State v. Thompson

• Court: Kansas Supreme Court
• Writing for the Court: HOLMES
• Citation: State v. Thompson, 654 P.2d 453, 232 Kan. 364 (Kan. 1982)
• Decision Date: 03 December 1982
• Docket Number: No. 54219,54219
• Parties: STATE of Kansas, Appellee, v. Tommy L. THOMPSON, a/k/a Leslie S. Thompson, Appellant.

Page 453

654 P.2d 453

232 Kan. 364

STATE of Kansas, Appellee, v. Tommy L. THOMPSON, a/k/a Leslie S. Thompson, Appellant.

No. 54219.

Supreme Court of Kansas.

Dec. 3, 1982.

Syllabus by the Court

In an appeal by a defendant from convictions by a jury of kidnapping and rape, the record is examined and it is held: the trial court did not commit reversible error in (1) not excluding evidence of the victim's identification of the defendant in a photographic lineup; (2) denying defendant's request for a personal lineup; (3) allowing the late endorsement of a witness for the State; (4) refusing to excuse two jurors for cause; (5) admitting certain alleged hearsay testimony; (6) refusing to grant a continuance during trial; (7) refusing to give an eyewitness instruction in the exact language requested by defendant, and (8) refusing to grant a new trial for prosecutorial misconduct during final argument when no contemporaneous objection was made to the objectionable statements.

Thomas Keith Wilson, of Neubauer, Nordling, Sharp, McQueen, Dreiling & Morain, P.A., Liberal, argued the cause and was on the brief for appellant.

Robert M. Miles, County Atty., argued the cause and Robert T. Stephan, Atty. Gen. and Willis K. Musick, Asst. County Atty., were with him on the brief for appellee.

HOLMES, Justice:

Tommy L. Thompson, a/k/a Leslie S. Thompson, appeals from his conviction by a jury of one count of kidnapping (K.S.A. 21-3420) and one count of rape (K.S.A. 21-3502). The principal issue in the case was the identity of the person who committed the crimes. The defendant and his witnesses testified to an alibi defense. He raises eight points on appeal, none of which rise to the level of reversible error. We affirm.

On September 9, 1981, Susan H. was abducted at knifepoint and later raped by a young black male. About 11:15 p.m., Susan was waiting in her car for her boyfriend to finish his work at a convenience store in Liberal, Kansas. While she waited, her assailant approached, showed her a knife, forced his way into the car, and, threatening to kill her, made Susan get down on the floorboards. The man then drove the car into another area of town near a low-income housing site. He began to sexually assault Susan in the automobile but felt too confined there and forced Susan to get out of the car and accompany him about fifty or sixty yards into a nearby field. There he forced her to partially disrobe and raped her.

After the offense took place, the man walked Susan back to her car, attempted to wipe his fingerprints off the vehicle, and then fled on foot. Susan, upset, crying and frightened, drove her car around Liberal in an attempt to find her boyfriend and, failing to do so, then drove to the vicinity of her boyfriend's home in Turpin, Oklahoma, just across the state line. After contacting her boyfriend she was returned to Liberal where the incident was immediately reported to the police and she was transported to the Liberal hospital where a rape kit was assembled. Susan was able to give the police a good description of her assailant and the clothes he wore.

About 5:00 p.m. on September 10, 1981, the defendant was arrested at his home in Liberal. The police had tracked him to his residence following tracks in the dirt of an unusual tennis shoe pattern which led from the crime scene to defendant's home. At the time of the arrest, police recovered clothing matching the description given by Susan of the clothes worn by the assailant. They also seized a knife which Susan identified at trial as the knife used to threaten her life and to force her to submit to the rape. Palm prints of the defendant were lifted from Susan's car and a blood sample also tied the defendant to the crime, corroborating Susan's testimony and indicating a positive identification.

The defendant testified that he had stopped to talk with some young woman who was just sitting in her car while he was out walking his dog on the evening of September 9th. He denied that he abducted or raped Susan. He produced witnesses who said he was at his home during the approximate times when Susan said the offenses occurred. The jury, however, found the defendant guilty on both counts.

In his first point on appeal the defendant argues that the trial court should have excluded evidence regarding the victim's identification of her assailant from a photographic lineup consisting of seven photographs. On September 12th, Susan was called to the Liberal police station to view a photo lineup. She was aware that a suspect was in custody. The defendant contends that because all of the other six photographs had dates on them indicating they had been taken on various dates from June 22, 1980, to July 9, 1981, and only the defendant's photograph had an unreadable date, the lineup was too suggestive to be reliable. Within two minutes Susan selected defendant's picture and made a positive and definite identification of the defendant as her assailant. The argument of the appellant has been before the court on several occasions and found to be without merit. In State v. Dotson, 222 Kan. 487, 565 P.2d 261 (1977), we held:

"The dates printed on the front of photographs do not as a matter of law make a photographic identification procedure so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification." Syl. p 2.

See also, State v. Mitchell, 220 Kan. 700, 556 P.2d 874 (1976), and cases cited therein. We have examined the photographic lineup and find no error. In addition to other evidence tying the appellant to the crime, Susan made a positive in-court identification.

Appellant's second point is also based upon his contention that the photo lineup was tainted. He sought a personal lineup to determine whether the victim could make an identification prior to her seeing him in the courtroom. Based upon the facts in this case, there was no error in denying defendant's motion for a personal lineup. State v. Porter, 223 Kan. 114, 574 P.2d 187 (1977).

The defendant next complains that the trial court erred in allowing the State to endorse a witness on the day the trial began. Late in the afternoon on the preceding Friday, the defendant was served with a motion to endorse a witness which he claims had been known to the State for three months or more. He argues that he was denied a right to investigate the witness and prepare to meet her testimony.

The witness, endorsed on the day of trial, was the duty nurse from the hospital where the rape kit was assembled. Her testimony was considered necessary to establish the chain of custody of the rape kit. The State asserts the endorsement of this witness did not cause any change in defense strategy, no actual prejudice has been shown by the defendant, defense counsel was allowed to interview the witness prior to trial, and the defense was not taken by surprise, as this witness was named in police reports previously available to defendant. In addition, the fact of whether a rape had actually occurred was not in issue as the sole defense presented by the defendant was alibi.

K.S.A. 22-3201(6) makes late endorsement of the State's witnesses discretionary with the trial court. State v. Ferguson, Washington & Tucker, 228 Kan. 522, 526, 618 P.2d 1186 (1980). Actual prejudice to the defendant's ability to defend against the charges must be shown in order to reverse the trial court. Prejudice is not presumed in such cases. State v. Ferguson, Washington & Tucker, 228 Kan. at 526, 618 P.2d 1186; State...