State v. Roth

• Decision Date: 16 July 1971
• Docket Number: No. 45835,45835
• Parties: STATE of Kansas, Appellee, v. Kenneth Arthur ROTH, Appellant.
• Court: Kansas Supreme Court

Page 1385

486 P.2d 1385

207 Kan. 691

STATE of Kansas, Appellee, v. Kenneth Arthur ROTH, Appellant.

No. 45835.

Supreme Court of Kansas.

July 16, 1971.

Syllabus by the Court

1. The statute prescribing the qualifications of persons selected for jury service (K.S.A. 43-102 (repealed, Laws of 1971, Chap. 176, Sec. 22)) is directory, and an accused may not successfully challenge the jury panel on any ground which does not involve corruption, serious misconduct or palpable disregard of the law. Mere irregularities in the jury selection process which do not prejudice the accused's substantial rights will not vitiate the panel. (Following State v. Stanphill, 206 Kan. 612, 481 P.2d 998.)

2. In the trial of a capital offense wherein life imprisonment was assessed, the exclusion of jurors opposed to capital punishment will not be presumed to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction, in violation of constitutional standards.

3. An accused is not deprived of his constitutional rights against self-incrimination or of due process by a unitary procedure whereby a jury which determines guilt of a capital offense then determines whether the penalty should be death or life imprisonment.

4. In a criminal case the endorsement of additional names of witnesses on the information by the state rests in the sound discretion of the trial court, and material prejudice in a ruling by the trial court in connection therewith must be clearly shown before it constitutes reversible error.

5. The term 'relevant evidence' means evidence having any tendency in reason to prove any material fact. (K.S.A.1970 Supp. 60-401(b).)

6. In a criminal action the uncorroborated testimony of an accomplice, if otherwise sufficient, will sustain a conviction.

7. It is the function of the jury, not the court of appellate review, to weigh the evidence and pass upon the credibility of witnesses.

8. In a criminal prosecution for murder in the first degree and robbery in the first degree, the record is examined and, under the facts and circumstances disclosed, it is held: (1) The trial court did not err in overruling a challenge to the array; (2) the exclusion of jurors opposed to capital punishment did not violate constitutional standards; (3) determination of guilt and punishment in a unitary procedure did not deprive defendant of his constitutional rights; (4) the trial court did not err in permitting the endorsement of additional witnesses; and (5) there was ample evidence to support the verdict.

Gerald L. Goodell, Topeka, argued the cause, and Thomas E. Wright, Topeka, was with him on the brief for appellant.

Gene M. Olander, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.

KAUL, Justice:

The defendant, Kenneth Arthur Roth, appeals from convictions by a jury of murder in the first degree (K.S.A. 21-401 (now K.S.A.1970 Supp. 21-3401)) and of robbery in the first degree (K.S.A. 21-527 (now K.S.A.1970 Supp. 21-3427)).

Roth, Dale Albert Chase, and Douglas Mark DeWitt were charged with the murder and robbery of James E. Long, a taxicab driver for the Yellow Cab Company of Topeka. Separate proceedings were had with respect to each of the accused. DeWitt entered a plea of guilty. Chase was tried to a jury, convicted of both charges, and his convictions were affirmed by this court in State v. Chase, 206 Kan. 352, 480 P.2d 62.

Roth was convicted in April of 1969, and was sentenced to the Kansas State Penitentiary for a term of not less than ten nor more than twenty-one years on the robbery charge and life imprisonment on the murder charge. The sentences were directed to run concurrently.

The facts surrounding the vicious murder and robbery of Mr. Long on May 15, 1968, are fully set out in our opinion in State v. Chase, supra, and, except as related to the points discussed in the disposition of this appeal, need not be repeated.

Defendant specifies five points of error; the first of which concerns the trial court's denial of a challenge to the array of jurors. Defendant says selection of prospective jurors from the tax assessment rolls deprived him of his constitutional right to a jury composed of a truly representative cross section of the community.

Both parties agree the jury selection process followed in Shawnee County at the time of the trial here was that provided for by K.S.A. 43-102 (repealed, Laws of 1971, Chap. 176, Sec. 22). (See, also, K.S.A. 43-135 to 150, incl., (repealed, Laws of 1971, Chap. 176, Sec. 22)).

K.S.A. 43-102, as it then appeared, provided in pertinent part that officials shall select from those on the assessment roll of the preceding year suitable persons having the qualifications of electors, and in making such selection the officials charged with the duty shall choose only those persons who are not exempt from serving on juries, who are possessed of fair character and approved integrity, in possession of their natural faculties, not infirm or decrepit. and who are well informed and free from legal exceptions.

The term 'assessment roll' includes both real and personal property. (State v. Gereke, 74 Kan. 196, 86 P. 160.)

Defendant argues that a jury array, drawn from this source and limited by the qualifications mentioned, systematically excluded an economic class, i. e., all non property owners of Shawnee County, and thus resulted in an array which did not represent a true cross section of the community.

This court has been confronted with a similar question in a number of recent cases, several of which deal with the selection of jurors under the identical statute. In State v. Stanphill, 206 Kan. 612, 481 P.2d 998, an array of jurors, drawn and summoned in Sedgwick County, pursuant to K.S.A. 43-154 (repealed, Laws of 1971, Chap. 176, Sec. 22), was challenged. In Stanphill, as in the instant case, the source and standards of qualifications of prospective jurors were controlled by 43-102. The import of the statute was discussed in considerable detail and the challenge was rejected. Justice O'Connor speaking for the court had this to say:

'With reference to what is now K.S.A. 43-102, this court has said the statute is directory, and a defendant may not cause the jury panel to be quashed on any ground which does not involve corruption, serious misconduct or palpable disregard of the law. Informalities and irregularities are not sufficient. (State v. Carter, 133 Kan. 718, 3 P.2d 487. Also, see State v. Snyder, 126 Kan. 582, 270 P. 590; State v. Frazier, 54 Kan. 719, 39 P. 819; State v. Jenkins, 32 Kan. 477, 4 P. 809.)' (pp. 618, 619, 481 P.2d p. 1004.)

In State v. Clift, 202 Kan. 512, 449 P.2d 1006, cert. den. 396 U.S. 910, 90 S.Ct. 225, 24 L.Ed.2d 186, the array was challenged on the ground that names of prospective jurors were taken from the personal property assessment rolls of Sedgwick County pursuant to the provisions of K.S.A. 43-154. The challenge was rejected because no systematic or purposeful exclusion of members of a race was established by proof. In the instant case, the assessment rolls included both real and personal property resulting in a cross section base broader than the source in Clift.

Although the challenge in Clift charged racial exclusion, we believe the rationale of both Clift and Stanphill is applicable to the question presented here. While defendant attempts to infer exclusion of an economic class from statistics shown in his brief, our examination of the abstracted portion of the voir dire examination fails to establish any systematic or purposeful exclusion of an economic or any other particular class of citizens.

Our most recent consideration of a challenge to an array is found in State v. Theus, 207 Kan. 571, 485 P.2d 1327, wherein the legislative history of the methods of selecting jurors in this state was reviewed. Tax assessment rolls as a basic, though not an exclusive, source for jury selection was again approved. Our holding in Stanphill was restated with approval to the effect that as a general principle a jury panel is not to be quashed on any ground which does not involve corruption, serious misconduct or palpable disregard of the law. None of these elements is present here, and there is no showing that any impaneled juror was not qualified. We conclude, therefore, the trial court did not err in denying defendant's challenge to the array.

In his second assignment of error, defendant contends the exclusion of jurors (ten in this case), because of scruples against the death penalty, denied him a trial by a representative and impartial jury on the issue of guilt or innocence. The state asked for the death penalty, but the jury recommended a life sentence. Subsequent to the perfection of this appeal, and the filing of defendant's brief, our decision in Zimmer v. State, 206 Kan. 304, 477 P.2d 971, was announced, wherein we held:

'Exclusion of jurors opposed to capital punishment will not be presumed, nor was it shown by evidence adduced at postconviction hearing, to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction, in violation of constitutional standards.' (Syl. 1.)

On oral argument defendant's counsel conceded the point raised is squarely determined by our decision in Zimmer, thus further discussion is unnecessary.

Likewise, because of our decision in Zimmer, defendant concedes his third point wherein he challenged the unitary trial of the issues of guilt and punishment. In Zimmer we held that an accused is not deprived of his constitutional rights against self-discrimination or of due process by a unitary trial wherein a jury determined guilt of a capital offense and then in the same proceeding determines whether the penalty should be death or life imprisonment.

At the time of our decision in Zimmer we relied heavily on Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Our holding has since been...