Carpenter v. State, 48640

• Decision Date: 25 February 1978
• Docket Number: No. 48640,48640
• Citation: 575 P.2d 26,223 Kan. 523
• Parties: Eben W. CARPENTER, Appellee, v. STATE of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 26

575 P.2d 26

223 Kan. 523

Eben W. CARPENTER, Appellee, v. STATE of Kansas, Appellant.

No. 48640.

Supreme Court of Kansas.

Feb. 25, 1978.

Syllabus by the Court

1. In a proceeding on a K.S.A. 60-1507 motion the trial judge erred in disqualifying another trial judge when the record discloses that the first allegation of prejudice was not filed within the time limit of K.S.A. 20-311f(a ) and before the trial judge ruled on the pending motion, and that the second allegation of prejudice did not constitute grounds for disqualification.

Gene M. Olander, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellant.

David J. Waxse of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellee.

OWSLEY, Justice:

The state appeals from the granting of petitioner's motion under K.S.A. 60-1507. In vacating and setting aside the judgment and sentence the trial court found petitioner had been denied his constitutional right to effective assistance of counsel and ordered a new trial.

The facts which form the basis for petitioner's original conviction of second-degree murder are set out in this court's opinion in State v. Carpenter, 215 Kan. 573, 527 P.2d 1333. Petitioner was charged with the murder of Willis Upshaw. The state's evidence showed that petitioner and his brother owned and operated a security agency. Upshaw, an employee of the agency, was insured by the brothers and they had him killed in order to collect the insurance proceeds. The murder was carried out by another employee, Donald Brenner. After pleading guilty to second-degree murder Brenner testified for the state and told how he, petitioner, and petitioner's brother had planned the murder. Petitioner defended on the theory that he was not involved in the murder.

Petitioner was convicted in December, 1972, with sentencing being pronounced in February, 1973. Petitioner's direct appeal was decided in November, 1974. On February 19, 1975, petitioner filed a 60-1507 motion, alleging he had been denied his constitutional right to a fair trial because his trial counsel, Ernest J. Rice, was subject to a conflict of interest at the time he represented petitioner in the murder trial. The Honorable Harold R. Riggs, the original trial and sentencing judge, heard evidence on the motion on May 8, 1975. Although there was dispute over the facts, Judge Riggs concluded a conflict of interest did exist between Rice's representation of petitioner and the insurance company which would be forced to pay the insurance benefits on the policies issued on Upshaw if petitioner was found innocent of the charges. On June 25, 1975, Judge Riggs denied relief on the motion because the conflict of interest existed as to only one of petitioner's three trial counsel and because petitioner failed to show the conflict had any qualitative effect on the representation by his counsel. The judge further concluded the defense afforded defendant was one of the "most thorough, industrious and effective defenses afforded any defendant in any criminal trial" he had observed in his fifteen years on the bench.

A motion for new trial, or, in the alternative, a motion to alter or amend judgment was filed by petitioner. A portion of the motion was heard on July 18, 1975, with the remainder being set for July 25, 1975. In the intervening period Judge Riggs was contacted by the then disciplinary administrator, Earl Hatcher. Although the substance of the conversation is not contained in the record, we are told by counsel that Hatcher felt portions of Judge Riggs' June 25 memorandum decision were incorrect. Specifically, Hatcher felt Judge Riggs had erred in stating that insurance policies had been issued on the life of Upshaw when in fact there were only applications pending at the time of the death, the insurance company would not be required to pay in any event, and thus there was no conflict of interest.

Judge Riggs informed both parties of the conversation and on July 25, 1975, petitioner filed an affidavit of prejudice against Judge Riggs, pursuant to K.S.A. 20-311 (now K.S.A.1977 Supp. 20-311). Judge Buford Shankel was assigned to hear the affidavit the same day and he disqualified Judge Riggs from further participation in the case. Judge Shankel was then assigned the 60-1507 motion and, after reading a transcript of the evidence taken on the motion, found a conflict of interest and set aside petitioner's conviction. The state filed this appeal.

The first issue raised by the state concerns the timeliness of the filing of the affidavit of prejudice. The state argues the affidavit could not be considered as it had been filed too late in the proceedings. In order to determine the issue it is necessary to set forth the contents of the affidavit. The document alleged Judge Riggs was prejudiced against petitioner for two reasons. First, it was alleged that Judge Riggs "owed" Rice a favor because of a grant made by the Governor's Committee on Criminal Administration to the Tenth Judicial District at a time when Rice was chairman of that committee. The judge, so the affidavit alleged, was attempting to repay the favor by exculpating Rice for "misconduct" in the representation of petitioner. The second ground for disqualification concerned the ex parte communication between the judge and the disciplinary administrator.

The use of an affidavit of prejudice is controlled by K.S.A. 20-311. The statute prescribes the grounds for disqualification, as well as the time and manner by which the affidavit must be filed. Failure to comply with the statute bars consideration of the affidavit. (State v. Timmons, 218 Kan. 741, 749, 545 P.2d 358.)

One requirement for filing an affidavit is that it be done in a timely manner. The statute states:

"(A) party shall have seven (7) days after pretrial, or after receipt of written notice of the judge to which the case is assigned or before whom the case is to be heard, whichever is later, in which the affidavit may be filed." (K.S.A. 20-311f(a ).)

In a case where a pretrial is had the affidavit must be filed within seven days after pretrial. In a case where there is no pretrial the affidavit must be filed within seven days of the time the party receives notice of the identity of the judge to whom the case is assigned or before whom it shall be heard. If a litigant has reason to believe the judge is prejudiced the party is under an obligation to file the affidavit before the trial proceeds. In a situation where a judge is already assigned to a case and events transpire which cause the litigant to believe the judge has become prejudiced the litigant is under an obligation to file the affidavit as soon as he becomes aware of the facts giving rise to the challenge. Failure to act on the knowledge becomes a waiver of his right to make...