State v. Cameron

• Decision Date: 05 April 1975
• Docket Number: No. 47571,47571
• Citation: State v. Cameron, 216 Kan. 644, 533 P.2d 1255 (Kan. 1975)
• Parties: STATE of Kansas, Appellee, v. Everett L. CAMERON, and Robert D. Bentley, Appellants.
• Court: Kansas Supreme Court

Page 1255

533 P.2d 1255

216 Kan. 644

STATE of Kansas, Appellee, v. Everett L. CAMERON, and Robert D. Bentley, Appellants.

No. 47571.

Supreme Court of Kansas.

April 5, 1975.

Syllabus by the Court

1. The mere publication of newspaper accounts of a crime does not establish per se that a defendant cannot obtain a fair and impartial trial in the county.

2. The trial court may, in its discretion, properly deny a motion to change venue, when the defendant in a criminal action fails to present affirmative evidence that prejudice exists so as to make it appear reasonably certain that he cannot obtain a fair trial.

3. The granting of a continuance lies within the sound discretion of the trial court and its refusal to sustain a motion for continuance will not be overturned in the absence of a clear abuse of discretion.

4. Pursuant to the provisions of K.S.A. 22-3204, when two or more defendants are jointly charged with any crime the granting of a separate trial for any one defendant lies within the sound discretion of the trial court.

5. A trial court is required to instruct on lesser included offenses where there is support therefor in the evidence, but the failure to instruct on a lesser degree of an offense charged does not constitute error where the evidence negatives a lesser degree of guilt. (Following State v. Hollaway, 214 Kan. 636 (Syl. 4), 522 P.2d 364.)

Douglas J. Irwin (Court-appointed), Wichita, argued the cause and was on the brief for appellants.

Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Stephen M. Joseph, Asst. Dist. Atty., were on the brief for appellee.

KAUL, Justice:

Defendants-appellants (Everett L. Cameron and Robert D. Bentley) appeal from convictions by a jury of four counts of aggravated robbery; two counts of aggravated burglary; one count of rape; and one count of aggravated sodomy.

On March 16, 1973, at approximately 10:30 p. m. defendants forced their way into a room at the Airline Motel in Wichita. The room was occupied by a young married couple on their wedding night. Defendants forced entry when the young husband responded to a knock on the door. Cameron was armed with a shotgun and Bentley with a pistol. When defendants entered the room the wife retreated to the bathroom. Cameron ordered her out and both the husband and wife were ordered to lie on the floor. Defendants took eight dollars from the husband, his watch and wedding ring-and from the wife her engagement and wedding rings and one dollar. After robbing the couple of all their cash and jewelry each defendant raped the wife and committed anal copulation upon her. Bentley, upon threat of death, then forced the wife to commit oral copulation on him. Defendants then tied the young couple with strips of cloth torn from a bedsheet and as they left the young couple's room Bentley struck the wife on the head with his pistol.

After defendants left the Airline they proceeded to the Townhouse Motel, arriving around 11:40 p. m. Gerald Dewberry was returning to his room at the Townhouse with food which he had brought from the motel restaurant for himself and his business partner, Gerald A. King, who was inside the room at the time and as Dewberry opened the door to his room, Bentley produced his pistol and forced his way into the room. A few minutes later Cameron, armed with his shotgun also entered the room. Dewberry and King were ordered to lie on the floor. Defendants then proceeded to take their money and jewelry, and while Dewberry and King were still on the floor, defendants sat down and ate the food which Dewberry had brought from the motel restaurant. Defendants kicked and severely beat both Dewberry and King and tied them with strips of cloth torn from bedsheets in the same manner as they had tied the newlyweds an hour earlier.

Three days later, on March 19, 1973, defendants were arrested. After a line-up identification, complaints were filed charging defendants on eight counts as previously stated.

Prior to their trial, which was set for August 21, 1973 defendants broke jail on August 17, but were apprehended soon thereafter. Following their apprehension after the jailbreak, defendants filed motions for continuance and change of venue, which were denied. The trial was commenced as previously scheduled. Defendants were jointly tried to a jury and each was convicted of all of the eight counts charged.

In the first of eight points specified on appeal, defendants contend the trial court erred in denying their request for continuance due to the fact that their escape from jail occurred only two days prior to the commencement of their trial. Defendants argue that their escape from jail generated such radio, television and newspaper publicity that being forced to go to trial, within two days thereafter, deprived them of life and liberty without due process of law.

In much the same manner, in point two, defendants assert that because of publicity surrounding their escape they were deprived of a fair and impartial trial when their motions for change of venue were denied. Defendants combine their arguments on points one and two and we shall consider the two points together.

Each defendant had previously filed a motion for a change of venue claiming that publicity in Wichita newspapers immediately following their arrests prevented a fair trial. Their motions were heard and denied by the administrative judge on June 8, 1973.

The basis for a change of venue in Kansas is governed by K.S.A. 22-2616(1) which reads:

'(1) In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.'

We glean from the record that when the motions were heard by the trial court one or more of the newspaper articles were exhibited to the court, but none of the newspaper accounts or radio broadcasts are reproduced in the record on appeal. Apparently, no other evidence was submitted. It appears that, in substance, defendants' argument it that the publicity generated by the nature of the offenses and the jailbreak constitutes prejudice per se. Defendants' argument is squarely met by our decision in State v. Randol, 212 Kan. 461, 513 P.2d 248, wherein we held:

'The mere publication of newspaper articles does not establish prejudice per se that defendant cannot obtain a fair and impartial trial in the county.' (Sul. 1.)

It has long been the law of this jurisdiction that a change of venue in a criminal case lies within the sound discretion of the trial court. (State v. Randol, supra.) The burden of proof is cast upon the defendant to show prejudice in the community. (State v. Anderson, 202 Kan. 52, 446 P.2d 844.) Furthermore, prejudice must be established 'not as a matter of speculation but as a demonstrable reality.' (State v. McLaughlin, 207 Kan. 594, 485 P.2d 1360; and Woods v. Munns, 347 F.2d 948 ((10th Cir. 1965)). Notwithstanding defendant's failure to present affirmative evidence, we have carefully examined the record in this regard. The record discloses that fifty-seven jurors were examined on voir dire; twenty were excused for cause, but only nine were challenged and excused because of knowledge of publicity about the case. The other eleven jurors were excused for medical or other reasons unrelated to possible prejudice by reason of publicity. The voir dire examination of the prospective jurors demonstrates that the community was far from saturated with prejudice. Defendants have totally failed to show so great a prejudice existing against them that they could not obtain a fair and impartial trial in Sedgwick County.

The granting of a continuance like change of venue also lies within the sound discretion of the trial court. (State v. McVeigh, 213 Kan. 432, 516 P.2d 918.) Concerning the granting of continuances K.S.A. 22-3401 provides:

'All persons charged with crime shall be tried without unnecessary delay. Continuances may be granted to either party for good cause shown.'

Defendants make the same argument with respect to the overruling of their motions for a continuance as that advanced on change of venue; that is, the publicity generated by their escape shows good cause for continuance. What has been said concerning change of venue effectively answers the argument of defendants with respect to denial of a continuance. Absent a showing of actual prejudice, the trial court's refusal to grant a continuance does not constitute an abuse of discretion. We further note that defendants did not renew either their motions for change of venue or continuance at the close of voir dire examination.

In their third point defendants contend the trial court erred in denying their motions to sever counts Nos. 1, 2, 3, 4 and 7 relating to offenses at the Airline Motel from counts Nos. 5, 6 and 8 concerning charges arising from defendant's acts at the Townhouse Motel. Defendants assert that jumbling of the eight separate counts prevented a concentrated consideration of each count by each person on the jury panel. They further say that the offenses occurring at the Airline Motel are not related to nor was there a common element of substantial importance to connect them with the offenses occurring at the Townhouse Motel. Defendants' position cannot be maintained. Joinder of counts in the same complaint or information is governed by K.S.A. 22-3202(1) which reads:

'Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or...