State v. Turbeville, 56300

• Decision Date: 13 July 1984
• Docket Number: No. 56300,56300
• Citation: 235 Kan. 993,686 P.2d 138
• Parties: STATE of Kansas, Appellee, v. James C. TURBEVILLE, Appellant.
• Court: Kansas Supreme Court

Page 138

686 P.2d 138

235 Kan. 993

STATE of Kansas, Appellee, v. James C. TURBEVILLE, Appellant.

No. 56300.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

1. It is generally the rule that instructions should be confined to the charges contained in the information and should not be broader or narrower than the information. Instructions given in violation of the rule, however, have been excused in cases where the substantial rights of the defendant have not been prejudiced.

2. The evidence presented was sufficient to establish the crime of kidnapping.

3. The pronouncement of sentence is the judgment of the court, and if the conviction be for an offense punishable by imprisonment, it is mandatory that the defendant be personally present at the time sentence is pronounced.

4. In a criminal prosecution where an erroneous original sentence of imprisonment has been vacated and set aside, a new sentence of imprisonment imposed in the defendant's absence is void, for, under such circumstances, it is mandatory that the defendant be personally present in court at the time of resentencing.

5. A void sentence may be corrected by the substitution of a new and valid sentence, and to accomplish such purpose, a prisoner shall be remanded by the reviewing court to the district court for further proceedings.

Ronald E. Wurtz, Topeka, argued the cause and was on the brief, for appellant.

C. William Ossmann, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief, for appellee.

LOCKETT, Justice:

This is an appeal in a criminal action from a jury verdict finding James C. Turbeville, defendant/appellant, guilty of attempted murder (K.S.A.1983 Supp. 21-3301 and K.S.A. 21-3401), aggravated battery (K.S.A. 21-3414), unlawful possession of a firearm (K.S.A. 21-4204), kidnapping (K.S.A. 21-3420), and aggravated kidnapping (K.S.A. 21-3421). Turbeville contends the trial court erred in the admission of certain evidence, in giving certain instructions, and in imposing sentence. He also challenges the sufficiency of the evidence to sustain the kidnapping convictions.

On September 14, 1981, Corjon Fournier and Art Butler were working at Jet TV Rental in Topeka, Shawnee County, Kansas. A man later identified as Turbeville entered the store. Ms. Fournier asked the man if she could help him. The individual produced a handgun and ordered both employees into an adjacent office of the store. Thinking the individual wanted to rob the store, Butler asked him if he wanted money and started to move toward the cash register. Butler was again ordered by the gunman to go into the office. Once inside the office, Butler and Fournier were ordered to lie down on the floor. The individual shot Mr. Butler several times and he fell to the floor across Ms. Fournier's legs. The gunman then took aim and shot the fallen Butler in the back. The assailant then turned and walked out of the store, closing the door to the office behind him. No property was taken. Butler was shot a total of six times, receiving wounds in the abdomen, lungs, heart and spine. Miraculously, he survived the assault.

An employee of a nearby bakery, Lonnie Nesvarba, had just arrived in a delivery truck when he noticed a person acting in a suspicious manner coming out of the Jet TV Rental store. The man had his hand in the pocket of his coat and kept looking back and forth as if to see if he were being watched. The man walked to the corner of the building and then turned and ran down an alley. When Nesvarba saw a police officer arrive at the store, he got out of his truck and went to the store. When he determined someone had been shot inside the Jet TV Rental store, Nesvarba gave police a description of the person he had seen leaving the store.

The police had no suspects in the shooting. In May of 1983, acting on a tip, an agent for the Kansas Bureau of Investigation placed a picture of Turbeville in a photographic lineup and showed the photographic array to the three witnesses. Butler and Fournier positively identified Turbeville as the gunman who had shot Butler. Nesvarba positively identified Turbeville as the man he had seen leaving the store. At the trial, following Turbeville's arrest, the three witnesses again positively identified Turbeville as the man they had observed.

Joel Vashey, an inmate at the Shawnee County Jail, shared a cell with Turbeville prior to Turbeville's trial. Vashey testified that during the time he and the defendant shared the cell at the jail, the defendant made various incriminating statements relating to the shooting. At one time Turbeville told Vashey, "You know, I really did this; but I flew in; and I flew out; and nobody ever knew it." Turbeville also stated that he only did it "as a favor for Don." On another occasion, Turbeville told his cellmates that a newspaper account of the shooting indicating Butler was shot twice in the back and once in the front was incorrect. He said that instead "the man was shot three times in the front and twice in the back with a .25 automatic."

At the trial Turbeville, testifying on his own behalf, stated that he was living with his wife in Independence, Missouri, at the time of the shooting and that he had never been to Topeka before being brought there after his arrest. At the time of the shooting, he did not own a car. Turbeville's wife testified she was with her husband the entire day of the shooting. The jury found Turbeville guilty of attempted murder, aggravated battery, unlawful possession of a firearm, kidnapping, and aggravated kidnapping.

Turbeville first contends the attempted murder and aggravated battery convictions are multiplicitous. The defendant's motions made during trial to require the prosecution to elect between the two charges, attempted murder and aggravated battery, were denied by the trial court. Turbeville directs the court's attention to State v. Garnes, 229 Kan. 368, 373-74, 624 P.2d 448 (1981), in which it was held that the charges of aggravated battery and attempted murder based upon the one act of stabbing the victim were multiplicitous. In this case, the charges of attempted murder and aggravated battery were both based on a single act. There is no question the charges arose out of the same overt act--the shooting of Art Butler. They are clearly multiplicitous under our holding in Garnes. The defendant's conviction and sentence on the aggravated battery charge should be set aside.

Turbeville next contends the trial court erred in allowing Joel Vashey to testify about threats made against Vashey while in jail. The prosecutor asked Vashey why he was currently in protective custody in the jail. Vashey replied he had received threats that if he went to Lansing he "wouldn't be coming back out," which he interpreted to mean he would be killed. Defense counsel objected to these statements as being hearsay. The trial court overruled the objection and allowed the prosecutor to ask who had made the statements. Vashey testified another inmate had made the threats. The trial court then ruled the testimony concerning the threats was hearsay and instructed the jury to disregard it. Turbeville contends this evidence was highly prejudicial to his right to a fair trial because it permitted the jury to infer the appellant was somehow responsible for the threats.

Although the testimony was inadmissible hearsay and therefore constituted error, reversal is not required. The defendant is entitled to a fair trial, but not a perfect one. The erroneous admission of evidence during a trial does not require reversal in every case. A conviction is to be reversed only where the erroneous admission of evidence is of such a nature as to affect the outcome of a trial so as to amount to a denial of substantial justice. State v. Ambler, 220 Kan. 560, 564, 552 P.2d 896 (1976); State v. Farris, 218 Kan. 136, 140, 542 P.2d 725 (1975); K.S.A. 60-2105. Whether inadmissible testimony constitutes harmless or reversible error depends upon particular evidence and the circumstances of the case in which the question arises. State v. Bradford, 219 Kan. 336, 548 P.2d 812 (1976). Where evidence of guilt is of such direct and overwhelming nature that it can be said that erroneous admission of other evidence could not have affected the result of trial, such admission is harmless error. State v. Sullivan & Sullivan, 224 Kan. 110, 118, 578 P.2d 1108 (1978); State v. Thompson, 221 Kan. 176, Syl. p 6, 558 P.2d 93 (1976).

There is no evidence in the record to indicate the improper line of questioning was made intentionally or in bad faith by an inexperienced legal intern under the supervision of a deputy district attorney. The testimony was elicited to support Vashey's credibility by indicating he was unafraid to tell the truth. That testimony did not implicate the defendant in any crimes. Nothing was stated by Vashey from which the jury could infer the threats came from the defendant. The evidence of Turbeville's guilt was so overwhelming it is unlikely that the testimony concerning the threats made against Vashey by a third person affected the result of the trial. Butler, Fournier and Nesvarba all positively identified the defendant from the photographic lineup and at trial. In addition, Vashey testified concerning statements made by the defendant while in jail which implicated Turbeville in the crimes. The trial judge correctly admonished the jury to disregard the hearsay testimony. Such admonitions normally cure any prejudice resulting from the improper admission of evidence. State v. Mick, 229 Kan. 157, Syl. p 3, 621 P.2d 1006 (1981); State v. Thompson, 221 Kan. at 182, 558 P.2d 93. Under the circumstances of this case, the admission of this testimony was harmless error.

Turbeville complains that the instructions defining the offenses of kidnapping and aggravated kidnapping did not conform to the complaint. In Count 4 of...