State v. Sanders, 49849

• Decision Date: 09 December 1978
• Docket Number: No. 49849,49849
• Parties: STATE of Kansas, Appellee, v. Rodney SANDERS, Appellant.
• Court: Kansas Supreme Court

Page 893

587 P.2d 893

225 Kan. 147

STATE of Kansas, Appellee, v. Rodney SANDERS, Appellant.

No. 49849.

Supreme Court of Kansas.

Dec. 9, 1978.

Syllabus by the Court

1. When a challenge is made to the entire jury array, systematic or purposeful exclusion of members of a particular race or group may not be presumed. Such exclusion must be established by proof. Following State v. Jordan, 220 Kan. 110, Syl. P 3, 551 P.2d 773 (1976).

2. The fact that the state by exercise of peremptory challenges has excluded all members of a race or class from the jury does not alone deprive the accused of his right to a fair trial. Following Jordan, 220 Kan. 110, 55 P.2d 773, Syl. P 4.

3. Although the state failed to comply with a discovery and inspection order pursuant to K.S.A. 22-3212(7), the admission into evidence of material undisclosed to the accused does not constitute prejudicial error when the material is not contrary to the theory of the defense.

4. The testimony of medical experts that an accused was legally insane at the time of a criminal act is not conclusive merely because it is not disputed by other medical testimony. The testimony of nonexpert witnesses who observed the actions of the accused immediately before, during and after the criminal act may be considered by a jury along with testimony of expert witnesses.

5. Refusal of the trial court to admit evidence of an accused's attempt to jump out of a courtroom window during a trial recess did not constitute error when such evidence was only cumulative to other acts of bizarre behavior.

6. The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant's sanity at the time the offense was committed. The term "evidence," however, does not include the insanity plea or opening statements. Neither rebuts the presumption of sanity. Following State v. Nemechek, 223 Kan. 766, 767-68, 576 P.2d 682 (1978).

7. The trial court did not err in refusing to abandon the M'Naughten rule in favor of the ALI test in view of the holding of this court in State v. Smith, 223 Kan. 203, 574 P.2d 548 (1977).

8. In an appeal from a jury conviction of first degree murder (K.S.A. 21-3401), aggravated assault (K.S.A. 21-3410), and two counts of assault (K.S.A. 21-3408), the record is examined and it is Held : The trial court did not err in (1) failing to sustain the challenge to the array, (2) admitting evidence not properly disclosed by the state, (3) failing to sustain defendant's motion for directed verdict, (4) failing to admit evidence of a delusional act by defendant, (5) allowing an expert witness called by the state to testify in rebuttal, and (6) failing to grant a new trial based upon defendant's proposed test of insanity.

Michael J. Peterson, Kansas City, argued the cause and was on the brief for appellant.

Philip L. Sieve, Chief Deputy Dist. Atty., argued the cause, Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

OWSLEY, Justice:

This is an appeal by defendant Rodney Sanders from a jury verdict convicting him of first degree murder (K.S.A. 21-3401), aggravated assault (K.S.A. 21-3410), and two counts of assault (K.S.A. 21-3408). These charges arose from a shooting resulting in the death of Sol Rosen in Kansas City, Kansas.

On June 20, 1977, at approximately 6:00 p. m., defendant arrived at Sol Rosen's place of business at 915 Minnesota in Kansas City. Defendant and Rosen spoke briefly outside the building where Rosen was preparing to get into his car to drive home. Without warning, defendant produced a .357 Magnum handgun and shot Rosen three times. He fired another shot when Rosen's business partner, Phillip Balano, came toward the two men. Defendant then fled the scene and officers Patrick Ohler and Duane Lee of the Kansas City Police Department proceeded toward the area after hearing dispatch reports of the shooting. They saw defendant run into a yard on the northwest corner of 10th and Ann Avenue. Defendant pointed a weapon at the officers and the police car then struck him, knocking him down and breaking his leg. Defendant was subdued by the officers and transported to the hospital where he was given treatment in the emergency room.

On appeal, defendant contends the trial court erred in not discharging the jury panel prior to the Voir dire examination of the jurors in that the array of jurors contained only one individual of the black race who, after Voir dire, was struck by the state. Defendant moved to strike and discharge the panel for that reason.

It is well settled that although a black defendant does not have the right to demand that members of his race be included on a jury (State v. Jordan, 220 Kan. 110, 114, 551 P.2d 773 (1976)), the defendant has a right to require that the state not deliberately and systematically deny to members of his race the right to participate as jurors in the administration of justice. Alexander v. Louisiana, 405 U.S. 625, 628-29, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). We have stated that when a challenge is made to the entire jury array, systematic or purposeful exclusion of members of a particular race or group may not be presumed. Such exclusion must be established by proof. State v. Walker, 217 Kan. 186, 190, 535 P.2d 924 (1975). Currently, juries in Wyandotte County are selected by computer on a random basis from lists of personal property tax rolls and census rolls. It is impossible to assure a black defendant that a certain number of black jurors will be called for jury service for his trial because during the jury selection process the individual's race is not designated on the computer tape. The selection process is racially neutral and there is no evidence of systematic or purposeful exclusion of any minority.

Defendant proposes the method of jury selection be changed and recommends racial designation be added to each person's name given to the computer. As we stated in State v. Jordan, 220 Kan. at 114, 551 P.2d 773, a black defendant is not constitutionally entitled to be tried by a jury containing members of his race. It would appear the recommendation of defendant would enhance the opportunity for discrimination in jury selection and would be directly contrary to Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); and Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). We hold defendant's recommendation to be without merit.

Defendant alleges error in allowing officers Lee and Ohler to testify to statements made by defendant in their presence, both at the scene of arrest and at the hospital. He contends the statements were not disclosed to the defense prior to the witnesses' testimony and there were no hearings to determine the voluntariness of the statements. Defendant also alleges the prosecutor stated at the pretrial conference that defendant made no statements, either written or oral, concerning the crime.

Both arresting officers submitted signed statements dated June 21, 1977, stating there were no conversations with defendant, either at the time of arrest or at the hospital, other than a brief reference to defendant's injuries at the time of arrest. At the preliminary hearing on July 29, 1977, the officers confirmed these statements. In addition, when questioned by the court regarding any oral, written or recorded statements or confessions made by defendant, the state replied there were none. At trial, however, the two officers testified defendant stated at the scene of arrest that he hadn't shot anybody. The officers also testified that, in answer to a question by a hospital employee, defendant stated a "little bird" told him to do it. Defense counsel objected to both statements and the objections were overruled.

The prosecutor admits the statements were incriminating to defendant, but contends in view of the overwhelming evidence against defendant the statements lost much of their importance and their admission does not constitute reversible error. K.S.A. 22-3212(7) requires a party to disclose additional evidence previously requested or ordered which is subject to discovery. If a party fails to comply with this statute the court may order the party to permit discovery, grant a continuance, prohibit the party from introducing the undisclosed material into evidence, or the court may enter such other order as it deems necessary. The record indicates defense counsel knew nothing of the statements and the prosecutor learned of them approximately one week before trial. Clearly, the prosecutor failed to comply with the provisions of K.S.A. 22-3212(7). We have stated the trial court is vested with wide discretion in dealing with the failure of a party to comply with a discovery and inspection order. State v. Walker, 221 Kan. 381, 385, 559 P.2d 381 (1977); State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 (1972). Defendant attempted to prove he was insane when he committed the acts. He did not attempt to prove he had not committed the acts. His statement at the arrest, denying he shot anybody, is almost irrelevant in light of his admission. It is obvious defendant committed the acts complained of and prior knowledge of the statement would not have aided in his theory of defense. We turn to the statement made at the hospital where defendant stated a "little bird" made him do it. This statement also tends to incriminate defendant, but it cannot be said it is prejudicial to his theory of defense. Although the state failed to comply with a discovery and inspection order pursuant to K.S.A. 22-3212(7), the admission into evidence of this material does not constitute prejudicial error because the material is not contrary to the theory of the defense. Defendant further claims the trial court erred in not sustaining his motion for a...