Barnes v. State

• Decision Date: 06 December 1969
• Docket Number: No. 45721,45721
• Citation: 204 Kan. 344,461 P.2d 782
• Parties: Robert E. Lee BARNES, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 782

461 P.2d 782

204 Kan. 344

Robert E. Lee BARNES, Appellant, v. STATE of Kansas, Appellee.

No. 45721.

Supreme Court of Kansas.

Dec. 6, 1969.

Syllabus by the Court

In 1956 the accused was tried and convicted of murder in the first degree and sentenced to life imprisonment. At the trial his confession was admitted in evidence over objection, after a limited collateral proceeding to determine the voluntariness of the confession. This collateral proceeding failed to comply with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, and State v. Milow, 199 Kan. 576, 433 P.2d 538. No appeal was taken from the 1956 judgment of conviction. At that time the accused, an indigent, was not entitled under Kansas law to the appointment of counsel to assist him on appeal. In a 1507 proceeding challenging the judgment and sentence on constitutional grounds, the trial court at a hearing conducted in 1968 gave the petitioner an evidentiary hearing and denied relief, on the ground that his failure to appeal constituted a waiver of constitutional grounds. On appeal it is held: In view of the retroactive application given Jackson v. Denno, supra, by the United States Supreme Court, the petitioner in 1956 did not intentionally relinquish or abandon a known right or privilege by his failure to perfect an appeal, and therefore had not waived his denial of constitutional rights; that exceptional circumstances were disclosed excusing the failure to appeal; and on review of the asserted constitutional infringements the petitioner was entitled to relief, all as more particularly set forth in the opinion.

Gerald W. Scott, Wichita, argued the cause, and Don Matlack, Wichita, was with him on the brief, for appellant.

Richard K. Hollingsworth, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief, for appellee.

SCHROEDER, Justice.

This is a proceeding instituted pursuant to K.S.A. 60-1507 to vacate a judgment and sentence to life imprisonment upon the defendant's conviction of murder in the first degree in the year 1956. Appeal has been duly perfected from the refusal of the trial court to grant relief.

The underlying questions are whether a confession made by the appellant while in custody and prior to trial was properly admitted into evidence before the jury in the trial of the criminal action, and whether the error, if any, was waived by the appellant's failure to take an appeal from the conviction.

On the 3rd day of April, 1956, a complaint was filed in the district court of Sedgwick County, Kansas, by Detective Floyd Hannon of the Wichita police department. The complaint charged Robert E. Lee Barnes and his wife with first degree murder. Pursuant to a warrant Detective Hannon was dispatched to Miami, Florida, where Barnes and his wife were in custody. As a result of conversations between Barnes and Hannon at the Miami, Florida, police station, Barnes gave both an oral and a written confession which is the subject of this litigation. As a result of the statements made by Barnes in Florida the charges against Barnes' wife were dropped and only Barnes was returned to the state of Kansas.

Barnes contends by reason of threats designed to implicate his wife, and the statement of Hannon that their child would be placed in the custody of juvenile authorities, his confession was involuntarily made.

At the trial of the criminal action the voluntariness of Barnes' confession was determined by the trial court in a collateral proceeding, but the trial court admitted only the testimony of Detective Hannon, holding that all the state was required to do was make a prima facie showing that the confession was voluntarily made. The trial court refused to hear the testimony of Barnes in the collateral proceeding conducted in the absence of the jury. The trial court held if Barnes desired to present testimony challenging the voluntary character of his confession it was defensive matter for the jury to hear. It also ruled that if Barnes took the stand to testify he would be subject to cross examination on all matters in connection with the offense charged.

This was the situation presented in State v. Milow, 199 Kan. 576, 433 P.2d 538, where this court held such procedure violated the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205. There the Supreme Court of the United States held a collateral proceeding to determine the voluntariness of a confession, where the inquiry was not based upon a consideration of the totality of the circumstances, violated the due process clause of the Fourteenth Amendment to the Federal Constitution.

In the 1507 proceeding presently before this court on appeal the trial court granted the appellant an evidentiary hearing at which he was present and testified. His court-appointed counsel also testified. The hearing was conducted on the 13th day of January, 1968, and the appellant was assisted by court-appointed counsel. As a result of such evidentiary hearing the trial court found 'A proper hearing was not held' at the trial of the criminal action to determine the voluntariness of the appellant's confession, as required by Jackson v. Denno, supra, and it ordered that such hearing be granted. On the date set for such hearing, January 19, 1968, the trial court reconsidered its ruling and reversed its position, holding the appellant had waived the constitutional issue by failing to take an appeal from the conviction. The trial court said:

'* * * In view of my finding that it was the movant's decision to let the judgment and verdict stand as it was, I certainly can't find that there were any exceptional or that there are any exceptional circumstances excusing the failure to appeal. Based upon Rule 121(c) and the cases cited by the state this morning, if there is not an exceptional circumstance excusing failure to take an appeal, then even constitutional issues have been waived.'

At the evidentiary hearing in the 1507 proceeding both the appellant's two court-appointed counsel and the appellant testified as to discussions concerning an appeal from the murder conviction. As a result of the evidence presented the trial court found the appellant's final determination not to appeal was based upon the law involved and the evidence presented at the time of the trial in the criminal action, and his decision was not based upon lack of funds.

The record discloses letters were written by counsel appointed for the appellant in the criminal proceeding for the purpose of obtaining money to file an appeal, but his 1956 counsel testified at the hearing in the 1507 proceeding the appellant was unable to obtain any money. These letters were proffered at the motion for rehearing of the 1507 proceeding but were not admitted.

The record further discloses that early in 1960 the appellant wrote a letter to his court-appointed attorney in the 1956 trial who responded as follows:

'* * * You will recall that no appeal was ever taken, largely because I defended you on an appointment basis for a total fee of $140.00, and at that time there was no provision for an appointment counsel for appeals. As a consequence so far as I know, no transcript of the case was ever prepared.'

On appeal the appellant contends his right to due process of law as provided by the Fourteenth Amendment to the Federal Constitution was violated during the trial in 1956. This point is well taken in the light of Jackson v. Denno, supra, State v. Milow, supra, and subsequent federal decisions. Under State v. Seward, 163 Kan. 136, 181 P.2d 478, and State v. Hayes, 106 Kan. 253, 187 P. 675, as construed in State v. Milow, supra, it was trial error under existing Kansas law to admit the appellant's confession upon the limited evidence presented in the collateral proceeding.

Viewed as of the time the appellant's 1507 hearing was conducted before the trial court in 1968, the limited collateral proceeding conducted by the trial court at the appellant's murder trial in 1956 to determine the voluntariness of the appellant's confession also violated the appellant's constitutional right because Jackson v. Denno, supra, has been given retroactive application. The Jackson decision was held applicable to another case involving a federal habeas corpus proceeding which was pending at the time it was rendered. (McNerlin v. Denno, Warden, 378 U.S. 575, 84 S.Ct. 1933, 12 L.Ed.2d 1041.)

In Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the Supreme Court said:

'* * * Similarly, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1 A.L.R.3d 1205) (1964), which involved the right of an accused to effective exclusion of an involuntary confession from trial, was itself a collateral attack. In each instance we concluded that retroactive application was justified because the rule affected 'the very integrity of the fact-finding process' and averted 'the clear danger of convicting the innocent.' Linkletter v. Walker, 381 U.S., at 639, 85 S.Ct., at 1743; Tehan v. United States ex rel. Shott, 382 U.S., at 416, 86 S.Ct., at 465.' (pp. 727, 728, 86 S.Ct. p. 1778.)

Further in the opinion the court stated:

'Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. * * *' (pp. 728, 729, 86 S.Ct. p. 1778.)

The appellant also contends his right to the effective assistance of counsel and equal protection under the due process clause of the Fourteenth Amendment to the Federal Constitution was denied and thereby deprived him of a constitutional right in 1956,...