State v. Brooks

• Decision Date: 23 January 1971
• Docket Number: No. 45853,45853
• Citation: 206 Kan. 418,479 P.2d 893
• Parties: STATE of Kansas, Appellant, v. C. D. BROOKS, Appellee.
• Court: Kansas Supreme Court

Page 893

479 P.2d 893

206 Kan. 418

STATE of Kansas, Appellant, v. C. D. BROOKS, Appellee.

No. 45853.

Supreme Court of Kansas.

Jan. 23, 1971.

Syllabus by the Court

1. Where a prosecution is pending against an accused confined in a state penal institution for another offense, the definition of a speedy trial and the procedure for relief are governed by the provisions of the Uniform Mandatory Disposition of Detainers Act, K.S.A. 62-2901 et seq., and the provisions of K.S.A. 62-1431 have no application.

2. To obtain the right of a speedy public trial provided by section 10 of our Bill of Rights, as legislatively defined by the Uniform Mandatory Disposition of Detainers Act, it is incumbent upon the accused incarcerated in a penal institution of this state to comply with all provisions of the Act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it. (Following Brimer v. State, 195 Kan. 107, 402 P.2d 789.)

Edward G. Collister, Jr., Asst. Atty. Gen., argued the cause, and Kent Frizzell, Atty. Gen., Frank D. Menghini, County Atty., and Nick A. Tomasic, Asst. County Atty., were with him on the brief for appellant.

Rick J. Eichor, Kansas City, argued the cause, and William E. Scott, Kansas City, was with him on the brief for appellee.

HATCHER, Commissioner.

This is an appeal by the state from an order of the district court discharging an accused from prosecution because of his being denied a speedy trial.

The facts on the issues as presented to the trial court are not in dispute.

The movant, appellee here, was charged with the theft of an automobile on March 26, 1968. While out on bail awaiting trial he again became involved and was charged with attempted robbery on April 8, 1968.

On April 10, and 11, 1968, the movant was tried and convicted on the automobile theft charge and sentenced to the Kansas State Reformatory at Hutchinson. He was there until June 24, 1969-thirteen months-at which time he was paroled and returned to Wyandotte County. The attempted robbery charge was set for trial on Monday, September 29, 1969.

On or about September 18, 1969, the movant filed his motion for discharge. The motion reads:

'Comes now the defendant above named, C. D. Brooks, and moves the Court for an order discharging him from trial in the above entitled matter (attemped robbery) because of the failure of the State to comply with the provisions of K.S.A. 62-1431, and 62-1432, and for the further violation of Section 10 of the Bill of Rights of the Constitution of the State of Kansas which guarantees the defendant a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and for the further violation of the Sixth Amendment to the United States Constitution which also guarantees the defendant-accused, the right to a speedy and public trial by an impartial jury of the state and district where the alleged crime shall have been committed, and for further violation of Section 1 of the Fourteenth Amendment to the United States Constitution which guarantees to the defendant due process of law and equal protection of the laws.'

The motion was tried before the district court on September 24, 1969, and on September 26, 1969, a journal entry was filed in which the trial court concluded:

'* * * The Court concludes as a matter of law that it must follow the mandate of the United States Supreme Court in the case of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and other similarly well-reasoned cases, and that the defendant must be discharged in compliance with K.S.A. 62-1431.

'IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the defendant, C. D. Brooks, be and he is discharged from prosecution in the above entitled case on this 26th day of September, 1969.'

The state has appealed.

The appellant contends that Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 is not controlling under the facts before us and K.S.A. 62-1431 has no application.

We are inclined to agree.

In Smith v. Hooey it was determined that the right to a speedy trial as expressed in the Sixth Amendment to the Constitution of the United States was made applicable to the states by reason of the Fourteenth Amendment but the court gave little practical guidance for effectuating the right or for determining when the right has been violated. We do not find that it changed any of the rules announced in Fleming v. United States, 378 F.2d 502, where the United States Circuit Court of Appeals, First Circuit, stated:

'As to defendant's additional contention that the post-indictment delay violated his Sixth Amendment right to a speedy trial, as well as the 'unnecessary delay' clause of Rule 48(b) which enforces this right, we point out that this delay was also very short-eleven months. Furthermore, 'the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.' United States v. Ewell, supra, 383 U.S. 116, at 120, 86 S.Ct. 773 at 776, 15 L.Ed.2d 627. Consequently, the showing of a mere lapse of time is not enough to establish denial of a speedy trial. As indicated above, it is essential that defendant also show prejudice or that the delay was improperly motivated.' (p. 504.)

It would also appear from the above cases that a request is necessary before defendant can complain of failure to grant a speedy trial under the federal rule.

We next turn to the Kansas requirements for a speedy trial. The Kansas Constitution provides in Section 10 of the Bill of Rights that every person accused of a crime is entitled to a speedy trial. Although the language of this particular section is similar to that of the Sixth Amendment to the United States Constitution its definition is somewhat different. We have in a number of cases concluded that the Kansas constitutional right to a speedy trial is defined by the various statutory provisions enacted to supplement the general language of the constitution. Prior to 1959, this court consistently held that K.S.A. 62-1431 and K.S.A. 62-1432 defined the right to a speedy trial as it existed under Section 10 of the State Bill of Rights. In State v. Williams, 187 Kan. 629, 630, 360 P.2d 11, at page 12, we stated at page 630 of the opinion:

'* * * What constitutes a speedy trial is said to be legislatively defined by G.S.1949, 62-1431 and 62-1432. See In re Trull, 133 Kan. 165, 167, 298 P. 775; State v. Hess, 180 Kan. 472, 474, 475, 304 P.2d 474; State v. Goetz, 187 Kan. 117, 353 P.2d 816. In its decisions (See, e. g., State v. Stanley, 179 Kan. 613, 615, 296 P.2d 1088, and State v. Hess, supra.) * * *'

K.S.A. 62-1432 applies only where the accused is out on bail waiting trial and could have no application here.

The statute (K.S.A. 62-1431) cited by the trial court as authority for its conclusion provides:

'If any person under indictment or information for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense which shall be held after such indictment found or information filed, he shall be entitled to be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner, or shall be occasioned by the want of time to try the cause at such second term.'

The above...