State v. Bates

• Decision Date: 14 July 1979
• Docket Number: No. 50318,50318
• Citation: State v. Bates, 597 P.2d 646, 226 Kan. 277 (Kan. 1979)
• Parties: STATE of Kansas, Appellee, v. Connie Ann BATES, Appellant.
• Court: Kansas Supreme Court

Page 646

597 P.2d 646

226 Kan. 277

STATE of Kansas, Appellee, v. Connie Ann BATES, Appellant.

No. 50318.

Supreme Court of Kansas.

July 14, 1979.

Syllabus by the Court

1. In criminal proceedings the insanity of the defendant may be proved by non-expert testimony.

2. There is a presumption of sanity in a criminal proceeding that may be relied upon by the prosecution to establish a prima facie case. The prosecution is never required to introduce evidence of sanity until some evidence is introduced which, if believed by the jury, could raise a reasonable doubt as to a defendant's sanity at the time the offense was committed. This evidence may come from either the defendant or the state.

3. Once evidence has been introduced indicating the possible insanity of the defendant, the burden of proving the defendant is sane rests with the state.

4. The general rule is that once jeopardy has attached the defendant may not be reprosecuted for the same crime unless the trial was terminated because of some action on the part of the defendant or the conviction was set aside as a result of the defendant's appeal or motion.

5. When particular circumstances manifest a necessity for so doing, the trial court may, in its sound discretion, declare a mistrial, discharge the jury, and require a defendant to stand trial before another jury when failure so to do will defeat the ends of justice to either or both parties.

6. In an appeal from a criminal conviction wherein the defendant was convicted in a second trial, after the court had declared a mistrial over defendant's objection in the first trial, the record is examined and it is Held : that on the facts and circumstances set forth in the opinion the retrial of the defendant constituted a violation of her constitutional and statutory rights against twice being placed in jeopardy and the judgment of the trial court is reversed and the case remanded with directions to discharge the defendant.

William L. Fry, of Schultz, Fry & Fisher, Wichita, argued the cause and was on brief, for appellant.

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

HOLMES, Justice:

This is an appeal by defendant-appellant Connie Ann Bates from a conviction of one count of voluntary manslaughter (K.S.A. 21-3403) and one count of aggravated assault (K.S.A. 21-3410).

The crucial points on appeal relate to procedural matters in the lower court and an extensive statement of the facts surrounding the commission of the alleged crimes is not required. Suffice to say that after being beaten by her former live-in boyfriend, Joe Presley, defendant shot and killed him and then struck and threatened his new girlfriend, Yolanda J. Reed, with the same weapon used to dispatch Mr. Presley. Defendant was originally charged with first degree murder in connection with Presley's death but was bound over after the preliminary hearing on a charge of second degree murder. She was eventually convicted, in a second trial, of the lesser included offense of the voluntary manslaughter of Joe Presley and aggravated assault on Yolanda.

Appellant contends that she was illegally tried in the second trial after she had been placed in jeopardy in the first trial which was aborted by the trial judge over defendant's strenuous objections. The procedural steps prior to and during the trials are extremely important. Defendant was arrested at the scene of the crimes on August 27, 1977. On September 7, 1977, defendant moved the court for a mental examination to determine her competency to stand trial and her motion was granted without objection by the state. Defendant was examined by a Dr. Jehan, at the Sedgwick County Department of Mental Health, who filed a report with the court. On October 18, 1977, a hearing was held before the Hon. Tyler C. Lockett, district judge, and based upon the report of Dr. Jehan he found defendant competent to stand trial. On December 7, 1977, defendant filed, pursuant to K.S.A. 1977 Supp. 22-3219, a notice of intent to rely upon the defense of insanity and again asserted that she was not competent to stand trial. No action was taken by either the state or the defendant to secure additional mental and psychiatric examinations. On January 23, 1978, the case was called for trial before the Hon. Elliott Fry, associate district judge. Defendant's counsel again raised the issue of defendant's competency to stand trial. A hearing was held before Judge Fry wherein the defendant testified and the report of Dr. Jehan was again submitted to the court. The record discloses that during this hearing Judge Fry took over the questioning of the defendant and examined her at length. During the examination Connie Ann Bates testified she did not know what date it was, did not know what day of the week it was, did not know what an oath was, did not know what murder was, that she had been struck in the head with a knife a year or so earlier and ever since had suffered from headaches, blurred vision and dizziness, that she did not remember being examined by Dr. Jehan and did not remember shooting Presley or fighting with and threatening Yolanda. Her testimony obviously reflects a person of either a very low I.Q. or a very limited education, or both. Dr. Jehan's report found that she was mildly mentally retarded with an I.Q. of only 61 and a mental age of nine years and one month. Based upon the oral examination of the defendant and the written report of Dr. Jehan, the court found defendant competent to stand trial and ordered that the trial proceed.

Jury selection began that same day and was completed at about noon on January 24, 1978. Opening statements were made by both parties and defendant's counsel referred to the mental deficiencies of his client, her inability to remember the events of August 27, 1977, and that she did not have the mental ability to commit the crimes charged.

Yolanda Reed was the first witness called by the state and on direct examination, in referring to the defendant's actions when she stopped hitting the witness, stated:

"A. She kind of caught herself and looked back and got this weird look on her face. And she kind of looked back in the back seat of the car and seen that Joseph was kind of laying through the bucket seats, and then she kind of backed off, started walking around."

Court was recessed for the day during defense counsel's cross-examination of the witness. The state then made certain motions and arguments to the court, outside the presence of the jury, which are not pertinent to the issues on appeal. The next morning before the jury was placed in the jury box the state made a motion to suspend the proceedings or for a mistrial for the purpose of having the defendant submit to a mental examination. The state's motion is not entirely clear as to whether the requested examination was for the purpose of determining the defendant's competency to stand trial or to determine her sanity at the time the offenses were committed. To say that defense counsel objected strenuously and vociferously would be an understatement; however, the motion was granted and the court declared a mistrial.

The journal entry prepared by the state reads in part as follows:

"IT IS THEREFORE ORDERED that the proceedings against the defendant be suspended until further order of the Court and that a psychiatric examination of the defendant be made at Topeka State Hospital, Topeka, Kansas, to determine if the defendant is able to: a) understand the nature and purpose of the proceedings against her; and b) make or assist in making her defense.

"IT IS FURTHER ORDERED that a complete neurological and psychological examination be made of the defendant to determine if she was sane at the time of the commission of the offense with which she stands charged, to-wit: August 27, 1977, as the defendant has filed a notice to rely on the defense of insanity."

Defendant continued to renew her objection at every subsequent stage of the proceedings although she did submit to an examination at Topeka State Hospital and was confined at that facility from February 7, 1978, to April 3, 1978. On May 26, 1978, Judge Fry entered another order finding the defendant competent to stand trial and ordered the proceedings resumed. On the same date, defense counsel filed a motion for dismissal of all charges on the ground that any further proceedings would be in violation of the double jeopardy protection of the Fifth and Fourteenth Amendments to the United States Constitution, Section Ten of the Kansas Bill of Rights and K.S.A. 1977 Supp. 21-3108. The motion was overruled June 2, 1978, and the defendant was again placed on trial, before a new jury on June 19, 1978. Defendant again moved for discharge and this motion was overruled by Hon. Michael Corrigan, who presided over the second trial. Defendant continued to renew her motions and arguments at every possible opportunity. She was found guilty by the jury on June 26, 1978. Post-trial motions raising the same issues were overruled and the matter is not before this court on appeal.

We now turn to the merits of this appeal. Defendant had filed a timely notice that she intended to rely upon insanity as a defense although she sought no medical examinations to establish such a defense. The state apparently felt that as the defendant was not going to present expert testimony it was not necessary for the state to seek any such testimony. It has long been the rule that in criminal proceedings the insanity of the defendant may be proved by non-expert testimony. In State v. Rumble, 81 Kan. 16, 105 P. 1 (1909), this court stated:

"The question of the defendant's guilt turned solely on whether he was insane. Inasmuch as he was not allowed to try to establish his insanity by the testimony of nonexpert acquaintances one of the well-recognized means of proving such a fact it can not be...