Kirtdoll v. State, 46561
| Decision Date | 06 May 1972 |
| Docket Number | No. 46561,46561 |
| Citation | 496 P.2d 1396,209 Kan. 508 |
| Parties | James LeRoi KIRTDOLL, Appellant, v. The STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Proceedings pursuant to K.S.A. 60-1507 cannot be utilized to review trial errors which might have been reviewed in the direct appeal.
2. Where a criminal defendant has legal grounds for questioning the selection of a jury panel as to its racial components, he should promptly present his objections to the court, and his challenge to the array must be made prior to the voir dire examination.
Scott E. Jarvis, Topeka, argued the cause and was on the brief for appellant.
Gene M. Olander, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
This is an appeal from an order dismissing a motion of the appellant, James LeRoi Kirtdoll, filed pursuant to K.S.A. 60-1507.
Appellant was originally charged with the offense of assault with intent to kill under K.S.A. 21-431 (now K.S.A.1971 Supp. 21-3410, 21-3414), and after trial to a jury he was found guilty of the lesser included offense of felonious assault under K.S.A. 21-435 (now K.S.A.1971 Supp. 21-3414). Appellant appealed his conviction and it was upheld in State v. Kirtdoll, 206 Kan. 208, 478 P.2d 188, to which reference is made for a more detailed statement of the facts.
Appellant filed his petition pro se, challenging the validity of his conviction on three grounds. After an evidentiary hearing, the trial court denied the relief sought. On appeal only one specification of error is briefed and argued-the trial court erred in its finding that the appellant had been accorded a trial by jury of his peers.
The specified error was not raised at the trial or argued as part of the direct appeal, and first appears in this appeal from dismissal of the motion pursuant to K.S.A. 60-1507.
In view of this situation it is our opinion that we cannot consider this appeal on its merits. Challenge to the array at common law must be made before the beginning of the voir dire. (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.) If a defendant in a criminal case has valid grounds for questioning the legal selection of a jury panel he should promptly present his objections to the trial court. Generally speaking the composition of a jury panel is available to a defendant in advance of trial and he has an opportunity to investigate the manner in which it was selected and the personnel composing the same. Even if no investigation is made, he is fully aware of the composition before the qualification of the panel is commenced, particularly as to its racial components.
A defendant, knowing he has objections which have their foundation in the array, cannot play a waiting game. He cannot gamble that the prospective challenges for cause and the state's exercise of the right of peremptory challenge will result favorably to him, and then if disappointed, for the first time present objections to the array. (...
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State v. Brothers
...is aware of the composition of the jury panel, which composition forms the basis of his objection to the panel's selection (see Kirtdoll v. State, 209 Kan. 508, Syl. 2, 496 P.2d Finally, assuming the facts to be as alleged by appellant, relief could not be granted. Attacks upon constitution......
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Martin v. State, 47339
...considered points. (Supreme Court Rule 121(c)(3), 211 Kan. XLIV. See, also, Lee v. State, 204 Kan. 361, 461 P.2d 743; Kirtdoll v. State, 209 Kan. 508, 496 P.2d 1396.) However, in view of the claim of constitutional significance, we briefly note three of Mr. Martin's points. First, that he w......