State v. Reynolds

• Decision Date: 15 January 1982
• Docket Number: No. 53086,53086
• Citation: 230 Kan. 532,639 P.2d 461
• Parties: STATE of Kansas, Appellee, v. Louis J. REYNOLDS, Appellant.
• Court: Kansas Supreme Court

Page 461

639 P.2d 461

230 Kan. 532

STATE of Kansas, Appellee, v. Louis J. REYNOLDS, Appellant.

No. 53086.

Supreme Court of Kansas.

Jan. 15, 1982.

Syllabus by the Court

1. A state has no duty under the United States Constitution to provide technical pretrial assistance to a defendant in a criminal action.

2. The authorization of supporting services in the criminal trial of an indigent defendant is a matter which lies within the sound discretion of the trial court whose decision to deny services will not be disturbed unless the defendant shows prejudice to his substantial rights resulting from abuse in the exercise of discretion.

3. A litigant may not invite error and then complain of that error on appeal.

4. The admissibility of evidence is governed by its relevancy to the issue in question.

5. The trial judge has discretion to exclude evidence when its probative value is outweighed by its prejudicial effect on the jury.

6. Under K.S.A. 21-3107(3) the trial court has an affirmative duty to instruct on lesser crimes "of which the accused might be found guilty under the information or indictment and upon the evidence adduced," but that duty arises only where there is evidence under which the defendant might reasonably be convicted of a lesser crime.

7. On appeal the standard of review of a criminal case is whether the appellate court, viewing the evidence in the light most favorable to the prosecution, is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

8. A sentence fixed within the bounds of the statute is not erroneous absent a showing of abuse of judicial discretion.

Carla L. Roberts, Wichita, argued the cause and was on the brief for the appellant.

Jack Peggs, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Cris Senseman, Asst. Dist. Atty., were on the brief for the appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Louis J. Reynolds (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427).

In the early morning hours of July 22, 1980, a Kwik Shop on West 13th Street in Wichita, Kansas, was robbed by two black men, one of whom was armed with a gun. Defendant and Pearlie J. Moore were subsequently charged with aggravated robbery. Defendant's first trial on this charge resulted in a hung jury. On retrial the jury convicted him of aggravated robbery. Moore was convicted of aggravated robbery in the first trial and his conviction was affirmed by this court in State v. Moore, --- Kan. ---, 639 P.2d 458 (this day decided).

The facts in the case are not complex. Rod Pauls, the Kwik Shop employee on duty the morning of the robbery, testified that at 12:30 a. m. he saw two black men walk past the store in the direction of a pay phone. Pauls, however, was unable to positively identify the two men. Some fifteen minutes later, Pauls was at the cash register when someone poked him in the back to get his attention. He turned around to see a man with a gun, later identified as Pearlie J. Moore, near the counter and another man standing some twelve to fifteen feet nearer the door. The men fled with approximately $130 in cash from the register. Two or three days later, Pauls identified Moore and the defendant Reynolds in a photo display. He also later identified Reynolds in court as the man who stood nearer the door during the robbery.

In an unrelated incident at 3 a. m. on the morning of July 23, 1980, the defendant and Moore were stopped by Wichita Police Officer Richard Mouser. While on routine patrol, Mouser saw one occupant of a white over blue Cadillac approach the attendant's window at a service station. The man then ran back to the car which sped off the driveway without headlights on. Mouser effected a stop, questioned the driver, Pearlie J. Moore, and conducted a search of the car which revealed a hat and shoes similar to ones described in the Kwik Shop robbery as well as a weapon and shells. In the meantime, a backup officer, Don Meyer, arrived on the scene and questioned the passenger who identified himself as Richard Grey. After discrepancies in age, birth date, and social security number were revealed, the passenger identified himself as Louis J. Reynolds.

At trial, Reynolds admitted being with Moore on the morning of the 23rd but denied being with him in the early morning hours of the 22nd. Reynolds testified he was at home with his family at the time in question. The defendant's mother testified he had recently undergone surgery and was home recuperating. It is undisputed the defendant had a hemorrhoidectomy on July 8, 1980, but it is also undisputed he was last seen as an outpatient on July 14.

The jury found the defendant guilty of aggravated robbery. The defendant's motion for a new trial was overruled, and he duly perfected this appeal, alleging numerous trial errors.

The defendant alleges the refusal of the court to grant an order authorizing the services of an expert on the issue of eyewitness identification violated his due process rights under the United States Constitution and Section 10 of the Kansas Bill of Rights because such services were essential to enable the indigent defendant to prepare his defense adequately.

In Smith v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953), the United States Supreme Court held a state has no constitutional duty to provide technical pretrial assistance. This court recently considered expert witness testimony on the subject of eyewitness identification as opposed to a cautionary instruction to the jury on evaluation of eyewitness testimony and found the cautionary instruction, along with cross-examination and defense advocacy, would adequately protect the defendant. State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). Under Warren, expert testimony on the subject of eyewitness identification is not admissible.

Because the case at bar arose before State v. Warren and because the defendant did not request a cautionary instruction on eyewitness identification, we will further examine the merits of admitting the testimony under the circumstances of this case. Assuming arguendo the expert testimony would have assisted the jury and would have been otherwise admissible under K.S.A. 60-456(b ), the indigent defendant must also obtain a favorable ruling under K.S.A. 22-4508, which provides in pertinent part:

"Counsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in his case may request them in an ex parte application addressed to the magistrate or court where the action is pending. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the magistrate or court shall authorize counsel to obtain the services on behalf of the defendant."

The authorization of supporting services in the criminal trial of an indigent defendant is a matter which lies within the sound discretion of the trial court whose decision to deny services will not be disturbed unless the defendant shows prejudice to his substantial rights resulting from abuse in the exercise of discretion. State v. Burnett, 222 Kan. 162, 164-65, 563 P.2d 451 (1977); State v. Frames, 213 Kan. 113, 118, 515 P.2d 751 (1973); State v. King, 2 Kan.App.2d 503, 504, 582 P.2d 309 (1978).

In his brief, the defendant stresses the fact this was a cross-racial identification by a witness who was under stress at the time of the brief encounter. While these are important factors bearing on the witness's identification, they are fully capable of being elicited, and in fact were elicited, during other testimony. Accordingly, we find no abuse of discretion in the trial court's refusal to authorize the services of an expert on eyewitness identification. The record in this case discloses no formal motion requesting expert services.

The defendant next contends the admission into evidence of a photo identification session violated his due process and other constitutional rights under the United States Constitution, citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Mason v. United States, 414 F.2d 1176 (D.C.Cir.1969); State v. Ponds, 227 Kan. 627, 608 P.2d 946 (1980). Two to three days after the robbery, a police officer showed Rod Pauls, the Kwik Shop employee, six photos; among them were mugshots of the defendant and Pearlie Moore. Pauls identified both of them as well as making a later positive in-court identification of defendant Reynolds.

In the mugshots of six black males, Reynolds admittedly was the only one wearing a hat, and, although the photograph was taken a year before the incident in question, he was clad in clothing remarkably similar to that Pauls described the robber as wearing. We note, however, that the State did not attempt to introduce the results of this photo session into evidence, nor did the State make reference to the results. Mention of the photographs was first made during the defendant's cross-examination of Rod Pauls and pursued further on direct examination of the police officer who conducted the photo session. During this direct examination, the defense introduced the photo array into evidence.

This court has often held a litigant may not invite error and then complain of that error on appeal. State v. Phippen, 208 Kan. 962, 494 P.2d 1137 (1972), is particularly persuasive. In that case, a defendant convicted of robbery complained on appeal of the difference in ages of the women in a lineup. It appeared from the record the defendant and her counsel had agreed they wanted evidence of the lineup introduced. The court held:

"Appellant not only waived objection to the lineup evidence, she expressly requested its admission as a matter of trial strategy. It is fundamental that a litigant who...