dissenting: I disagree with the majority holding that the district court committed reversible error in not giving an unrequested limiting instruction pursuant to K.S.A. 60-455.
Let us look at the facts. Defendant, Diane Presley, and a small child were the only occupants of the raided Looman Street residence. Undisputedly, heroin was found on the premises. Both defendant and Presley were charged as codefendants with possession of the heroin. The only real question was whether the heroin was possessed by (1) defendant, (2) Presley, or (3) defendant and Presley. Presley was the girl friend of defendant and pled guilty to the crime. Defendant went to trial and called Presley as his first witness. She testified she had pled guilty to the possession of the heroin; the heroin belonged to her and not defendant; and that defendant had only been in her residence fifteen minutes prior to the raid. She was clearly attempting to “take the rap” for her boyfriend.
The court recessed for lunch and then Presley continued her testimony. On cross-examination the “dealing dope” question was asked and answered. The question related to a conversation occurring during the noon recess.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Presley’s statement is not evidence that defendant committed another “crime” on a “specified occasion.” One codefendant in a drug case is stating why are you bothering with me when you know the other codefendant is a drug dealer. If Presley had not pled guilty, and had been a codefendant in the trial, would the identical statement have been inadmissible except with a K.S.A. 60-455 limiting statement? I think not. The State did not pull a stranger off the street to testify that defendant was a drug dealer — it could not get such opinion testimony in as such testimony would be offered to prove the truth of defendant’s “drug dealing.” The State would be limited to proving prior drug possession on “specified occasions” by conviction records, etc.
*724The statement here came from a previously convicted codefendant who had been called to testify by defendant and had just concluded her direct testimony exonerating defendant and placing full guilt on herself. The recess statement was wholly inconsistent with Presley’s testimony and was properly admitted to impeach her testimony.
The majority concludes the recess statement was evidence of “prior drug dealing” which “tended to prove intent, knowledge, and absence of mistake or accident.” The statement does not deal with prior criminal activity — only that defendant “deals” in heroin. The statement speaks of the “present” which was several months after the crime. What “intent” was tended to be proved? The crime of possession of heroin requires no intent. What “knowledge” was tended to be proved? The question was: Did defendant possess the heroin? No claim was made that he may have possessed the heroin without knowledge that he had it. What “absence of mistake or accident” was a question in the case? No one contended defendant possessed it without knowing what it was or possessed it by mistake. Defendant testified in this case that he did not possess the heroin at all. Defendant called Presley, who testified the heroin was hers and that defendant had no knowledge of its existence.
There is no showing that the statement was offered to prove the truth of the statement, but only to impeach a key defense witness. K.S.A. 60-455 is inapplicable to the testimony herein.
See also State v. Bly, 215 Kan. 168, 176, 523 P.2d 397 (1974):
“Generally in every case where evidence of other crimes is admitted solely under the authority of 60-455 the trial court should give an instruction limiting the purpose for which evidence of the similar offense is to be considered. (State v. Rambo, 208 Kan. 929, 495 P.2d 101; State v. Roth, 200 Kan. 677, 438 P.2d 58.) It should be noted, however, that where evidence disclosing another criminal offense has a direct bearing on and relation to the commission of the offense itself, it is admissible without a limiting instruction. (State v. Martin, 208 Kan. 950, 495 P.2d 89.) Stated in another way, it is not prejudicially erroneous for the trial court to fail to give a limiting instruction on the purpose of evidence of other crimes when the challenged evidence is admissible independently of K.S.A. 60-455. (State v. Ralls, 213 Kan. 249, 515 P.2d 1205.)”
I would affirm.