State v. Salton, 58084

• Citation: 715 P.2d 412,238 Kan. 835
• Decision Date: 21 February 1986
• Docket Number: No. 58084,58084
• Parties: STATE of Kansas, Appellee, v. Alphonso D. SALTON, Appellant
• Court: United States State Supreme Court of Kansas

Page 412

715 P.2d 412

238 Kan. 835

STATE of Kansas, Appellee, v. Alphonso D. SALTON, Appellant.

No. 58084.

Supreme Court of Kansas

Feb. 21, 1986.

Syllabus by the Court

1. A litigant may not invite and lead a trial court into error, and then complain of the trial court's action on appeal.

2. K.S.A.1985 Supp. 22-3405 allows a judge to proceed with trial when a defendant voluntarily absents himself from the courtroom at the commencement of trial.

3. While K.S.A.1985 Supp. 22-3405 permits a trial court to continue a trial when a defendant voluntarily absents himself, the statute does not concomitantly vest a right of absence in the defendant.

Steven L. Islas, Wichita, argued the cause and was on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty. and Neal B. Brady, Asst. Dist. Atty., were with him on brief, for appellee.

HERD, Justice.

The appellant, Alphonso D. Salton, appeals his jury conviction of aggravated robbery (K.S.A. 21-3427), unlawful use of a financial card (K.S.A. 1985 Supp. 21-3729) and felony theft (K.S.A. 1985 Supp. 21-3701). The relevant facts are as follows.

At approximately 4:30 a.m. on September 5, 1983, Charles D. Heilman was delivering equipment to a building located at 780 E. Fifteenth Street in Wichita for his employer, Southwestern Bell Telephone Company. Ten to fifteen minutes after Mr. Heilman arrived at the building, he was approached by an unidentified black man who requested water for his car's overheating radiator. Heilman complied with the request, and the man departed, only to return about five minutes later, asking for more water. The man also stated he was hungry and thirsty. Heilman informed him there were vending machines inside the building. The man then indicated he needed change for a dollar bill and followed Heilman inside.

Once inside the building, Heilman turned his back to the individual to purchase some food for him. When he turned around again, the man was holding a gun and told him, "This is a robbery. As long as you cooperate you won't get hurt."

Heilman later described the weapon as a long, blue steel handgun, possibly a .22 caliber. He estimated the gun had a six-inch barrel but acknowledged he did not know the exact length of the barrel. He also acknowledged he was unable to distinguish whether the gun was an automatic or a revolver.

The robber took Heilman's wedding ring, his wristwatch, his wallet and his personal and company keys. The wallet contained, among other things, a MasterCard bearing the name of Charles D. Heilman. The robber then directed Heilman to a different location in the building and told him to lie down on the floor. After remaining on the floor from thirty to forty-five minutes Heilman got up and telephoned the Wichita Police Department.

Two days later, on September 7, 1983, an individual entered David's Sweetbrier store in Wichita, and purchased a number of items with a MasterCard credit card bearing the name of Charles D. Heilman. She identified the appellant, Alphonso Salton, as the person who presented the charge card of Charles D. Heilman for the purchases and whom she witnessed sign the charge slip receipts.

Tonette Fuller, an employee at David's Parklane store in Wichita, testified that on September 7, 1983, an individual purchased items at David's with a credit card bearing the name of Charles D. Heilman. She identified Salton as the person who presented the charge card and signed the receipts.

Ruby Moore also identified the appellant as the person whom she saw placing unpaid-for merchandise in his shopping cart beneath the items already purchased with the MasterCard. She notified Kelly Otis, a security officer, of her observations, and Mr. Otis then watched Salton leave the store with the unpaid-for merchandise. Mr. Otis identified the appellant as the individual who had removed the merchandise from the store and fled the scene after being confronted regarding the theft.

The appellant was charged with aggravated robbery, unlawful use of a financial card, theft and unlawful possession of a firearm. The jury returned a verdict of guilty on all but the charge of unlawful possession of a firearm.

The trial court sentenced Salton to a period of confinement of twenty to thirty years for aggravated robbery, three to fifteen years for unlawful use of a financial card, and two to ten years for theft. The court later amended the theft sentence to not less than one year nor more than ten years pursuant to K.S.A.1985 Supp. 21-4501(d).

The first question on appeal is whether the trial court erred in failing to require the appellant's presence at the commencement of his trial.

Prior to commencement of the trial, the trial court denied the appellant's request for a new attorney. Salton responded by declaring he was not ready for trial and would not be present in the courtroom. The trial court arranged for a sound system to be installed in the holding cell adjacent to the courtroom and then placed the appellant in the holding cell. The judge advised the appellant of his continuing right to be present at the trial and arranged a means for relaying any change in his decision to the court so he could immediately be admitted to the courtroom. Appellant persisted in his refusal to attend his trial.

The trial was resumed and voir dire and jury selection were completed in the appellant's absence. Upon the jury's entering the courtroom, the trial judge explained the appellant's absence and the fact that he could hear the proceedings.

Appellant now contends the trial court violated K.S.A.1985 Supp. 22-3405(1) by not requiring his presence at the commencement of his trial. That statute provides:

"The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of the sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes." (Emphasis added.)

Focusing on the emphasized portion of the statute, the appellant argues that in order to comply with K.S.A.1985 Supp. 22-3405, a trial court must require a defendant's presence at the commencement of his trial. Since the appellant here was not present at the commencement of his trial, appellant argues the trial was "irreparably tainted" from the outset.

Appellant's argument is unacceptable for a number of reasons. First, we have often held a litigant may not invite and lead a trial court into error, and then complain of the trial court's action on appeal. State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 (1985); State v. Gray, 235 Kan. 632, 636, 681 P.2d 669 (1984). Here, the appellant's absence at the commencement of the trial was clearly voluntary. Prior to voir dire and jury selection, the trial judge informed the appellant of his continuing right to be present at trial. For this reason appellant cannot complain such action was error.

Second, appellant's contention would lead to absurd results. Under his scenario, if a defendant voluntarily chose to absent himself from trial, the trial judge would be compelled to delay the trial indefinitely, awaiting the defendant's cooperation, or, in the alternative, to physically force the defendant into the courtroom to insure his presence at the commencement of his trial. In our opinion such a result was not the legislature's intention in enacting K.S.A.1985 Supp. 22-3405. Rather, we construe the statute to permit a trial judge to proceed with trial when the defendant freely and voluntarily waives his right to be present in the courtroom at the commencement of the trial.

We hold the trial court did not err in permitting the appellant to freely, knowingly and voluntarily waive his right to be present at the commencement of his trial.

Appellant next asserts error in the trial court's denial of his motion for mistrial. Appellant based his motion for mistrial upon two separate trial incidents.

Appellant first argues the testimony of State witness Officer Tom Mayhill was prejudicial and warranted a mistrial.

Mayhill testified at trial in his capacity as an expert forensic documents examiner. His testimony was limited to a discussion of his opinion of the signatures reflected on the credit card receipts. He testified that in his opinion, the maker of the signature of Charles Heilman was the same person for...