State v. Burnett, 48462

• Decision Date: 09 April 1977
• Docket Number: No. 48462,48462
• Citation: 222 Kan. 162,563 P.2d 451
• Parties: STATE of Kansas, Appellee, v. Robert L. BURNETT, Appellant.
• Court: Kansas Supreme Court

Page 451

563 P.2d 451

222 Kan. 162

STATE of Kansas, Appellee, v. Robert L. BURNETT, Appellant.

No. 48462.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. K.S.A. 22-3219(2) does not make it mandatory upon a trial court to authorize the retention at public expense of any physician an indigent defendant may select for the purpose of securing a mental examination.

2. K.S.A. 22-3219(2) must be read in conjunction with K.S.A. 22-4508.

3. Whether expert services are necessary to an adequate defense is a matter left to the sound discretion of the trial court. A denial of an application for expert services will not be disturbed in the absence of a showing of abuse of discretion to the extent that a defendant's substantial rights have been prejudiced thereby.

4. K.S.A. 22-3603 (now K.S.A.1976 Supp.), providing for interlocutory appeals by the state in limited circumstances, does not constitute invidious discrimination and does not violate due process or equal protection of the laws.

Jack W. Shultz, Dodge City, argued the cause and was on the brief for appellant.

Daniel L. Watkins, Asst. Atty. Gen., Topeka, argued the cause, and Curt T. Schneider, Atty. Gen., and Terry J. Malone, County Atty., were with him on the brief for appellee.

MILLER, Justice.

Robert L. Burnett appeals from convictions of burglary and felony theft under K.S.A. 21-3715 and K.S.A. 21-3701(a). Two points are before us: whether the trial court erred in denying Burnett a psychiatric examination at public expense by a physician of his own choosing; and whether K.S.A. 22-3603 (now K.S.A.1976 Supp.), providing for interlocutory appeals by the state and not by the accused, constitutes invidious discrimination and is a denial of due process and the equal protection of the laws to this defendant.

The facts of the occurrence out of which the crime arose have no bearing on the issues raised and need not be detailed here. Burnett does not challenge the sufficiency of the state's evidence.

Defendant was found to be indigent, and counsel was appointed for him. At arraignment he pled not guilty, and not guilty by reason of insanity, and the court on motion authorized his counsel to incur the costs of procuring the services of a qualified psychiatrist, such costs to be defrayed by the state indigent defendant fund pursuant to K.S.A. 22-4508.

Some 60 days thereafter, counsel applied for specific authority to procure the services of Dr. Charles Wellshear and the Wesley Medical Center in Wichita for a psychiatric examination. Counsel was unable to estimate the cost of the requested services. After hearing argument, the trial court found that the request was not reasonable and denied the motion; but the court did provide for an examination, at public expense, at either of three state facilities.

Burnett then moved this court for leave to take an interlocutory appeal. The motion was denied for lack of jurisdiction on June 6, 1975.

Thereafter, defendant selected the Topeka State Hospital and counsel made an appointment for his client to be examined by Dr. Tarnoff on August 20. Defendant arrived at the appointed time but Dr. Tarnoff was not there. However, defendant was examined by Dr. Charles E. Staunton, a staff psychiatrist at the Topeka State Hospital, and a lengthy report, signed by Dr. Staunton and four other staff physicians, including Dr. W. Walter Menninger, was prepared on August 25 and forwarded to court and counsel. While the report was not couched in the language of M'Naghten (see State v. Andrews, 187 Kan. 458, 466, 357 P.2d 739, and State v. Pyle, 216 Kan. 423, 440, 532 P.2d 1309), it clearly and unmistakably expresses the opinion that Burnett was not psychotic, was not suffering from any thought disorder, and was legally sane.

The report was received less than a week prior to trial. On the morning of trial, defendant moved for a continuance in order that he might secure an examination by a psychiatrist of his own choosing, and requested that the court grant counsel authority to engage such an expert, the cost to be paid by the Aid to Indigent Defendants Fund. The motion was denied and trial proceeded; defendant was convicted, and appeals.

Defendant first contends that under K.S.A. 22-3219(2) he had an absolute right to an examination by a physician of his own choosing at public expense. The statute reads:

'A defendant who files a notice of intention to rely on the defense of insanity thereby submits and consents to abide by such further orders as the court may make requiring the mental examination of the defendant and designating the place of examination and the physician or physicians by whom such examination shall be made. No order of the court respecting a mental examination shall preclude the defendant from procuring an examination by a physician of his own choosing. A report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosucuting attorney.'

This statute must, of course, be read in conjunction with K.S.A. 22-4508, which provides:

'Counsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in his case may request them in an ex parte application addressed to the magistrate or court where the action is pending. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the magistrate or court shall authorize counsel to obtain the services on behalf of the defendant. . . . The court shall determine reasonable compensation for the services and approve payment to the origanization or person who rendered them . . .'

K.S.A. 22-3219, as we read it, merely provides that when an insanity defense is raised, the defendant is deemed to consent to orders of the court requiring mental examinations, and such orders as the court may make do not prevent the defendant from securing examinations by physicians other than those designated by the court. We do not read the statute as does the defendant. We hold that the statute does not make it mandatory upon the trial court to authorize the retention at public expense of any psychiatrist an indigent defendant may select simply because notice of an insanity defense has been given.

The authorization of supporting services, whether they be investigative, expert or otherwise, is a matter within the sound discretion of the trial court.

Chief Justice Price, speaking for a unanimous court in the last opinion he wrote, State v. Frideaux, 207 Kan. 790, 487 P.2d 541, said:

K.S.A.1970 Supp. 22-4508, being a section of the act relating to 'Aid to Indigent Defendants,' and which provides for the furnishing of investigative services to an indigent defendant under circumstances set forth in the statute, does not give to a defendant an absolute right to such services merely upon application being made therefor. Such services are to be provided only upon a finding by the court, after appropriate inquiry, that they are necessary to an adequate defense. A finding necessarily involves the exercise of the sound discretion of the court-and a denial of an application will not be disturbed in the absence of a showing that such discretion has been abused to the extent that a defendant's substantial rights have been prejudiced thereby.' (Syl. 1.)

Later, in State v. Campbell, 210 Kan. 265, 273, 274, 275, 500 P.2d 21, 28, 29, we said:

'. . . (T)he appellant moved the trial court to provide . . . funds for an examination . . . by Dr. Ralph L. Drake and by the Wichita Psychiatric Center regarding his mental state, before, during and after the crimes with which he was charged . . . The request for funds was denied . . .

'This court has held that the granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the discretion of the trial court. Its ruling will not be disturbed in the absence of a showing that the exercise of such discretion has been abused to the extent of prejudicing the substantial rights of the defendant. (State v. Taylor, 202 Kan. 202, 447 P.2d 806; State v. Young, 203 Kan. 296, 454 P.2d 724; and State v. Frideaux, 207 Kan. 790, 487 P.2d 541.)

'K.S.A.1971 Supp. 22-4508 now provides for investigative services for indigent defendants, but the trial court must determine such services are 'necessary,' which is in accordance with prior case law.

'In July, 1969, when this case came on for trial the appellant renewed his request for funds and K.S.A.1971 Supp. 22-4508 authorizing such expenditures, had become operative. (L.1969, ch. 291, sec. 8, effective July 1, 1969.)

'Both before and after the effective date of 22-4508, supra, the burden was upon the appellant to show that the request for services was necessary, and on appeal that the denial of...