State v. Andrews

• Decision Date: 18 July 1980
• Docket Number: No. 51795,51795
• Citation: 228 Kan. 368,614 P.2d 447
• Parties: STATE of Kansas, Appellee, v. Merrill ANDREWS, Appellant.
• Court: Kansas Supreme Court

Page 447

614 P.2d 447

228 Kan. 368

STATE of Kansas, Appellee, v. Merrill ANDREWS, Appellant.

No. 51795.

Supreme Court of Kansas.

July 18, 1980.

Syllabus by the Court

1. Pro se pleadings are to be liberally construed. Following Jackson v. State, 1 Kan.App.2d 744, 573 P.2d 637 (1977).

2. Kansas statutes provide that an indigent defendant is entitled to the appointment of counsel at every stage of the pretrial proceedings and trial (K.S.A.1979 Supp. 22-4503), on appeal (K.S.A.1979 Supp. 22-4505), and in habeas corpus proceedings and motions attacking sentence under K.S.A. 60-1507 (K.S.A. 22-4506).

3. The customary motion for a new trial which must be filed within ten days under K.S.A. 22-3501 and which is principally for the purpose of calling to the attention of the trial court alleged trial errors is a stage of the criminal proceedings within the purview of K.S.A.1979 Supp. 22-4503, and counsel must be provided to an indigent defendant for the purposes of such a motion.

4. Rules relating to a motion for new trial based upon newly discovered evidence iterated and applied.

5. There is no statutory or constitutional requirement that counsel be appointed for an indigent defendant at each and every post-trial motion seeking a new trial on grounds of newly discovered evidence.

6. The determination of whether counsel should be appointed to represent an indigent defendant on successive post-trial motions based upon alleged newly discovered evidence rests within the sound discretion of the trial court.

7. The record is examined and it is held the trial court did not abuse its discretion in failing to appoint counsel for an indigent defendant for the purpose of the defendant's third motion for a new trial and the second based upon newly discovered evidence.

Daniel T. Brooks, Wichita, argued the cause and was on the brief for appellant.

Michael Barbara, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellee.

HOLMES, Justice:

This is an appeal by defendant, Merrill Andrews, based upon the failure of the trial court to appoint counsel to represent Andrews on his third motion for a new trial which was the second based upon newly discovered evidence filed pursuant to K.S.A. 22-3501.

On August 7, 1978, defendant was found guilty of aggravated burglary and first-degree murder. Steven C. Sherwood was appointed to represent the defendant and, following the conviction, filed a motion for a new trial which was heard and overruled by the trial court on September 1, 1978. Thereafter, Chester I. Lewis was retained by defendant to handle his appeal to this court. The conviction was affirmed in an unpublished opinion filed June 9, 1979. (Case No. 50,416.) Throughout the proceedings in the district court and the first appeal in this court and subsequent to our decision of June 9, 1979, defendant has filed literally dozens of pages of pro se pleadings, letters, affidavits and other documents.

On July 10, 1979, defendant filed with the district court numerous documents which the trial court treated as a motion for new trial based upon newly discovered evidence and a motion for appointment of counsel to represent defendant at a hearing on the motion for new trial. Defendant specifically requested that his appellate counsel, Mr. Lewis, not be appointed. The trial court once again appointed Mr. Sherwood to represent the defendant. The file reflects that defendant also filed affidavits, an amendment to his motion for a new trial, a motion for an evidentiary hearing, a request for production of documents, a request for subpoenas to be issued to 27 people, including four at the Lansing penitentiary and two at the Hutchinson reformatory, numerous letters to the clerk and to the district court judge and anonymous letters attesting to the defendant's innocence.

Defendant's motion was set for hearing on August 21, 1979. Seven inmates of the Lansing penitentiary and the Hutchinson reformatory along with the defendant were returned by the State to Sedgwick County for the hearing. Defendant was present in person and by his appointed counsel, Mr. Sherwood. Subpoenas had been issued as requested by defendant and an evidentiary hearing was held before the Hon. Elliott Fry. On August 23, 1979, Judge Fry issued his memorandum opinion in which he overruled defendant's motion for a new trial. During the original trial one Noyldon Baker was a principal witness for the State. The newly discovered evidence consisted primarily of testimony from inmates at Lansing and Hutchinson to the effect that after the trial Mr. Baker recanted his testimony and told the other inmates that Andrews was innocent and not involved in the original crimes for which he was convicted. Unfortunately, Mr. Baker was deceased at the time of the August 21, 1979, hearing. Other evidence was in the nature of an alibi and was not newly discovered as the witnesses were the same alibi witnesses that had been endorsed by the defendant prior to the original trial. After hearing all the admissible, relevant evidence and having the rather voluminous file available, the court found that some of the evidence was unreliable and that considering the entire evidence it would not be likely that a different verdict would be reached in a second trial.

Thereafter, beginning on October 25, 1979, defendant began filing a series of pro se documents seeking new counsel, production of documents, another motion which appears to be a third motion for a new trial and request for rehearing of the previous motion heard August 21, 1979, and a motion requesting transcripts of the preliminary hearing, trial and the hearing held August 23, 1979. While it is difficult to determine the precise nature of most of these documents, the trial court construed the gist of them to be a third motion for a new trial and the second based upon newly discovered evidence, together with a motion to appoint counsel. Pro se pleadings are to be liberally construed. Jackson v. State, 1 Kan.App.2d 744, 573 P.2d 637 (1977). While we have certain reservations about the sufficiency of these documents, we will consider them in the same manner as the trial court. The motion for counsel was denied and the motion for a new trial was denied by Judge Fry on December 3, 1979, for the same reasons as his decision of August 23, 1979. The defendant was not present at the December 3rd hearing and was not represented by counsel. On December 26, 1979, defendant filed a pro se notice of appeal from the December 3rd ruling, a motion for appointment of counsel and objections to the December 3rd ruling. At this time he requested that Mr. Sherwood not be reappointed and that he be given new counsel. Mr. Daniel Brooks was appointed and has filed this appeal from the December 3, 1979, ruling on the grounds that the district court committed error when it failed to appoint counsel to represent the defendant for the third new trial motion. While the appeal was pending, defendant filed a motion seeking the removal of Mr. Brooks and the appointment of different counsel. This request was denied and Mr. Brooks represented the defendant on defendant's second appeal to this court.

During the pendency of this appeal, defendant filed a motion asking this court to remand the case to district court so he could file still another motion for a new trial based upon allegations of newly discovered evidence. This motion was supported by sixteen legal size pages of affidavits and other material principally to the effect that the deceased Mr. Baker had recanted his testimony after the first trial. They are repetitious of prior documents filed by defendant and which were available to the trial court. This court overruled the motion to remand and, in due course, this appeal was presented.

The sole issue before the court is whether a defendant is constitutionally or statutorily entitled to be represented by counsel on successive repetitious post-trial motions seeking a new trial on grounds of alleged newly discovered evidence.

The statutory authority for a new trial is K.S.A. 22-3501, which reads:

"(1) The court on motion of a defendant may grant a new trial to him if required in the interest of justice. If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after the verdict or finding of guilty or within such further time as the court may fix during the 10-day period.

"(2) A motion for a new trial shall be heard and determined by the court within 45 days from the date it is made."

The right of an indigent defendant in a state prosecution to have counsel furnished to him has been considered in numerous decisions by the United States Supreme Court for nearly fifty years. In Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct. 55, 63, 77 L.Ed. 158 (1932), the Court unequivocally declared that under the sixth amendment to the Constitution "the right to aid of counsel is of . . . (a) fundamental character." The failure to appoint counsel for an indigent defendant charged with a capital offense was found to be a clear denial of due process of law required by the Constitution. In 1963, the Court, in its landmark decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held that sixth amendment provisions including the right to counsel were obligatory upon the states through the due process clause of the fourteenth amendment. Gideon did not, however, begin to answer all the questions of when due process requires the appointment of ...