State v. Trotter, 62511

Citation245 Kan. 657,783 P.2d 1271
Decision Date08 December 1989
Docket NumberNo. 62511,62511
PartiesSTATE of Kansas, Appellee, v. Herman TROTTER, Jr., Appellant.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. Failure to furnish a record showing that the issue of misjoinder under K.S.A. 22-3202 was raised before the trial court precludes consideration of that issue on appeal. A motion for separate trials made under K.S.A. 22-3204 is insufficient to raise a misjoinder issue under K.S.A. 22-3202.

2. Witnesses or documentary evidence may be used in rebuttal whether or not previously endorsed or disclosed in discovery proceedings, so long as such witnesses or documentary evidence are outside the scope of K.S.A. 22-3212 and K.S.A. 22-3213.

3. Under the facts of this case, prior drug offenses of a witness may not be introduced to affect that witness' credibility.

4. Inadvertent and unexpected use of the phrase "mug shot" does not constitute grounds for a mistrial. Following State v. Childs, 198 Kan. 4, 11-12, 422 P.2d 898 (1967).

5. The limitation of time for arguments of counsel is within the sound discretion of the trial judge.

6. Unless no reasonable factfinder could have concluded guilt beyond a reasonable doubt, a finding of guilt by a jury will not be disturbed on appeal.

7. The weight and credit to be given testimony is for the factfinder to determine.

8. A sentence under the Habitual Criminal Act which is within the limits applicable at the time of sentencing will not be disturbed on appeal where the sentence is not a result of partiality, prejudice, oppression, or corrupt motive.

John S. Sutherland, Kansas City, argued the cause and was on the brief, for appellant.

Wesley K. Griffin, Special Prosecutor, argued the cause, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

NICHOLAS W. KLEIN, District Judge, Assigned:

Herman Trotter, Jr., was convicted of the aggravated robbery, K.S.A. 21-3427, and aggravated kidnapping, K.S.A. 21-3421, of William Culbert. Trotter was tried for these offenses along with a codefendant, Toni Jarmon a/k/a Toni Carter.

In addition to the Culbert incident, Trotter and Jarmon were originally both charged with aggravated burglary, kidnapping, and misdemeanor theft in an incident involving an elderly man named Wade Leroy Webster. The evidence in the Webster incident showed that Jarmon and a male person entered the victim's house while he was sleeping, tied him up and proceeded to take property from the house. At the preliminary hearing, the victim made a very tentative identification of Trotter and later stated that he "couldn't exactly swear it was him." The net result was that the district court refused to hold Trotter to answer for the charges arising out of the second incident. The Culbert and Webster cases were nevertheless tried together after Trotter's motion for separate trials, pursuant to K.S.A. 22-3204, was denied. The transcript of the proceedings of the hearing on that motion was not included in the record on appeal.

Persons may be charged in the same complaint, information, or indictment pursuant to K.S.A. 22-3202(3) "[i]f they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes." The statute further provides that not all the defendants need be charged in each count.

It is obvious that the State believed that Trotter participated in both transactions with his codefendant. On appeal, Trotter relies on principles governing misjoinder of defendants and cites State v. Hunter, 241 Kan. 629, 633, 740 P.2d 559 (1987). Hunter presupposes that the defendants are jointly charged with the same crime and does not address joinder of charges and defendants.

The failure of Trotter to furnish a transcript of the hearing on the record of the motion for a separate trial is fatal to Trotter's claim of error. As stated in State v. Bright, 229 Kan. 185, Syl. [245 Kan. 659] p 6, 623 P.2d 917 (1981), "An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper." This court cannot determine whether the issue of misjoinder was ever presented to the trial court and, therefore, whether it was preserved for appeal. Trotter cannot argue severance to the trial court and then raise misjoinder for the first time on appeal. If faced with a misjoinder argument, the trial court may have ruled differently or the State may have tried the case differently. See K.S.A. 22-3208(3); State v. Townsley, 217 Kan. 102, 535 P.2d 1 (1975).

Trotter next contends the trial court erred in permitting Webster to testify that Trotter's mother returned to him a television set taken in the Webster burglary. Trotter made no contemporaneous objection to that testimony; in fact, he called his mother to testify to the contrary. K.S.A. 60-404 requires such an objection. Even though Trotter made a motion in limine prior to trial to prohibit evidence concerning the return of the TV set, the motion was denied. When such a motion is denied, the moving party must object again at the time the evidence is presented to preserve the issue on appeal. Douglas v. Lombardino, 236 Kan. 471, Syl. p 2, 693 P.2d 1138 (1985).

Trotter raises numerous complaints of error regarding his convictions in the Culbert incident. The victim, Culbert, testified that he was acquainted with Jarmon and that she came to his apartment with Trotter. Culbert scuffled with Trotter and received a fractured cheekbone and cuts to his hands. Culbert testified that he was tied up and that money, food, women's shoes, a watch, his keys, and some "knicknacks" were taken from his apartment. He further testified that, when he returned from being treated at the hospital for his injuries, he discovered that his car had been taken. Culbert was then permitted to testify that later the codefendant's sister called him, after which time he recovered his car. Trotter complains on appeal that the phone call evidence was hearsay. We disagree. No evidence of the out-of-court statement by the third party was offered to prove the truth of the matter stated; only the fact that the victim recognized the voice as that of the codefendant's sister was admitted into evidence. The probative value of the evidence depended on the credibility of the victim, who was present for cross-examination and was cross-examined at length concerning his recognition of the voice of the codefendant's sister. At no time did the victim testify to the content of the conversation.

Trotter next complains about the conflicting testimony as to the time of the offenses for which he stands convicted. Reference to records maintained by the apartment complex where Culbert resided differed somewhat from the times stated by Culbert. An officer testified for the defense and corrected, from his records, the time which he had given in the State's case in chief as to when he had been dispatched to the scene of the crimes. The State then offered the testimony of the police dispatcher in rebuttal, who produced records tending to show that the officer had been dispatched at a different time than the officer's records showed. Neither the name of the rebuttal witness nor the dispatcher's records had been previously furnished to the defendant. Under Kansas law, however, the names of rebuttal witnesses are not required to be listed by the State. State v. Hunter, 241 Kan. at 638, 740 P.2d 559. Documents used in rebuttal need not be produced pursuant to the discovery procedure unless they are otherwise within the scope of K.S.A. 22-3212 and K.S.A. 22-3213.

Trotter also complains of the failure of the trial court to allow him to discredit the witness by showing prior convictions of Culbert for possession of and sale of drugs. When the police arrived at Culbert's apartment after the robbery, they found drug paraphernalia on a table in the apartment. Culbert told police that the defendants must have left the paraphernalia. He testified at trial that he did not know where the items came from or how they came to be in his apartment.

Trotter relies on State v. Macomber, 241 Kan. 154, 734 P.2d 1148 (1987), to show that the trial court's ruling was reversible error. In Macomber the court reversed the trial court for failure to allow the defendant to introduce collateral evidence tending to show that a witness (Fairchild) had lied at the preliminary hearing when asked whether he was under the influence of drugs and when he denied that he had ever used drugs. Farichild was asked at trial if he had ever lied under oath. When the witness denied that he had, the defense proffered the testimony of two other witnesses who would testify that the witness had smoked marijuana on the way to the preliminary hearing and was involved in various drug deals at the time of the hearing. The Macomber court held: "Since Fairchild's testimony regarding the appellant's admission of criminal activity was essential to the State's case, the trial court should have admitted the evidence showing the witness had testified falsely." 241 Kan. at 159, 734 P.2d 1148.

Whatever may be said for the ruling in Macomber on this point, the situation in the case at hand bears no factual similarity to Macomber and defendant's reliance on Macomber is misplaced.

In this case, the victim was never questioned as to his use of drugs and testified only that he did not know how the paraphernalia in question found its way into his apartment. For the above reasons and those contained in State v. Jarmon, 245 Kan. 634, 783 P.2d 1267 (1989), we find no error in the refusal to admit the testimony of the victim's prior drug conviction.

Trotter next contends the trial court erred in not declaring a mistrial. The trial court overruled a motion for mistrial made by counsel for Jarmon following a...

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21 cases
  • State v. Hart
    • United States
    • Kansas Court of Appeals
    • November 19, 2010
    ...short of an objection at the time evidence is offered satisfies the requirement of a contemporaneous objection.); State v. Trotter, 245 Kan. 657, 783 P.2d 1271 (1989) (Failing to contemporaneously object to the admission of the evidence waives any claimed error.). Nevertheless, to get to th......
  • State v. Berney
    • United States
    • Kansas Court of Appeals
    • July 10, 2015
    ...even if the reference to mug shots constituted an error, there was not sufficient prejudice to require reversal. State v. Trotter, 245 Kan. 657, 662, 783 P.2d 1271 (1989) ; State v. Childs, 198 Kan. 4, 11–12, 422 P.2d 898 (1967). More recently, in State v. Hill, No. 110,849, 2014 WL 7653862......
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    ...the trial court. The proper length of closing argument is an issue left to the sound discretion of the trial court. State v. Trotter, 245 Kan. 657, 662, 783 P.2d 1271 (1989). Here, 4 hours does not appear unreasonable, especially in light of the fact neither party objected to the time allot......
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    ...to disclose or endorse names of rebuttal witnesses. See State v. Drach, 268 Kan. 636, 646, 1 P.3d 864 (2000); State v. Trotter, 245 Kan. 657, 660, 783 P.2d 1271 (1989); State v. Hunter, 241 Kan. 629, 638, 740 P.2d 559 (1987); Talley v. State, 222 Kan. 289, 292, 564 P.2d 504 (1977). This rul......
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