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
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.
FAILURE TO REVEAL EXCULPATORY EVIDENCE
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
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
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.
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.
4. HOUSTON-CHRISTY MEETINGS
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;
"296. K.B.I. investigation report dated January 18,
1983 by D. Christy, concerning the payment of $200.00
to the witness, Brenda G. Houston, in Kansas
State Buy Money because witness has no job at present
time and has a small child, attached thereto is an
administrative page concerning the payment to witness
in the amount of $200.00, type of purchase:
information, also attached thereto is a receipt
signed by Brenda G. Houston, signed by David Christy,
and signed by Lloyd Pappan dated January 18, 1983;
"299. K.B.I, investigation report dated April 14,
1983 by David L. Christy, reference payment to Brenda
Houston of the sum of $100.00 for information,
attached thereto is a receipt signed by Brenda
Houston and David L. Christy dated April 14, 1983 for
$100.00. . . ."
Defendant's cross-examination of Agent Christy centers on the
meeting between him and Houston at the Best Western Motel. During
that meeting Houston insinuated that Roger Smith, rather than
Yorkie Smith, should be in jail and that Roger Smith was trying
to set Yorkie up.
It is not clear whether Document # 287 contained a transcript
of the meeting. In any case, defense counsel had a transcript of
the tape which he used thoroughly and effectively in his
cross-examination of Agent Christy. There is no showing of any
reasonable probability that any delay in turning over the
transcript of altered the outcome of the trial.
After trial, during an official investigation of the
circumstances surrounding defendant's release from the Kansas
penitentiary shortly before the crimes herein, it came to light
that in his processing into the penal system defendant had been
the subject of a psychiatric report. The report was made in 1976.
Although the report is not before us and is not described,
presumably this is the report of the examination done on all
persons under sentence of commitment for felonies who are in
custody at the Reception and Diagnostic Center pursuant to K.S.A.
75-5262. Defendant contends this was exculpatory evidence which
should have been turned over to his counsel as it might have
raised competency to stand trial or insanity defense questions.
We do not agree. The report was seven years old and hence of
questionable value. Additionally, we find no duty of the
prosecutor to search old convictions for psychiatric data in the
possession of the Department of Corrections. Defense counsel was
aware of the old conviction and the statute calling for such
evaluations. We find no merit in this point.
Before closing, it should be noted that, as we stated in the
In re Price (238 Kan. 426) disciplinary proceeding, the county
attorney
did an unprofessional job in prosecuting this case. We do not
retreat from that position. We find only that no reversible error
has been argued ...