State v. Tate, 51994

• Decision Date: 06 December 1980
• Docket Number: No. 51994,51994
• Citation: 228 Kan. 752,620 P.2d 326
• Parties: STATE of Kansas, Appellee, v. George Joe TATE, Appellant.
• Court: Kansas Supreme Court

Page 326

620 P.2d 326

228 Kan. 752

STATE of Kansas, Appellee, v. George Joe TATE, Appellant.

No. 51994.

Supreme Court of Kansas.

Dec. 6, 1980.

Syllabus by the Court

1. The test for joinder of two or more cases for trial is the same as that in K.S.A.1979 Supp. 22-3202(3) for charging two or more defendants in the same complaint, information or indictment.

2. The determination of whether two or more defendants should be tried in the same trial rests within the sound discretion of the trial court.

3. In a criminal action where two defendants were tried jointly over the objections of both defendants, the record is examined and it is held the two cases were properly joined in a single trial.

Jonathan Melvin of Schmidt, O'Sullivan & Langley, Hutchinson, argued the cause and was on brief, for appellant.

Timothy J. Chambers, Asst. County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.

HOLMES, Justice:

This is an appeal by George Joe Tate from a conviction by a jury of one count of aggravated anal sodomy. (K.S.A. 21-3506). The sole question on appeal is whether the trial court committed error in consolidating Tate's trial with the trial of Gary L. Kepka, who was charged and convicted of one count of aggravated anal sodomy and one count of oral sodomy involving the same victim. Kepka has also appealed his convictions. (State v. Kepka, # 52,159, this day decided, in an unpublished opinion.)

The facts of the case are basically not in dispute. On June 13, 1979, there were seven men in cell two of the Reno County jail. Five of the seven were involved in a mock trial to determine if the victim, Jack Jones, was a homosexual. After finding him "guilty" and as a penalty for this determination, Jones was forced to submit to anal intercourse with Kepka and appellant Tate. A third inmate, Urban, approached Jones but did not engage him in sodomy. Before the acts of sodomy occurred, the victim was apparently beaten by the three inmates for approximately ten or fifteen minutes. The victim testified Tate was the first to commit anal sodomy, followed by Kepka. Shortly thereafter Kepka forced Jones to perform oral sodomy in the shower. Jones testified that all of these acts were done against his will.

Appellant contends that it was error to consolidate his trial with that of Kepka over the objections of both defendants. K.S.A.1979 Supp. 22-3202(3) reads as follows:

"(3) Two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

Appellant and Kepka were not charged in the same complaint and information but were tried jointly. The test for joinder of two or more cases for trial is the same as that for charging two or more defendants in the same complaint, information or indictment and the determination rests in the sound discretion of the trial court.

Defendant argues that he was improperly tried along with Kepka because he and Kepka were charged with separate similar crimes (aggravated anal sodomy), not the same crime. Furthermore, he asserts the joinder was improper because Kepka was charged with another different crime (oral sodomy) in which Tate took no part. Appellant's argument lacks merit.

This action involves joinder of defendants for trial, not joinder of charges, and the section of the statute quoted above is the only portion of the statute which is applicable to this case. Our statute, K.S.A.1979 Supp. 22-3202(3), is identical to F.R.Crim.P. Rule 8(b). Appellant relies on State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977), where we dealt at length with the question of misjoinder of defendants. In Roberts, four defendants were jointly tried on assorted charges growing out of two separate and distinct incidents involving robberies of an apartment and a bar which occurred on different days. Roberts was charged and convicted of aggravated robbery, conspiracy to commit aggravated robbery, aggravated burglary, and misdemeanor theft in connection with the apartment robbery. He was not charged and there was no evidence introduced connecting him with the bar robbery. We held that it was error to try Roberts along with other defendants who were tried not only for their participation in the apartment robbery but also for the robbery of the bar.

After examining K.S.A. 22-3202(3) and F.R.Crim.P. Rule 8(b), and the applicable annotations in 1 Wright's Federal Practice and Procedure: Criminal § 144 (1969), pp. 322-324 and 326-329, this court said:

"We conclude two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.

"We further conclude if two or more defendants have been tried together and none of the requirements in the preceding paragraph have been met a misjoinder results and is an absolute ground for reversal and separate trials. (See Vernon's Kansas Statutes Annotated, Code of Criminal Procedure, § 22-3202, n.10, p. 669; and Wright's Federal Practice and Procedure, supra.)" State v. Roberts, 223 Kan. 49, 55, 574...