State v. White

• Court: Kansas Supreme Court
• Writing for the Court: MILLER
• Citation: State v. White, 587 P.2d 1259, 225 Kan. 87 (Kan. 1978)
• Decision Date: 09 December 1978
• Docket Number: No. 49326,49326
• Parties: STATE of Kansas, Appellee, v. John Robert WHITE and James S. Stewart, Appellants.

Page 1259

587 P.2d 1259

225 Kan. 87

STATE of Kansas, Appellee, v. John Robert WHITE and James S. Stewart, Appellants.

No. 49326.

Supreme Court of Kansas.

Dec. 9, 1978.

Syllabus by the Court

1. Photographs are not rendered inadmissible merely because they are shocking or gruesome, if they are relevant and material to the matters at issue.

2. The admission of photographs of a decedent is not error when they are relevant to matters in issue such as the cause and manner of death, and as an aid in the understanding of a pathologist's testimony.

3. The right of the state to endorse additional witnesses lies in the sound discretion of the trial court, and its ruling will not be disturbed in absence of a showing of abuse of discretion. The test is whether the defendant's rights have been prejudiced.

4. The determination of whether a statement is freely and voluntarily given must be based upon a consideration of the totality of the circumstances. Where there is a genuine conflict in the evidence, an appellate court must place great reliance upon the findings of the trial court. If the trial court's findings are based upon competent evidence, they will not be disturbed on appeal.

5. An accused's Sixth Amendment right of confrontation and cross-examination is violated when the confession of a codefendant, implicating the accused, is received in evidence during a joint trial, even though the trial court admonishes the jury not to consider the confession in determining the guilt or innocence of the accused.

6. The practice condemned in Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) is the admission of "powerfully incriminating extrajudicial statements of a codefendant" who does not testify, and which statements are hearsay and inadmissible against an accused. Even with limiting instructions, such evidence should not be received in a joint trial.

7. Evidence of a statement, made other than by a witness while testifying at the hearing, is hearsay evidence if it is offered to prove the truth of the matter stated.

8. Extrajudicial statements, offered not to prove the truth of the statement but merely to prove that the statement was made, are not inadmissible as hearsay.

9. Not every extrajudicial statement of a codefendant is barred by bruton.

10. The Bruton rule is not violated by the admission into evidence of exculpatory nonjudicial statements by a nontestifying codefendant, which do not incriminate the accused, and which statements are offered into evidence merely to show that the statements were made, and not to prove the truth of what was said.

11. It is the duty of a trial court to instruct the jury not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the charge and upon the evidence presented. This duty persists whether the instruction is requested or not, and even though there is an objection to it.

12. If no evidence of the lesser offense is received, then an instruction on the lesser offense should not be given.

13. A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.

14. A conviction of even the gravest offenses may be sustained by circumstantial evidence.

15. The probative values of direct and circumstantial evidence are intrinsically similar and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each.

Warren G. Jones, of Alkire, Dwire & Wood, Wichita, argued the cause and was on the brief for appellant John Robert White; Willard L. Thompson, Jr., Wichita, argued the cause and was on the brief for appellant James S. Stewart.

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

MILLER, Judge:

James S. Stewart and John Robert White were convicted of murder in the second degree, K.S.A. 21-3402, and felony theft of a motor vehicle, K.S.A. 21-3701. Both appeal, raising numerous points which will be taken up later in this opinion.

We summarize the evidence in the three-week trial as follows: About 1:45 o'clock on Sunday afternoon, July 27, 1975, two Wichita State University students who were employed by a janitorial service to clean an office building in Wichita discovered the body of a man, wrapped in curtain or drapery material, near some trash cans at the rear of the building. The police were called.

The dead man was identified as Claude Ray Faulkner. He was fully dressed except he had no shoes. The cloth in which the body was wrapped, some paper towels, and a car seat which was near the body, were all bloodstained. Later that same day, a bloodstained white chenille bedspread and a curtain were found in a ditch just off the traveled portion of the road near 240 North Hoover, a few blocks from the spot where the body was discovered.

It was determined that the car seat found near the body was from a 1963 four-door Bel Air Chevrolet with red upholstering. A bulletin was issued, and such a car, with the rear seat missing, was stopped. The driver was defendant White; the only passenger was defendant Stewart. There were dark stains on the back of the front seat. The clothing of both defendants was bloodstained. A hearing aid, identified as belonging to the victim, was found inside the vehicle. Both White and Stewart were arrested and charged with homicide, and with theft of the automobile.

White and Stewart shared an apartment at 218 West Gilbert. A search warrant for that property was secured and executed. At the apartment, the officers found signs of a violent struggle. Bloodstains were everywhere: on the wall, mattress, couch, draperies, bedspread, sheets, and on a white shirt. A pair of black shoes were found; these were identified as belonging to Claude Ray Faulkner.

The curtain in which the body was wrapped, and the curtain and bedspread found on North Hoover, were identified as having come from the apartment. The upholstery of the car seat found with the body matched the upholstery of the vehicle in which defendants were stopped. The owner of a Wichita car lot, located a few blocks from the West Gilbert apartment, testified that the 1963 Bel Air Chevrolet was on his lot Saturday evening, July 26, when he closed up; at noon on the following day, Sunday, he discovered that the car had been stolen.

Stewart smoked Pall Mall cigarettes; a Pall Mall cigarette butt was found beside the body, and cigarette ashes were found on the body. Pall Mall cigarette butts were also found in the apartment. At the time of his arrest, Stewart had abrasions on his hands, and they were swollen. White's left eye was black and blue, his chest was scratched, and he had fresh abrasions on his left shoulder. Two witnesses saw Faulkner in company with the defendants late Saturday night or early Sunday morning.

Both Stewart and White have type "O" blood; the deceased, Claude Ray Faulkner, had type "A" blood. The blood on Stewart's clothing, on White's clothing, on the mattress, and on various other items, was type "A."

An examination of the body of Claude Ray Faulkner revealed grievous injuries to his face, head, neck, elbows, hands, and ribs. The deputy coroner who performed the autopsy expressed the opinion that Faulkner's death was caused by strangulation, and by aspiration of blood from the severe injuries to his nose and nasal cavity.

Both Stewart and White gave statements to the police. Each denied any knowledge of or complicity in either the homicide or the theft; and neither implicated the other in either crime. Their stories varied, however, as to where each of them had been during the 24-hour period prior to arrest; and whether they had been together; and from whom they acquired possession of the vehicle.

The defendants first contend that it was error for the trial court to admit certain photographs of the deceased, which the defendants contend are inflammatory and highly prejudicial. The defendants characterized these as "autopsy" photographs. True, these pictures were taken after the body was moved, but all present external views of the body. All photographs are black and white, and none appear to have been taken after any dissection or other medical procedures had been performed. The photographs complained of were first identified by the police officers who took them, and later they were used extensively during the testimony of the pathologist, as an aid to illustrate his testimony. While not pleasant to view, these photographs are a far cry from the inflammatory type of exhibit decried in State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975).

We have said that photographs are not rendered inadmissible merely because they are shocking or gruesome, if they are relevant and material to the matters at issue, State v. Martinez, 223 Kan. 536, 575 P.2d 30 (1978); and we have repeatedly held that the admission of photographs of a decedent is not error when they are relevant to matters in issue such as the cause and manner of death, and as an aid in the understanding of a pathologist's testimony. State v. Childers, 222 Kan. 32, 44, 563 P.2d 999 (1977); State v. Henson, 221 Kan. 635, 646, 562 P.2d 51 (1977); State v. Villa & Villa, 221 Kan. 653, 654, 561 P.2d 428 (1977).

We have examined each of the photographs of which complaint is made. These photographs were not repetitious. They were relevant to the issues of the...