State v. StanphillState v. Stanphill
- Reporters:
- , ,
- Before:
- O'Connor
The opinion of the court was delivered by
O’Connor, J.:The appellant, Dale E. Stanphill, was convicted by a jury of the offense of burglary in the second degree. A motion for new trial was overruled, and Stanphill was sentenced to the state penitentiary for a term of 25 years under the habitual criminal act.
The principal issue on appeal centers on appellant’s claim he was not afforded a speedy trial. Other points, including alleged trial errors, are raised аnd will receive our attention in due course.
On the evening of February 22, 1966, law enforcement officers were summoned to the Wichita Postal Employees Credit Union where they discovered a door to the building had been forced open. On further investigation, the officers found appellant and his companion inside the vault attempting to open a safe, the appellant holding a flashlight while his partner in the nefarious venture applied a pry bar.
Following appellant’s arrest, charges were filed in the court of common pleas in Sedgwick county. On March 2, he was released on bond pending a preliminary examination. Appellant journeyed to Kansas City where he was arrested the following day as a parole violator by federal authorities. Thereupon, he was returned to the federal penitentiary at Leavenworth to serve оut a prior life sentence to that institution. After corresponding with various law-enforcement agencies, the marshal of the court of common pleas ascertained appellant’s whereabouts, and on or about April 18 a detainer was lodged with the penitentiary officials.
On June 4, 1968, appellant field a
pro se
motion in the common pleas court to show cause why the complaint pending against him should not be dismissed with prejudice for lack of speedy trial.
Following his appearance before the court of common pleas February 25, appellant, with the aid of court-appointed counsel, reasserted his earlier motion to dismiss for lack of speedy trial and the same was ovеrruled. A preliminary hearing was held resulting in appellant being bound over to district court for trial. An information was filed in district court March 18, and the speedy-trial issue was again raised by appropriate motions to dismiss. The motions were denied, and appellant’s case proceeded to trial May 26, 1969.
Within this factual framework we must determine whether appellant has been denied his basic right to a speedy trial as guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment of the Federal Constitution (Klopfer v. North Carolina, 386 U. S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988).
On January 20, 1969, approximately two weeks before the county attorney’s inquiry to the attorney general, Smith v. Hooey, 393 U. S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575, was decided. There, the petitioner had been indicted in Texas on a state charge while he was a prisoner in the federal penitentiary at Leavenworth. Despite repeated demands for trial by petitionеr extending over a period of nearly eight years, the state made no effort to obtain his appearance in the Texas court. The United States Supreme Court held the constitutional right to speedy trial may not be dispensed with merely because the accused, under a state charge, is serving a prison sentence imposed by another jurisdiction, and upon petitioner’s demand, the state has a constitutional duty to make a diligent, good-faith effort to bring him before the trial court. The reasoning of the court appears in the following language:
“. . . [T]he fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered byone who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.” (p. 611.)
The decision effectively abrogated what has been the settled law of this state. In Evans v. Mitchell, 200 Kan. 290, 436 P. 2d 408 (deсided January 27, 1968), we held that neither the federal nor state constitutional right to speedy trial is violated where the delay is occasioned by the accused being imprisoned in another jurisdiction. It is now apparent that our holding in Evans has ceased to have solid constitutional footing, and henceforth cannot be relied on as the law in this jurisdiction. Thus, an accused’s plea for speedy trial in state court can no longer go unhеeded merely because he is incarcerated in another jurisdiction.
Appellant acknowledges that inasmuch as he is not a prisoner in “a penal or correctional institution of this state,” the Uniform Disposition of Detainers Act (
Parenthetically, we note that after the events in question, Kansas became a party to the Interstate Agreement On Detainers which contains a similar 180-day provision (
A constitutional right is not to be limited or denied simply because of the lack of implеmenting legislation. In a number of cases we have said that the right to speedy trial provided for in our state constitution is legislatively defined by the various statutes enacted to supplement the general language of the Constitution and render the constitutional guarantee effective. For example, the Uniform Mandatory Disposition of Detainers Act was founded on legislative policy, as distinguished from constitutional grounds. Such legislatiоn was designed not to protect the convict’s right to speedy trial
While the passage of the statutory period established in these legislative enactments must be treаted 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 constitutional right and to provide protections greater than the constitutional right. But the minimum right of thе 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.)
We must reject appellants suggestion that the 180-day provision of the Uniform Mandatory Disposition of Detainers Act should be adopted as an arbitrary standard for determining whether his right to a speedy trial was violated. The constitutiоnal duty imposed by Hooey requires the state, upon demand by the accused, to make a diligent, good-faith effort to bring him to trial without unreasonable delay. Whether that duty has been fulfilled must be gauged by all the surrounding facts and circumstances in the particular case. Even then, the accused’s rights are not violated unless he can show prejudice resulted from an unreasonable delay by the state after trial was demanded.
Just last month we had occasion to examine Hooey in State v. Brooks, (No. 45,853 ) 206 Kan. 418, 479 P. 2d 893, and made the following observations:
“. . . [T]he court gave littlе practical guidance for effectuating the right [to speedy trial] or for determining when the right has been violated. We do not find that it changed any of the rules announced in Fleming v. United States, 378 F. 2d 502, where the United States Circuit Court of Appeals, First Circuit, stated:
“ ‘As to defendant’s additional contention that the post-indictment delay violated his Sixth Amendment right to a speedy trial, as well as the ‘unnecessary delay’ clause of Rule 48 (b) which enforces this right, we point out thаt this delay was also very short — eleven months. Furthermore, ‘the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.’ United States v. Elwell, supra, 383 U. S. at 120, 86 S. Ct. at 776. Consequently, the showing of a mere lapse of time is not enough to establish denial of a speedy trial. As indicated above, it is essential that defendant also show prejudice or that the delay was improperly motivated.’ (p. 504.)
“It would also aрpear from the above cases that a request is necessary before defendant can complain of failure to grant a speedy trial under the federal rule.” (p. 419.)
After the filing of appellant’s brief, the United States Supreme Court rendered its decision in Dickey v. Florida, 398 U. S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564. The court noted that the Hooey case had been remanded to the state court without deciding whether the defendant, when available for trial in the state court, would be required to show prejudicе arising from the delay. But, with reference to the delay of more than seven years occurring in Dickey, the court said:
“In addition to exerting every effort to require the State to try him, there is present in this record abundant evidence of actual prejudice to petitioner in the death of two potential witnesses, unavailability of another, and the loss of police records. This is sufficient to make a remand on that issue unnecessary. We thereforе reverse and remand to the District Court of Appeal of Florida, First District, with directions to vacate the judgment appealed from and discharge the petitioner from custody.” (p. 32.)
An examination of the record before us discloses approximately seven months after appellant’s request for dismissal of the charges, the county attorney took action to bring him before-the state court. These first steps were takеn despite the fact that our existing case law imposed no duty upon prosecuting officials to obtain custody of an accused imprisoned in a federal penitentiary.
(Evans v. Mitchell,
supra.) Altogether, a total of eight and one half months elapsed before the state actually obtained custody of appellant. In the interim,
Smith v. Hooey,
supra, was decided. In disposing of this case, the question of whether or not
Hooey
was intended to have retroactive application need not be decided. We are satisfied that even under the constitutional duty imposed by that decision, appellant’s right to a speedy trial was not violated. The state’s good faith has not been challenged. While a substantial delay on the part of the prosecution cannot now be condoned under present law, we are-unable to say the delay here, in and of itself, constitutes a violation of the constitutional duty imposed on the state. Especially
Appellant also complains the trial court erred in overruling his motion to quash and discharge the jury panel, more properly termed a challenge to the array. The same two-pronged attack leveled against the venire in the lower court is urged on appeal.
In the first place, defendant contends the jury selection officials failed to ascertain whether persons selected as prospective jurors from the personal property tax rolls met the statutory qualifications set forth in
The Kansas constitution defines a “qualified elector” as any citizen of the United States of the age of twenty-one years and upwards who shall have resided in Kansas six months next preceding an election. (
The statutory procedure for the drawing and summoning of jurors in Sedgwick county is set forth in
In support of his challenge to the array, appellant presented the testimony of the election commissioner, the chief deputy in the clerk of the district court’s office, a court reporter (jury clerk), and the county assessor. Their testimony tended to establish that no check was made by any of the officials with respect to the age or citizenship of persons listed on the tax rolls or whether such persons were “registered voters.”
With reference to what is now
In
State v. Frazier,
supra, the names of the jurors placed on the list were taken from the assessment rolls for the year 1883, when they should have been taken from the rolls of 1882, and it was held that a challenge to the array should have been sustained because the law had been disregarded. The situation here is clearly distinguishable, for the sole objection is that the method of selection
may
have resulted in the listing of jurors not qualified under the law. We deem the method employed led to no more than an irregularity in the selection process, and did not constitute a valid ground for a challenge to the array. For that matter, the record is void of any showing appellant was prejudiced or was deprived of a fair and impartial jury simply because the officials did not ascertain whether or not the prospeсtive jurors possessed the qualifications set forth in
Furthermore, the record contains none of the proceedings relating to the
voir dire
examination or the actual impaneling of the jury. So far as we know, appellant did not take advantage of the opportunity available and challenge individually any jurors who were not qualified, if, in fact, there were any. In the absence of any showing to the contrary, we must presume that the jurors selected to try the case possessed the requisite qualifications. The main purpose of
voir dire
examination is to afford counsel the opportunity to question prospective jurors concerning their qualifications. (
The second ground of appellant’s challenge is that the mode of selecting jurors in Sedgwick county under
Systematic or purposeful exclusion of members of a class from jury service may not be assumed or asserted — it must be established by proof. (See, State v. Clift, supra.) Just as in the case of alleged discrimination based on race, purposeful exclusion is not satisfactorily proved by showing an identifiable segment of the community is not proportionately represented on the jury fist. (State v. Cushinberry, 204 Kan. 65, 460 P. 2d 626.) In Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, it was stated:
“But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on •the venire or jury roll from which petit jurors are drawn. [Cases cited.] Neither the jury roll nor the venire need be a perfect mirror of the community ■or accurately reflect the proportionate strength of every identifiable group.” (p. 766.)
The statistics set forth by appellant clearly reveal that the selection method employed in Sedgwick county did not result in all women being excluded from the jury list, nor was there any indication that only a token number were included. A disproportionate number of women to men on a jury list does not have any constitutiоnal significance. (Hoyt v. Florida, 368 U. S. 57, 7 L. Ed. 2d 118, 82 S. Ct. 159.) From this record we can only conclude that there has been a complete failure of proof to the effect that the action of the jury selection officials resulted in invidious discrimination against members of the fairer sex.
Turning to the instructions, we find objections were lodged by appellant to at least two of the instructions which stated the essential elements of the offense in the language of thе statute.
The law requires that the jury be instructed concerning the essential elements of the offense. This may be accomplished by substantially following the wording of the statute, just as was done in this case. Under the evidence, the jury needed only to determine that there was a breaking and entering with the intent to steal. Whether there was an intent to commit any other felony was immaterial. The sufficiency of the information was nоt timely challenged by a motion to quash, and under the circumstances, the words “and felony” may be disregarded as mere surplusage. For purposes of charging an offense under the statute, the significant averment was the phrase “to commit a larceny.” The phrases “to commit a larceny” and “to steal” are, for all practical purposes, synonymous in meaning. We are satisfied the jury was not misled and was correctly instructеd as to the law of the case.
Likewise, the trial court properly refused appellant’s request for an instruction on attempted burglary.» An attempt to commit a crime, by its very definition, arises when the accused has failed to consummate the commission of the offense. (
We have also considered three additional points raised by appellant in his brief. They do not merit extended discussion. It suffices to say that appellant, having had three prior felony convictions, was properly sentenced under the habitual criminal act (
The judgment is affirmed.