State v. Taylor

• Decision Date: 04 March 1967
• Docket Number: No. 44564,44564
• Citation: State v. Taylor, 198 Kan. 290, 424 P.2d 612 (Kan. 1967)
• Parties: STATE of Kansas, Appellee, v. Clay Henry TAYLOR, Appellant.
• Court: Kansas Supreme Court

Page 612

424 P.2d 612

198 Kan. 290

STATE of Kansas, Appellee, v. Clay Henry TAYLOR, Appellant.

No. 44564.

Supreme Court of Kansas.

March 4, 1967.

Syllabus by the Court

1. In a criminal action, evidence of similar but independent offenses is admissible in the trial court's discretion, and may be received in the state's case in chief when tending to show motive, opportunity, intent, preparation, plan, knowledge, or scienter, identity, absence of mistake or accident.

2. K.S.A. 60-455 defines the purposes for which evidence of similar offenses may be considered, and a trial court should limit its instruction thereon to the purposes set out in the statute and purposes analogous thereto.

3. Certain parts of the language used in Syllabus 1 and corresponding sections of the opinion in State v. Stitz, 111 Kan. 275, 206 P. 910, and quoted in State v. Allen, 163 Kan. 374, 183 P.2d 458, are disapproved.

4. Evidence of prior unrelated offenses, or arrests therefor, is not admissible in a criminal prosecution as part of the state's case in chief to prove the offense for which a defendant is being tried.

5. Evidence of specific instances of bad conduct is not admissible where it is relevant only as affecting the accused's credibility as a witness by tending to prove his bad traits of character.

6. Chapter 60, Kansas Statutes Annotated, is not void as violating constitutional provisions.

7. Where, in the trial of a criminal action, the evidence discloses the time of the offense to be other than alleged, the defendant may, without giving notice of alibi, offer evidence to show he was at some other place at the time of the offense alleged.

8. The record is examined and it is held, for reasons set forth in the opinion, that the defendant did not receive a fair and impartial trial.

B. L. Pringle, Topeka, argued the cause and was on the brief for appellant.

Robert D. Hecht, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

FONTRON, Justice.

The defendant, Clay Henry Taylor, was convicted of molesting a child under the age of fifteen years, in violation of K.S.A. 38-711 (formerly 1961 Supp. 38-711). He was sentenced to life imprisonment under the Habitual Criminal Act and brings this appeal.

Briefly stated, the state's evidence shows that the defendant (sometimes called Taylor herein) accosted a twelve-year-old boy in one of Topeka's parks on a summer evening in July 1964 and committed an act of gross indecency upon him; that a few days later the lad saw the defendant swimming at the same park and identified him as the culprit; that the defendant was arrested by an officer called by the boy's father and was taken to police headquarters, where he was questioned by two city detectives and where he was again identified by the boy at a police line-up consisting of the detectives and the defendant.

On his part, the defendant testified that he had never seen the boy prior to the date of his arrest and he flatly denied the charge filed against him.

A number of points requiring our attention have been raised in this appeal.

The first of these pertain to the admissibility of evidence. The two officers who questioned the defendant at the police station after his arrest were permitted to testify concerning the interrogation. During the questioning, certain admissions were obtained from the defendant as to prior offenses and the defendant asserts they were inadmissible under the authority of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We believe this contention is not tenable. Neither of these federal cases can be said to be controlling under the facts of this case. At least one of the decisive factors which was present in the Escobedo case, and which undergirded that decision, is found to be lacking in the present action, while Miranda was decided some two years after the defendant's trial was held. It has been held that the Miranda decision has prospective application only (Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.) See, also, State v. Jenkins, 197 Kan. 651, 657, 421 P.2d 33.

However, other questions posed by Taylor in connection with his interrogation possess greater merit. The two officers questioned the defendant about his past activities and in response to their inquiries Taylor admitted both a conviction on a molestation charge in Nebraska and an arrest for burglary and larceny. We view his admission of the conviction on child molestation charges as being properly presented as part of the state's case in chief provided, of course, that the jury was correctly charged as to the purpose for which such evidence was admitted and might be considered. This court has long held that evidence of similar offenses is admissible where it tends to show intent, motive, scienter, plan, identity, scheme or method of operation. (State v. Stephenson, 191 Kan. 424, 381 P.2d 335; State v. Wright, 194 Kan. 271, 398 P.2d 339; State v. Poulos, 196 Kan. 287, 411 P.2d 689, cert. den. 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64.) This rule has been incorporated into the body of our statutory law by K.S.A. 60-455.

But the defendant maintains that the trial court improperly instructed the jury as to the purpose for which the evidence was received. The instruction, as given by the court, reads:

'Evidence of prior and independent sexual offenses may be considered as evidence tending to show a lustful disposition, the existence or continuance of the relation, as such acts tend to explain the act charged and corroborate other testimony relating to the present charge.'

It must be conceded that this instruction is couched in language used by this court in State v. Stitz, 111 Kan. 275, 206 P. 910, and later quoted with approval in State v. Allen, 163 Kan. 374, 183 P.2d 458. Nonetheless, we are not inclined to approve its use today in view of the subsequent enactment of K.S.A. 60-455. The statute provides:

'Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to section 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.'

This statute defines the purposes for which evidence of similar offenses may be admitted. Neither explanation of the act charged nor corroboration of other testimony relating to the charge is comprehended within the language or the import of the act. In our opinion, a trial court should limit its instructions concerning the purposes for which similar offenses may be considered to those purposes set out in the statute and purposes analogous thereto. Accordingly, we are constrained to disapprove that part of the instruction which follows the words 'lustful disposition' as well as the language in the Stitz and Allen cases from which that portion of the instruction was taken.

One of the police officers testified that the defendant admitted an arrest in Colorado, while the other testified that Taylor 'volunteered' the information he had been arrested for burglary and larceny. It is possible these two admissions referred to the same arrest. Whether that be true or not, we believe this evidence not admissible. The rule has long been settled that a crime may not be proved by evidence of other and unrelated offenses or instances of bad conduct. (State v. Owen, 162 Kan. 255, 176 P.2d 564; State v. Myrick, 181 Kan. 1056, 317 P.2d 485; State v. Stephenson, supra.)

The evidence is no less objectionable when it is sought to be introduced through the medium of an extrajudicial statement made by the accused than where it is attempted by other means. In both Myrick and Stephenson, the proscribed evidence was introduced by the state in its case in chief, as is true here, through the agency of statements taken from the accused by law enforcement officers.

Furthermore, we are of the opinion that the offensive evidence comes within the ban of K.S.A. 60-447, which provides:

'Subject to section 60-448 when a trait of a person's character is relevant as tending to prove his conduct on a specified occasion, such trait may be proved in the same manner as provided by section 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused's character as tending to prove his guilt or innocence of the offense charged, (i) may not be excluded by the judge under section 60-445 if offered by the accused to prove his innocence, and (ii) if offered by the prosecution to prove his guilt, may be admitted only after the accused has introduced evidence of his good character.' (Emphasis supplied.)

As we have already noted, the prosecution offered the defendant's admission of his prior arrest for burglary and larceny during its case in chief. It is obvious that, as of such time, the defendant had not presented evidence of his good character, for he had presented no evidence at all.

Further complaint is made that certain parts of the state's cross-examination of the defendant violated K.S.A. 60-422. We are inclined to agree with this contention. So far as pertinent to the issue thus raised, this statute provides:

'As affecting the credibility of a witness * * * (d) evidence of specific instances of his conduct relevant only as tending to prove a trait of his character, shall be inadmissible.'

To illustrate the objectionable nature of the cross-examination, it is necessary that we quote it in...