State v. Watie, 48835

• Decision Date: 21 January 1978
• Docket Number: No. 48835,48835
• Citation: 223 Kan. 337,574 P.2d 1368
• Parties: STATE of Kansas, Appellee, v. Nathaniel WATIE, Linda Heard, and Junious Heard, Appellants.
• Court: Kansas Supreme Court

Page 1368

574 P.2d 1368

223 Kan. 337

STATE of Kansas, Appellee, v. Nathaniel WATIE, Linda Heard, and Junious Heard, Appellants.

No. 48835.

Supreme Court of Kansas.

Jan. 21, 1978.

Syllabus by the Court

1. Pursuant to K.S.A. 60-460(c ) the transcript of a preliminary hearing containing pertinent witness testimony may be admitted at the defendant's trial after the prosecutor has made a good faith effort to obtain the witness's presence at the trial.

2. Upon the request of the jury, it is proper for the trial court to require the official reporter to read the testimony of any witness to it provided the parties to the action are present.

3. The granting of a continuance in a criminal action rests within the sound discretion of the trial court. Absent an abuse in the exercise of its powers of discretion a decision of the trial court will not be set aside on appeal.

4. If a defendant has the opportunity to cross-examine a witness at his preliminary hearing, he cannot claim he has been denied the right to confrontation when the preliminary hearing testimony is subsequently admitted at trial.

5. The failure of a defendant to request suppression of a suggestive lineup prior to trial, or to object to the admission of evidence concerning the lineup at the trial, precludes appellate review.

6. Where the transcript testimony of the prosecution witness taken at a preliminary hearing is admitted in evidence because the witness is subsequently unavailable at the defendant's trial, the admission of inconsistent statements made by the prosecution witness to another lies within the sound discretion of the trial court under K.S.A. 60-462.

7. When a motion for new trial is asserted on the basis of recanting testimony of a prosecution witness, the trial judge who passes on the motion must determine the weight to be given such evidence. The trial judge is required to grant a new trial only when he is satisfied the recantation of the witness is true.

8. Where the evidence against one accused of crime is meager and consists solely of the preliminary hearing transcript testimony of a prosecution witness who is unavailable at the trial of the defendant, the cumulative effect of consistent adverse rulings by the trial court, which deny the defendant the opportunity to show inconsistent statements made by the absent witness regarding the defendant's participation in the crimes charged, is prejudicial and a new trial will be granted.

9. In an appeal from a jury verdict which found the appellants each guilty of two counts of aggravated robbery under K.S.A. 21-3427 and one count of conspiracy under K.S.A. 21-3302, the record is examined and it is held : (1) The judgment of the appellants, Nathaniel Watie and Junious Heard, is affirmed; and (2) under all the facts and circumstances presented by the record, the trial court erred in denying the appellant Linda Beasley Heard's motion for a new trial, and her conviction and judgment are reversed and remanded for further proceedings.

Appeal from Sedgwick district court, division No. 9; David P. Calvert, Judge. Opinion filed January 21, 1978. Reversed in part and remanded in part.

Brian G. Grace, of Curfman, Brainerd, Harris, Bell, Weigand & Depew, Wichita, argued the cause, and was on the brief for appellant, Nathaniel Watie.

Laurence S. Holmes, Wichita, argued the cause, and was on the brief for appellants, Linda Heard and Junious Heard.

Stuart W. Gribble, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a joint criminal action from a jury verdict which found Nathaniel Watie, Linda Heard and Junious Heard (defendants-appellants) each guilty of two counts of aggravated robbery (K.S.A. 21-3427) and one count of conspiracy to commit aggravated robbery (K.S.A. 21-3302).

Various trial errors are assigned on appeal for reversal of the convictions and judgment.

A brief summary of the facts leading to the appellants' arrest and trial will suffice. On the evening of April 3, 1975, a car was taken at gunpoint from Karen Beard at Nemer's Food Market on East Central Street in Wichita, Kansas, by a young black man. Ms. Beard later identified the appellant Junious Heard as the man.

At approximately 6:45 p. m. that same evening, Eugene P. Wetzel Jewelers, Inc., in Wichita was robbed at gunpoint by four black men of cash and jewelry valued in excess of $100,000. Shortly thereafter the men were seen getting into Karen Beard's stolen car and leaving the vicinity of the crime. Ms. Beard's car was later recovered and was found to contain a ring identified by Mr. Wetzel as one taken in the robbery. Three employees present in the Wetzel store during the robbery identified the appellants Nathaniel Watie and Junious Heard as the robbers.

Eventually, all three appellants along with Terry Beasley, Linda Heard's brother, were arrested by the Wichita police on April 23, 1975. Another brother, Jerry Beasley, was later arrested in July of 1975 and had a separate preliminary hearing on August 29, 1975. At both the appellants' preliminary hearing and Jerry Beasley's preliminary hearing, Bulynda Roxanna Ricks, a/k/a Linda Lewis, testified that the appellant Linda Heard had attempted to sell her stolen diamonds on April 4, 1975. Linda Lewis stated the appellant was a longtime acquaintance who had admitted during their conversation that "me and my brothers robbed this place" referring to the Wetzel store. The appellants were subsequently bound over for trial.

Their cases were consolidated for trial on November 3, 1975, before the Honorable David Calvert. At the time of the trial, Linda Lewis was in Fort Worth, Texas, in federal custody undergoing a drug treatment program. After the state made several unsuccessful attempts to secure her presence as a witness, the trial court found Linda Lewis was unavailable pursuant to K.S.A. 60-459(g )(4) and allowed her testimony from the preliminary hearing to be read at the trial.

Each of the appellants testified in his own behalf and presented an alibi defense. The appellant Watie testified he was playing cards at his sister's house and with friends throughout the day. His story was corroborated by his sister and wife. The Heards testified they were buying drugs at a neighborhood store during the hours of the robberies.

Nevertheless, the jury found each appellant guilty of aggravated robbery and conspiracy. Their motions for new trial were denied and this appeal ensued.

The appellants contend the trial court erred in finding Linda Lewis was unavailable as a witness for purposes of the confrontation clause of the United States Constitution and in thereby permitting the reading of the preliminary transcripts of her testimony.

A brief discussion of the facts is necessary. During the week preceding the trial the state issued subpoenas for its witnesses. After checking with her parole officer the state prosecutor, Mr. Arbuckle, issued a subpoena for Linda Lewis at her last known address. On the morning of trial Mr. Arbuckle checked his subpoena list and discovered Linda Lewis had not been found. Later that afternoon after the trial had begun, Mr. Arbuckle was told Linda Lewis was in the custody of federal officials in Forth Worth, Texas, undergoing a narcotics evaluation. The next morning Mr. Arbuckle had an application for a writ of habeas corpus ad testificandum drawn up and delivered to a United States Marshal. Later that day federal officials informed the state they would not comply with the order because it was not within Linda Lewis' best interests to be taken out of her drug program. Mr. Arbuckle then contacted Federal Judge Frank G. Theis who had control of Linda Lewis' case in the federal court. Judge Theis refused to order Linda Lewis' return. The presiding district court judge, Honorable David Calvert, also contacted Judge Theis and unsuccessfully requested Linda Lewis' return. At this time the state requested the testimony Linda Lewis gave in the appellants' preliminary hearings be admitted at the trial. The trial court then found Linda Lewis was unavailable in accordance with K.S.A. 60-459(g )(4) and allowed the testimony.

The appellants assert Linda Lewis was not unavailable because the mere absence of a witness from the jurisdiction because she is in prison does not provide a sufficient ground for suspension of a defendant's right of confrontation.

K.S.A. 60-459(g ) defines the term "unavailable as a witness" as follows:

" 'Unavailable as a witness' includes situations where the witness is . . . (4) absent beyond the jurisdiction of the court to compel appearance by its process . . . ."

If the trial court finds the witness is unavailable it may allow the use of the testimony of the witness given at a preliminary hearing in accordance with K.S.A. 60-460(c ) as an exception to the hearsay rule.

The standards for determining if a witness is unavailable for purposes of a criminal trial were recently discussed in State v. Alderdice, 221 Kan. 684, 561 P.2d 845. Our court reiterated the so-called "reasonable diligence rule" holding the prosecutor must make a good faith effort to obtain the witness's presence at trial. The court also addressed the confrontation issue stating:

". . . We have long held that preliminary hearing transcripts may be admitted upon trial under similar circumstances, and that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. . . ." (p. 687, 561 P.2d p. 848.)

Of course, each case turns on its own facts and circumstances. (State v. Steward, 219 Kan. 256, 547 P.2d 773; and State v. Kirk, 211 Kan. 165, 169, 505 P.2d 619.) Here the prosecution did everything possible to obtain the presence of the witness. The appellants were each afforded an opportunity to cross-examine Linda Lewis at their preliminary...