State v. Anthony

• Decision Date: 13 June 1995
• Docket Number: No. 70,165,70,165
• Citation: 898 P.2d 1109,257 Kan. 1003
• Parties: STATE of Kansas, Appellee, v. Andrew Juan ANTHONY, Appellant.
• Court: Kansas Supreme Court

Page 1109

898 P.2d 1109

257 Kan. 1003

STATE of Kansas, Appellee, v. Andrew Juan ANTHONY, Appellant.

No. 70,165.

Supreme Court of Kansas.

June 13, 1995.

Syllabus by the Court

1. K.S.A. 22-2616(1) provides that the court shall, upon motion of the defendant, transfer the case to another county if it is satisfied that there is so great a prejudice against the defendant in the county where prosecution is pending that he or she cannot obtain a fair and impartial trial.

2. The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial.

3. Whether a defendant will be tried on separate charges in a single trial is a matter within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Joinder may be proper under K.S.A. 22-3202(1) if the charges sought to be joined together with the ones already charged are based on two or more transactions connected together.

4. Under K.S.A. 22-3202(3), two or more defendants may be charged in the same complaint, information, or indictment if they are alleged to have participated in the same act or series of acts constituting the crime or crimes. Two or more defendants may be later joined for trial if the defendants could have been charged in the same complaint, information, or indictment.

5. The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive.

6. The granting of a continuance in a criminal case is within the discretion of the trial court, and its ruling will not be disturbed unless such discretion has been abused and the substantial rights of the defendant have been prejudiced.

7. An essential element of the Sixth Amendment right to counsel is that a defendant must be afforded a reasonable opportunity to secure counsel of his or her choosing. However, although an accused must be provided a fair opportunity to obtain counsel of his or her choice, this right cannot be manipulated to impede the efficient administration of justice.

8. When a criminal defendant's constitutional right to secure counsel of his or her choice conflicts with the trial judge's discretionary power to deny continuances, the reviewing court must balance several factors in determining whether the court's conduct was fair and reasonable: (1) whether a continuance 9. A complaint which charges two separate and distinct offenses in a single count is duplicitous. Duplicity is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving a multiplicity of ways and means of action. Duplicitous charging is bad practice because it confuses the defendant as to how he or she must prepare a defense, and it confuses the jury.

would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a continuance would prejudice the defendant.

10. The K.S.A. 60-460(d)(3) exception to the hearsay rule provides that in cases where the declarant is unavailable as a witness, statements made by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear, and made in good faith prior to the commencement of the action and with no incentive to falsify or distort, are admissible.

11. Where the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.

Charles E. Atwell, of Wyrsch Atwell Mirakian Lee & Hobbs, P.C., Kansas City, MO, argued the cause, and Jacqueline A. Cook, of the same firm, was with him on the briefs for appellant.

Julie McKenna, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief for appellee.

DAVIS, Justice:

Andrew Juan Anthony, along with Artis Swafford and Joel Butler, was convicted in a joint jury trial of premeditated first-degree murder and aggravated robbery. Anthony was also charged with and convicted of sale of cocaine within 1,000 feet of a school and unlawful possession of a firearm. Anthony contends that the court erred by denying his motions for (1) change of venue, (2) severance of the counts of sale of cocaine and unlawful possession of a firearm, (3) separate trial from the codefendants, and (4) a continuance so that he could be represented by his chosen counsel. He also argues that the charge of unlawful possession of a firearm was duplicitous and that the district court erred in admitting certain hearsay statements. Finding no reversible error, we affirm.

Early in the morning on August 10, 1992, the Mid-America Inn in Salina was robbed, and the night clerk, Oliver Bigler, was murdered. Police were called to the scene when Audrey Wright, who arrived at the motel at approximately 4:50 a.m. to open the restaurant, found the door locked and was unable to summon the night clerk.

Officer Glen Soldan of the Salina Police Department testified that he arrived at the motel at 5:30 a.m. and went to check the back door. Approximately 25 feet from the back door, Soldan found a safe lying in the grass near a white plastic ice bucket and a canvas bag. Soldan testified that he attempted to enter the motel through the back door but the deadbolt lock was engaged.

Eventually, the manager of the motel arrived with a key to the motel office. Inside, police found the office area splattered with blood, and they discovered Bigler's body lying in front of the desk. Bigler had sustained severe trauma and lacerations to the head, and police discovered a letter opener embedded in Bigler's neck.

David Klamm, a special agent with the Kansas Bureau of Investigation, searched the office area. He found a broken and blood-stained BB gun, along with some pieces of wood that looked as if they had come from the stock of the gun. Kelly Robbins, a KBI forensics examiner, testified that she found a blood-stained brick. Officers also found what appeared to be a broken piece of a collapsible antenna. A police dog searched the wooded area east of the motel and discovered a handgun.

An autopsy revealed that Bigler had suffered severe trauma to the head as well as severe stab wounds and lacerations, including a stab wound in the right ear canal. In the opinion of Dr. Norman Macy, death was Anthony was arrested and charged with premeditated murder, felony murder, aggravated robbery, sale of cocaine within 1,000 feet of a school, unlawful possession of a firearm, possession of drug paraphernalia, and possession of cocaine with intent to sell. He was also charged with three other counts of sale of cocaine. Three other individuals, Joel Butler, Artis Swafford, and Jennifer Harmon, were also charged as a result of the murder and robbery. Anthony, Butler, and Swafford were ordered to stand trial jointly.

caused by several severe blows which destroyed the front of the head and tore the brain in half. The head injuries were consistent with those that could have been caused by a brick or gun stock.

Anthony filed a motion to separate the sale of cocaine charges that occurred prior to the robbery and murder. The district court agreed to sever those counts. His motion to be tried separately from the codefendants on all charges was denied.

Anthony and codefendants Butler and Swafford filed a motion for change of venue, contending that pretrial publicity created a substantial likelihood that they would not receive a fair trial. In support of the motion, Randall Picking of KSAL radio in Salina was called and testified that his station broadcast a call-in show that dealt with the crime on the day of the defendants' arrests. Raymond Pollard, vice-president of KSKG radio in Salina, was also called as a witness and stated that his station reported stories on the murder, including the names of the persons arrested. George Pyle, editor of the Salina Journal, testified that he published articles which had detailed the prior convictions of Anthony as well as stories which stated that Anthony's neighbors were afraid of him because he and his friends carried guns and had all-night parties. Pyle also stated that the Salina Journal printed a story on the trial testimony with a headline stating that Anthony had planned the robbery and murder. Other radio news directors testified that they had run stories on the murder and suspects.

At the hearing on the motion to change venue the defendants presented the testimony of Dr. James Franke, the director of the Survey Research Unit at the Kansas State University Institute for Social and Behavioral Research. Dr. Franke testified that he had conducted a public opinion poll to test the public's knowledge of the case. The results of the survey indicated that out of approximately 366 persons surveyed, 97% had heard of the case and approximately 50% thought that the evidence was strong against all the suspects.

The district court determined that the defendants had failed to show prejudice to such a degree that it would be impossible to obtain an impartial jury. Accordingly, the court denied the motion.

Twenty days before the joint trial of the three defendants was to start, Anthony moved the court to allow his appointed counsel to withdraw and his retained counsel to file an entry of appearance. However, the defendant's motion for retained counsel to represent him was contingent on the court granting a continuance so...