State v. Hayden

606 P.2d 115, 4 Kan. App. 2d 335, 1980 Kan. App. LEXIS 184
CourtCourt of Appeals of Kansas
DecidedFebruary 8, 1980
DocketNo. 51,121
StatusPublished

This text of 606 P.2d 115 (State v. Hayden) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hayden, 606 P.2d 115, 4 Kan. App. 2d 335, 1980 Kan. App. LEXIS 184 (kanctapp 1980).

Opinion

Spencer, J.:

Defendant was charged with one count of burglary, K.S.A. 21-3715, and one count of felony theft, K.S.A. 1979 Supp. 21-3701(a). He was found guilty of theft but the jury did not return a verdict on the charge of burglary. This was the second trial of defendant on these charges, an earlier trial having resulted in a hung jury.

On appeal, defendant argues (1) it was error to permit endorsement of an additional witness for the State; (2) the composition of the jury panel was such as to deny a fair and impartial trial; (3) it was error to admit certain State exhibits into evidence; and (4) the verdict forms were improper in that they permitted a finding of guilty of theft without a finding of guilty of burglary.

At trial, Mark Ewing, owner and manager of Mark’s College Hill Apeo Service Station in Wichita, testified he locked his station at about 7:00 p.m. on November 6, 1978, and that the police called him during the early morning hours of November 7th to inform him the station had been broken into. When he returned to the station at about 1:30 a.m. on November 7th, he found a broken window, a damaged door, and that some tires and approximately $160 in money were missing. He described the tires as “GR 78-15, Goodyear steel-belt radials, whitewall.” Ewing then examined State’s Exhibits 1 through 4 (the tires) and [336]*336stated: “Well, these are the tires that were removed from my shop, same size and style of tire.” He also stated it was probable he had the tires six months before they were stolen; that he recognized certain marks on the tires as paint he used on his tire racks; and that he was “quite sure” the tires were stolen from his station. Ewing identified State’s Exhibit 5 as “an adding machine tape that’s out of my adding machine.” He further testified that his trash can was located between the tire rack and the desk; that his adding machine was located on the desk; that he found State’s Exhibit 5 inside one of the tires during the preliminary hearing; and that “[m]ore than likely it was thrown in for the trash can and didn’t hit the trash can and got inside the tire.” Defendant’s objection to admission of State’s Exhibits 1 through 5 was overruled.

At the end of the first day of trial, the State moved to endorse David Hollis as an additional witness, which motion was granted over defendant’s objection. Defendant then lodged an objection to the composition of the jury panel, which was overruled.

Additional State’s evidence indicated that in the early morning hours of November 7th, defendant, accompanied by a male and two females, parked his car in a residential area of Wichita. Defendant and his male companion walked to the service station and gained access through the back door of the locked building. Police arrived on the scene and followed defendant’s car. The occupants of the car thereafter fled on foot. Police caught one of defendant’s female companions, and this led to defendant’s arrest. The tires were found in the back seat of a 1970 Buick automobile previously owned by David Hollis, who testified he had sold the car to defendant. Hollis also stated he had talked to defendant about November 9th concerning purchase money still owed Hollis on the car, and that defendant still had the car and was going to pay whatever he could.

The defense consisted of an alibi, defendant testifying he was sick on the night in question and did not leave his home.

On rebuttal, the State called Richard Cook, a latent fingerprint examiner with the Wichita Police Department, who identified State’s Exhibit 15 as an eight by eight card with a set of rolled ink fingerprint impressions with defendant’s signature on it. Cook also identified State’s Exhibit 14 which had previously been identified by Detective Jonker as a “piece of mat acetate card which has a piece of fingerprint tape on it which has retained [337]*337latent prints which I did recover from the rear view mirror of the vehicle” that defendant was allegedly driving on the night in question. It was Cook’s opinion that the latent prints on Exhibit

14 were the same as those of the right index and the right middle fingers of the right hand as shown on Exhibit 15. Exhibits 14 and

15 were offered. Defense counsel was permitted to examine Cook as follows:

“MR. COBB: When you took the rolled ink impressions here there was another court proceeding in progress; is that right?
“A. That is correct.
“MR. COBB: You indicated that on November the 7th, ’78, you made a comparison of State’s Exhibit 14. It must have been with some other rolled ink impressions; is that right?
“A. It was another set of rolled ink impressions, yes.
“MR. COBB: You did not take another set of impressions, did you?
“A. No, I did not.
“MR. COBB: Your Honor, we’ll object to the admissions of Exhibit 15. It’s not the original impressions that the officer used to identify or compare with Exhibit 14 taken during the progress of the previous court proceeding.”

Defendant’s objection was overruled and Exhibits 14 and 15 were admitted.

1. Defendant contends he was prejudiced by the late endorsement of David Hollis as a witness for the State. K.S.A. 1979 Supp. 22-3201 provides in relevant part:

“(6) The prosecuting attorney shall endorse the names of all witnesses known to said attorney upon the complaint, information and indictment at the time of filing the same. Said attorney may endorse thereon the names of other witnesses as may afterward become known to said attorney, at such times as the court may by rule or otherwise prescribe.”

The right of the State to endorse additional witnesses rests within the sound discretion of the trial court and its ruling will not be disturbed on appeal in the absence of a showing of an abuse of discretion. State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977); State v. Mitchell, 3 Kan. App. 2d 635, 599 P.2d 1025 (1979). The test is whether the rights of the defendant were unfairly prejudiced by the endorsement. State v. Rueckert, 221 Kan. at 730; State v. Taylor, 217 Kan. 706, 538 P.2d 1375 (1975).

The motion to endorse was presented to the court outside the presence of the jury, at which time defendant and his counsel were made aware of the nature of the testimony expected from David Hollis and it was stated the witness would be made available to defense for interview prior to giving his testimony. In [338]*338ruling on the motion, the court specified that defendant was to have ample time to interview Hollis prior to his giving testimony. There is no showing of surprise or prejudice and defendant did not at any time express the need for additional time due to the late endorsement of this witness. It has not been shown how defense strategy was adversely affected.

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Related

State v. Nicholson
590 P.2d 1069 (Supreme Court of Kansas, 1979)
State v. Taylor
538 P.2d 1375 (Supreme Court of Kansas, 1975)
State v. Reed
520 P.2d 1314 (Supreme Court of Kansas, 1974)
State v. Ponds and Garrett
543 P.2d 967 (Supreme Court of Kansas, 1975)
State v. McCorgary
543 P.2d 952 (Supreme Court of Kansas, 1975)
State v. Treadwell
575 P.2d 550 (Supreme Court of Kansas, 1978)
State v. Beard
552 P.2d 900 (Supreme Court of Kansas, 1976)
State v. Hernandez
563 P.2d 474 (Supreme Court of Kansas, 1977)
State v. Shultz
587 P.2d 901 (Supreme Court of Kansas, 1978)
State v. Rueckert
561 P.2d 850 (Supreme Court of Kansas, 1977)
State v. Mitchell
599 P.2d 1025 (Court of Appeals of Kansas, 1979)
State v. Goering
594 P.2d 194 (Supreme Court of Kansas, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
606 P.2d 115, 4 Kan. App. 2d 335, 1980 Kan. App. LEXIS 184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hayden-kanctapp-1980.