Davis v. State

• Decision Date: 07 March 1970
• Docket Number: No. 45741,45741
• Citation: 204 Kan. 816,466 P.2d 311
• Parties: Allen C. DAVIS, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 311

466 P.2d 311

204 Kan. 816

Allen C. DAVIS, Appellant, v. STATE of Kansas, Appellee.

No. 45741.

Supreme Court of Kansas.

March 7, 1970.

Syllabus by the Court

1. A proceeding commenced pursuant to K.S.A. 60-1507 to set aside the judgment and sentence imposed in a criminal case upon conviction of a felony, cannot be used as a substitute for direct appeal involving mere trial errors; but if the trial errors affect constitutional rights, they may be raised in a collateral proceeding, even though they could have been raised by the perfection and prosecution of a direct appeal from the conviction, provided there were exceptional circumstances excusing the failure to appeal, or the failure to perfect an appeal. Following Baker v. State, 204 Kan. 607, 464 P.2d 212.

2. The record in a proceeding commenced pursuant to K.S.A. 60-1507, as more fully set forth in the opinion, is examined, and it is held there is no showing in the record that petitioner intentionally waived his right to perfect an appeal from his conviction of kidnapping in the first degree and have his case heard on the merits by the supreme court, and, under the factual situation which attends, 'exceptional circumstances' exist justifying review of alleged trial errors. It is further held the district court did not err (1) in concluding its original ruling on the motion for change of venue prior to the trial of petitioner's criminal case, did not result in a failure to give petitioner a fair trial; (2) in holding that, under the facts and circumstances, all the elements of the crime of kidnapping in the first degree were established by the evidence, and we adhere to the construction of K.S.A. 21-449 applied in State v. Ayers, 198 Kan. 467, 426 P.2d 21, and (3) in holding that the imposition of a sentence of life imprisonment upon a seventeen-year-old boy pursuant to the jury's verdict convicting him of the crime of kidnapping in the first degree, is not so severe as to constitute cruel, unusual and excessive punishment in violation of Section Nine of the Bill of Rights of the Constitution of the State of Kansas and of the Eighth Amendment to the Constitution of the United States made applicable to the States by the Fourteenth Amendment. It is further held that in all other respects the judgment of the district court denying the petitioner's 1507 motion is affirmed.

Tom R. Van Sickle, Fort Scott, argued the cause and was on the brief for appellant.

Ray L. Borth, Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., and Ernest C. Ballweg, Asst. Atty. Gen., were with him on the brief for appellee.

FATZER, Justice.

Allen C. Davis was the fifth defendant convicted of kidnapping in the first degree (G.S.1961 Supp., 21-449, now K.S.A. 21-449) and forcible rape (G.S.1949, 21-424, now K.S.A. 21-424), arising out of events occurring in Fort Scott, Kansas, on August 20, 1962, in which six men were involved.

A summary of events leading to the petitioner's conviction in the district court of Bourbon County is contained in State v. Woods, 191 Kan. 433, 381 P.2d 533, cert. den. 376 U.S. 919, 84 S.Ct. 676, 11 L.Ed.2d 615. Convictions of three other defendants for the same crimes were affirmed on appeal. (State v. Burnett, 194 Kan. 126, 397 P.2d 346; State v. Kinnell, 197 Kan. 456, 419 P.2d 870; State v. Ayers, 198 Kan. 467, 426 P.2d 21.)

On October 3, 1964, the petitioner entered a plea of guilty to the charge of forcible rape, and on October 3, and 4th, he was tried by a jury and found guilty of kidnapping in the first degree. The jury prescribed a sentence of life imprisonment.

On October 31, 1962, the petitioner's motion for a new trial was argued and overruled, and he was sentenced by the district court.

On April 26, 1963, the petitioner's appeal from his conviction was filed with the clerk of the supreme court, but on November 8, 1963, the appeal was dismissed on motion by the state. A subsequent motion for reinstatement was denied.

On June 28, 1968, the petitioner filed a motion pursuant to the provisions of K.S.A. 60-1507 to set aside the judgment and sentence.

On November 18, 1968, the district court of Bourbon County held an evidentiary hearing on the motion, the defendant being present in person and represented by court appointed counsel. On November 30, 1968, an order was entered denying petitioner's motion, and he has appealed.

The petitioner first contends that denial of his motion for a change of venue filed September 19, 1962 (before commencement of his trial on first degree kidnapping), prevented him from having a fair trial.

The appellee argues the denial of a motion for a change of venue is not a proper subject to be raised at a hearing commenced under K.S.A. 60-1507 since such a proceeding cannot ordinarily be used as a substitute for a direct appeal involving mere trial errors, or as a substitute for a second appeal. (Brown v. State, 198 Kan. 527, 426 P.2d 49; Hanes v. State, 196 Kan. 404, 411 P.2d 643; Supreme Court Rule No. 121(c)(4), now 121(c)(3).)

Such a contention has considerable merit when the question of venue is not one of a constitutional nature, or one arising from exceptional circumstances, within the purview of Rule No. 121, supra.

In the recent case of Baker v. State, 204 Kan. 607, 464 P.2d 212, it was held:

'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).)' (Syl. 2.)

In Barnes v. State, 204 Kan. 344, 461 P.2d 782, it was said:

'* * * To avoid proliferating litigation and give meaningful review in such cases, this court has attempted to consider points raised by persons accused of crime at the first opportunity, where it appears they are entitled to a review. Accordingly, the 'exceptional circumstances' affording review in a 1507 proceeding, where the errors have not been raised on appeal, have in the past been rather loosely construed. * * *' (1. c. 351, 461 P.2d 1. c. 787-788.)

See, also, Jackson v. State, 204 Kan. 841, 466 P.2d 305, this day decided.

On November 11, 1963, the petitioner's direct appeal was dismissed in this court for failure to comply with Supreme Court Rule No. 8(d) and (e). Since that time Rule 8(d) has been amended to permit an application for an extension of time in which to file papers where the failure to file such application before the time has expired is the result of excusable neglect. In other words, a party is now permitted to show 'excusable neglect' when seeking application for additional time, whereas, previous to July 1, 1967, he was not entitled under the rule to make that showing.

Moreover, there is no showing in the record, or elsewhere, that the petitioner intentionally waived his right to perfect his direct appeal and have his case heard by this court on the merits. The record does not show whether petitioner attempted to appeal pro se, or whether counsel was appointed to conduct such appeal pursuant to Supreme Court Prefatory Rule No. 1, promulgated April 16, 1963. (201 Kan. XV.) In any event, he made application to reinstate his appeal, which was denied.

It was also said in Baker v. State, supra:

'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 affecting his constitutional rights because of an appellate procedural rule which has since been abrogated (amended), exceptional circumstances exist within the purview of Rule No. 121(c)(3). * * *' (204 Kan. 1. c. 610, 464 P.2d 1. c. 216.)

For reasons stated above, we are of the opinion there are 'exceptional circumstances' existing in this case within the meaning of Rule No. 121(c)(3), Rules of the Supreme Court, 201 Kan XXXIII, so as to entitle the petitioner to have review of alleged trial errors having a constitutional basis.

In asserting his claim of error (the denial of his motion for a change of venue) the petitioner contends the district court erred in overlooking 'the mood, feeling, and disposition of attitudes within a rather small community of people from which the jury was drawn.' Also, the magnitude of the crime charged and hastiness of the trial date combined to create the 'probability of unfairness.'

In support of his contention, the petitioner, at the 1507 hearing, called as witnesses: his attorney whom he had retained at the time of his trial, and his mother, and he testified on his own behalf. His attorney testified he received approximately a dozen hostile and unfriendly telephone calls concerning the case. The petitioner's mother testified a crowd hostile to Negroes filled the grounds of the courthouse during the preliminary hearing. The petitioner stated, 'We were kicked at and spit at as we were changed from the county jail to the courtroom.'

The record contains no affidavits, exhibits, or other evidence supporting the petitioner's contention, and from the testimony given at the hearing, the district court concluded:

'5. The matter of a change of venue was argued at length in this and the related cases. At the time of petitioner's arrest and at the time of his preliminary examination on the 28th day of August, 1962, there were hostile, unfriendly and insulting remarks directed toward petitioner the other defendants, and counsel who then represented them. There was a large attendance at the preliminary examination. This court was aware of the situation at the time the motions for change of venue were presented. Trial was held in October, 1962; the audience section of the courtroom was full during the trial but so far as this court observed at the time of trial and so far as the court is presently informed there were no hostile acts or threats at...