State v. Steward, 48010

• Decision Date: 06 March 1976
• Docket Number: No. 48010,48010
• Citation: 547 P.2d 773,219 Kan. 256
• Parties: STATE of Kansas, Appellee, v. Eugene M. STEWARD, Appellant.
• Court: Kansas Supreme Court

Page 773

547 P.2d 773

219 Kan. 256

STATE of Kansas, Appellee, v. Eugene M. STEWARD, Appellant.

No. 48010.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. In the absence of a showing of need to perpetuate testimony due to the unavailability of a witness for trial, a defendant in a criminal action has no right to depose a witness before trial under the provisions of K.S.A. 22-3211.

2. A defendant is not entitled to take depositions of prospective witnesses on the bare assertion that such witnesses might not be able to appear at the trial.

3. The ultimate responsibility for management of the trial calendar is in the trial court.

4. Where a witness testifies at a criminal trial and is subject to cross-examination, the testimony of such witness is admissible at a second trial in the same action upon a proper showing that the witness is unavailable.

5. Before the state may use the testimony of an absent witness given at a former trial or preliminary hearing it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial.

6. The inability of a witness to appear must be established by a ruling of the trial court or by agreement of counsel. The sufficiency of proof of unavailability is a question for the trial court within its discretion and its ruling will not be disturbed unless an abuse of discretion is shown.

7. A party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody. It is not necessary that the object should have been kept continuously under lock-and-key or continuously sealed up nor is it necessary that all possibility of its being tampered with should be excluded.

8. Relevant evidence means evidence having any tendency in reason to prove any material fact. (K.S.A.1975 Supp. 60-401(b)).

9. Physical objects connected with or which serve to unfold or explain a criminal act are admissible in evidence whenever the criminal act is under judicial investigation.

10. Photographs, if relevant and material to matters at issue, are not rendered inadmissible merely because they may be shocking and gruesome.

11. When photographic evidence is used by a coroner in describing wounds, which were received as a result of a crime of violence, such evidence is relevant and admissible to establish material facts such as the manner and cause of death.

12. Where a crime is committed by several persons the acts of one codefendant in the presence of another, which have a legitimate bearing on the crime committed, are admissible in evidence against such other.

13. It is a well-established rule in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence.

14. In a criminal case, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state.

15. When a sentence is fixed by the trial court within permissible limits of the applicable statutes the sentence is not erroneous. In the absence of special circumstances showing an abuse of judicial discretion it cannot be determined on appeal that such a sentence is excessive or so disproportionate to the offense as to constitute cruel and unusual punishment.

Robert W. Harris, of Harris, Sheeley & Hills, Kansas City (court appointed), argued the cause and was on the brief for the appellant.

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

KAUL, Justice:

The defendant-appellant, Eugene M. Steward, appeals from convictions by a jury of first degree murder (K.S.A. 21-3401); rape (K.S.A. 21-3502); aggravated battery (K.S.A. 21-3414); and two counts of aggravated robbery (K.S.A. 21-3427). The charges arose out of an incident occurring on April 13, 1974, at the home of Billy and Betty Walker in which two armed men killed and robbed Billy and robbed, raped and committed aggravated battery against his wife, Betty.

On the day in question Betty entered her home at 1000 Quindaro Street, Kansas City, Kansas at approximately 1:00 p. m. She was met by two men armed with shotguns who told her they were there for the purpose of fulfilling a contract in which they had undertaken to take the lives of Mr. and Mrs. Walker. Betty testified that as they waited for her husband to come home, defendant raped her while his accomplice, Marlowe King, held a shotgun on her.

Upon his arrival a short time later, Billy Walker was accosted by the two armed assailants. Money was taken from his person and during a scuffle Billy was shot in the back with a shotgun held by Marlowe King. The wound proved to be fatal. Upon viewing these happenings Betty lost consciousness. She next remembered awakening in the back yard of her home and discovering that she was bleeding from a would in her neck. She summoned help and was taken to a hospital. It was later discovered that Billy Walker's throat had also been cut with a sharp object.

After Betty was released from the hospital she was shown some mug shots by police and picked out two faces which she thought resembled the assailants. Betty was driven to Olathe by two detectives where she viewed the two men pictured in the mug shots. The detectives testified that a line-up was not conducted because the two suspects were the only two back men in jail or otherwise available for a line-up. Betty identified these men as the assailants and when asked if she was sure, said 'Yes, that's them.' These men were then charged with the crimes. However, after further investigation by the police, the charges against these suspects were dismissed.

On May 31, 1974, defendant was arrested by Kansas City, Kansas police in the company of one Michael Haygood and Marlowe King on charges unrelated to this appeal. When arrested, defendant was driving an automobile owned by Haygood. Following the arrest a warrant was obtained for a search of the automobile. The search revealed weapons in the glove compartment and a shotgun and a portable sewing machine in the trunk. Among items known by police to have been missing from the Walker home, following the April 13 incident, was a portable sewing machine owned by Betty Walker.

Based on this lead, police detectives sent a new series of mug shots to Betty Walker who had moved to Shreveport, Louisiana, where she resided with her mother. The series included shots of defendant and Marlowe King, as well as the shots of the original Olathe suspects and others. Thereafter, Detective Parks of the Kansas City, Kansas Police Department received a letter from Betty stating that she must change her identificatin of the assailants and named the mug shots of defendant and Marlowe King as being the two individuals who had attacked her and her husband.

Betty was returned to Kansas City and selected Marlowe King out of a line-up, positively identifying him as one of her assailants. The following day she likewise positively identified the defendant from a line-up. She also identified the portable sewing machine taken from the trunk of Haygood's automobile as being the one taken from her home on April 13, 1974.

A preliminary hearing was held and defendant was bound over for trial. He was arraigned on August 16, 1974, at which time he pled not guilty.

On October 31, 1974, the case was specially set for trial for the week of November 18, 1974. On November 11, 1974, an entry was made on the trial docket 'Case continued for 30 days for lack of time to try the case due to pending trials.' This entry was initialed 'H.M.' by Judge Harry Miller, the administrative judge of the Wyandotte District Court. On November 15, 1974, defendant filed a motion for discharge based on K.S.A. 22-3401 and 22-3402 (speedy trial), which was heard and denied by the trial court on December 9, 1974. On December 12, 1974, the jury announced its inability to reach a unanimous verdict and a mistrial was declared by the court.

After defendant's first trial Mr. William Roberts withdrew as his attorney and Mr. Robert Harris, defendant's present counsel, was appointed to represent him in any further proceedings.

A second trial commencing on February 18, 1975, culminated in a verdict of guilty on all counts on February 20, 1975. This appeal followed.

Defendant specifies thirteen points of error on appeal. He first claims error in the trial court's denial of his motion to depose prospective witnesses. On August 15 1974, one day after defendant's arraignment and several months prior to the first trial, defendant's counsel filed a motion to take depositions of witnesses for the defendant. The trial court's docket sheet discloses that the motion was denied on September 18, 1974. Even though the motion was filed and ruled upon prior to defendant's first trial, he nevertheless, now claims error in his appeal from the judgment rendered in his second trial. Defendant argues the summary denial of his motion constituted abuse of discretion.

The pretrial taking of depositions of prospective witnesses is governed by K.S.A. 22-3211(1) which reads:

'(1) If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an information or indictment may upon motion of a defendant and notice to the parties order that his testimony be taken by deposition . . ..'

In his motion defendant alleged that the address of the three witnesses in question was 2301 Brooklyn Street, Kansas City, Missouri, which apparently was the office address of Dr. M. M. Queen, a dentist. Defendant alleged...