State v. Smallwood

• Decision Date: 21 January 1978
• Docket Number: No. 48709,48709
• Citation: 223 Kan. 320,574 P.2d 1361
• Parties: STATE of Kansas, Appellee, v. Stephen F. SMALLWOOD, Appellant.
• Court: Kansas Supreme Court

Page 1361

574 P.2d 1361

223 Kan. 320

STATE of Kansas, Appellee, v. Stephen F. SMALLWOOD, Appellant.

No. 48709.

Supreme Court of Kansas.

Jan. 21, 1978.

Syllabus by the Court

1. A writing prepared by a government lawyer relating to the subject matter of the testimony of a government witness that has been "signed or otherwise adopted or approved" by the government witness is producible under K.S.A. 22-3213 and is not rendered nonproducible because a government lawyer interviews the witness and writes the "statement."

2. Discussions between a lawyer and witness of the general substance of what the witness has said do not constitute the "adoption or approval" of the lawyer's notes within the meaning of K.S.A. 22-3213(4)(a ) unless the lawyer reads back or the witness reads and approves what the lawyer has written.

3. The admissibility of physical evidence lies within the sound discretion of the trial court and is to be determined on the basis of its relevance in connection with the accused and the crime charged.

4. Under K.S.A. 60-422(d ) evidence of specific instances of misconduct of a witness relevant only as tending to prove a trait of his character is inadmissible where offered for the sole purpose of attacking the credibility of the witness. (Following State v. Humphrey, 217 Kan. 352, Syl. 9, 537 P.2d 155.)

5. The right against self-incrimination is personal to the witness, and the appellant in a criminal action has no standing to assert the witness's privilege.

6. In an appeal from a jury verdict which found the defendant guilty of aggravated robbery (K.S.A. 21-3427), unlawful possession of a firearm (K.S.A. 21-4204) and conspiracy (K.S.A. 21-3302), the record is examined and it is held : The trial court did not err (a) in refusing to grant his request for the production of documents pursuant to K.S.A. 22-3213; (b) in allowing the admission of exhibits by the state; (c) in limiting his cross-examination of the state's chief witness; and (d) in overruling his motion to suppress the testimony of the state's chief witness.

Craig Kennedy, of Coombs, Lambdin, Kluge & Kennedy, Chartered, Wichita, argued the cause, and was on the brief for appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty. were with him on the brief for appellee.

SCHROEDER, Chief Justice.

This is an appeal in a criminal action from a jury verdict which found Stephen F. Smallwood (defendant-appellant) guilty of three counts of aggravated robbery (K.S.A. 21-3427); one count of unlawful possession of a firearm (K.S.A. 21-4204); and two counts of conspiracy (K.S.A. 21-3302).

Several specifications of error are asserted by the appellant. First he claims the trial court erred in refusing to grant his request for production of documents pursuant to K.S.A. 22-3213. Second he contends the trial court erred in allowing the admission of exhibits by the state on the ground they were irrelevant. Third he claims the trial court erred in limiting his cross-examination of the state's chief witness and in overruling his motion to suppress the testimony of this witness.

The essential facts are largely undisputed. On February 12, 1975, five armed men in ski masks robbed the Grove IGA grocery store in Wichita, Kansas, of approximately $5,200. The robbers also took a snub-nosed .38 pistol from the store manager, Larry L. Wolf, and $48 in cash and credit cards from a customer in the store, M. G. McIntosh. Larry Taylor, an employee of the store, was shot during the robbery.

Almost one month later on March 9, 1975, the Wichita Police Department stopped a pickup truck at 1:00 a. m. in the morning. Two pistols and a shotgun were immediately thrown from the truck and a man, later identified as the appellant, jumped from the truck and fled. Ray Meeks, Donald McQueen and Elmer Hardyway, Jr., were arrested and taken into custody. One of the pistols thrown from the truck was identified as the same gun taken in the Grove IGA robbery.

Several days after he was arrested Ray Meeks implicated the appellant together with Elmer Hardyway, Jr., Charles Hardyway and Donald McQueen in the commission of several robberies in the Wichita area. He was granted immunity from prosecution upon the condition he testify at the trials of these defendants. As a result of the information provided by Meeks the appellant was charged with the Grove IGA grocery store robbery and with conspiracy to rob the Pawnee Plaza Mall in Wichita.

Stated briefly, Meeks testified he and the appellant met with a man named Melvin V. Moody on March 4, 1975, to discuss the robbery of a coin collection to be shown at the Pawnee Plaza Mall. Moody promised to provide a key to the building, while the appellant agreed to furnish the men he usually worked with.

Shortly before noon the next day Meeks saw the appellant and Elmer Hardyway, Jr. He stated the appellant told him he was getting ready "to meet the man, find everything out." Thereafter on March 8, 1975, the appellant accompanied by Meeks, Donald McQueen and Elmer Hardyway, Jr., went to the Pawnee Plaza Mall to familiarize themselves with the premises and finalize arrangements for the robbery of the coin collection to be shown on the mall.

Meeks further stated he drove with Donald McQueen and Elmer Hardyway, Jr., to the appellant's home early in the morning of March 9, 1975. The trio picked up the appellant together with the guns to be used in the robbery and were proceeding to the Pawnee Plaza Mall when they were apprehended by the police.

Meeks also related the details surrounding the Grove IGA grocery store as did numerous other witnesses introduced by the state.

The appellant made various unsuccessful motions concerning the testimony of Ray Meeks. Apparently after he was released from custody Meeks was interviewed by the assistant district attorney, Stephen M. Joseph, on March 20 and 21, 1975. Prior to the trial the appellant moved for the production of notes made by Mr. Joseph during the interviews. The trial court denied the motion. The appellant renewed the motion unsuccessfully at the trial. The appellant also moved to suppress Meeks' testimony claiming Meeks was incapable of understanding his duty as a witness to tell the truth pursuant to K.S.A. 60-417(b ) and he also claimed Meeks' Fifth Amendment constitutional rights had been violated by the police after Meeks' arrest. These motions were denied.

Finally, the trial court limited the appellant's cross-examination of Ray Meeks concerning his ability to tell the truth on previous occasions.

The appellant was convicted as charged and sentenced to imprisonment as a habitual criminal for not less than 45 years nor more than his life. His motion for a new trial was denied and appeal has been duly perfected.

The appellant first contends the trial court erred in denying him the opportunity to examine certain documents which he claims were a "statement" of the state's chief witness, Ray Meeks.

Prior to the trial, the appellant moved for discovery of a number of items including the following:

"5. Specifically, the written statement of Ray Meeks given to Assistant District Attorney Steve Joseph which Assistant District Attorney Joseph has characterized as 'his notes' although Ray Meeks has called the document in question 'his written statement'."

The trial court denied the appellant's motion to produce those notes as reflected in the journal entry:

"5. Assistant District Attorney Stephen M. Joseph informed the court that he interviewed Ray E. Meeks on March 20 and 21, 1975; that he made notes during this interview; and that Mr. Meeks has never read, signed, or otherwise approved those notes. Based on this statement, the court declined to order production of Mr. Joseph's notes but ordered that a copy of those notes be filed in camera for purposes of appeal."

At the trial the appellant again moved unsuccessfully for the production of Mr. Joseph's notes. He claimed Mr. Meeks had characterized the notes as his "written statement" and stated he believed he signed them.

K.S.A. 22-3213 provides in part:

"(2) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement (as hereinafter defined) of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

"(4) The term 'statement,' as used in subsections (2) and (3) of this section in relation to any witness called by the prosecution means

"(a ) a written statement made by said witness and signed or otherwise adopted or approved by him; or

"(b ) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement."

The definition of "statement" in K.S.A. 22-3213(4) is patterned after the definition of "statement" in the Jencks Act, 18 U.S.C., § 3500 (1970), as it was originally passed by Congress. That Act was subsequently amended to add grand jury testimony to the definition. This court has previously relied upon the construction of the Jencks Act applied by the federal courts when questions have arisen under K.S.A. 22-3213. (See State v. Stafford, 213 Kan. 152, 158, 515 P.2d 769.) We do not depart from this practice here. Both parties agree Goldberg v. United States, 425 U.S. 94, 96 S.Ct. 1338, 47 L.Ed.2d 603, controls the disposition of this claim.

In Goldberg, the accused sought production at trial of a government lawyer's notes made during interviews with a government witness. The witness testified the lawyer's notes were...