State v. SmithState v. Smith
- Reporters:
- , ,
- Before:
- Fromme
The opinion of the court was delivered by
Fromme, J.:
Danny L. Smith appeals from a judgment of con
Aрpellant does not question the sufficiency of the evidence but a brief summary will be helpful. The charges arose from the armed robbery of a filling station attendant in Wichita, Kansas. The testimony of the victim and of a girl friend of the appellant, in whom he confided the night of the armed robbery, established the sordid detаils. The appellant and an accomplice waited around until 9:30 p. m. when the attendant was alone. The accomplice grabbed the attendant from behind and immobilized him by placing his arm behind his back. The appellant carried a gun, took the currency from the cash register and then marched his victim intо the men s rest room. The victim was forced to kneel with his head over the toilet stool and the appellant shot him in the back of the head. The victim lived. After a period of hospitalization, retraining and recovery he was able to testify at the trial some eight months later.
Appellant’s first point on apрeal concerns an article appearing in the local newspaper during the trial, claimed to be inflammatory and prejudicial to the appellant. The article does not appear in the record before us. Reversible error is urged because the trial court refused to poll the jury during the trial to see if any juror read the newspaper article. The point is without merit.
A motion to inquire during trial is not a proper method to determine if members of a jury are aware of prejudicial articles published by a newspaper during the trial. (State v. Potts, 205 Kan. 42, Syl. ¶ 3, 468 P. 2d 74.)
Where the record on appeal, as here, fаils to show that a single member of the jury was made aware of the publicity, when it does not appear the publicity was massive, pervasive or disruptive of the trial proceedings no trial error appears for there is no showing that defendant was deprived of a fair trail. (State v. Eldridge, 197 Kan. 694, Syl. ¶ 2, 421 P. 2d 170, cert. den. 389 U. S. 991, 19 L. Ed. 2d 483, 88 S. Ct. 486.)
Appellant next contends thе trial court abused its discretion in permitting the prosecution to endorse the name of an additional witness on the information.
The right of the state to endorse the names of additional witnesses on the information prior to or during trial rests within the sound discretion of the trial court and its ruling will not be disturbed in the absence of a showing of abuse, the test being whether the
In this case the witness was endorsed with leave of the court two weeks before trial. The witness was a girl friend of appellant in whom appellant confided the evening of the crime. The testimony was not readily discoverable or available to the prosecution. The witness had moved and was residing in the state of Arkansas. Opportunity was afforded die appellant’s attorney to talle to the witness prior to trial. The witness was known to the appellant, her testimony did not change the theory of the state’s case and we can see no prejudice in permitting such endorsement. See State v. Robertson, 203 Kan. 647, 455 P. 2d 570.
The appellant contends the evidence of probable cause introduced at the preliminary hearing was wholly insufficient to establish the crimes on which he was bound over for trial in the district court. The insufficiency alleged was that no evidence was introduced before the magistratе to establish the use of a deadly weapon. The victim was in the hospital and unable to testify and the girl friend’s testimony had not been uncovered at that time. The elements necessary to raise the crime of battery to that of aggravated battery and to raise the crime of robbery to aggravated robbery are listed in the statutes in the alternative. The aggravation may be either by the use of a dangerous (deadly) weapon or by inflicting (great) bodily harm. (See
The evidence at the preliminary hearing established the “great bodily harm” required for aggravated battery and the required “bodily harm” inflicted during the robbery. The victim’s blоod was in the rest room, on the phone and near his unconscious body when it was discovered by the owner of the station shortly after the robbery occurred. It is not necessary to prove the use of a deadly weapon to establish probable cause for aggravated battery or aggravated rоbbery, proof of “great bodily harm” and “bodily harm” respectively is sufficient.
The nature and purpose of a preliminary hearing was declared in the case of In re Mortimer, 192 Kan. 164, 386 P. 2d 261, as follows:
“A preliminary examination is not a trial of defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial.” (Syl. ¶ 1.)
“The principal purpose of a рreliminary examination of one accused of crime is .to determine that a crime has been committed and to give him general information of the nature of the crime charged, and apprise him of the sort ofevidence he will be required to meet when he is subjected to a final prosecution in the district court.” (Syl. ¶ 2.)
“In such an examination it is not necessary that the evidence upon which the accused is bound over for trial be sufficient to support a conviction. It is enough if it is shown that the offense charged had been committed and there is probable cause to believe the defendant committed thе offense.” (Syl. f 3.)
See also
State v. Pigg,
80 Kan. 481, 103 Pac. 121, and
Before July 1, 1970, the effective date of the Kansas code of criminal procedure, an accused was required to raise the question of the sufficiency of the preliminary examination prior to arraignment by a plea in abatement. (State v. Cippola, 202 Kan. 624, 628, 451 P. 2d 199, cert. den. 396 U. S. 967, 24 L. Ed. 2d 432, 90 S. Ct. 446.) If the sufficiency of the preliminary examination was not challenged by a timely plea in abatement, that question could not be raised on appeal. (State v. McCarther, 196 Kan. 665, 671, 414 P. 2d 59.) This rule served a salutary and legitimate purpose; it promoted “definiteness, fairness, and orderly procedure of criminal litigation.” (State v. McCarther, supra, at p. 672.) If a timely plea in abatement was filed and overruled, the sufficiency of the preliminary examination could be reviewed on appeal. (State v. Mc-Carther, supra, at p. 672.) Review, however, was limited to those issues advanced by the plea.
The plea in abatement as a procedural device in criminal litigation was abolished by
The appellant’s complaint is addressed to the lapse of time between arrest and the preliminary hearing. Appellant was arrested and taken before a magistrate on May 28, 1971. This was two days after the station attendant had been shot in the back of the head and at this time it could not be determined if the young man would die as a result of the injury inflicted during the robbery. In the event of death a murder charge would, no doubt, have been filed. Thе preliminary hearing date was set for June 2, 1971. At that time
“(1) Every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury.
“(2) The preliminary examination shaE be held before a magistrate of a county in which venue for the prosecution lies within ten days after the arrest or personal appearance of the defendant. Either the state or the defendant shaE, upon request, be granted a continuance of not more than 15 days. Further continuanсes may- be granted only for good cause shown.”
The former statute permitted successive adjournments of the hearing “not exceeding ten days at a time” at the discretion of the magistrate. (See
On August 4,1971, the appellant by his attorney moved the magistrate for an order certifying him to the district court of the county for the purpose of determining whether appellant was mentally competent to assist in his preliminary hearing. An order was thereafter entered by the district court committing appellant to the Larned State Security Hospital, Larned, Kansas, for psychiatric examination to determine if appellant was able
“(a)
to understand the nature and purpose of the proceedings against him; or
(h)
to make or assist in making his defense.” Appellant was taken to the facility and remained there for sixty days. On his return hе was found to be competent and his preliminary hearing was held on
Appellant’s argument on this point may be summarized by saying he would apply the statutory 90 day requirement after arraignment аnd before trial (
Much has been written on the requirements of a speedy trial as measured by the due process provisions of the state and federal constitutions. It should be kept in mind that the speedy trial requirеment in
“While the passage of the statutory period established in these legislative enactments must be treated as conclusive of undue delay if all other conditions are met, the constitutional right must be preserved and kept distinct in those situations not specifically covered by statute. Judge Skelly Wright, in his concurring opinion in Nickens v. United States, 323 F. 2d 808 (D. C. Cir. 1963), referred to delay in the criminal process before the filing of charges and said:
“ ‘The legislature is free to implement the constitutionаl right and to provide protections greater than the constitutional right. But the minimum right of the accused to speedy trial is preserved by the command of the Sixth Amendment, whatever the terms of the statute. And that minimum right is measured by a flexible standard which takes account of all the circumstances.’ (p. 813.)” (p. 616.)
In State v. Otero, 210 Kan. 530, 502 P. 2d 763, it is said:
“A defendant’s right to a [constitutional] speedy trial cannot be established by any fixed inflexible rule but is to be determined by the balancing of a number of factors in which the conduct of both prosecution and defendant is weighed.” (Syl. ¶ 2.)
“The prejudice resulting to an accused from long delay in bringing criminal charges to trial is not limited to, but may be quite aрart from that which impairs his ability to present his defense.” (Syl. f 3.)
In
State v. Hemminger,
210 Kan. 587, 502 P. 2d 791, this court recognizes the four factors to be considered when a claim 0f denial
“The recent case of Barker v. Wingo, 407 U. S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, more clearly defines the factors to be considered when a constitutional claim of denial of speedy trial is asserted. The high court in its opinion stated that such а claim is subject to a balancing test in which the conduct of both the prosecution and the defendant are to be weighed. Each case must be determined on its own merits. The four factors enumerated in Barker to be assessed by courts in determining whether a particular defendant has been denied his right to a speеdy trial are (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. The high court stated that none of these factors were to be given controlling weight. They must be considered together with all relevant circumstances. The demand-waiver doctrine was disсredited as the controlling factor in such cases.
“Our cases of State v. Stanphill, 206 Kan. 612, 481 P. 2d 998; State v. Brooks, 206 Kan. 418, 479 P. 2d 893 and State v. Samuels, 209 Kan. 616, 498 P. 2d 23, are generally in accord with the federal case law in this area with the possible exception of our application of the demand-waiver doctrine. It is possible under the standards in Barker we have accorded too much weight in some cases to failure of the defendant to request a trial. However, it remains one of the four important factors to be considered.” (p. 593.)
Considering these factors, the time span between arrest and conviction in this case covered slightly less than eight months. The nature of the crime charged was such that some dеlay could be justified by the state based upon the hospitalization of the victim, a key witness in the prosecution. The victim’s testimony was important to establish either the appellant’s guilt or innocence. In addition the time which elapsed between August 2, 1971, and November 15, 1971, was due in large part to appellant’s own request to have his competency determined. The period spent under psychiatric evaluation at Lamed State Security Hospital cannot be charged to the prosecution. There can be no question as to appellant’s timely assertion of his constitutional right to a speedy trial. Hе objected to all continuances prior to his competency motion, objected at the beginning of the preliminary hearing and moved to dismiss at the time of his arraignment and again before the trial.
However, there is nothing in the record before us and nothing specific is argued in appellant’s brief from which prejudice to the defendant can be found. Apparently, no witness became unavailable during this time. There was eye witness identification of the appellant at the scene of the crime supported by admissions against interest made by him to his girl friend the night of the crime. In
Appellant does not assert in what manner he was prejudiced or denied a fair trial. In light of the record before us after applying the balancing test enunciated in Barker v. Wingo, 407 U. S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, and recognized by this court in State v. Hemminger, supra, and State v. Otero, supra, we hold the appellant was not deprived of a speedy trial as measured by constitutional or by statutory provisions for due process.
The judgment is affirmed.