Estes v. State, 48362
| Decision Date | 22 January 1977 |
| Docket Number | No. 48362,48362 |
| Parties | Lloyd Wayne ESTES, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
This is an appeal from a judgment of the district court of Douglas County summarily refusing to grant relief on a motion filed pursuant to K.S.A. 60-1507, wherein Lloyd Wayne Estes, petitioner-appellant, seeks to vacate his sentence on conviction of aggravated robbery. (K.S.A. 1972 Supp. 21-3427.)
The facts surrounding this case are fully reported in State v. Estes, 216 Kan. 382, 532 P.2d 1283, a direct appeal to this court in which the conviction was upheld. The legal issues considered in the direct appeal are not raised here.
Basically the petitioner argues the trial court erred in admitting into evidence, over his objection, the record of his conviction for armed robbery twelve years earlier.
The petitioner's contention involves a trial error which should be corrected by direct appeal. (K.S.A. 60-2702a, Supreme Court Rule No. 183(c)(3) formerly K.S.A. 1975 Supp. 60-2702, Supreme Court Rule No. 121(c)(3); Melton v. State, 220 Kan. 516, 552 P.2d 969; Tillman v. State, 215 Kan. 365, 524 P.2d 772; and Dunlap v. State, 212 Kan. 822, 512 P.2d 484.) But trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal. (K.S.A. 60-2702a, Supreme Court Rule No. 183(c)(3); Melton v. State, supra; and Tillman v. State, supra.)
Specifically the petitioner contends (a) the introduction into evidence of the twelve-year-old conviction was trial error affecting his constitutional right to a fair trial and due process of law; and (b) an intervening change in the law took place between the time his appeal from his conviction had been perfected and the papers filed in this court, by the decision of this court in State v. Bly, 215 Kan. 168, 523 P.2d 397. He asserts this constitutes 'exceptional circumstances' and thereby excused his failure to raise the issue in his direct appeal.
We first examine petitioner's 'trial error affecting constitutional rights' argument. The trial court's jury instruction said: 'This evidence may be considered solely for the purpose of proving the defendant's motive, intent, or absence of mistake.' If this was erroneous, it hardly affects constitutional rights in view of the strong identification presented in State v. Estes, supra. State v. Bly, supra, upon which the petitioner places primary reliance, held the erroneous admission of evidence was harmless error. (See also State v. Farris, 218 Kan. 136, 542 P.2d 725; State v. Fennell, 218 Kan. 170, 542 P.2d 686; and State v. Bradford, 219 Kan. 336, 548 P.2d 812.)
We next examine petitioner's 'exceptional circumstances' argument. Petitioner argues our opinion in State v. Bly, supra, changed our law. The Bly opinion was filed June 15, 1974. The petitioner filed the statement of points on his direct appeal April 1, 1974. This court heard oral arguments on petitioner's direct appeal on January 21, 1975. If petitioner considered Bly a significant change in the law he had ample time to argue the point on his direct appeal but did not do so. (See Supreme Court Rule No. 6(d), 214 Kan. xxiii.)
Furthermore, the Bly opinion did not formulate new law but rather summarized certain basic principles established by previous decisions interpreting K.S.A. 60-455. 455. (State v. Donnelson, 219 Kan. 772, 776, 549 P.2d 964; compare Barnes v. State, 204 Kan. 344, 461 P.2d 782.) Bly recognized the principles pronounced by earlier decisions that K.S.A. 60-455 is to be strictly enforced, and that relevancy is not the only test to be...
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