State v. Thompson

• Decision Date: 11 December 1976
• Docket Number: No. 48355,48355
• Citation: 558 P.2d 93,221 Kan. 176
• Parties: STATE of Kansas, Appellee, v. John Henry THOMPSON, Appellant.
• Court: Kansas Supreme Court

Page 93

558 P.2d 93

221 Kan. 176

STATE of Kansas, Appellee, v. John Henry THOMPSON, Appellant.

No. 48355.

Supreme Court of Kansas.

Dec. 11, 1976.

Syllabus by the Court

1. An officer who has received an anonymous phone call advising that a crime under investigation was committed by a man identified as 'Crazy John' should not be permitted to testify as to the substance of that communication, for the substance of the communication is inadmissible hearsay when it tends to identify the accused and establish his guilt.

2. The best evidence rule does not apply to writings collateral to the issue. So, where the execution or existence of a writing, as distinct from its contents, does not form the foundation of the action, although it is kmaterial to the controversy, and where the purpose of the evidence is not to maintain or destroy and right involved in the action, the production of the writing may not be required, but its execution and existence may be proved by parol.

3. Hearsay is not limited to oral testimony or statements and the general rule which excludes hearsay as evidence applies to written, as well as oral, statements.

4. The improper admission into evidence of secondary testimony inculpating the accused may be held harmless error where it appears the testimony erroneously admitted was merely cumulative of other overwhelming eyewitness testimony identifying the accused and had little, if any, likelihood of having changed the result of the trial.

5. In applying the Kansas harmless error rule (K.S.A. 60-2105) to a federal constitutional error a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.

6. Where the evidence of guilt is of such direct and overwhelming nature that it can be said the erroneous admission of certain other evidence could not have affected the result of the trial, such admission is harmless error.

Stephen D. McGiffert, McDowell, Rice, Baska & Smith, Kansas City, argued the cause and was on the brief for appellant.

Philip L. Sieve, Chief Deputy Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist, Atty., were with him on the brief for appellee.

FROMME, Justice:

The defendant, John Henry Thompson, appeals from criminal convictions on two counts of aggravated robbery (K.S.A. 21-3427). Both counts arose from a robbery occurring at the 10th Street Jewelry Store in Kansas City, Kansas. William Boyice, Sr., the owner of the store, was robbed of jewelry and currency. William Boyice, Jr., the son, was robber of a gold watch.

The robbery occurred in the afternoon of December 31, 1974. Two men entered the store armed with hand guns. One had his face partially obscured by a stocking cap and a turtle neck sweater. One of the robbers on leaving the store was heard to refer to the other as 'Slim'.

The younger Boyice testified that earlier in the day while he was alone in the store two men entered the store to look at merchandise. He recognized one of them as 'Slim' from Kansas City, Missouri. He had met him on several previous occasions. He spoke to 'Slim' but was ignored. Boyice, Jr., further testified that he recognized this same man as being one of those who took part in the robbery.

Detective Whitmill was called and he investigated the robbery. He was given the above information. Whitmill later received an anonymous phone call advising him that one of the robbers who took part in the 10th Street Jewelry Store robbery went by the name of 'Crazy John'. Putting together the three bits of informaton he had received, i. e., 'Slim', 'Kansas City, Missouri' and 'Crazy John', he made a trip to the police department in Kansas City, Missouri, where a 'moniker file' was kept on individuals that the department had investigated. An investigation of this file by Whitmill produced the information that the name 'Crazy John' had previously been used in referring to a man by the name of John Henry Thompson, and Thompson was also known as 'Slim'. Whitmill obtained a photograph of John Henry Thompson together with four additional photographs of other individuals. He presented these to both Boyice, Sr., and Boyice, Jr. The picture of John Henry Thompson was identified as that of one of the robbers. Thereafter defendant appeared in a lineup with others and he was identified by Boyice, Jr. At the trial the defendant was identified by both Boyice, Sr., and Boyice, Jr.

The defendant relied on a defense of alibi. The only issue at the trial was identification. The jury returned a guilty verdict within thirty minutes after retiring to consider the evidence.

After reviewing the record we are convinced there was ample evidence to establish identity and guilt beyond a reasonable doubt. The trial court was justified in overruling defendant's motion for judgment of acquittal. See State v. Gustin, 212 Kan. 475, 510 P.2d 1290.

The defendant's next point concerns the anonymous phone call to Whitmill by which he was advised the robbery was committed by a man named 'Crazy John'. At the trial the prosecuting attorney stated in substance that the state would show that Whitmill received information from an informant implicating a person 'Crazy John'. Defendant's counsel promptly objected to such statement as hearsay and the court admonished the prosecutor not to state the substance of the phone call.

We note when Whitmill testified he merely stated that as a result of additional information received he went to Kansas City, Missouri, looking for the full name of a man known as 'Crazy John'. He was not permitted to testify as to what the anonymous caller told him.

We believe the trial court's action in limiting this testimony was proper. In State v. Murphy, 309 So.2d 134 (La. 1975), it is stated:

'While it is not violative of the hearsay rule for a police officer to state that he made an arrest or a search and seizure as the result of information received or a complaint, the exception is limited to the statement of fact-for, whenever he is permitted to explain the nature of the information or complaint, he does not testify to a fact but to what someone else told him.' (p. 135.)

In State v. Long, 137 N.J.Super, 124, 348 A.2d 202, the line dividing the admissible from the inadmissible is more clearly drawn. The New Jersey court explains:

'. . . This rule is not violated when 'a police office explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received. " State v. Bankston, 63 N.J. 263, 268, 307 A.2d 65 (1972). Such evidence is not admitted to establish the truth of the information received by the officer but rather to explain the reason for his approaching the scene and his subsequent conduct. Ibid.

'Where, however, the information as related to the jury directly or by necessary inference points to the guilt of the defendant, the testimony is inadmissible. Bankston, supra, 63 N.J. at 271, 307 A.2d 65; State v. Niesbbalski, 82 N.J.L. 177, 83 A. 179 (Sup.Ct.1912).' (pp. 133, 134, 348 A.2d pp. 207.)

The substance of the anonymous phone call when considered along with the evidence as to the contents of the 'moniker file' by necessary inference would have pointed to the identity and guilt of the defendant. It was properly excluded for that reason.

An officer who has received an anonymous phone call advising that a crime under investigation was committed by a man identified as 'Crazy John' should not be permitted to testify as to the substance of that communication, for the substance of the communication is inadmissible hearsay when it tends to identify the accused and establish his guilt.

Testimony concerning an anonymous phone call which tends to establish the identity and guilt of an accused does not fall in the same category as a police radio dispatch. The latter serves as an explanation of the officer's action in proceeding to a particular location. See State v. Trotter, 203 Kan. 31, 453 P.2d 93; State v. Hollaway, 214 Kan. 636, 522 P.2d 364, and State v. Ritson, 215 Kan. 742, 529 P.2d 90. Radio dispatch testimony is permissible merely to explain a sequence of events leading to action by an officer and it is not admissible to prove the truth of the matter asserted in the dispatch or to establish the identity and guilt of a named accused. Limited police dispatches are premissible under K.S.A. 60-460 and the cases cited above.

Now let us consider the propriety of the prosecutor's remarks in his opening statement. The statement in pertinent part was as follows:

'. . . Detective Whitmill will tell you about how he received an anonymous phone call; had a conversation with someone. As a result of that conversation, went to the Kansas City, Missouri Police Department, looking for any possible records on a person who goes by the nickname of Crazy John. In the course of that investigation, came upon this defendant's name using-as a person who used the nickname Crazy John, . . .'

Since the substance of the call was not stated we believe that the statement was proper and the court was not in error in overruling defense counsel's objection. The substance of the phone call if stated would have referred to inadmissible hearsay but the mere fact an anonymous phone call was received was proper to explain the actions of the officer. No error was committed with regard to the phone call.

Defendant's final claim of error is directed to testimony and camments by the prosecutor concerning the contents of the 'moniker file'.

In substance Detective Whitmill testified he checked the contents of this file looking for the name of 'Crazy John'. From the file he learned the name was associated with a person named John Henry Thompson and that Thompson was also known as 'Slim'. He then testified he obtained a photograph of John Henry Thompson and included the same with four other pictures...