Hannon v. State

• Decision Date: 23 January 1971
• Docket Number: No. 45965,45965
• Citation: 206 Kan. 518,479 P.2d 852
• Parties: Laville HANNON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 852

479 P.2d 852

206 Kan. 518

Laville HANNON, Appellant, v. STATE of Kansas, Appellee.

No. 45965.

Supreme Court of Kansas.

Jan. 23, 1971.

Syllabus by the Court

1. The post-conviction remedy provided by K.S.A. 60-1507 cannot be used as a substitute for a direct appeal involving mere trial errors. If trial errors affect constitutional rights it is required that exceptional circumstances be shown excusing the failure to appeal before such errors will be considered in collateral post-conviction proceedings.

2. In an appeal from an order denying petitioner's motion for post-conviction relief after a full evidentiary hearing the record is examined and it is held no error is shown.

William R. Chambers, Kansas City, argued the cause and was on the brief for appellant.

Nick A. Tomasic, Chief Deputy County Atty., argued the cause and Kent Frizzell, Atty. Gen., and Frank Menghini, County Atty., were with him on the brief for appellee.

FROMME, Justice.

This appeal is from an order denying petitioner's motion for post-conviction relief (K.S.A. 60-1507) after a full evidentiary hearing.

Petitioner Hannon was convicted of first degree murder on December 18, 1959, and was sentenced to the state penitentiary for life. No direct appeal was attempted from the conviction and sentence.

Now, ten years after his conviction, petitioner has filed the present motion for post-conviction relief. His specifications of error concern the admission of evidence during the original trial. His first contention concerns a deposition of a doctor who was unavailable at trial. The doctor's testimony corroborated other testimony relating to the cause of death. The doctor's deposition was obtained at the request of petitioner's trial counsel and was introduced during the trial while petitioner was present. There was no objection to its introduction. The state previously had requested that testimony of the doctor at a preliminary hearing be used at the trial but, after objection by petitioner's counsel, the state consented to the taking and to the use of the deposition in lieu of the testimony at the preliminary hearing. See State v. Terry, 202 Kan. 599, 451 P.2d 211 and State v. Washington, 206 Kan. --, 479 P.2d 833.

The second error specificed by petitioner is in the admission of a confession in writing taken by police officers after petitioner was fully advised of his constitutional rights, including the right to have counsel present. See State v. Hinkle, 206 Kan. --, 479 P.2d 841.

Constitutional rights, such as the right to be confronted by witnesses against you at the trial and the right to be represented by an attorney during interrogation, may be knowingly, intelligently and effectively waived. (See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.)

The matters about which petitioner now complains involve alleged trial errors which occurred ten years before the present proceeding was instigated. We have reviewed the record presented by petitioner and find no facts or circumstances which excuse a failure to appeal from the conviction. Present counsel makes no...