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October 27, 1989.


The opinion of the court was delivered by

Nathaniel J. "Yorkie" Smith appeals his jury trial convictions of three counts of first-degree murder (K.S.A. 21-3401), three counts of aggravated battery (K.S.A. 21-3414), four counts of aggravated kidnapping (K.S.A. 21-3421), two counts of attempted aggravated robbery (K.S.A. 21-3301 and 21-3427), two counts of aggravated sodomy (K.S.A. 21-3506 [Ensley 1981]), one count of theft (K.S.A. 21-3701 [Ensley 1981]), and one count of unlawful possession of a firearm (K.S.A. 21-4204).

The original appeal was dismissed as having been filed out of time. In a hearing on a K.S.A. 60-1507 motion, the district court found that the filing of an untimely notice of appeal constituted ineffective assistance of counsel and granted defendant the right to appeal under K.S.A. 22-3602.

  The bizarre facts may be summarized as follows. On the morning of August 20, 1982, Undersheriff Ronald Bumstead, Jr., was visiting the Allen County Fairgrounds in Iola. The fair was in progress. Some boys advised Bumstead that there was a youth sitting in the nearby Neosho River who appeared to have something the matter with him. Bumstead investigated and found fifteen-year-old Gerald Short, who had been severely beaten. Short advised that he and his companion, 17-year-old Steven Mangus, had been abducted at gunpoint from a nearby park the preceding night by a black male. They were each beaten and sodomized. Short had passed out and did not know what had become of Mangus.

  Later the same day, August 20, 1982, a county employee operating a road grader northwest of Iola found the body of Steven Mangus in a rock quarry. The boy had been beaten and shot with a .22 caliber gun. While officers were at the crime scene, a call was received from an Iola car wash that the bloodsplattered automobile of Iola resident Adeline Fisk was located there. Officers photographed the vehicle and it was towed to a

[245 Kan. 384]

      secure place. That evening the tow truck driver and two friends went to the general area where the Mangus body had been found looking for clues. They found the body of Adeline Fisk. That victim had also been beaten and shot with a .22 caliber gun.

  The following day the tow truck driver and friends continued their investigation of the area and found the body of Tom Walsh, an Iola resident who had been missing since late July. A minimum of 156 stab wounds had been inflicted upon Mr. Walsh. Defendant was subsequently indicted and arrested for a variety of crimes relative to the four victims. Pending theft and unlawful possession of a firearm charges were consolidated with the new charges for trial. Other facts will be stated as necessary for discussion of particular issues.

  On appeal the defendant raises numerous claims of error.


  In State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986), we discussed the prosecutorial duty to disclose exculpatory evidence as follows:
"A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant's Fourteenth Amendment due process rights. Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant."
  In Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or punishment."

  In United States v. Agurs, 427 U.S. 97, 104, 49 L.Ed.2d 342, 96 S.Ct. 2392 (1976), the United States Supreme Court examined the "materiality" requirement of Brady v. Maryland, 373 U.S. 83, and concluded: "A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial."

  In United States v. Bagley, 473 U.S. 667, 682, 87 L.Ed.2d 481, 105 S.Ct. 3375 (1985), the court examined the standard of

[245 Kan. 385]

      materiality applicable to nondisclosed evidence in an exculpatory situation and determined as follows:
"We find the . . . formulation of the Agurs test for materiality sufficiently flexible to cover the `no request,' `general request,' and `specific request' cases of prosecutorial failure to disclose evidence favorable to the accused: The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome."
  In the disciplinary proceeding entitled In re Price, 238 Kan. 426, 709 P.2d 986 (1985), we stated:
"As County Attorney of Allen County, respondent was primarily responsible for the prosecution of a sixteen-count criminal indictment against Nathaniel J. `Yorkie' Smith. Throughout the preparation, discovery proceedings and trial of the case, respondent repeatedly failed to abide by discovery orders issued by the court, made repeated misrepresentations to the judge and defense counsel and failed to furnish statements of witnesses and other evidence to defense counsel even though under a court order to do so. During trial these matters came to light, requiring the court to declare numerous recesses and delaying the proceedings. Respondent granted immunity to a witness, Roger Smith, brother of the defendant, and failed to advise the court or reduce the agreement to writing as required by the court." 238 Kan. at 426-27.
  A number of distinct incidents of withholding of evidence are asserted. Each will be discussed separately.


  Roger Smith, a key prosecution witness, is the brother of defendant. It is contended that the prosecution withheld from the defense counsel information that Roger Smith had been granted immunity from prosecution for various crimes unrelated to the crimes herein (except for the theft charge) in exchange for his testimony against defendant. There is no dispute but that such evidence was material as the witness's credibility was a major factor. In support of his claims herein, defendant states this court has already found such withholding occurred in the disciplinary proceeding previously cited. A careful reading of the statement made therein relative to immunity shows we did not find such information was withheld from defense counsel. We stated: "Respondent granted immunity to a witness, Roger Smith, brother of the defendant, and failed to advise the court or reduce the agreement to writing as required by the court." In re Price, 238 Kan. at 426-27.

  On cross-examination of Roger Smith, defense counsel asked

[245 Kan. 386]

      the witness if he had a deal with the State involving immunity if he would testify. The witness denied he did, whereupon defense counsel complained to the court as follows: "For the last two weeks, Doug, you were going to put in writing the promises of leniency that had been made to this witness, and I have not yet received them and now the witness says he was made none." Shortly thereafter, he iterated:
"Well, Your Honor, I simply have indicated to the Court that the County Attorney has informed me for the last couple of weeks that there had been some statements made to this witness with regard to leniency and so forth and that he would put those in writing and that he would give them to me. . . ."
  Clearly then, defense counsel knew at least two weeks prior to his cross-examination of the witness that a deal had been made. The State's attorney then stated on the record what the deal was and defense counsel expressed no indication that this was any different than what he had been previously advised. To be doubly sure there was no discrepancy, the court had both counsel make a joint telephone call to Roger Smith's attorney, who confirmed that the State attorney's version of the agreement between counsel was correct.

  We must conclude there was no withholding of exculpatory evidence from defense counsel relative to Roger Smith's immunity.


  Defendant contends the State withheld evidence that Roger Smith and Steven Mangus had had a fight on the night of the latter's death. It is undisputed that the name of Ted Witchley, who had witnessed the fight, had been made available to defense counsel well prior to trial. Apparently, the nature of his testimony was not discussed. In any event, defense counsel interviewed Witchley shortly before the trial commenced and heard his story. Defense counsel called Witchley as a witness and carefully questioned him about the fight. Defense counsel did not request any additional time to develop this line of inquiry or to locate any possible corroborating witnesses. The prosecution should have disclosed the nature of Witchley's statement, but there is no showing of any prejudice to the defendant which could have had a reasonable probability of altering the result of the trial.

[245 Kan. 387]



  Ms. Houston was defendant's live-in girlfriend at the times pertinent herein. She testified at trial that she and defendant had target practiced with a .22 caliber pistol. Yorkie had provided the gun which he stated he had acquired from Roger Smith. Ballistics tests matched the bullets retrieved from the target practice tree with those that killed Mangus and Fisk. Law enforcement officers had interrogated Houston on numerous occasions. She was not inclined to be cooperative. On one occasion Roger Smith was wired by officials and sent to talk to Houston. In that conversation she stated that the pistol she and Yorkie had fired had come from Deannie Smith, another brother of defendant.

  Defense counsel had been provided with many statements made by Brenda on different occasions. Defense counsel's inventory of documents provided to defendant by plaintiff was 40 pages long and contained some 496 different items. The Smith-Houston tape was apparently not listed and was in the possession of an officer. However, the record is clear that defense counsel learned of its contents in time to cross-examine Ms. Houston thereon. There is no showing that any request for additional time to explore this evidence was denied. We find no showing has been made that the State's failure to disclose the existence of the tape prior to trial had any reasonable probability of altering the result of the trial.


  Defendant next contends that transcripts of meetings between Brenda Houston and KBI Agent David Christy were withheld from the defense until the middle of trial. Defendant alleges the transcripts showed "the KBI's strong-arm manipulative tactics."

  Of the evidence turned over to defendant by the State, the following pieces of evidence are listed:
"287. K.B.I. investigation report dated December 27, 1982 by D. Christy, concerning his interview on that date of Brenda G. Houston at his motel room, # 166 at the Best Western Motel;
. . . .
"290. K.B.I. investigation report dated December 28, 1982 by D. Christy, concerning Brenda Houston showing D. Christy the tree that she and Yorkie shot at consisting of two pages;
. . . .
"295. K.B.I. investigation report dated January 18, 1983 by D. Christy, concerning an interview of Brenda G. Houston, consisting of two pages;

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