State v. Roberts, 50666

• Decision Date: 01 December 1979
• Docket Number: No. 50666,50666
• Citation: 602 P.2d 1355,226 Kan. 740
• Parties: STATE of Kansas, Appellee, v. William B. ROBERTS, Jr., Appellant.
• Court: Kansas Supreme Court

Page 1355

602 P.2d 1355

226 Kan. 740

STATE of Kansas, Appellee, v. William B. ROBERTS, Jr., Appellant.

No. 50666.

Supreme Court of Kansas.

Dec. 1, 1979.

Syllabus by the Court

1. The exclusion of alibi testimony, because of noncompliance with the notice requirement of K.S.A. 1977 Supp. 22-3218, is within the trial court's sound discretion

and will not be overturned absent a showing the court's discretion was abused.

2. An accused's constitutional right to compulsory process for obtaining witnesses is not violated by the notice of alibi statute, K.S.A. 1977 Supp. 22-3218.

3. The constitutional issue of denial of effective assistance of counsel will not be considered on a direct appeal where the issue was not presented to or determined by the district court and where the determination of the issue depends upon facts which do not appear in the record.

J. Michael Kennalley of Hershberger, Patterson, Jones & Roth, Wichita, argued the cause and was on the brief for appellant.

Roger C. Skinner, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice:

This is a direct appeal in a criminal action in which the defendant, William B. Roberts, Jr., was convicted of aggravated robbery (K.S.A. 21-3427). The case arose out of the robbery of a Vickers Service Station occurring in Wichita on September 13, 1978. The facts in the case are essentially as follows: At approximately 8:35 p. m. on that day a young black male entered the station where two attendants were employed. After passing one attendant who was outside waiting on a customer, the robber approached the other attendant who was behind the counter. The robber displayed a small handgun in his right hand and demanded money. The attendant gave the robber money and then went into the back room of the station until the robber departed. When the other attendant reentered the station, he discovered the robbery had occurred.

Both of the attendants at the filling station identified the defendant as the robber. The testimony disclosed that the defendant had been in the service station earlier in the day during the afternoon and had spent approximately 15 minutes there. There was evidence that the defendant told a fellow inmate of the jail that he, the defendant, committed the robbery, and after leaving the filling station, stashed the stolen money and weapon in a dog house, and ran to his vehicle which was parked approximately four blocks away. The defendant, in his defense, offered the testimony of Kevin Edgar another fellow inmate at the Sedgwick County jail, which questioned the identification by one of the attendants. The identification by the other attendant was not contradicted. The defendant also called as a witness a woman, recently acquainted with defendant, who testified that on the evening of the robbery the defendant had on different clothing than did the robber at the scene of the crime. This witness did not pinpoint the actual time when she saw the defendant. The evidence of guilt and the identification of the defendant as the robber were strong. Following the submission of the case, the jury promptly convicted the defendant. The defendant has appealed to this court raising five points of error.

Points 1, 2, and 3 raise essentially the same issue and, hence, should be considered together. The defendant contends that the trial court erred in excluding the alibi testimony of his girl friend on the basis that defense counsel had failed to file the statutory notice of alibi required by K.S.A.1977 Supp. 22-3218, which provides in part as follows:

"(1) In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.

"(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.

"(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged. In the event the time or place of the crime has not been specifically stated in the complaint, indictment or information, the court directs it be amended, or a bill of particulars filed, as above provided, and the prosecuting attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the crime other than alleged, but within the period of the statute of limitations applicable to the crime and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the crime."

To determine the issue we must consider the events which occurred during the course of the proceedings in the district court. The defendant was arraigned on October 11, 1978, and entered a plea of not guilty. At that time, the case was set for trial on the October 23, 1978, trial docket. On October 23, 1978, the trial was continued to November 6, 1978. On that date, trial of the case was actually commenced. The state's case in-chief consisted only of the testimony of the two filling station attendants. They testified that the robbery occurred and identified defendant as the robber. At that point, the State rested. Defense counsel then waived his opening statement and proceeded to call witnesses. The defense presented the testimony of Kevin Edgar and L. T. Baker. At this point, defense counsel called as a witness the defendant's girl friend. In the absence of the jury, the State objected to her testimony on the basis that her testimony would support the defense of alibi and defense counsel had failed to give the written notice required by K.S.A.1977 Supp. 22-3218. The proposed witness would have testified that at the time of the robbery she was with the defendant at another place, thus placing the defendant away from the scene of the crime. Defense counsel indicated to the court that he had not given the statutory notice of alibi because he had not been notified until November 1, 1978, by he district attorney's office that the case would be tried on November 6, 1978. The trial court excluded the testimony because of the failure of defense counsel to comply with the notice of alibi statute. In so ruling, the trial court noted that the case had been set for jury trial originally on October 23, 1978, at which time it was specifically set for trial on November 6. He concluded that the defense counsel had had ample opportunity to file the statutory notice of alibi and that good cause had not been shown for failure to file the notice.

On appeal, the defendant maintains that the trial court committed prejudicial error in its exclusion of the alibi testimony for three reasons: (1) The...