130 P.3d 24 (Kan. 2006), 88, State v. Hayden

Docket Nº:88,650.
Citation:130 P.3d 24, 281 Kan. 112
Opinion Judge:The opinion of the court was delivered by BEIER, J.:
Party Name:STATE of Kansas, Appellee, v. Joseph Andrew HAYDEN, Appellant.
Attorney:Robert G. Kuchar, of Jenab & Kuchar, of Olathe, argued the cause and was on the brief for appellant., John K. Bork, assistant attorney general, argued the cause, and Julie E. Richey, assistant attorney general, and Phill Kline, attorney general, were with him on the brief for appellee.
Case Date:March 17, 2006
Court:Supreme Court of Kansas
 
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130 P.3d 24 (Kan. 2006)

281 Kan. 112

STATE of Kansas, Appellee,

v.

Joseph Andrew HAYDEN, Appellant.

No. 88,650.

Supreme Court of Kansas

March 17, 2006

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[Copyrighted Material Omitted]

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Syllabus by the Court

1. An appellate court's standard of review is unlimited in cases alleging judicial misconduct. The merit of allegations of such misconduct during trial must be decided on the particular facts and circumstances of the case. In order to warrant a new trial, it must affirmatively appear that the conduct prejudiced the substantial rights of the complaining party. It is not necessary to show bias in favor of the State; given a showing of prejudice to the substantial rights of the defendant in this case, reversal is required.

2. Whether a defendant's constitutional right to a speedy trial has been violated is a question of law over which an appellate court has unlimited review. The factors to be considered are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. Unless the delay rises to the level of being presumptively prejudicial, it is not necessary for the court to inquire into the remaining three factors. There was no presumptively prejudicial delay on the facts of this case.

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3. The purpose of voir dire examination is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality. Generally the nature and scope of the voir dire examination is within the sound discretion of the trial court. However, in determining whether a district court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances. In the circumstances of this case, there was no abuse of discretion in denying the defendant's bid for individual voir dire.

4. K.S.A.2004 Supp. 22-3201 governs pretrial procedures relating to the charge. Subsection (e) permits a court to allow amendment of complaint or information any time before verdict if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. Under the circumstances of this case, the defendant was not prejudiced by an amendment shortly before trial.

5. [281 Kan. 113] In a criminal action, a trial court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. However, error cannot be predicated on a district court's refusal to give a specific instruction where the instructions given cover and include the substance of the instruction refused. On the facts of this case, it was unnecessary for the district court to give the jury an instruction on the insufficiency of the defendant's mere presence at the scene of a crime to support his conviction.

6. When the sufficiency of evidence is challenged on appeal, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court does not reweigh or resolve conflicts in the evidence or pass on the credibility of witnesses. The evidence against the defendant in this case was sufficient to support the convictions.

Robert G. Kuchar, of Jenab & Kuchar, of Olathe, argued the cause and was on the brief for appellant.

John K. Bork, assistant attorney general, argued the cause, and Julie E. Richey, assistant attorney general, and Phill Kline, attorney general, were with him on the brief for appellee.

OPINION

BEIER, J.:

Joseph Hayden appeals his convictions on one count of murder in the second degree, one count of attempted murder in the second degree, and one count of aggravated burglary.

Hayden raises six issues for our consideration: (1) Did the district judge's behavior during trial constitute misconduct requiring reversal? (2) Should the defense motion to dismiss for violation of Hayden's right to speedy trial have been granted? (3) Did the denial of the defense motion for individual voir dire of venire members violate his Sixth Amendment rights? (4) Should the State have been allowed to amend its complaint 1 day before trial began? (5) Did the district judge err by failing to instruct the jury on the legal effect of a person's mere presence at the scene of a crime? and (6) Was there sufficient evidence to support the convictions?

[281 Kan. 114] Factual Background

This case arose out of the death of Vivian Johnson, age 85, and the serious injury of her husband, Howard, age 86. A man attacked the couple with a shovel in their home very early in the morning on November 1, 2000, and Mrs. Johnson died 18 days later from her injuries. Before her death, neither Vivian nor Howard could pick Hayden out of a photo lineup, and each described the attacker as 5'5"' tall.

Suspicion eventually focused on Raymond Fuller, then 25 years old and 5'8"' tall, and on

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Hayden, then 17 years old and 6'2"' tall. Each pointed his finger at the other.

Fuller was tried first; he was convicted of attempted second-degree murder of each of the Johnsons and of aggravated burglary. The State agreed to recommend concurrent sentences for his convictions in exchange for his testimony in Hayden's later trial.

Fuller ultimately testified that he drove himself and Hayden around "the hollows," looking for parties. He claimed that he pulled into the Johnsons' driveway because he had to go to the bathroom and was familiar with the couple and their land. While there, Hayden entered the house. Fuller testified that he entered the home to peek at Hayden. He could see Mr. Johnson bleeding, and he heard a clink sound from the back of the house. He then ran out. Hayden followed, dropped something he was holding into the back of the truck the men had borrowed, and then jumped into the passenger seat. Fuller also testified that Hayden said: "I think I killed them."

This version of events departed in several respects from earlier Fuller stories. At his police interview, Fuller initially claimed that he stayed in the truck after Hayden entered the house. When confronted with evidence of his shoeprint inside the house, Fuller said he only stepped into its entryway. From that location, he then said, he could see Hayden's shadow on the wall and was able to observe him raise the shovel and strike something. Fuller also said before trial that Hayden had nothing in his hands when he followed him out of the house.

For his part, Hayden contended that Fuller tried to talk him into robbing the Johnsons and, when he refused, that Fuller stormed [281 Kan. 115] out of the truck and into the house. Hayden asserted that he had stayed in the truck while Fuller was inside and that he did not know what happened until a few days later, when he saw news of the crimes on television.

After the attack on the Johnsons, Fuller and Hayden wrecked the truck. Each claimed that the other stashed the shovel used to beat the Johnsons. After the accident, Fuller and Hayden walked to a house occupied by Fuller's drug dealer.

Hayden eventually left Fuller behind at the dealer's house. Fuller and the dealer used methamphetamine that afternoon, and the dealer eventually testified that Fuller came to her room, crying. When she asked if he and Hayden had been "out robbing somebody," Fuller nodded his head "yes" and told her that "the last thing he heard was: 'Please don't hurt us. We're old.' "

Before their arrest, Hayden and Fuller stayed a couple of days at a friend's house, where they were introduced to John Vincent Cly. Hayden and Fuller asked Cly if he could procure false identification for them. At Hayden's trial, Cly testified that Hayden had been upset and had told him that he did not mean "to get his boy caught up like this" and did not mean "to hurt the old lady." Cly understood Hayden's reference to "his boy" to mean Fuller. Hayden's counsel suggested at trial that an unrelated charge against Cly had been reduced from a felony to a misdemeanor and that his $2,500 bond had been changed to a personal recognizance bond in exchange for his testimony.

Hayden's trial was originally set to begin on July 9, 2001, but the State filed a motion to dismiss. The case was dismissed, and Hayden was released. After the State learned of Cly's likely testimony, the case was refiled. Hayden was arrested again and went to trial on December 11, 2001.

Five days before trial began, the State filed a motion to amend the complaint and information. The district court granted the motion on December 10, 2001, changing an aggravated battery charge to aggravated burglary.

Hayden unsuccessfully requested individual voir dire of the jury venire because of extensive media coverage of the crimes. His counsel argued that "prospective jurors w[ould] have to be interrogated [281 Kan. 116] as to the nature of the publicity [to which they had been exposed].... Forthright answers would very likely contaminate the entire venire, and based on the nature of the pretrial publicity, that contamination could not be corrected by

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mere admonishment." The district judge denied the motion.

On this appeal, Hayden also accuses the district judge of engaging in prejudicial misconduct, arguing the judge "demonstrated a careless, angry, and unprofessional attitude toward most persons involved...

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