805 P.2d 25 (Kan. 1991), 64224, State v. Bierman

Docket Nº:64224.
Citation:805 P.2d 25, 248 Kan. 80
Party Name:STATE of Kansas, Appellee, v. Shari Lyn BIERMAN, Appellant.
Attorney:[6] John J. McNally, of Kansas City, argued the cause and was on the brief for appellant. Nick A. Tomasic, district attorney, argued the cause, and Robert T. Stephan, attorney general, was with him on the brief for appellee.
Case Date:January 18, 1991
Court:Supreme Court of Kansas
 
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805 P.2d 25 (Kan. 1991)

248 Kan. 80

STATE of Kansas, Appellee,

v.

Shari Lyn BIERMAN, Appellant.

No. 64224.

Supreme Court of Kansas

January 18, 1991

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Syllabus by the Court

1. Rules applicable to a motion for change of venue in a criminal case under K.S.A. 22-2616(1) are discussed and applied in affirming the trial court's denial of defendant's venue motion.

2. K.S.A. 22-3402 requires any person charged with a crime and held in jail to be brought to trial within 90 days after such person's arraignment on the charge unless the time for trial is extended under the statute. The phrase "brought to trial" in that statute does not coincide with the date a defendant is placed in jeopardy under K.S.A. 21-3108(1)(c), but rather relates to the date the jury panel is sworn for the voir dire examination.

3. Applicable rules relating to the standard of review and to the element of premeditation are discussed and applied when the sufficiency of the evidence for a first-degree murder conviction is challenged on appeal.

John J. McNally, Kansas City, argued the cause and was on brief, for appellant.

Nick A. Tomasic, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on brief, for appellee.

SIX, Justice:

Defendant Shari Lyn Bierman was convicted of theft over $500 (K.S.A. 21-3701) and first-degree murder (K.S.A.1989 Supp. 21-3401) in the killing of her 17-year-old sister, Syndi.

The issues for resolution relate to: (1) Bierman's motion for change of venue; (2)

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her right to a speedy trial under K.S.A. 22-3402(1); and (3) the sufficiency of the evidence to sustain a conviction for premeditated first-degree murder.

We find no error and affirm.

Facts

On Sunday, February 19, 1989, at approximately 3:11 a.m., a Wyandotte County Sheriff's dispatcher received a phone call from Shari Bierman. Bierman stated that her house had been broken [248 Kan. 81] into. She believed someone might still be inside. She was advised to go next door and call back. Officers were dispatched to the residence. Approximately 30 seconds after her first call, Bierman called back stating that her sister was on the floor and there was blood all over. The second call also was placed from the Bierman home.

The first officers arrived at the Bierman home at approximately 3:20 a.m. As the officers approached, Bierman opened the front door, grabbed one of them, and pulled him toward an inside stairway. She was hysterical. She told the officers that someone had killed her sister and that the suspects might still be in the house. The body of Bierman's sister, Syndi, was found in Syndi's upstairs bedroom. No one else was in the house. Portions of the house had been ransacked and several items were missing.

Bierman, who was recently divorced, lived with her two sons, ages one and three, in the finished basement of her parents' home. Her parents and Syndi, her only sibling, lived in the upstairs.

Bierman told the police officers that she left home at 11:00 p.m., returned at 3:00 a.m., and discovered the burglary and her sister. She stated that Syndi and two of Syndi's friends, Renea and Lisa, were at the residence when she left. She said no one else was at the house that evening. Bierman was not a suspect at this time.

Bierman became a suspect after the police questioned Renea and Lisa.

Renea and Lisa told police that someone named A.J. (Archie Owens, Jr.) was home with Bierman. They also stated that Syndi was scared of Bierman.

Matt, Syndi's boyfriend, testified that on the Thursday before her death, Syndi told him that Bierman had threatened her. Syndi was scared and did not want to go home. Matt talked to Leonard Bierman, Shari and Syndi's father, the morning after Syndi was killed. Matt testified the father said, "I bet my last dollar she [Shari] did it." Mr. Bierman did not remember making the statement, but did not deny it.

Shari Bierman was taken to the police station for questioning. Initially, she repeated her statement that she left at 11:00 p.m., returned at 3:00 a.m., and no one else was with her at the house. [248 Kan. 82] When confronted with the fact that other people knew she had someone at home that evening, Bierman said that Brian (apparently an acquaintance) was there. She then admitted that Joseph Hernandez and Archie Owens were at the house with her and that they all left at 11:00 p.m. She said Hernandez and Owens would not do anything like stealing property or killing her sister. The stolen property was later found at Owens' apartment.

On February 21, 1989, Hernandez and Owens were charged in Wyandotte County District Court with first-degree murder and theft over $500. Bierman was charged with theft over $500 and with aiding a felon. On February 23, 1989, a second amended information also charged Bierman with first-degree murder.

Hernandez pled guilty to first-degree murder. In a plea agreement, he agreed to testify against Bierman and Owens.

The trial of Bierman and Owens commenced on June 26, 1989.

Hernandez' Story

Hernandez testified that he had known Bierman about a year. He had seen her one to three times a month. They were not dating. He saw her for sexual relations. On February 18, 1989, Hernandez was living with Owens and Owens' girlfriend, Tambi Lewis. On that day, he phoned Bierman between 5:00 p.m. and 5:30 p.m. They agreed to see each other. Owens was

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driving Hernandez to Bierman's residence in Lewis' car. They stopped and called Bierman, who did not object to Owens coming along.

They arrived at Bierman's house at approximately 6:30 p.m. After 20 to 25 minutes, Owens, Hernandez, Bierman, and Bierman's two children drove to a babysitter and left the children.

After driving around for a while, the three returned to the Bierman residence, parked...

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