State v. Watkins

• Decision Date: 06 March 1976
• Docket Number: No. 47827,47827
• Citation: 547 P.2d 810,219 Kan. 81
• Parties: STATE of Kansas, Appellee, v. Ronald D. WATKINS, Appellant.
• Court: Kansas Supreme Court

Page 810

547 P.2d 810

219 Kan. 81

STATE of Kansas, Appellee, v. Ronald D. WATKINS, Appellant.

No. 47827.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. In the absence of a stipulation between the parties the results of a polygraph examination are not admissible in evidence.

2. Under Supreme Court Rule 6(c) a party may require testimony in question and answer form to be substituted for a narrative statement, and the failure to provide

the testimony in question and answer form prevents a review of whether the exclusion of such evidence was erroneous.

3. The extent of cross-examination on the issue to credibility of a witness rests in the sound discretion of the trial court and there must be a showing of abuse of discretion or prejudice to the appealing party before a reversal is justified.

4. Where a witness has been impeached or his credibility attacked prior statements consistent with his testimony at trial may be admitted to rehabilitate or corroborate the witness.

5. Reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection is lodged.

6. Improper remarks by a prosecutor in closing argument will not constitute reversible error where the jury has been instructed to disregard the same unless the remarks were so prejudicial as to be incurable.

7. Although admissibility of physical evidence rests in the first instance within the sound discretion of the trial court, the relevancy and identity of that object are issues of fact to be resolved by the jury.

8. Failure to object to the submission of a written and transcribed statement of the defendant to the jury during the course of deliberations constitutes a waiver of any supposed irregularity.

9. The admission of evidence of prior crimes to prove intent when intent is not substantially at issue amounts to little more than a showing of defendant's disposition or inclination for bad conduct, which is expressly prohibited by K.S.A. 60-455.

10. Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. In other words to show that the same person committed two offenses it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses.

11. Duplicity of offenses does not depend on whether the facts proved at trial are actually used to support the conviction of both offenses; rather it turns on whether the necessary elements of proof of the one crime are included in the other.

12. Photographs of the deceased, including photographs taken during the autopsy, are admissible where relevant and material to the matters in issue.

13. To be admissible a confession must be freely and voluntarily given and not under compulsion or duress.

14. In determining the voluntariness of a statement made by the accused the totality of the circumstances leading to and accompanying the statement should be considered.

15. A verdict or finding will not be set aside because of the erroneous admission of evidence unless there appears in the record a timely and specific objection. (K.S.A. 60-404.)

16. In an appeal from a conviction of one count of murder in the first degree (K.S.A. 21-3401), one court of robbery (K.S.A. 21-3426), and one count of burglary (K.S.A. 21-2715), the record is examined and it is held: The trial court did not err (1) in overruling defendant's motion to conduct a hearing to determine the admissibility of the results of a polygraph examination; (2) in permitting the state to cross-examine defendant as to inconsistencies in his statements for the purpose of impeaching his credibility; (3) in refusing to grant a new trial due to improper remarks made by the prosecution in closing argument; (4) in admitting physical evidence; (5) in permitting the written and transcribed statements of defendant to be used by the jury during deliberations (6) in finding the convictions of defendant for burglary and robbery were not duplicitous of the crime of felony murder; (7) in failing to sustain defendant's objections to photographs of the deceased taken during the autopsy; (8) in admitting evidence of defendant's confession; and (9) in admitting a transcription of an interrogation of defendant which mentioned a polygraph examination. It is further held that the trial court's action in refusing to allow testimony of corroborating statements made by defendant which were consistent with his trial testimony and in admitting evidence of two prior convictions of defendant did not result in prejudicial error justifying the granting of a new trial.

Charles E. Worden, Topeka, argued the cause and was on the brief for appellant.

Donald P. Morrison, Asst. Dist. Atty., argued the cause, and Gene M. Olander, Dist. Atty., and Curt T. Schneider, Atty. Gen., were with him on the brief for appellee.

OWSLEY, Justice.

Defendant-appellant, Ronald D. Watkins, appeals from his jury conviction of one count of murder in the first degree (K.S.A. 21-3401), one count of robbery (K.S.A. 21-3426), and one count of burglary (K.S.A. 21-3715). Twelve points of error are raised as grounds for reversing the judgment of the lower court denying a new trial.

The evidence introduced on behalf of the state revealed the following: On July 4, 1973, the body of Flora Baxter was discovered in her apartment at 301 Van Buren, Topeka, Kansas. The police were immediately summoned to the scene, whereupon an extensive examination of the premises was conducted. The deceased, a seventy-seven-year-old retired school teacher, was found lying on her back on her bed with her hands and feet tied with an electrical cord. She was gagged with a white cloth pillowcase and had a small dish towel tied around her neck. There were numerous marks and bruises around her head and face. Her purse was found underneath a pillow on her bed and near the purse the police found an empty social security check envelope and an empty welfare check envelope, both postmarked July 2, 1973. There was a pillow lying on the floor near the head of the bed with blood stains on it and the deceased's dentures with blood stains on them were at the foot of the bed. There was a small blood spot on the wall directly above where the dentures were found. The strap from her billfold was discovered under her body, but her billfold was missing and no money or checks were found in the apartment. The police also found an open pack of Chesterfield cigarettes in the apartment although there was testimony that the deceased did not smoke. It was the opinion of the coroner that the beating of the deceased would have been severe enough to render a person unconscious but not sufficient to cause death. He concluded that death resulted from asphyxiation.

From the undisputed testimony of various witnesses it was established that on July 3, 1973 the day before her body was discovered, Mrs. Baxter had received her social security and welfare checks in the mail. She cashed both checks at the bank the same day for the total amount of $155.50. She then went to a grocery store and purchased $12.90 worth of food and returned to her apartment at approximately 1:30 p.m.

The evidence further disclosed the defendant lived next door to Mrs. Baxter. At approximately 1:30 p.m. that day he saw Mrs. Bexter return from the store and he told a neighbor, William Hundley, that he was going over to help her with her groceries. The evidence indicated that Mrs. Baxter did not appreciate defendant's help and had refused it in the past. Hundley testified he gave defendant an open pack of Chesterfield cigarettes before he left. Defendant returned about an hour later with a sack of groceries and some money in his hip pocket.

At trial, several witnesses testified that prior to the afternoon of July 3, defendant repeatedly tried to borrow money from his friends. After he returned from Mrs. Baxter's apartment, he repaid past debts, paid his rent, and bought groceries and beer for his friends. In all, defendant spent $76.00 that day and he had $38.00 left over on July 4.

Defendant continued to reside at the same apartment for several days after the homicide. On July 14, the detectives investigating the crime found Mrs. Baxter's empty billfold lying in the chimney of the apartment house. The position of the billfold indicated it was dropped from the top of the chimney. There was testimony that defendant had been seen on the roof after the homicide.

Defendant was further implicated by various statements attributed to him. Charles Hundley testified that on July 1, defendant said to him with respect to Mrs. Baxter, 'If that old woman's got any money I would go over and rip her off.' Robin Clark testified defendant told her he killed Mrs. Baxter. Julius Brown testified defendant admitted to him that he had killed both Mrs. Baxter and a man whose body was found in a quarry in North Topeka.

Defendant also gave three separate statements to the police. On July 6, 1973, he gave a statement as to where he obtained some of the money, which conflicted with the testimony of other witnesses. On July 7, he made further conflicting statements as to the source of his funds. Finally, on July 17, he gave a lengthy statement to the police. At first, defendant made various inconsistent statements which conflicted with testimony of other witnesses, then he confessed that he went to Mrs. Baxter's apartment on July 3 and robbed her. He admitted that he gagged and tied her and threw her billfold down the chimney; however, he did not admit having killed her. He stated she was alive when he left her apartment and that he did not...