State v. Richard

• Decision Date: 27 April 1984
• Docket Number: No. 55462,55462
• Citation: 681 P.2d 612,235 Kan. 355
• Parties: STATE of Kansas, Appellee, v. Clyde RICHARD, a/k/a Clyde Rhodes, Appellant.
• Court: Kansas Supreme Court

Page 612

681 P.2d 612

235 Kan. 355

STATE of Kansas, Appellee, v. Clyde RICHARD, a/k/a Clyde Rhodes, Appellant.

No. 55462.

Supreme Court of Kansas.

April 27, 1984.

Syllabus by the Court

1. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.

2. Under K.S.A. 60-456(a ) the opinions of nonexperts are admissible if the judge finds they may be rationally based upon the perceptions of the witnesses and if helpful to a clear understanding of their testimony. The trial court is vested with wide discretion in this regard. Lay witness opinions are admissible even though they embrace ultimate issues.

3. Under K.S.A. 60-445 it is within the broad discretion of the trial court to balance the probative value of evidence against the prejudicial effect it may have on the jury.

4. A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would be likely to produce a different result upon retrial. A new trial should not be granted on the basis of newly discovered evidence which merely tends to impeach or discredit the testimony of a witness.

5. A change of venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. Media publicity alone has never established prejudice per se. The defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury.

6. A sentence imposed by a trial court will not be disturbed on appeal on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive.

Bruce E. Borders, Independence, argued the cause and was on the brief for the appellant.

Jeffrey A. Chubb, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for the appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Clyde Richard a/k/a Clyde Rhodes (defendant-appellant) guilty of aggravated battery (K.S.A. 21-3414) and first-degree murder (K.S.A. 21-3401).

In the early morning hours of June 8, 1980, Darlene Bruner was shot through the head while standing inside an open doorway at the Twenty Grand Club, a drinking and dancing establishment, in Independence, Kansas. She died immediately. The bullet which killed her passed through a paneled wall behind her and was found embedded in a concrete block behind a second wall. From the holes in the walls it was determined the shot had been fired from a point west of the open doors. The path of the bullet passed directly over a flatbed truck parked in the parking lot of the club, several feet from the doors. Although several people were standing in the parking lot and inside the club near the doors at the time, no one saw who fired the fatal shot. Richard Collins, who was dating Darlene, was standing in the parking lot about ten feet east of the doors when the shot was fired. He looked toward the flatbed truck where he thought the shot had come from. He saw someone running away from the club through an adjoining wooded lot. He could not identify the person he saw running. A man who lived on the other side of the wooded lot testified that after he heard the shot he saw a man run through the lot and get into a car parked in the street across from his house and drive off.

The victim's sister, Debbie Bruner, testified that immediately before she heard the shot fired she looked out into the parking lot as she was walking past the doors to the Club and saw the appellant standing near the flatbed truck. After the shot was fired she began screaming that the appellant had shot her sister. She went home and told this to their mother. However, she did not tell this to police until the appellant was apprehended two years later because she was afraid of what he would do to her.

The appellant was considered the prime suspect in the murder for several reasons. He and Darlene had apparently been involved in a relationship for several years. There was testimony he was the father of her four children. A cousin of the victim testified that in December 1979 he was with Darlene and the appellant at Darlene's sister's house, when an argument ensued between Darlene and the appellant. The appellant told Darlene if he ever caught her with another man, he would "follow her to the end of the earth and kill her."

At the time of the murder the appellant was wanted on an aggravated battery charge stemming from a shooting incident two weeks earlier involving Darlene and Richard Collins. Darlene and Collins were riding around in Darlene's car when a car in which the appellant was a passenger pulled along side theirs and the appellant fired a shotgun at them. Both sustained injuries to the face and neck from shattered glass and shotgun pellets. A few hours earlier Collins had seen the appellant drive by his home while he and Darlene were there watching television. Delois Carter, the driver of the car in which the appellant was riding when the shooting occurred was apprehended and pled guilty to aiding and abetting the aggravated battery.

Following that incident the appellant apparently fled from Independence to avoid prosecution. However, he was seen making a telephone call from a public phone booth in Independence the day of the murder by a former co-worker. Delois Carter told police she saw the appellant the night of the murder and rode around with him in his car. They drove by the victim's mother's house and the Twenty Grand Club before he took her home. She saw a pistol and either a shotgun or a rifle in the back seat of his car. She learned of Darlene Bruner's death the next day. Investigators determined the bullet which killed Bruner could have been fired from either a pistol or a rifle.

The appellant was arrested two years later in Oakland, California, living under the name of Clyde Rhodes, and was returned to Kansas for trial on the aggravated battery and murder charges. A witness who was in jail with the appellant while he was awaiting trial testified he overheard the appellant say he "shot this broad, and there wasn't a witness alive to prove it." The appellant presented an alibi witness who testified the appellant stayed at his house in Kansas City for three weeks in either May or June of 1980. Other defense witnesses testified for the purpose of impeaching the testimony of Delois Carter. The appellant was convicted of both charges.

On appeal the appellant does not challenge the sufficiency of the evidence.

The appellant first contends the trial court erred in allowing Delois Carter's attorney to testify as a rebuttal witness for the State that her plea of guilty to the aggravated battery charge was consistent with the facts as he understood them. Throughout trial the credibility of Carter was attacked by the defense in an effort to show the appellant was not the person who fired the shotgun at Collins and the victim in the earlier shooting incident. Carter testified at trial the appellant shot Darlene Bruner with a shotgun while riding around in her (Carter's) car, and that she pled guilty to aiding and abetting in that offense. The night Darlene was killed Carter rode around with the appellant and saw a shotgun and a pistol in his car. She also testified the appellant is the father of her two children. However, on cross-examination, she contradicted her prior testimony, stating she had told police things that were not true about the appellant, and she did not see him with a gun or go riding around with him on June 7, 1980. A police officer who interviewed Carter several times during the investigation testified Carter told him she went with the appellant the night of the first shooting incident to find Darlene so he could shoot her because Carter wanted the appellant to herself. He also indicated she never varied her story from the first statement she gave police. Another officer also indicated Carter made prior statements about the guns she saw in the back seat of the appellant's car the night of the murder, which was consistent with her testimony at trial.

Paul Reed, a psychologist, and Dr. Johnny Edrozo, a psychiatrist, were called as defense witnesses to testify concerning Carter's ability to tell the truth. Reed interviewed Carter in 1981 upon the request of her probation officer. He determined she had a low I.Q. and was mildly mentally retarded. He believed she had difficulty in selecting words to express what she was thinking and that stress would add to that difficulty. Dr. Edrozo interviewed Carter a week before trial at the request of the parties after the appellant obtained an order from the court requiring psychiatric evaluation of Carter. Dr. Edrozo found Carter to be slow mentally, with difficulty concentrating and making decisions. He stated Carter would become confused and unreliable when placed under pressure and that she was susceptible to suggestion because of her desire to please others.

In rebuttal the State called Robert Scovel, the attorney who represented Carter on the...