State v. Walker

• Decision Date: 22 January 1977
• Docket Number: No. 48277,48277
• Citation: 559 P.2d 381,221 Kan. 381
• Parties: STATE of Kansas, Appellee, v. Walter WALKER, Appellant.
• Court: Kansas Supreme Court

Page 381

559 P.2d 381

221 Kan. 381

STATE of Kansas, Appellee, v. Walter WALKER, Appellant.

No. 48277.

Supreme Court of Kansas.

Jan. 22, 1977.

Syllabus by the Court

1. The mere fact that a prosecutor may not have actual knowledge of evidence which is in the possession of law enforcement officials does not prevent the imputation of such knowledge to the prosecutor in the interest of justice.

2. Evidence is not suppressed if defendant or his counsel has knowledge of exculpatory evidence either before or during trial.

3. It is not error to refuse to grant a motion for a new trial when exculpatory evidence subject to a discovery order is not revealed until trial and defendant fails to seek the remedies provided by K.S.A. 22-3212(7).

J. Paul Maurin, III, of Maurin, McCamish & Vader, Kansas City, argued the cause, and M. Warren McCamish, Jr. and Jay H. Vader, Kansas City, were with him on the brief for appellant.

Vernon E. Lewis, Asst. 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.

OWSLEY, Justice:

This is a direct appeal by defendant from his conviction of aggravated robbery (K.S.A. 21-3427).

The charges against defendant arose from an armed robbery of a filling station in Kansas City, Kansas, on January 24, 1975. About midnight the attendant, Joseph Dobson, observed a late model car pull into the island area of the station. Three or four Negro males were in the car and Dobson testified defendant was one of the occupants. When another customer drove into the station, the first car drove awar. A few minutes later, a lone Negro male walked into the station and asked for change. After a brief conversation, the man pulled a revolver and relieved Dobson of thirty-five dollars and a 12-inch black and white television set. The gunman then ran west, making good his escape in the same late model automobile which had previously entered and left the station.

When the police arrived, Dobson was shown a series of police photographs and he identified a photograph of defendant as the gunman. Police then proceeded to defendant's home address in north Kansas City, Kansas, but received no response to their request for admission to the premises.

At approximately nine o'clock the next morning defendant was arrested at a grocery store his home.

On January 28, 1975, a line-up was conducted at the Kansas City, Kansas, police department. The Victim again identified defendant as the robber. During the course of the trial, Dobson made an in-court identification of defendant.

During cross-examination, defense counsel asked the victim if he had ever recovered his television set and he received an affirmative reply. At this time defense counsel and the prosecutor first learned the set had been recovered. Under further questioning, Dobson indicated the set was returned by the police, but he did not know the officer's name. Defense counsel questioned each of the officers involved with the investigation as to the recovery of the television set. Detective Gerald Gander testified he had no knowledge of the recovery. Detective Lee Simmons testified one of the investigating officers told him the television had been recovered. Defense counsel's cross-examination of each subsequent police officer revealed no additional information about the recovery of the set. During recess of the trial the assistant district attorney attempted to track down information on the recovery and return of the television set, but he found no evidence which would tend to unravel the mystery.

At oral argument before this court the assistant district attorney admitted he had no knowledge of the recovery of the television set until the victim made the revelation at trial. He further stated he had no evidence of the recovery in his file which had been shown to defense counsel pursuant to a court discovery order.

Although the source of the recovered television set was never produced, the evidence established that it did not come from the person of defendant or his home.

Defendant took the stand and presented a defense of alibi. At the time of the robbery he indicated he was at home babysitting with his sister's children because his mother was unable to care for them due to recent surgery. His mother appeared as a witness on his behalf.

The record further indicates defendant testified the police told him during interrogation that the television set was recovered 'somewhere.' Apparently, defendant did not relay this information to counsel.

The jury returned a guilty verdict. Defendant made a motion for a new trial alleging, among other grounds, that his motion should be granted because the state failed to disclose the manner and place of discovery of the television set. The motion was overruled on the basis that the police department's knowledge of the set was not known by the district attorney and was not imputable to him. It is this ruling which forms defendant's sole point on appeal.

Both parties approach this issue as one involving suppression of evidence. Defendant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; and its progeny, United States v. Keogh, 391 F.2d 138 (2d Cir. 1968). These cases recognized that failure to disclose evidence favorable to the defense may violate due process and require granting of a new trial, even if the failure was negligent or passive and not intentional. The Keogh case established three categories of failure to disclose. They were set forth in State v. Hill, 211 Kan. 287, 507 P.2d 342:

'. . . (1) Deliberate bad faith suppression for the very purpose of obstructing the defense or the intentional failure to disclose evidence whose highly probative value to the defense could not have escaped the prosecutor's attention; (2) deliberate refusal to honor a request for evidence where the evidence is material to guilt or punishment irrespective of the prosecutor's good faith or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses it was so material that the defense could have put the evidence to significant use.' (p. 292, 507 P.2d p. 348.)

The state, in turn, recognizes the rule set forth in the above cited cases, but argues information in possession of the police should not be imputed to the prosecutor. The mere fact that a prosecutor may not have actual knowledge of evidence which is in the possession of law enforcement officials does not prevent the imputation of such knowledge to the prosecutor in the interest of justice. (See, State v. Wilkins, 220 Kan. 735, 556 P.2d 424, decided November 6, 1976; State v. Humphrey, 217 Kan. 352, 537 P.2d 155.)

The arguments of both parties fail to reach the heart of the issue. This is not a case involving the suppression of evidence. Defendant was aware the television set had been recovered by the police well before trial. Furthermore, defense counsel learned of the recovery during trial. Evidence is not suppressed or withheld if the accused has knowledge of the facts or circumstances, or if the facts become available to him during trial. (United States v. Dye, 221 F.2d 763, 767 (3d Cir. 1955); United States v. Rutkin, 212 F.2d 641 (3d Cir. 1954); People v. Rosenberg, 59 Misc.2d 1, 297 N.Y.S.2d 860, aff'd without opinion, 32 A.D.2d 1030, 303 N.Y.S.2d 1005.)

Other states have held the Brady rule does not apply when the defendant or his counsel knew of the exculpatory evidence either before or during trial. (See, e. g., Lawrence v. State, 244 So.2d 446 (Fla.App.1971); The People v. Hudson, 38 Ill.2d 616, 233 N.E.2d 403 (1968). See also, In re Razutis, 35 Cal.2d 532, 219 P.2d 15 (1950), cert. denied, 340 U.S. 842, 71 S.Ct. 32, 95...