State v. Stokes
| Decision Date | 15 June 1974 |
| Docket Number | No. 46982,46982 |
| Citation | 215 Kan. 5,523 P.2d 364 |
| Parties | STATE of Kansas, Appellee, v. Elvina STOKES, Appellant. |
| Court | Kansas Supreme Court |
1. A witness who testifies to such identifying biographical data as place of birth, education, address, marital status, length of residence in the community and employment history, does not through such testimony alone place his character in issue.
2. Testimony first elicited by defense counsel on cross-examination of a prosecution witness, showing a specific incident of prior violence on the part of the defendant in a murder case, opens the door for furthere inquiry into that incident by the prosecution on cross-examination of the defendant.
3. An instruction on self defense need not be in the exact words of the statute so long as it correctly states the applicable principles.
4. K.S.A.1973 Supp. 21-3211 is a codification of the common law right of self defense. It limits the degree of force which may be used to repel an attack to that force which reasonably appears to be necessary for that purpose.
5. An instruction is not erroneous which advises the jury that deadly force may be used in self defense only if it reasonably appears to the person attacked, under the circumstances then existing, that such force is necessary to prevent death or serious injury to himself.
6. In a first degree murder case it is held that the trial court did not err in permitting cross-examination of the defendant on a past act of violence or in instructing the jury on the issue of self defense.
Chester I. Lewis, of Lewis & Davis, Wichita, argued the cause and was on the brief for appellant.
Larry D. Kirby, Deputy Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Wichita, were on the brief for appellee.
FOTH, Commissioner:
This case stems from a domestic tragedy which opened with the marriage of the principal characters in 1969 and continued through three tumultuous years. The final scene was played out on a street corner in Wichita on the evening of May 17, 1972, where the defendant, Elvina Stokes, before an audience of numerous witnesses, shot her husband David three times. One bullet struck his heart, thus bringing down the final curtain in the marriage.
The epilogue has consisted of two murder trials. The first resulted in a hung jury, the second in a conviction of first degree murder and this appeal.
The state's theory throughout has been that on the fatal day Elvina, tired of receiving David's abuse, took a pistol and sought him out with a view to putting a final end to her torment at his hands. She, on the other ahnd, claimed self defense. She described a quarrel earlier that day which had terminated in a shot being fired in her direction by David. When they had a chance encounter at the fatal intersection she was frightened, she said, and when he got out of his car and approached her she shot in his direction to frighten him.
For reversal she relies on two alleged trial errors. The first is a ruling by the trial court which allowed the prosecution to cross-examine her about an incident of some seven years before, in which she had allegedly stabbed a young woman who was then competing with her for the attentions of a young man. The ruling was made at an in camera conference before the state's cross-examination of the defendant commenced. The court found that defense counsel had placed in issue the reputation and character of the defendant, 'that is, that trait of character for being peaceful and law-abiding.' The court noted that it had 'heard elicited evidence admissible solely for that purpose only, that is, tending to show that she is peaceable and law-abiding, from her mouth.'
When pressed by defense counsel as to whether the ruling was based solely on the defendant's testimony that 'she has been a hard working person all her life,' the court responded,
Appellant's claim of error is based on that part of K.S.A. 60-447 which says that in a criminal case the prosecution may introduce evidence of the accused's bad character 'only after the accused has introduced evidence of his good character.' The proscription applies to cross-examination of the accused as well as to direct evidence. State v. Gunzelman, 210 Kan. 481, 502 P.2d 705, Syl. 5. She argues that her own testimony, telling the jury merely where she had lived and worked over the years, did not amount to evidence of her 'good character' under the statute, and did not put her character in issue.
If this were all, we would be inclined to agree. Character is not put in issue by the kind of background testimony elicited from nearly every witness as to address, occupation, place of employment, marital status, etc. Such testimony serves more to identify the witness rather than show good character. Where the witness is the accused such biographical data will naturally be somewhat more extensive than in the case of the ordinary witness, but that fact alone does not put the accused's character is issue. Cf. City of Topeka v. Harvey, 188 Kan 841, 365 P.2d 1109, where the testimony of the defendant's wife as to the length of their marriage and size of their family was held not to put the defendant's character in issue. In the same vein, see also Martin v. People, 114 Colo. 120, 162 P.2d 597; United States v. Masino, 275 F.2d 129 (2d Cir., 1959); and United States v. Tomaiolo, 249 F.2d 683 (2d Cir., 1957), all holding that a defendant may testify, among other things, to his service in the armed forces and the receipt of an honorable discharge without putting his character in issue. Those cases also indicate that such data as place of birth, education, and length of residence in the community are in the same category.
We think such a rule is sound. The purpose of the statute, in combination with K.S.A. 60-421, is to permit a defendant to testify in his own behalf without having his history of past misconduct paraded before the jury. State v. Gunzelman, supra; State v. Roth, 200 Kan. 677, 438 P.2d 58. He is entitled, like any other witness, to let the jury know who he is so that it may properly fit him into the pattern of...
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State v. Donesay, 77558
...acquainted the jury with him "so that it may properly fit him into the pattern of events brought out at the trial." State v. Stokes, 215 Kan. 5, 7, 523 P.2d 364 (1974). Because Easter did not live, the State's contention continues, his widow was entitled to supply that testimony. The langua......
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State v. Hall
...portray himself as a good Kansas farm boy, a family man, and a successful rancher. We interpreted K.S.A. 60-447(b) in State v. Stokes, 215 Kan. 5, 7, 523 P.2d 364 (1974). We recognized that, where the accused testifies on his or her own behalf, the biographical data will naturally be more e......
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State v. Cosby
...the defendant's character would not be admissible unless defendant put his character in issue. See K.S.A. 60-447(b); State v. Stokes, 215 Kan. 5, 6-7, 523 P.2d 364 (1974). During defendant's testimony, defendant discussed the victim's reputation and character, as well as specific instances ......
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State v. Kirkpatrick
...aggressor's imminent use of unlawful force." The statute "is a codification of the common law right of self-defense." State v. Stokes, 215 Kan. 5, 9, 523 P.2d 364 (1974). Indeed, the right of self-defense has been with us since our earliest days of statehood. See, e.g., Wise v. State, 2 Kan......