a witness under K.S.A.1972 Supp. 21-3806 unless there is an action or proceeding pending at the time the witness is threatened. 21-3806 provides as follows:
'Corruptly influencing a witness is a class E felony.'
It should be noted that there is nothing in the statute which specifically requires that an action or proceeding be pending at the time the attempt is made to deter a witness from giving evidence. The question raised is one of first impression in this state. Under our previous statute, K.S.A. 21-708, this court held that in order for a person to be deemed a 'witness' within the meaning of that statute it was not necessary that he shall have been served with a subpoena. (State v. Sills and McDonald, 85 Kan. 830, 118 P. 867.) That opinion does not discuss whether or not an actual case must be pending in order for a person to be guilty of the offense of attempting to deter a witness from testifying. The implication from the language of the opinion is, however, that a person who has knowledge of facts out of which a criminal prosecution might arise is a 'witness' within the meaning of the statute. In several jurisdictions it has been held that to constitute the offense of attempting to induce a person to withhold testimony it is not necessary for the prosecution to prove that an action or proceeding is pending that might be affected by such misconduct. Cases which support this position are People v. McAllister, 99 Cal.App. 37, 277 P. 1082; State v. Ferraro, 67 Ariz. 397, 198 P.2d 120; Evans v. Superior Court, 96 Cal.App.2d 187, 214 P.2d 579, and Fox v. Sheriff, 86 Nev. 21, 467 P.2d 1022. We believe that the rule established in those cases is sound and should be followed in this state. We therefore hold that K.S.A.1972 Supp. 21-3806, which makes it an offense to corruptly influence a witness is primarily designed to prevent the corrupt interference with the administration of justice, and its purpose is to go back as far as necessary and say, in effect, that any attempt to so influence prospective witnesses that the truth will not be presented in anticipated litigation is a criminal offense. We agree with the Supreme Court of Arizona in State v. Ferraro, supra, that it would defeat the obvious intent of the legislature to restrict the application of such a statute to those persons already served with a subpoena or under legal process to appear in pending actions. To do so would put a premium on the early offering of bribes or threats to prospective witnesses. The corrupt purpose can be equally effected by offers made to those who are as yet only prospective or contemplated witnesses. Hence it follows that the trial court did not err in its refusal in this case to sustain the defendant's motion for acquittal at the close of the state's evidence on the ground suggested by the defendant.
The defendant urges as another point on his appeal that the trial court erred in refusing to permit...
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