State v. Taylor

• Decision Date: 07 December 1968
• Docket Number: No. 45133,45133
• Parties: STATE of Kansas, Appellee, v. James Arthur TAYLOR, Appellant.
• Court: Kansas Supreme Court

Page 806

447 P.2d 806

202 Kan. 202

STATE of Kansas, Appellee, v. James Arthur TAYLOR, Appellant.

No. 45133.

Supreme Court of Kansas.

Dec. 7, 1968.

Syllabus by the Court

1. The granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that such discretion has been abused to the extent that the defendant's substantial rights have been prejudiced.

2. In a prosecution for burglary 'in the nighttime' under K.S.A. 21-520 failure to instruct the jury on burglary 'in the daytime' is not error when the evidence at the trial excludes any theory of guilt in the daytime.

3. In an appeal from a conviction of burglary in the second degree the record is examined and it is held: No error is shown.

James M. Brewster, Overland Park, argued the cause and was on brief for appellant.

P. Stephen Martin, Asst. County Atty., argued the cause and Robert C. Londerholm, Atty. Gen., and James W. Bouska, County Atty., were with him on brief for appellee.

FROMME, Justice.

The defendant, James Arthur Taylor, was convicted by a jury of burglary in the second degree and has appealed from the judgment of conviction and sentence.

The evidence will be summarized.

A deputy sheriff while patroling a rural area in Johnson county in the early morning discovered a burglary in progress at a county schoolhouse. In the beam of his spotlight the patrolman saw two men run from the school building. They ran toward open country in a northwesterly direction. One man was dressed in light colored clothing and the other in dark clothing. The patrolman reported these facts over his radio to a dispatcher in the sheriff's office. A second deputy in the area was dispatched to help with the investigation. When he was about two miles northwest of the schoolhouse he overtook the defendant. The defendant, accompanied by another man, was driving a car. No other traffic was observed in the area. The deputy stopped the defendant's car to investigate. The car's license number was on a sheriff's list of cars suspected of being used in recent burglaries. The defendant was recognized from pictures seen in the sheriff's office. The deputy saw a set of walkie-talkies lying on the back seat of defendant's car. The deputy sheriff knew this method of communication was frequently used by burglars. One man in the car was dressed in dark clothing and one in light clothing. The defendant's shoes were muddy and there were splatterings of mud on his lower trouser legs. The terrain in the vicinity of the schoolhouse was muddy. The men said they were going fishing and had made a recent comfort stop. The defendant was not in possession of either a fishing license or fishing equipment. It was five o'clock on a winter morning in February. The two men were taken to the Stillwell Grade School where the burglary had occurred and were later lodged in jail.

An examination of the building disclosed that someone had recently entered the building by breaking a north window. A steel screen across an inner corridor in the building had been forced away from the wall. A hole had been broken in a wall beside a steel door. A large pry bar was found in the corridor. Outside the building a sledgehammer and flashlight were found 100 yards northwest of the schoolhouse. A pry bar, two punches, hammer, pliers and the walkie-talkie were found in defendant's car.

The defendant was tried and convicted of second degree burglary.

On appeal to this court he specifies various errors as grounds for reversal. We will examine these in the order they are set out in his brief.

The defendant contends the trial court erred in refusing to grant him a continuance in order that he might employ an expert witness to examine and evaluate the state's fingerprint evidence. The state's evidence on this point concerned a fingerprint, which matched one of the defendant's, found on a flashlight battery. The flashlight was the one found in the open field about 100 yards northwest of the school building.

A special examiner for the Kansas Bureau of Investigation, Mr. Buchanan, made the comparison and identification.

Six days before the trial date defendant had requested and was granted permission to examine the fingerprint evidence. The record shows six separate continuances were requested and granted to defendant during a period of one month preceding the trial. The order about which defendant now complains was made in response to his seventh motion for continuance. The motion was made on the day of trial. From the record it appears the defendant's expert had not yet been employed and had made no examination of the fingerprint evidence. The nature of his testimony was undetermined and speculative.

The granting or denial of a continuance in a criminal prosecution is largely within the discretion of the trial court, and its ruling will not be disturbed in the absence of a showing that such discretion has been abused to the extent that substantial rights of the defendant have been prejudiced. (See State v. Dickson, 198 Kan. 219, 424 P.2d 274, and State v. Milum, 202 Kan. --, 447 P.2d 801, this day decided.)

No showing has been made the trial court abused its discretion and it does not appear substantial rights of the defendant were prejudiced by the denial.

The second point raised is that the trial court erred in not granting defendant's request for funds to employ an expert to examine the fingerprint evidence.

The defendant is not claiming suppression of evidence obtained by the prosecution. Full opportunity to examine and evaluate the state's fingerprint evidence was granted. The present motion was made to obtain funds to hire a second fingerprint expert.

Our statutes provide for appointment of counsel for an indigent (K.S.A. 62-1304), provide for compulsory process to secure the attendance of witnesses from any county (K.S.A. 62-1308 and 62-1309), make it unnecessary to tender witness fees in advance (K.S.A. 62-1312), authorize the defendant to obtain testimony from witnesses outside the state (K.S.A. 62-1313) and authorize a record of the trial proceedings for an indigent without cost. (K.S.A. 62-1304(b)).

We have no statute to authorize and provide the supporting services of an expert to an indigent defendant in a criminal case.

Provision for supporting services to assist counsel for an indigent in making an adequate defense to criminal charges has been provided by statute in some states. (Fla.Stat.Ann. § 932.30; Ill.Rev.Stat. c. 38 § 113-3(e); N.Y.Code Crim.Proc. § 308; Pa.Stat. anno. Tit. 19, § 784.)

In the absence of statute the duty to provide such may arise and be exercised because of an inherent authority in courts to provide a fair and impartial trial as guaranteed by Section ten of the Kansas Bill of Rights and the due process clause of the United States constitution. (See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.)

The legislature of this state has not seen fit to enact a statute. The subject of providing funds for supporting services to counsel for indigents suggests a broad vista of incautious dicta beyond the requirements of this particular case. In the absence of statute a request for supporting services must depend upon the facts and circumstances of each case. Therefore it must rest in the sound discretion of the trial court. (See State v. Freeman, 195 Kan. 561, 408 P.2d 612, cert. den. 384 U.S. 1025, 86 S.Ct. 1981, 16 L.Ed.2d 1030; State v. Greenwood, 197 Kan. 676, 680, 421 P.2d 24; State v. Zimmer, 198 Kan. 479, 484, 426 P.2d 267, cert. den. 389 U.S. 933, 88 S.Ct. 298, 19 L.Ed.2d 286.)

Defendant's motion in the present case was made after five continuances had been requested and granted over a period of thirty days preceding the trial date. From the record before us this additional request appears to have been made more to delay the trial than to provide available testimony for the defense. There is nothing in the record to indicate the testimony of a second fingerprint expert would be helpful to the defendant. At the trial the state's expert was subjected to vigorous cross-examination which disclosed nothing to detract from his qualifications, method of identification or the final opinion given. There simply was nothing shown to suggest the services of an additional expert would be helpful. Mere hope or desire to discover some shred of evidence when not coupled with a showing the same is reasonably available and necessary for a proper defense does not support a claim of prejudicial error.

The granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecutio...