State v. Skinner

• Decision Date: 04 November 1972
• Docket Number: No. 46572,46572
• Citation: 503 P.2d 168,210 Kan. 354
• Parties: STATE of Kansas, Appellee, v. Paul E. SKINNER, Appellant.
• Court: Kansas Supreme Court

Page 168

503 P.2d 168

210 Kan. 354

STATE of Kansas, Appellee, v. Paul E. SKINNER, Appellant.

No. 46572.

Supreme Court of Kansas.

Nov. 4, 1972.

Syllabus by the Court

1. A judge should disqualify himself in any proceeding in which his impartiality might reasonably be questioned, including instances where he has a financial interest in the subject matter in controversy.

2. The function of evidence relating to alibi is not to establish a defense nor to prove anything, but merely to raise a reasonable doubt of the presence of the accused at the scene of the crime.

3. Error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused.

4. A separate instruction on the defense of alibi is not required where adequate and proper instructions are given on the elements of the crime charged and on the prosecution's burden to prove guilt beyond a reasonable doubt (overruling State v. Conway, 55 Kan. 323, Syl. 1, 40 P. 661).

5. An instruction on circumstantial evidence is not required where there is substantial direct evidence of the guilt of the accused.

6. The record of trial wherein appellant was convicted of the offense of aggravated robbery is examined and it is held: (1) The trial judge did not err in failing to disqualify himself; (2) photographs were properly received in evidence; (3) the evidence sufficiently supported appellant's conviction; and (4) the trial court did not err in failing to give instructions on alibi or circumstantial evidence.

Christopher J. Redmond, of Redmond & Redmond, Wichita, argued the cause, and Owen J. Redmond, Jr., and L. Joseph Smith, Wichita, were with him on the brief for appellant.

Reese Jones, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.

HARMAN, Commissioner:

Paul E. Skinner was convicted by a jury of the offense of aggravated robbery. Sentenced, he now appeals.

Appellant was charged with committing the offense jointly with Connie M. Suing. The Two were separately tried (See State v. Suing, 210 Kan. 363, 502 P.2d 718, this day decided).

Evidence for the prosecution revealed the following:

On November 17, 1970, at about 11:30 p.m. a woman (later identified as Connie M. Suing) entered the Taco Tico No. 1 restaurant on South Seneca street in Wichita. Displaying a handgun she approached a Taco Tico employee and demanded money. The employee commenced handing her one dollar bills from his cash register. She ordered him to give her his 'big bills'. The employee then produced some five, ten and twenty dollar bills which the woman took. She ran out the door and entered an automobile parked outside the restaurant. This vehicle was a white, older model Chrysler, very dirty, with rust spots on the passenger side and a trailer hitch on the rear. The car bore a green license plate with white numerals and the letters SG. A man seated in the driver's seat drove the vehicle away immediately upon the woman's entrance into it.

The parked vehicle was observed by the Taco Tico employee and also by a married couple whose attention was attracted to the incident by the woman's rapid exit from the restaurant and the employee's cry that he had been robbed. This couple had previously entered the restaurant, had seen the Suing woman enter it as they were leaving, and were preparing to drive from the parking lot in their own vehicle parked near the Chrysler when Suing ran from the restaurant. The husband testified he observed the driver of the white Chrysler and that appellant 'looks like' that person. He and his wife followed the Chrysler in their own automobile for a short distance south on Seneca street but lost it.

A description of the Chrysler was promptly given to the Wichita police department and about an hour after the holdup a car matching the description was located in a parking lot at the Gasser Club in Wichita. A license tag check determined this vehicle belonged to appellant. It was a white 1962 Chrysler, dirty, had rust spots on the passenger side, a trailer hitch on the rear bumper and a green license plate with the letters SG on it. Within a few minutes after police observed the car, appellant and Connie M. Suing came from the Gasser Club, entered the vehicle and drove away. Police officers stopped the car, arrested the two and searched appellant's person. He had $134.00 in currency 'stuffed' in his left rear pants pocket-four twenty dollar bills, one ten dollar bill, seven five dollar bills and nine one dollar bills. Appellant had no wallet on his person. The amount of money missing from the Taco Tico cash register was $173.74.

Photographs of Connie M. Suing and of the Chrysler automobile were received in evidence.

Appellant testified in his own behalf. On the day in question he had received money from the sale of a business and as a result had $200.00 in cash; that evening he and Connie Suing had been at the Roaring Sixties Club from about 9:00 p.m. to about 11:45 p.m., although Connie did leave the tavern for a while but returned about 11:30; they left to go to appellant's home where he changed shirts, then they went to the Gasser Club; he was arrested in his Chrysler automobile soon after he and Connie left that club; he had previously lost his wallet and had not replaced it; he was not in the vicinity of the Taco Tico No. 1 restaurant that night and did not take Connie Suing there to rob it. He acknowledged that the photographs offered by the prosecution were pictures of his vehicle.

The proprietor of the Roaring Sixties Club testified in appellant's behalf that he saw appellant at his club on the night in question, the last time being about 11:25 or 11:30 p.m.

Appellant's specifications of error will be dealt with chronologically.

During the voir dire examination certain questions were asked respecting ownership in the Taco Tico corporation. This inquiry prompted the trial judge to interrupt and to disclose in a conference outside the jury's hearing that he owned a one-third interest in a Taco Tico franchise in Topeka but had no financial interest in the Taco Tico operation in Wichita; he further stated he felt no prejudice as a result of his Topeka ownership interest and did not believe he should disqualify himself as trial judge. Appellant asserts the trial judge indicated he would disqualify himself for sentencing if appellant were found guilty. The record does not sustain that assertion and the record must control.

Appellant argues the judge should have disqualified himself and that prejudice is shown because the maximum sentence possible for a class B felony under K.S.A.1971 Supp. 21-4501(b) was imposed (fifteen years to life) and this must have resulted from the judge's lack of impartiality by reason of his financial interest in Taco Tico. The contention has no merit.

Appellant relies on authority pertinent to judicial disqualification when a financial interest is present. As to this the law is clear. A judge should disqualify himself in any proceeding in which his impartiality might reasonably be questioned, including instances where he has a financial interest in the subject matter in controversy (see ABA Code of Judicial Conduct, May 1972, Final Draft, Adopted August, 1972, Canon 3, C. (1)(c); also, ABAStandards The Function of the Trial Judge, June, 1972, Tentative Draft, Adopted August, 1972, § 1.7, p. 34).

The foregoing principle, however, is not pertinent to the case at bar for the simple reason the record affirmatively shows the trial judge had no financial interest, direct or indirect, in the business which was victimized. This latter fact was expressly conceded, as it had to be, by appellant's counsel upon oral argument. There was no connection between the Topeka interest owned by the judge and the Wichita operation other than each was a franchisee of the same franchisor, which obviously is insufficient to raise any reasonable question of partiality. To hold otherwise would operate to disqualify every judge who happened to possess property similar to that which had become the subject of predatory activity. Manifestly, the trial judge revealed his interest in the Topeka operation only from extra circumspection in an effort to prevent any misinterpretation possible from surface appearance and nothing in the record suggest impropriety or partiality on his part. The sentence adjudged was within legal limits and was imposed by the trial judge with the knowledge that appellant had had a previous felony conviction.

Appellant asserts the trial court erred in receiving in evidence a photograph of Connie Suing and two photographs of his automobile. The basis of complaint is the exhibits were never shown to be true and accurate portrayals of the subjects depicted. Appellant conceded he and Suing were arrested in his own automobile and that the two photos depicted that automobile. The photos were taken the day after the holdup-the same day as the arrest. The arresting officer testified he saw no alterations in or additions to the automobile from the time he first saw it at the Gasser Club to the time the photos were made. The Taco Tico employee and the married couple identified the pictures as portrayals of the vehicle which they saw the robber enter upon running from the restaurant. Appellant was identified as a man who 'looks like' the person who was the driver of the vehicle portrayed in the pictures.

Connie Suing was not present in court but the exhibit which is conceded to be her photograph was shown to various prosecution witnesses. The Taco Tico employee identified the photograph as depicting the female robber, the married couple identified it as portraying the woman they saw running from the restaurant and who entered the white Chrysler, and the arresting officer identified it as depicting the woman present in the white Chrysler when he stopped it. It is...