State v. White, 48633

• Decision Date: 08 July 1977
• Docket Number: No. 48633,48633
• Parties: STATE of Kansas, Appellee, v. Robert R. WHITE, Appellant.
• Court: Kansas Court of Appeals

Page 6

571 P.2d 6

1 Kan.App.2d 452

STATE of Kansas, Appellee, v. Robert R. WHITE, Appellant.

No. 48633.

Court of Appeals of Kansas.

July 8, 1977.

Syllabus by the Court

1. When a defendant is not misled or prejudiced in making his defense by the allegations concerning the date of the crime charged, that date is unimportant. A conviction may properly follow upon sufficient proof of the commission of the offense at any time within the provisions of the statute of limitations.

2. When a defendant or his counsel has actual or constructive knowledge of the date a crime occurred, and when there is a discrepancy between the testimony at the preliminary hearing and the pleadings regarding the date the crime occurred, if the defendant does not request a bill of particulars or make pretrial discovery, the defendant is not misled or prejudiced thereby.

3. The granting or denial of a motion for a new trial on the ground of newly discovered evidence rests largely on the sound discretion of the trial court. It must be shown to the trial court's satisfaction that the alleged newly discovered evidence was not within the knowledge of the defendant at the time of his trial and that such evidence could not with reasonable diligence have been produced at the trial.

4. When a character trait is relevant, specific instances of conduct (other than evidence of conviction of crime) which tend to prove the trait to be bad are inadmissible.

5. In an appeal from a jury verdict which found the appellant guilty of felony theft, the record is examined and it is held : (a) The trial court did not err in refusing to grant a new trial; and (b) the trial court did not err in excluding evidence as to previous bad conduct on the part of a state witness.

William Tinker, Jr., of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, for appellant.

Stephen M. Joseph, Asst. Dist. Atty., Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Christopher A. Randall, Asst. Dist. Atty., for appellee.

Before SPENCER, P. J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge:

This is a direct appeal from a jury verdict wherein the defendant, Robert R. White, was found guilty of felony theft (K.S.A. 21-3701(a )).

Defendant alleges trial error in denying a new trial (1) for the exclusion of evidence offered by two defense witnesses as to previous bad conduct on the part of a state witness; (2) because the defendant was misled and prejudiced in his defense by the fact evidence was presented at the preliminary hearing that the crime was committed on March 28, 1975, when in truth and fact the crime was actually committed on April 1, 1975, and all evidence at the jury trial went to April 1, 1975; and (3) for failure to find that an affidavit of Sandal Porter concerning events of April 1, 1975, constituted new evidence sufficient to support the granting of a new trial.

The defendant was charged with felony theft of jewelry from his employer, Henry's, Inc. The complaint and warrant both charged the theft took place on or about April 1, 1975. At the preliminary hearing, the personnel director of Henry's testified on direct examination the theft occurred on April 1, 1975. On cross-examination the personnel director changed his testimony and testified the theft occurred on March 28, 1975.

The defendant was bound over for trial on the felony theft charge. An information was duly filed alleging the theft occurred on or about April 1, 1975. The case was set for trial.

During the time the case was pending trial, a defense witness, Mrs. Sandal Porter, moved to Colorado. Counsel for defendant requested that Mrs. Porter voluntarily return to Kansas to testify, but she refused. Counsel attempted to obtain the witness's attendance at the trial through the Uniform Act to Secure Attendance of Witnesses from Without State (K.S.A. 22-4201, et seq.). Colorado declined to issue the necessary order to Mrs. Porter. Defendant's counsel then arranged to take Mrs. Porter's deposition in Colorado.

The state of Kansas was represented by a Colorado prosecutor at Mrs. Porter's deposition, and the defendant by his Kansas counsel. Examination of Mrs. Porter at the deposition was limited to events supposedly occurring on March 28, 1975.

Mrs. Porter testified that she recalled the date because she, her husband, and the defendant were preparing to go to Denver, Colorado, the following day to find a new home; that during the evening hours she saw the defendant and Rick Hildebrandt when they returned from Henry's where defendant and Hildebrandt were both employed. Mrs. Porter further testified she helped unload the car and did not see a box the size and shape of the one stolen from Henry's either in the car or in the defendant's possession. Mrs. Porter did not testify concerning any events that occurred on April 1, 1975.

At the trial, all witnesses testified that the theft took place on April 1, 1975. The personnel manager of Henry's admitted he had erroneously testified at the preliminary hearing that the theft took place on March 28, 1975. His explanation was that an insurance form had the erroneous date on it, and when he checked Henry's records and files prior to testifying at the preliminary hearing he did not realize the form he read was in error. He testified the remainder of Henry's file uniformly listed April 1, 1975, as the date of the theft.

Defendant readily concedes that generally the state need not prove the offense occurred on the date alleged in the pleadings as long as the evidence shows the alleged crime was committed within the statute of limitations. However, defendant claims he was prejudiced by the discrepancy between the testimony given at the preliminary hearing as to the date of the crime and the testimony at the trial, in view of having been forced to take an out-of-state deposition of a reluctant witness in the interim.

Defendant's counsel maintains that under the circumstances he was entitled to rely on the testimony given at the preliminary hearing as to the date of the theft. In addition, defense counsel states he contacted the bonding company which had been furnished the report from Henry's containing the erroneous date, and the bonding company also gave him the date of March 28, 1975, as the date the theft occurred. The record does not disclose whether counsel contacted the second insurance carrier involved or reviewed Henry's files or the police reports, all of which would have readily disclosed the theft occurred on April 1, 1975.

We are unable to agree with appellant that he could reasonably rely on the erroneous testimony given on cross-examination, which was contrary to the witness's direct testimony, and the information given defense counsel by the one insurance carrier, or that he was misled or prejudiced by the erroneous testimony.

"Where a defendant is not misled or prejudiced in making his defense by the allegation concerning the date of the crime charged, that date is unimportant, and a conviction may properly follow upon sufficient proof of the commission of the offense at any time within the provisions of the statute of limitations." (State v. Sisson, 217 Kan. 475, Syl. 3, 536 P.2d 1369.)

In State v. Robertson, 190 Kan. 771, 378 P.2d 37, the complaint alleged the crime was committed on September 8, 1960. At the preliminary hearing, several defense witnesses testified the offense occurred on August 8, 1960. The defendant's attorney, who had not participated in the preliminary hearing, requested a new preliminary hearing so that he would be properly advised as to the date the state intended to rely on. This motion was overruled.

The witnesses, at the trial, testified the burglary was committed on September 8, 1960, the date alleged in the complaint. All three witnesses said they had been mistaken at the preliminary hearing. Several witnesses testified on behalf of the defendant, and the defendant himself took the stand and denied he committed the burglary. The Supreme Court in affirming the conviction noted the witnesses satisfactorily explained the "discrepancy" in their testimony and were subjected to cross-examination at the trial; that only one burglary was committed, and it was committed on the date defendant was charged in the complaint with having committed it; and defendant was fully apprised at the preliminary hearing of the nature of the evidence which would be used against him. The Supreme Court found defendant was not prejudiced by the discrepancy.

In State v. Jones, 204 Kan. 719, 466 P.2d 283, the defendant was charged with committing statutory rape on April 12, 1968. All testimony at the preliminary hearing went to April 12, 1968, as the date of the offense. The defendant established an alibi for April 12, 1968, and the state then amended the complaint to allege the crime was committed between the 6th and 12th of April 1968. Defendant objected to the indefinite period of time in the amended information, but the trial judge refused to force the state to elect a specific date. When the defendant was tried, the victim testified the incident occurred on a Sunday evening. Defendant contended on appeal the date of the offense was ascertainable since the victim testified it happened on a Sunday evening during the seven-day period, and that defendant was first aware of the alleged date during the course of the trial and had no opportunity to establish an alibi defense.

The Supreme Court affirmed the conviction in Jones, supra, stating the discrepancy in dates was explained by the evidence at the trial and that although defendant objected in various ways to the indefinite date stated in the amended information, he did not require the state to elect or select the actual date it was relying on. The court went on to say defendant had competent counsel who had ample opportunity to prepare for trial, and "(u)nder the circumstances we cannot say the appellant was prejudiced by the allegation that the crime occurred...