State v. Thomas, s. 45773

• Decision Date: 06 March 1971
• Docket Number: 45774,Nos. 45773,s. 45773
• Citation: 206 Kan. 603,481 P.2d 964
• Parties: STATE of Kansas, Appellee, v. Henry D. THOMAS, Appellant.
• Court: Kansas Supreme Court

Page 964

481 P.2d 964

206 Kan. 603

STATE of Kansas, Appellee, v. Henry D. THOMAS, Appellant.

Nos. 45773, 45774.

Supreme Court of Kansas.

March 6, 1971.

Syllabus by the Court

1. Two or more informations against a single defendant may not be consolidated for trial if the crimes charged therein could not have been joined in a single information, where it is shown that substantial rights of defendant would be prejudiced by such consolidation and timely objection thereto is made.

2. Two or more crimes may be charged against a defendant in the same information in a separate count for each crime if the crimes charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

3. It is not abuse of discretion by a trial court to deny to a defendant funds sought by him to procure evidence which would be inadmissible for the purpose proposed.

4. In a criminal proceeding, wherein multiple crimes were charged in two informations which were consolidated for trial over defendant's timely objection, the record is examined and it is held: (1) Consolidation of the informations for trial, under the facts and circumstances set forth in the opinion, was erroneous. (2) Prejudice was sufficiently shown to warrant new and separate trials on each information.

Orval L. Fisher, Wichita, argued the cause and was on the brief for appellant.

Reese C. Jones, Deputy County Atty., argued the cause, Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.

KAUL, Justice:

These appeals are from convictions in separate cases which were consolidated for trial in the district court of Sedgwick County. The appeals have been consolidated for hearing in this court and we shall refer to them in the singular.

Defendant's principal ground for reversal is that consolidation of the cases, under the circumstances shown to exist, amounted to prejudicial error.

The two case having been tried together over the timely protest of defendant, our inquiry on appellate review is whether the record indicates sufficient possibility of prejudice by reason of such consolidation for trial as to require reversal. We believe it does.

In district court case No. CR 5282, which was docketed in this court on appeal as No. 45,773, defendant was charged with second degree burglary and larceny in connection therewith (K.S.A. 21-520 (now 1970 Supp. 21-3715, 21-3716), and K.S.A. 21-524 (repealed L.1969, Ch. 180, Sec. 21-4710, effective July 1, 1970)); three counts of forgery in the second degree (K.S.A. 21-608 (now 1970 Supp. 21-3710, 21-3711)); and three counts of uttering in the second degree (K.S.A. 21-609 (now 1970 Supp. 21-3710, 21-3711)). Defendant was convicted on all of the counts enumerated.

In district court case No. CR 5283, which was docketed in this court on appeal as No. 45,774, defendant was charged with first degree murder for the killing of one Jerry Dean Faidley while in the commission of a felony, under K.S.A. 21-401 (now 1970 Supp. 21-3401); robbery in the first degree (K.S.A. 21-527 (now 1970 Supp. 21-3427)); and unlawful possession of a pistol (K.S.A. 21-2611 (now 1970 Supp. 21-4204)). Defendant was convicted on all three counts charged in CR 5283. The jury assessed the penalty of life imprisonment on the charge of murder in the first degree.

For convenience the two cases will be referred to as the forgery case and the murder case.

Defendant filed a motion for a new trial which was overruled.

The district court imposed life imprisonment on the conviction of first degree murder and sentences on each of the other nine counts, directing that they be served concurrent with each other, but consecutive with the life imprisonment sentence on the murder conviction.

The charges stem from a series of events which occurred during the lase week of July and the first five days of August 1968.

About 1:30 a.m. on August 5, 1968, Patrolman Doyle Dyer, of the Wichita Police Department, was performing routine patrolling (checking buildings and cars) in the neighborhood of First and St. Francis Streets, in the downtown area of the city. He noticed a 'colored male,' later identified as defendant, walking west on the south side of First Street, approximately one-hald block west of Hydraulic Avenue. Officer Dyer drove around the block and again noticed the same subject; Dyer pulled over to the curb and asked defendant his name, defendant answered 'Tommy Johnson.' Dyer then asked defendant to have a seat in the patrol car. Defendant sat in the fron seat beside Dyer, the dome light was on. In answer to questions asked by Dyer, defendant stated 'that he'd just left the Starlite Club' and, he was going to the bus station to get something to eat. At this point an automobile pulled up along the side of Dyer's car and Dyer testifed--

'* * * they probably wanted my services for something so I told the subject I had with me to * * * or that he was free to go, and at this time the Falcon pulled up beside of me and there was one white man and a woman and the man who was driving the car stated that there was an officer standing by 1st and Hydraulic and that somebody had been badly beaten.'

Dyer stated that defendant got out of the automobile and went south on Pennsylvania. Dyer then proceeded to First and Hydraulic where he met Officer Carl Pope. The two officers investigated a 'dark green '56 Pontiac, two door,' which was setting in the intersection of First and Hydraulic. They found a body 'sitting in the passenger's side of the front seat.' The body was later identified as that of Jerry Dean Faidley. The officers found a bullet hole in Faidley's head, determined that he was probably dead, and called for assistance from the Police Department. They were unable to find identification on the body of Faidley.

The automobile in which Faidley's body was found was discovered by Walter R. Rutherford, who was employed by the Central Bureau of Investigation. He saw Faidley's automobile in the intersection of First and Hydraulic and on inspection found Faidley sitting in the front seat 'with his head back over the top of the seat.' Rutherford asked a passerby to notify the Wichita Police and Dyer and Pope arrived soon thereafter.

Investigation of the Faidley automobile revealed fingerprints on a whiskey bottle and on the left hand door glass, which proved to be those of defendant.

Several witnesses saw defendant and Faidley together at the Starlite Club. One witness testified they left the Club together about 12:30 a.m. on August 5.

On August 6, 1968, a search party combed the area around First and Hydraulic. The searchers found a billfold belonging to Faidley and a number of cards and pictures scattered about, which were identified as Faidley's. Further investigation led to the discovery of defendant's fingerprints on a pop bottle and on a pistol, found in a licker at the bus terminal. Comparison of test bullets fired from the pistol, with the death bullet removed from Faidley's brain, indicated that the death bullet could have been fired from the pistol, but no definite conclusion was made by the examining expert.

Concerning the burglary, forgery and uttering charges in case No. 45,773, the state's evidence established that credit cards were stolen from the automobile of William D. Sadler while it was parked in a parking lot on July 25, 1968. There was further evidence that the office of Don D. Rutherford Company, Inc., was burglarized on July 31, 1968. Printed checks of one Bessie Webb, dictating equipment, company checks, two antique pistols, and a paymaster check protector were taken in the burglary. Checks forged on the Bessie Webb printed check forms, presented for cashing by defendant with Sadler's credit cards as identification, served as a basis for the forgery, uttering and burglary charges.

Defendant was arrested during the afternoon of August 5, 1968, at Henry's Inc., in downtown Wichita, where he was attempting to cash a check, which had been stolen in the Rutherford burglary on July 31, 1968, on which he had forged the signatures of Bessie Webb as payer and that of William D. Sadler as endorsee.

Two separate complaints were filed against defendant. Counsel was appointed and a preliminary hearing was had in each case. After informations were filed in the district court the state moved that the two cases be consolidated for trial. The defendant objected and the trial court took the matter under advisement. When the trial court announced its ruling sustaining the state's motion, the defendant renewed his objection.

Defendant contends the state's proposal to consolidate was intended to prejudice the defendant's defense to the robbery and murder charge by showing the prior and unconnected offenses of forgery, uttering and burglary.

Defendant claims the prejudice resulting from the erroneous consolidation was compounded because the trial court failed to instruct the jury that the evidence pertaining to the forgery case should be limited to only that case and as a result the jury was left free to convict defendant of murder because he was a forger.

Defendant says the offenses charged in the two informations were not of the same general character, the two cases did not require the same mode of trial; that the evidence of guilt in the hands of the state in the forgery case was documented and overwhelming, while the evidence in the murder case was mostly circumstantial; and that there was no real overlapping of evidence in the two cases. Defendant further points out that the same kind of punishment was not involved-that an extensive voir dire examination concerning capital punishment was necessary in the murder case, while capital punishment was not involved in the forgery case.

Defendant asserts the consolidation of the two cases far exceeded acceptable guidelines for joinder and...