Talley v. State, 48190

CourtUnited States State Supreme Court of Kansas
Citation222 Kan. 289,564 P.2d 504
Docket NumberNo. 48190,48190
PartiesAbraham TALLEY, Petitioner, v. STATE of Kansas, Respondent.
Decision Date14 May 1977

Syllabus by the Court

1. The due process clause of the Fourteenth Amendment forbids enforcement of a state statute requiring that a criminal defendant give pretrial notice to the prosecution as to his intention to introduce alibi evidence and as to the identity of his alibi witnesses, unless reciprocal discovery rights are given to the defendant. (Following Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82.

2. K.S.A. 22-3218, read alone or in conjunction with 22-3201(6), is unconstitutional as a denial of due process of law since it requires a defendant to furnish the prosecutor with a timely notice of alibi with the names of defenant's witnesses endorsed thereon but does not afford the defendant reciprocal discovery of the rebuttal witnesses the state plans to use to refute the alibi defense.

Joseph D. Johnson, Asst. Public Defender, argued the cause, and Charles E. Worden, Asst. Public Defender, was with him on the brief for petitioner.

Gene M. Olander, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for respondent.

PRAGER, Justice:

This is a postconviction proceeding filed pursuant to K.S.A. 60-1507. On August 17, 1973, Abraham Talley was tried in Shawnee county district court and convicted of aggravated robbery (K.S.A. 21-3427). Talley attempted to take a direct appeal from his conviction but the appeal was dismissed for of jurisdiction since the notice of appeal was not filed within the time allowed by statute. At the trial Talley denied committing the offense and testified to an alibi. When he attempted to introduce the testimony of other witnesses in support of his alibi, the district attorney objected because of the failure of the defendant to give timely notice of plea of alibi in accordance with K.S.A. 22-3218. That section in pertinent part provides as follows:

'22-3218. Plea of alibi; notice. (1) In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.

'(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date.

'(3) . . .

'(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged. In the event the time or place of the crime has not been specifically stated in the complaint, indictment or information, and the court directs it be amended, or a bill of particulars filed, as above provided, and the prosecuting attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the crime other than alleged, but within the period of the statute of limitations applicable to the crime and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the crime.'

The district court sustained the state's objection, ruling that since no notice had been given by defendant as required by the statute evidence other than the testimony of defendant supporting a defense of alibi would not be received into evidence. In this proceeding Talley attacks the constitutionality of K.S.A. 22-3218 as a violation of the due process clause of the Fourteenth Amendment to the United States Constitution. In view of the ruling in Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82, we hold that K.S.A. 22-3218 is unconstitutional as violative of due process. Hence, the conviction and sentence must be vacated and a new trial granted Talley in the prior criminal proceeding.

In Wardius the court reversed a criminal conviction of an accused who was denied the opportunity to introduce alibi evidence because of failure to give timely notice of alibi as required by an Oregon statute. In the opinion the court stated 'We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed.' (p. 472, 93 S.Ct. p. 2211.)

While there are some differences between the Oregon alibi statute and 22-3218, these differences are without legal significance. The Oregon statute and the Kansas statute are significantly similar in that neither provides for reciprocal exchange of alibi evidence. K.S.A. 22-3218, although requiring a defendant to furnish the prosecutor with a timely notice of alibi with the names of defendant's witnesses endorsed thereon, contains no provision requiring the state to furnish the names of witnesses it plans to use to refute the alibi defense.

In its brief the state concedes that K.S.A. 22-3218, within itself, does not provide for reciprocal discovery. It maintains, however, that the Kansas code of criminal procedure must be viewed as a whole. It directs our attention to K.S.A. 22-3201(6) which requires the state to endorse on the information the names of all witnesses known to the prosecuting attorney at the time of filing the same. That statute further provides that the prosecuting attorney may endorse thereon the names of other witnesses who may afterwards become known to him as the court may by rule prescribe. It is the position of the state that the provisions of K.S.A. 22-3201(6) are intended to provide for discovery by the defendant of rebuttal witnesses to the same extent as the discovery of state witnesses to be used by the state in its case in chief. Hence, it is argued that full reciprocal discovery rights of witnesses are allowed the defendant even though they are not provided for in the alibi notice statute itself.

K.S.A. 22-3201 was enacted as a part of the new code of criminal procedure effective July 1, 1970. Its predecessor was K.S.A. 62-802 (Corrick) which provided as follows:

'62-802. Informations; duties of prosecuting attorney. Informations may be filed during term time or in vacation in any court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant. He shall subscribe his name thereto, and endorse thereon the...

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11 cases
  • State v. Hunter, 58974
    • United States
    • United States State Supreme Court of Kansas
    • July 17, 1987
    ...We have consistently held that a prosecuting attorney is not required to endorse the names of rebuttal witnesses. Talley v. State, 222 Kan. 289, 292, 564 P.2d 504 (1977) (citing State v. Bean, 181 Kan. 1044, Syl. p 1, 317 P.2d 480 [1957]). Thus, the trial court did not abuse its discretion ......
  • Alicea v. Gagnon, 81-2005
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 14, 1982
    ...to do so was the Kansas Supreme Court in State v. Rider, 194 Kan. 398, 399 P.2d 564 (1965), overruled on other grounds, Talley v. State, 222 Kan. 289, 564 P.2d 504 (1977). The Kansas court noted that the accused's common-law incompetency to testify in his own behalf had been abrogated by th......
  • State v. Crow, 79,287
    • United States
    • United States State Supreme Court of Kansas
    • January 29, 1999
    ...to the required notice of intent to rely on an alibi defense, K.S.A. 22-3218 (actually deemed unconstitutional in Talley v. State, 222 Kan. 289, 564 P.2d 504 [1997] until amended by the court pursuant to K.S.A.1976 Supp. 22-4601 to require reciprocal discovery by adding to 22-3218(2), the l......
  • State v. Cook, 49966
    • United States
    • United States State Supreme Court of Kansas
    • January 20, 1979
    ...on direct, it would have been admissible as rebuttal. See State v. Shultz, 225 Kan. 135, 587 P.2d 901 (1978); Talley v. State, 222 Kan. 289, 292, 564 P.2d 504 (1977); State v. Smit, 184 Kan. 582, 585, 337 P.2d 680 (1959); State v. Bean, 181 Kan. 1044, Syl. P 1,317 P.2d 480 The appellant nex......
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