State v. Swafford

913 P.2d 196, 257 Kan. 1099, 1996 Kan. LEXIS 45
CourtSupreme Court of Kansas
DecidedMarch 21, 1996
DocketNo. 70,680
StatusPublished
Cited by12 cases

This text of 913 P.2d 196 (State v. Swafford) is published on Counsel Stack Legal Research, covering Supreme Court 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. Swafford, 913 P.2d 196, 257 Kan. 1099, 1996 Kan. LEXIS 45 (kan 1996).

Opinion

The opinion of the court was delivered by

Davis, J:

Defendant Artis Swafford was convicted of felony murder and aggravated robbery. His convictions were affirmed in our original opinion filed June 13, 1995. State v. Swafford, 257 Kan. 1023, 897 P.2d 1027 (1995). On June 30, 1995, the defendant timely filed a motion for rehearing pursuant to Supreme Court Rule 7.06 (1995 Kan. Ct. R. Annot. 43).

Defendant Swafford was tried by jury in a joint trial with codefendants Juan Anthony and Joel D. Butler. During the trial, statements made by Anthony were introduced into evidence after being redacted to exclude the names of Swafford and Butler. We noted in the original opinion that “[wjhether editing a confession or statement by excision will avoid a violation of the Bruton [v. United States, 391 U.S. 123, 137,20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968),] rule must be determined on a case-by-case basis.” State v. Swafford, 257 Kan. at 1038. However, we stated:

“In this case ... we are unable to determine whether the excised statement explicitly suggested the participation of Swafford because neither the excised version of the tape nor the excised transcript of the tape is included in the record on appeal. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, a reviewing court presumes that the action of the trial court was proper. [Citation omitted].” 257 Kan. at 1038-39.

After our decision in this case, the defendant filed a motion for 'rehearing asking that this court reconsider the question of Anthony’s redacted statement on its merits. Defendant also filed a motion to add to the record State’s exhibits number 84 (videotape), 85 (audiotape), and 86 (redacted transcript of Anthony’s statement). In her motion for rehearing, counsel acknowledges that it was an oversight not to insure that the exhibits were a part of the record on appeal but contends that the oversight was reasonable. She, [1101]*1101along with counsel for the State and Butler’s counsel, was under the impression that Exhibit 86 had been made a part of the record on appeal..

There was confusion concerning Exhibit 86. In support of the motion to add to the record on appeal, counsel attached an affidavit of the Saline County deputy district court clerk. The deputy clerk acknowledged that it was the policy of the clerk to send all paper exhibits to the appellate courts when sending the record forward. Had this policy been implemented, the redacted transcript of Anthony’s statement would have been included in the record on appeal.

It is apparent that counsel for defendant, as well as counsel for Butler and counsel for the State, relied upon the original record in preparing for this appeal. At that time, the missing exhibits were included in the record. These exhibits were used by all parties and referred to by all parties in preparation of their briefs on appeal.

We decided this case on June 13, 1995. The deputy clerk in her affidavit noted that as of June 29, 1995, the clerk’s office had not been able to locate the redacted transcript of codefendant Anthony’s statement. Apparently this exhibit was mailed to a party by the clerk’s office and later returned by that party to the clerk’s office. In response to the defendant’s motion for rehearing and his request for additions to the appellate record, this court on August 30,1995, entered the following order:

“The Clerk of the Saline District Court is hereby ordered to transmit exhibit 84 (video tape), exhibit 85 (audio tape), and exhibit 86 (transcript) to the Clerk of the Appellate Courts.”

We adhere to the well-established rule that an appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant’s claim of alleged error fails. However, because the record used by the parties to prepare their appeal to this court contained the missing exhibits and because of the real confusion based on the clerk’s actions in this case, we now grant the defendant’s motion for additions to the appellate record. Exhibit 84 (videotape), Exhibit 85 (audiotape), and Exhibit 86 (transcript) all relating to Anthony’s statement ad[1102]*1102mitted into evidence in the joint trial, are hereby made a part of the appellate record in this case.

In the motion for rehearing, the defendant’s counsel argued that this court was provided with sufficient facts to allow it to review the merits of the defendant’s contention that the admission of the redacted statement violated Bruton, 391 U.S. 123. We do not deem it necessary to hear further argument or to grant appellant additional time to respond. Counsel correctly points out that the issue was briefed by both parties and argued before this court.

The issue we now address is the same one involving the missing exhibit in our original opinion. As noted in our original opinion:

“Swafford . . . complains of the admission of the excised videotape of Anthony’s statements to Lamar Williams. He argues that even though his name is edited from the videotape, the tape still clearly implicates him in the crime. The State, on the other hand, argues that because Swafford did not object to the playing of the tape, he has waived consideration of this issue.” 257 Kan. at 1038.

The Confrontation Clause of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees the right of a criminal defendant to be confronted with the witnesses against the defendant, including the right to cross-examine those witnesses. Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987). An accused’s right to confrontation is violated when the confession of a codefendant implicating the accused is received in evidence in a joint trial. Bruton, 391 U.S. at 137; State v. Rodriguez, 226 Kan. 558, Syl. ¶ 1, 601 P.2d 686 (1979). However, the extrajudicial statement of a nontestifying codefendant may be admitted into evidence if it is redacted to eliminate inculpatory references to the other defendant unless the redaction distorts the statement. State v. Rakestraw, 255 Kan. 35, Syl. ¶ 2, 871 P.2d 1274 (1994).

We have held that redaction of a confession is proper if any suggestion of a codefendant’s involvement in the crime charged can be eliminated from the statement, but generally an edited statement should not be admitted if it explicitly suggests the participation of the complaining defendant. State v. Hutchison, 228 Kan. 279, 282, 615 P.2d 138 (1980). As we stated in State v. Porter, Green & Smith, 228 Kan. 345, 350, 615 P.2d 146 (1980):

[1103]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bu v. Midwest Crane and Rigging
Court of Appeals of Kansas, 2026
Landmark Development Group v. LuPardus
Court of Appeals of Kansas, 2026
State v. VanArsdale
Court of Appeals of Kansas, 2025
State v. Vonachen
476 P.3d 774 (Supreme Court of Kansas, 2020)
State v. King
417 P.3d 1073 (Supreme Court of Kansas, 2018)
State v. Briscoe
Court of Appeals of Kansas, 2017
State v. Ransom
207 P.3d 208 (Supreme Court of Kansas, 2009)
State v. Auch
185 P.3d 935 (Court of Appeals of Kansas, 2008)
State v. Moody
132 P.3d 985 (Court of Appeals of Kansas, 2006)
State v. Jackson
118 P.3d 1238 (Supreme Court of Kansas, 2005)
State v. Mays
85 P.3d 1208 (Supreme Court of Kansas, 2004)
State v. White
67 P.3d 138 (Supreme Court of Kansas, 2003)
State v. Smallwood
955 P.2d 1209 (Supreme Court of Kansas, 1998)
State v. Ninci
936 P.2d 1364 (Supreme Court of Kansas, 1997)
State v. Holt
917 P.2d 1332 (Supreme Court of Kansas, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
913 P.2d 196, 257 Kan. 1099, 1996 Kan. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-swafford-kan-1996.