The opinion of the court was delivered by
Defendant James White was convicted by a jury in Shawnee
District Court of first-degree felony murder and conspiracy to
commit first-degree murder. His conviction was affirmed in our
original opinion, filed January 19, 1990. State v. White,
246 Kan. 28, 785 P.2d 950 (1990). On January 29, 1990, defendant
timely filed a motion for rehearing or modification pursuant to
Supreme Court Rule 7.06 (1989 Kan. Ct. R. Annot. 36).
Two tape recordings of statements made by the defendant were
crucial but neither tape was before this court at the time we
reviewed the record in this case. Our original opinion states
that neither tape was made part of the record on appeal, and we
had no opportunity to review them. We repeated our familiar rule:
"The appellant has the burden of furnishing a record on appeal
which affirmatively shows that prejudicial error occurred in the
trial court." 246 Kan. at 37.
The appellant, in the motion for rehearing or modification,
points out that counsel for defendant complied with the rules of
this court and of the Third Judicial District in requesting that
both tapes be made a part of the record on appeal. Not only was
the request filed with the clerk of the district court, but a
copy thereof was served on the court reporter who had custody of
the tapes. A revised table of contents of the record was
furnished to counsel; it indicated the tapes were included.
Unfortunately, the reporter and clerk failed to transmit the
tapes to this court. The fault lies not with appellate counsel
but with the court officials to whom the preparation of the
record is entrusted. A careful
review of the district court records substantiates counsel's
Since the motion for rehearing or modification was filed, we
have ordered, received, and carefully reviewed the tape
recordings, consisting of a total of four microcassette tapes
recorded on both sides. Two of the tapes are recordings of the
statement taken from White by the Arizona officers and two are
recordings of the statement taken by the Kansas officers. The
Arizona statement, by itself, is a complete confession of the
offenses committed. The Kansas statement, taken by officers who
were more familiar with the background facts, goes into more
detail but is for the most part repetitious of the Arizona
statement. As we noted in the original opinion, "The Arizona
statement and the other evidence properly admitted at trial,
including the testimony of many witnesses, establish an
overwhelming case against the defendant." 246 Kan. at 37.
We therefore conclude, as we did in the original opinion, that
the error in admitting the Kansas statement into evidence was
harmless beyond a reasonable doubt.
The appellant's motion for rehearing is denied. We affirm our
original opinion, with the exception of that part of the opinion
which attributed to counsel the failure to include in the record
the tape recordings of defendant's statements. We adhere to our
affirmance of the judgment.
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