State v. Campbell

• Decision Date: 17 July 1975
• Docket Number: No. 47833,47833
• Citation: 539 P.2d 329,217 Kan. 756
• Parties: STATE of Kansas, Appellant and Cross-Appellee, v. Charles C. CAMPBELL and Richard Malloy et al., Appellees and Cross-Appellants.
• Court: Kansas Supreme Court

Page 329

539 P.2d 329

217 Kan. 756

STATE of Kansas, Appellant and Cross-Appellee, v. Charles C. CAMPBELL and Richard Malloy et al., Appellees and Cross-Appellants.

No. 47833.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court

A grand jury drawn by computer from voter registration records pursuant to local court rule returned an indictment charging multiple defendants with conspiracy to commit the crime of bribery and another indictment charging a public employee with bribery. On appeal by the state from an order dismissing the indictments because the jury was illegally selected, it is held: The method of jury selection conformed to the provisions of the petit and grand jurors act of 1971 and did not violate defendants' rights to trial by an impartial jury under the sixth and fourteenth amendments to the federal constitution and bill of rights Nos. 5, 10 and 18 to the Kansas constitution. Upon defendants' cross-appeal from prior adverse rulings it is held: (1) The trial court did not err in denying defendants' motion to dismiss the conspiracy indictment on the ground that (a) K.S.A. 21-3302 impermissibly contains a subject not clearly expressed in its title and more than one subject whose provisions are conflicting and contradictory to each other (b) K.S.A. 21-3302 is unconstitutionally vague and indefinite or (c) the indictment failed to state an offense and was impermissibly vague and idefinite and duplicitous; (2) the Shawnee district court had authority to try the defendants upon the indictments; (3) the court did not err in denying the motion to dismiss the bribery indictment on the ground K.S.A. 21-3901 is unconstitutionally vague and indefinite; and (4) the court did not improperly limit discovery and inspection by defendants of prosecution evidence.

Mark L. Bennett, Jr., Sp. Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the briefs for appellant and cross-appellee.

John E. Shamberg of Schnider, Shamberg & May, Chartered, Kansas City, and Charles S. Fisher, Jr., of Fisher, Ralston & Ochs, Topeka, argued the cause, and Robert D. Ochs, Topeka, was with them on the briefs for appellee and cross-appellant Docking.

Heywood H. Davis, Kansas City, Mo., argued the cause, and Clarence H. Dicus, Kansas City, Mo., and Donald Patterson, Topeka, were with him on the briefs for appellees and cross-appellants Campbell, Korff, Lakey, Norton, Jarvis, Sledd, Towner, and Marshall & Brown of Kansas.

Larry E. Benson of Weeks, Thomas, Lysaught, Bingham & Mustain, Chartered, Kansas City, argued the cause, and Robert H. Bingham, Kansas City, was with him on the briefs for appellees and cross-appellants Norbert Sidorowicz and Marshall & Brown-Sidorowicz.

Thomas E. Joyce, Kansas City, argued the cause, and Benjamin E. Franklin and Joseph T. Carey, Kansas City, were with him on the briefs for appellees and cross-appellants Will C. Taliaferro, Bruce Browne, and Taliaferro and Browne, P. A.

Sam A. Crow, Topeka, argued the cause and was on the briefs for appellees and cross-appellants Burgess, Latimer & Miller, P. C., William E. Burgess, William A. Latimer, Robert D. Miller, Ralph E. Preston, Elton R. Plaster, Robert Sommers, and others.

Robert E. Tilton, Topeka, argued the cause and was on the briefs for appellee and cross-appellant Richard Malloy.

HARMAN, Commissioner.

These are two criminal actions wherein by grand jury indictments certain individuals and corporations were charged with conspiracy to commit bribery and another individual was charged with bribery. The state has appealed from rulings dismissing both indictments because the grand jury was improperly selected and defendants have cross-appealed from the denial of other pretrial motions filed by them. The appeals in the two cases have been consolidated for the purpose of the state's appeal under the parties' stipulation that as to common questions a decision in one case will determine the decision in the other.

On November 20, 1973, the then Kansas attorney general applied to the Shawnee county district court judges en banc for the impaneling of a grand jury to investigate the awarding of architectural contracts for certain work at the University of Kansas Medical Center at Kansas City, Kansas. The application was granted and a grand jury was ordered summoned. After selection of the grand jury and presentation of evidence it returned two indictments on January 22, 1974. In district court case No. 29,155 the indictment charged eighteen individuals and five corporations wth conspiring to bribe Richard Malloy, a public employee. These defendants Charles C. Campbell; George R. Docking; Edwin W. Korff; Jack E. Lakey; M. Gene Norton; Robert B. Jarvis; Donald R. Sledd; Forrest A. Towner; Marshall and Brown of Kansas, Architects, Engineers, Planners, Chartered, a Kansas Corporation; Marshall & Brown, Inc., a Missouri corporation; Marshall & Brown-Sidorowicz, P. A., a Kansas corporation; Norbert J. Sidorowicz; Taliaferro & Browne, P. A., a Kansas corporation; Will Taliaferro; Bruce Browne; Burgess, Latimer & Miller, P. C., a Missouri corporation; William E. Burgess; William A. Latimer; Robert D. Miller; Ralph E. Preston; Elton R. Plaster; Robert Sommers; and John Richner.

In district court case No. 29,156 the indictment charged Richard Malloy with bribery.

Shortly after the indictments were returned the defendants individually filed various motions alleging lack of venue and jurisdiction, that the conspiracy and bribery statutes are unconstitutional; the particular indictment was duplicitous, vague and failed to charge an offense; and also requesting discovery. These motions were ruled upon by Honorable E. Newton Vickers, administrative judge of Shawnee district court (defendants' cross-appeal is from those rulings adverse to them). Subsequently all defendants filed motions for dismissal of the indictments upon the ground the grand jury which returned them had been illegally selected. The Shawnee district court judges disqualified themselves for the purpose of determining these motions since they had promulgated the rule prescribing the method of jury selection in Shawnee county and were also acting as jury commissioners. Upon this recusal this court assigned Honorable Jay Sullivan, retired district judge, as judge pro tem to hear and determine the motions challenging the grand jury's composition. Judge Sullivan sustained the motions and dismissed the indictments.

Thereafter disagreement developed between the state and the defendants as to the exact import of Judge Sullivan's memorandum opinion dismissing the indictments, as a result of which some of the defendants filed motions to amend or clarify the judgments and for additional findings. These motions were designed to obtain a ruling that the grand jury was void ab initio. Prior to hearing on these motions the state filed affidavits of prejudice in an effort to disqualify Judge Sullivan from ruling upon them. This court assigned Honorable Leo A. McNalley, retired district judge, as judge pro tem to determine the sufficiency of the affidavits. Judge McNalley ruled that the affidavits were legally insufficient. Upon remand, Judge Sullivan heard and sustained the motions to amend, ruling that the grand jury was void ab initio. The state has appealed from these three adverse rulings: Judge Sullivan's order dismissing the indictments, Judge McNalley's ruling on the affidavits of prejudice and Judge Sullivan's final order. Defendants have cross-appealed from prior adverse rulings by Judge Vickers.

Several witnesses testified at a hearing held before Judge Sullivan on the motion to dismiss the indictments because of improper grand jury selection. We summarize that evidence. After the enanctment of the petit and grand jurors act of 1971 the judges of the district court of Shawnee county adopted local rule No. 21, which found that Shawnee county had appropriate base information programmed as a part of its computer operations containing names and addresses of all registered voters in the county, and that use of this list would comply with the spirit of the jury selection laws of Kansas, and said list would be used by the judges serving as jury commissioners in securing jurors, the names to be selected at random through the computer program. Prior to adopting this system of jury selection the Shawnee county judges had instructed Mr. Albert Hatch, data processing manager for Shawnee county to devise a computer program for the selection of jurors from the voter registration rolls. Mr. Hatch checked as to how juror's names were selected from voter registration records in Johnson county, Kansas, and in the federal courts in Washington, D. C. Using this experience he developed a formula which was accepted by the Shawnee district judges and used in selecting jurors' names by computer. The components of the formula were the number of names on the voter registration list, the number of jury lists to be selected, the number of individuals to be placed on each jury list, and, finally, a starting number between zero and one hundred which would be given to Mr. Hatch by a district judge. In practice ten separate jury lists were prepared with 175 names on each list. Under the formula the names on the voter registration list were assigned numbers and placed in the computer. The starting number selected by a judge would be the first juror selected and the starting point of the entire selection of the jury panel. Then the factor derived from the formula was applied. For example, if the factor was 43 then every forty-third person on the voter registration list, using the number selected by a judge as the starting point, would be selected, except the computer would skip over a number flagged because the individual represented by it had previously served as a juror within a particular time. Mr. Hatch's instructions from the judges were to...