State v. Willis

• Decision Date: 16 January 1987
• Docket Number: No. 59120,59120
• Citation: 731 P.2d 287,240 Kan. 580
• Parties: STATE of Kansas, Appellee, v. Lawrence M. WILLIS, Appellant.
• Court: Kansas Supreme Court

Page 287

731 P.2d 287

240 Kan. 580

STATE of Kansas, Appellee, v. Lawrence M. WILLIS, Appellant.

No. 59120.

Supreme Court of Kansas.

Jan. 16, 1987.

Syllabus by the Court

1. The trial court may, in the exercise of its discretion, permit the State to present evidence in rebuttal which might have been admissible in its case in chief, and the court's ruling in such regard will not be grounds for reversal in the absence of an abuse of discretion to the defendant's prejudice.

2. PIK Crim.2d 52.20 concerning eyewitness identification is examined and held to be an adequate expression of our holding in State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), relative thereto. Additionally, the trial court is held not to have erred in refusing to expand the factors contained in said instruction to include factors requiring expert testimony for their application by the jury. Further, it was not an abuse of discretion to give the instruction over defendant's objection thereto.

3. Although the general instruction on witness credibility contained in PIK Crim.2d 52.09 is preferable, the expanded version thereof, given herein without objection, is held not to be clearly erroneous.

4. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained.

Jessica Kunan, Deputy Appellate Defender, argued the cause, and Benjamin C. Wood, chief appellate defender, was with her on the brief, for appellant.

Sue Carpenter, Asst. Dist. Atty., argued the cause, and Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.

McFARLAND, Justice:

Lawrence M. Willis appeals his jury trial conviction of aggravated criminal sodomy (K.S.A. 1985 Supp. 21-3506).

For his first issue defendant contends the trial court erred in permitting the State to introduce certain rebuttal testimony.

The State's case in chief may be summarized as follows. On March 11, 1986, a residence at 425 Clay Street in Topeka was being occupied by Scott Lundblade and Ms. G. Unless otherwise indicated, the times of the occurrence of events of that day are approximate. At 8:30 a.m. Lundblade heard a knock on the door of his residence. When he reached the door, he saw defendant walking away. Lundblade was well acquainted with defendant. At 9:30 a.m. a child for whom Ms. G. babysat arrived at the residence. At 9:55 a.m. Lundblade left for a visit to the home of his parents located two blocks away. At 10:10 a.m. defendant returned to the Clay Street residence looking for Lundblade. Defendant had frequently been a guest in the residence and Ms. G. permitted him to wait inside for Lundblade's anticipated return. After 20 minutes defendant departed. About 30 minutes later, defendant returned and was again permitted by Ms. G. to wait inside for Lundblade. Defendant attacked Ms. G., striking and choking her and threatening to kill her if she resisted. Defendant then anally sodomized Ms. G. and left. Ms. G. dressed and walked to the home of Lundblade's parents. Scott Lundblade was not present but Ms. G. told his parents what had happened to her. Mrs. Lundblade called the police. An officer was dispatched at precisely 11:07 a.m. to interview the victim. Photographic and scientific evidence was admitted showing bruising sustained by Ms. G. and that anal sodomy had occurred.

Defendant took the stand and denied ever being at the Clay Street residence on the morning of March 11, 1986. He then produced alibi witnesses. One witness testified defendant was at Sixth and Buchanan at 11:10 a.m. and that the two of them walked from there to a drive-in located at Sixth and Lincoln, where they left job applications.

The principal issue at trial at this point was identity. Defendant had testified he was not at the Clay residence at all on the morning of March 11--thereby contradicting the testimony of both Ms. G. and Scott Lundblade. As rebuttal witnesses, the State called two neighbors of the victim who had seen defendant go to the Clay residence at approximately 8:00 a.m. and 10:00 a.m. on the morning in question.

Defendant contends this was improper rebuttal testimony as it failed to establish some new fact, circumstance, or opinion not already presented in the State's case in chief. In support thereof, defendant cites State v. Childers, 222 Kan. 32, 563 P.2d 999 [240 Kan. 582] (1977); State v. Nirschl, 208 Kan. 111, 490 P.2d 917 (1971); State v. Bean, 181 Kan. 1044, 317 P.2d 480 (1957).

In State v. Childers, 222 Kan. 32, 563 P.2d 999, a rebuttal witness in a murder trial testified to the path of two bullets recovered from a house located across the street from the defendant's house. The testimony rebutted defendant's testimony that he was firing at the ground and not at the deceased. In upholding admission of the rebuttal testimony, this court said:

"Defendant further argues the testimony in question was improper rebuttal in that it could have been offered in the state's case in chief. On this point in State v. Nirschl, 208 Kan. 111, 490 P.2d 917, we said:

'With respect to the propriety of the rebuttal testimony, this court has held that evidence which could have been admitted in the case in chief but which was not, may be admitted in rebuttal to contradict some new fact or circumstance brought forth in the defendant's evidence. That is the case here. The state could not attack the credibility of the defendant's testimony until he had taken the stand. Once that issue was raised, it properly could be rebutted. (citing cases.)' (p. 117 .) Even though the state was aware that defendant would probably testify that he fired into the ground, the state is not required to anticipate what defense might be offered at trial and to offer evidence in its case in chief to meet all probable facets of the defense, '... If so, the state would be required to elicit testimony in its case in chief to cover every possible contingency....' (State v. Phippen, 207 Kan. 224, 230, 485 P.2d 336 [ (1971) ].)" 222 Kan. at 43-44, 563 P.2d 999.

In State v. Bean, 181 Kan. 1044, 317 P.2d 480, this court rejected the contention that certain testimony was improper rebuttal. The Bean court found that the testimony did contradict new facts and circumstances brought forth on behalf of the defendant. As to the contention that the testimony was merely cumulative, this court said:

"The rule is that evidence offered in rebuttal, which might have been part of the state's case in chief, is not improperly received when it tends to contradict some new fact or circumstance brought forth by the defendant's testimony (State v. McGlade, 165 Kan. 425, 428, 196 P.2d 173 [ (1948) ]. In State v. Beam, 175 Kan. 814, 267 P.2d 509 [ (1954) ], this court, in answer to the contention there made that certain evidence was not competent because it was a part of the state's case in chief and therefore improper rebuttal, said:

" '... There are two short answers to these contentions. The first is that under the confronting circumstances this evidence was properly admitted on rebuttal for the purpose of refuting defendant's claim.... The second is, that under our decisions (see The State v. Gibbs, 105 Kan. 52, 181 Pac. 569 [ (1919) ]; The State v. Abrams, 115 Kan. 520, 223 Pac. 301 [ (1924) ]; The State v. McReynolds, 118 Kan. 356, 360, 234 Pac. 975 [ (1925) ]; State v. Haines, 128 Kan. 475, 477, 278 Pac. 767 [ (1929) ], the admission of such evidence, even though it be assumed it pertained to the state's case in chief, did not prevent the defendant from having a fair trial and affords no sound ground for reversal of the judgment....' (l.c. 816, 817.)" 181 Kan. at 1048, 317 P.2d 480.

Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears its discretion has been abused. State v. Hayes, 239 Kan. 443, Syl. p 1, 720 P.2d 1049 (1986); State v. Richard, 235 Kan. 355, Syl. p 1, 681 P.2d 612 (1984); State v. Taylor, 231 Kan. 171, 175, 642 P.2d 989 (1982); State v. Weigel, 228 Kan. 194, Syl. p 9, 612 P.2d 636 (1980).

The rebuttal witnesses did not offer testimony that the crime had occurred--only that defendant was at the Clay residence twice on the morning of the crime. The defendant denied in his testimony ever being at the crime scene on the morning in question. There being no notice of the alibi defense filed, as provided for in K.S.A. 22-3218, the State was not required to anticipate defendant's testimony in this respect and call these witnesses in its case in chief. We find no abuse of trial court discretion in the admission of rebuttal testimony.

For his second issue defendant challenges the giving of a Warren instruction on eyewitness identification. Defendant contends that the instruction given was inaccurate and misleading. Defendant made timely objection to the giving of the instruction. However, the fact defendant objected to the giving of a Warren-type instruction does not, of itself, preclude the giving of such an instruction when proper.

Instruction No. 6, the...