Peterson v. State

• Decision Date: 17 July 1969
• Docket Number: No. 45669,45669
• Citation: 457 P.2d 6,203 Kan. 959
• Parties: Kenneth E. PETERSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 6

457 P.2d 6

203 Kan. 959

Kenneth E. PETERSON, Appellant, v. STATE of Kansas, Appellee.

No. 45669.

Supreme Court of Kansas.

July 17, 1969.

Syllabus by the Court

1. The record is examined on appeal in a proceeding instituted pursuant to K.S.A. 60-1507 and it is held the petitioner has failed to make it affirmatively appear the trial court erred in any of the points asserted.

2. The endorsement of additional names of witnesses on the information in a criminal action, even during the trial, rests in the sound discretion of the trial court, and material prejudice in the ruling must clearly be shown before it constitutes reversible error.

3. Where a jury verdict is received by a substitute judge in a criminal proceeding without objection by the defendant, the verdict should not be set aside because of a mere irregularity amounting to a technical defect, unless there has been some prejudice to the substantial rights of the defendant.

Leonard D. Munker, Wichita, argued the cause and was on the brief for appellant.

James W. Wilson, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and A. J. Focht, Asst. County Atty., were with him on the brief for appellee.

SCHROEDER, Justice.

This is an appeal by the petitioner in a proceeding instituted pursuant to K.S.A. 60-1507. The trial court made findings of fact and conclusions of law denying the petitioner relief.

The three points raised by the petitioner basically constitute trial errors, but in view of the petitioner's contentions have constitutional implications.

The petitioner in his motion relies only upon the transcript of the criminal proceedings resulting in his conviction and sentence to sustain his charges. Throughout these 1507 proceedings the petitioner was represented by court-appointed counsel.

The petitioner, Kenneth Elton Peterson (appellant), is presently before this court on appeal for his third time. His first appearance was in Peterson v. State, 198 Kan. 26, 422 P.2d 567. This was a proceeding pursuant to K.S.A. 60-1507 seeking post conviction relief from a judgment and sentence entered pursuant to a plea of guilty to robbery in the first degree committed in October, 1959. The points there raised by the petitioner were considered and relief denied.

In December, 1963, the petitioner was tried before a jury on charges of first degree burglary and forcible rape. He was found guilty and sentenced under the habitual criminal act to serve not less than twenty years nor more than forty-two years on the burglary charge, and not less than ten years nor more than forty-two years on the forcible rape charge, the sentences to run consecutively. (This is the conviction and sentence presently under attack.)

In this criminal proceeding the petitioner was represented by retained counsel of his own choosing, and after a motion for a new trial was denied, notice of appeal to the Supreme Court was filed, but his retained counsel was later permitted to withdraw under Rule No. 110 of this court (197 Kan. lxxi), and his appeal was never perfected.

Thereafter the petitioner moved to vacate the judgment and sentence pro se under the provisions of 60-1507, supra.

The trial court denied relief without giving the petitioner an evidentiary hearing, and on appeal this court remanded the case to the lower court with directions to dismiss. (Peterson v. State, 200 Kan. 18, 434 P.2d 542, cert. denied 390 U.S. 1033, 88 S.Ct. 1429, 20 L.Ed.2d 291.)

The court there held the petitioner was not entitled to challenge the validity of a sentence by a motion filed pursuant to 60-1507 where, notwithstanding an adjudication finding the sentence void, he would still be confined under another sentence, citing Rule No. 121(c)(1)(2), (197 Kan. lxxv) and cases adhering thereto.

The McNally doctrine (McNally v. Hill, Warden, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238), pursuant to which Rule No. 121(c)(2) of this court was originally promulgated, was subsequently overruled by the United States Supreme Court in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, on May 20, 1968. Thereafter this court amended Rule No. 121(c) to delete subsection (2) as it then appeared, effective June 19, 1968.

Thereafter the petitioner filed a wirt of habeas corpus pro se in this court. On the 19th day of June, 1968, the writ was denied but leave was granted the petitioner to refile his motion to vacate the sentence in the trial court in Case No. 44,370 (200 Kan. 18, 434 P.2d 542), pursuant to 60-1507, supra.

In accordance therewith the petitioner filed the motion presently under consideration in the sentencing court, stating the three points upon which he relies for relief as follows:

'1. The Court committed error in allowing the prosecution to invoke the Habitual Criminal Act, K.S.A. 21-107a, in open court and in the presence of the jury.

'2. The Court erred in allowing the prosecution, over the objection of defense counsel, to amend and eddorse additional witnesses on the day of trial, for the sole purpose of introducing evidence of a prior criminal act unrelated in time and circumstances.

'3. The Court erred when the presiding judge absented himself from the court and the judicial district prior to the completion of the case and the rendition of the verdict, and in allowing a substitute judge from another division to receive the verdict.'

These points challenge the criminal proceeding wherein the petitioner was convicted of burglary and forcible rape in December, 1963.

Inasmuch as the petitioner has never had a review of trial errors as a result of such conviction, we shall consider the points enumerated. (See Rule No. 121 (c).)

The appellant in his first point does not challenge the validity of the habitual criminal act, only the procedure employed by the prosecuting attorney invoking the statute. The purpose of K.S.A. 21-107a is not to assess the guilt or innocence of one charged with crime, but to enhance the punishment of criminal offenders found guilty and shown to have a record of prior crimes.

The appellant contends the prosecuting attorney, prior to making his opening statements, notified the petitioner in the presence of the jury that in the event of conviction he would ask to have the habitual criminal act invoked. On this point the record discloses the following:

'If the Court please, before making my opening statement, the State would like to invoke the habitual criminal act in the event this defendant is convicted. I wish to, at this time, advise the defendant of that fact.

'The Court: All right, thank you.'

At that time defense counsel made no objection to the statement of the prosecuting attorney, and the court permitted the statement to go on the record without comment.

It is the appellant's contention that since this statement appeared in the transcript immediately after the voir dire examination of the jury, and prior to the prosecuting attorney making his opening statement, with no indication that the statement was made out of the presence of the jury, it must be assumed from the transcript the statement was made in the presence of the jury.

On this point the trial court found:

'1. There is no evidence or indication that the statement made by the prosecuting attorney relative to the Habitual Criminal Act was made in the presence of the jury.

'2. Since the transcript in this case does not indicate that the prosecuting attorney's remarks relative to the Habitual Criminal Act were made in the presence of or outside the presence of the jury, petitioner cannot conclude that they were made in the presence of the jury.

'3. If the statement of the prosecuting attorney relative to the Habitual Criminal Act was made in the presence of the jury, defense counsel made no comment or objection to the statement nor was any motion for a mistrial made at that time.'

Counsel presently appearing for the petitioner, both in the sentencing court and on appeal to this court, did not represent the petitioner at the criminal proceeding, and the assistant county attorney of Sedgwick County who prosecuted the case did not present the state's case on appeal. Counsel, therefore, were required to rely strictly upon the transcript. The trial judge, however, presided over the proceeding in the criminal action and later heard the petitioner's motion. He is in the best position to determine the facts.

The petitioner in his motion cites only the page numbers of the transcript to support his charge on this point.

The petitioner relies upon Ginsberg v. United States, 257 F.2d 950, 955 (5th Cir. 1958), for the proposition that the error would have been magnified in its influence on the jury by an objection or motion for mistrial made by counsel for the petitioner at the time the prosecuting attorney made this remark.

This argument, however, does not account for the fact the petitioner failed to raise the point on his motion for a new trial at a time when he was represented by retained counsel. The point was first raised by the...