Baker v. State

• Decision Date: 24 January 1970
• Docket Number: No. 45711,45711
• Citation: 204 Kan. 607,464 P.2d 212
• Parties: John Edward BAKER, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 212

464 P.2d 212

204 Kan. 607

John Edward BAKER, Appellant, v. STATE of Kansas, Appellee.

No. 45711.

Supreme Court of Kansas.

Jan. 24, 1970.

Syllabus by the Court

1. A K.S.A. 60-1507 proceeding ordinarily cannot be used as a substitute for a second appeal. (Rule No. 121(c)(3), Rules of the Supreme Court, 201 Kan. (XXXIII.)

2. A proceeding under K.S.A. 60-1507 cannot be used as a substitute for a direct appeal involving mere trial errors; but if the trial errors affect constitutional rights, they may be raised in the collateral proceeding, even though they could have been raised by direct appeal, provided there were exceptional circumstances excusing the failure to appeal. (Rule No. 121(c) (3).)

3. Where a defendant on direct appeal has been precluded from a review of alleged trial errors affecting his constitutional rights because of an appellate procedural rule which has since been abrogated, 'exceptional circumstances' exist within the purview of Rule No. 121(c)(3).

4. Our contemporaneous objection rule requires timely and specific objection to the admission of evidence in order for the question of admissibility to be considered on appeal.

5. The adequacy of an attorney's services on behalf of an accused must be gauged by the totality of his representation.

6. In a K.S.A. 60-1507 proceeding the burden of establishing the incompetency of an attorney or the ineffective assistance of counsel to the extent necessary to overcome the presumption of regularity of a conviction is upon the petitioner.

7. It is the duty of a trial court, before admitting a purported confession into evidence, to conduct a proceeding separate and apart from the jury to determine from the evidence, as a preliminary matter, whether the confession was freely and voluntarily made by the accused. The range of inquiry in such collateral proceeding by the trial court is broad, and the inquiry must be based upon a consideration of the totality of the circumstances. (Following State v. Milow, 199 Kan. 576, 433 P.2d 538.)

8. Foundation proof relating to the admissibility of a confession must be heard outside the presence and hearing of the jury, even though no request for such hearing is made, unless there has been a knowing and intelligent waiver of that right by the accused.

9. In a K.S.A. 60-1507 proceeding wherein the petitioner challenges his judgment and sentence on various grounds, inter alia, that at trial the court admitted into evidence his confession of guilt without first determining as a preliminary matter whether it was freely and voluntarily made, it is held, that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, must be given retroactive application, and under the circumstances, petitioner did not intentionally relinquish or abandon a known right or privilege by his failure to request the issue of voluntariness be resolved in an appropriate hearing outside the presence of the jury; therefore, the case is remanded to the sentencing court with instructions to proceed in accordance with the decision of State v. Milow, supra; and it is further held, that in all other respects the judgment of the trial court denying petitioner's motion is affirmed.

Donald A. Culp, Overland Park, for appellant.

James A. Wheeler, Asst. County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Ernest C. Ballweg, Asst. Atty. Gen., James W. Bouska, County Atty., and Bill E. Haynes, Asst. County Atty., with him on brief for appellee.

O'CONNOR, Justice.

On February 26, 1968, the petitioner, John Edward Baker, filed a motion under K.S.A. 60-1507 attacking the judgment and sentence of the district court of Johnson county for the crime of grand larceny. The motion was denied, and Baker has appealed.

Baker was originally convicted by a jury of burglary in the second degree and grand larceny. On direct appeal to this court the burglary conviction was held to be void on the basis the information was jurisdictionally defective; the grand larceny conviction was affirmed (State v. Baker, 197 Kan. 660, 421 P.2d 16).

Petitioner in his present motion asserts seven grounds: (1) lack of speedy trial; (2) the information charging grand larceny was fatally defective; (3) incompetent evidence of prior felony convictions was used to impose sentence under the habitual criminal act; (4) prejudicial and improper comments in the closing argument of the county attorney; (5) the erroneous admission of evidence resulting from an illegal search and seizure; (6) trial counsel was incompetent and inadequate; and (7) a coerced confession was improperly used against petitioner.

Mr. Donald Culp was appointed counsel and, with petitioner present, a full evidentiary hearing was held on the 1507 motion. On October 17, 1968, the trial court made extensive findings of fact and conclusions of law, and held that petitioner had failed to sustain the burden of proof on any of the issues.

Except for the contention of lack of speedy trial, which has been abandoned, basically the same points are urged on appeal as were presented to the trial court.

Two of the points were adjudicated in Baker's direct appeal. There, we held the information was sufficient to charge the offense of grand larceny. We also determined that evidence of two prior felony convictions, the record of each disclosing on its face that defendant was represented by counsel, were sufficient to authorize imposition of the present sentence as a third conviction under the habitual criminal act. A 60-1507 proceeding ordinarily cannot be used as a substitute for a second appeal. (Rule No. 121(c)(3), Rules of the Supreme Court, 201 Kan. XXXIII; Basker v. State, 202 Kan. 177, 446 P.2d 780; King v. State, 200 Kan. 461, 436 P.2d 855; Jolly v. State, 200 Kan. 202, 434 P.2d 547.) Moreover, there is nothing in the additional arguments advanced with respect to these points that would cause us to deviate from what was said in the direct appeal.

We find nothing in the complaint now made regarding the assistant county attorney's closing argument which could be said to constitute a trial error of constitutional magnitude. Under Rule No. 121(c)(3), mere trial errors not affecting constitutional rights are to be corrected on direct appeal. The point was not properly raised before and will not now be considered in this collateral proceeding.

The three remaining contentions pertain to matters involving constitutional rights. Two of these-the admission of illegally seized evidence, and a coerced confession-are alleged trial errors which were specified as error but not passed on in the direct appeal for the reason that under our then existing rule of appellate procedure, trial errors not included in the grounds of a motion for new trial, and thus not presented to the trial court, could not be reviewed.

Since our decision in the direct appeal, the rule in respect to appellate procedure in criminal actions has been changed by the adoption of Rule No. 17, which reads as follows:

'Motions for New Trial in Criminal Proceedings. In an appeal from the judgment of the district court in a criminal proceeding, adverse decisions or intermediate orders made in the progress of the case, including trial rulings, may be specified for review regardless of whether a motion for a new trial shall have been filed; and it shall not be necessary to specify the overruling of a motion for a new trial in order to obtain the review of any errors in such decisions, intermediate orders, or trial rulings. * * *

'Adopted by the Court June 27, 1968.' (201 Kan. XXVII.)

Had Rule No. 17 been in effect when Baker's appeal was here previously, the alleged trial errors would have been reviewable.

Rule No. 121(c)(3) provides that trial errors are to be corrected by direct appeal, but if they affect constitutional rights, they may be raised in a 60-1507 proceeding, even though the errors could have been raised on direct appeal, provided there were exceptional circumstances excusing the failure to appeal. The immediate question posed is whether there are exceptional circumstances excusing the failure of petitioner to properly present the alleged trial errors in his direct appeal.

This case is closely analogous to the situation presented in Holt v. State, 202 Kan. 759, 451 P.2d 221. There, in a post-conviction proceeding under K.S.A. 60-1507, the petitioner sought review of a trial error involving the admissibility of his confession which had been denied him on direct appeal because he had failed to appeal from the order of the district court overruling his motion for new trial. (See, State v. Holt, 197 Kan. 468, 419 P.2d 834.) The import of our decision on the direct appeal was abrogated by the subsequent promulgation of Rule No. 17. We held that such conditions constituted exceptional circumstances as contemplated by Rule No. 121(c)(3), and the trial error which affected petitioner's constitutional rights was reviewable in the 60-1507 proceeding.

The 'exceptional circumstances' requirement of Rule No. 121(c)(3) received our careful attention in the recent case of Barnes v. State, 204 Kan. 344, 461 P.2d 782, and the reader is referred to that opinion for a thorough discussion of the subject.

As a matter of fundamental fairness we believe that where, as here, a defendant on direct appeal has been precluded from a review of alleged trial errors effecting his constitutional rights because of an appellate procedural rule which has since been abrogated, exceptional circumstances exist within the purview of Rule No. 121(c)(3). Therefore, we will consider the two trial errors about which petitioner complains in this proceeding, as well as his claim of incompetent and inadequate counsel.

Baker contends that articles seized in the search of his automobile at the time of his arrest in Kansas City, Missouri, for a traffic violation were the products of an unconstitutional search and were improperly admitted into evidence. The...