State v. Carpenter

• Decision Date: 14 June 1980
• Docket Number: No. 51278,51278
• Citation: 228 Kan. 115,612 P.2d 163
• Parties: STATE of Kansas, Appellee, v. Eben W. CARPENTER, Appellant.
• Court: Kansas Supreme Court

Page 163

612 P.2d 163

228 Kan. 115

STATE of Kansas, Appellee, v. Eben W. CARPENTER, Appellant.

No. 51278.

Supreme Court of Kansas.

June 14, 1980.

Syllabus by the Court

On an appeal from a conviction in a trial to the court of second-degree murder wherein the case was submitted to the court on the record from a previous jury trial for first-degree murder wherein the defendant was convicted of second-degree murder, the record is examined and it is held : under the facts and circumstances of this case, as set forth in the opinion, the trial court did not commit error in (1) allowing the case to be submitted without a new information, indictment or complaint charging second-degree murder, and (2) finding the defendant guilty of murder in the second degree, and the judgment of the trial court is affirmed.

David J. Waxse, of Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellant.

Gene M. Olander, Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

HOLMES, Justice:

Defendant, Eben W. Carpenter, appeals from a conviction in a trial to the court of one count of second-degree murder. This is the third appearance of this case, in one form or another, before this court. See State v. Carpenter, 215 Kan. 573, 527 P.2d 1333 (1974) (Carpenter I ), and Carpenter v. State, 223 Kan. 523, 575 P.2d 26 (1978) (Carpenter II ), for a statement of the facts in the prior cases which will not be repeated in detail here.

In Carpenter I, the defendant Eben W. Carpenter was charged with the first- degree murder of one Willis Upshaw. Defendant's brother, Jan Carpenter, Karen Larson and Donald Brenner were also charged in connection with the murder. Karen Larson later pled guilty to the crime of aiding a felon and was placed on probation. Jan Carpenter and Brenner both pled guilty to murder in the second degree and Brenner testified against defendant. It appears to be undisputed that Brenner fired the shots which killed Upshaw and that at the time of the actual killing, the defendant Eben Carpenter was outside the State of Kansas. Brenner, an employee of the Carpenter brothers, killed Upshaw as the result of a conspiracy and agreement among Jan and Eben Carpenter and Brenner. Following a trial to a jury, Eben Carpenter was convicted of second-degree murder. The jury had been instructed on second-degree murder as a lesser included offense of first-degree murder and no objection was made to the instruction by either defendant's counsel or the prosecutor. As a result this court, in Carpenter I, held that the instruction was not clearly erroneous and affirmed the conviction on the authority of then K.S.A. 1971 Supp. 22-3414(3), and State v. Yargus, 112 Kan. 450, 211 P. 121 (1922).

Thereafter, defendant filed a motion under K.S.A. 60-1507 to have his conviction set aside on the ground he had been deprived of his right to effective assistance of counsel based upon an alleged conflict of interest of defense counsel. During these proceedings, the trial judge, the Honorable Harold R. Riggs, was disqualified based upon an affidavit of prejudice filed pursuant to K.S.A. 1979 Supp. 20-311d. Judge Buford Shankel, after a hearing, disqualified Judge Riggs and subsequently found a conflict of interest did exist and set aside the conviction. The State appealed and this court, in Carpenter II, held that Judge Riggs had been erroneously removed by Judge Shankel and the case was remanded for further proceedings before Judge Riggs. Judge Riggs then granted the defendant a new trial based upon the conflict of interest of defense counsel.

Defendant's present counsel, who has represented defendant throughout the proceedings in Carpenter II, and on this appeal, submitted the matter by stipulation to the trial judge on the record from the original murder trial. Based upon that record the trial judge found the defendant guilty of second-degree murder. Defendant now appeals in what hopefully will not come to be known at some later date as Carpenter III.

On January 12, 1979, the State and the defendant entered into the following stipulation:

"STIPULATION

"Now on this 12th day of January, 1979, the plaintiff State of Kansas, by Gene Olander, and the defendant, Eben W. Carpenter, in person and by his attorney, David J. Waxse, stipulate as follows:

"1. On September 5, 1972, defendant was indicted for first degree murder by a grand jury sitting in Shawnee County, Kansas.

"2. On November 3, 1972, said cause was transferred to Johnson County, Kansas, pursuant to an order changing venue.

"3. On December 26, 1972, petitioner was acquitted of first degree murder and convicted of second degree murder.

"4. On November 2, 1974, the Supreme Court of Kansas rendered a decision in the direct appeal by defendant from the above described conviction. Said decision is found at 215 Kan. 573 (527 P.2d 1333) (1974).

"5. On February 11, 1975, Eben W. Carpenter filed a motion pursuant to K.S.A. 60-1507 requesting a new trial for the reasons described in his petition.

"6. On July 25, 1978, Judge Harold R. Riggs sustained petitioner's motion for a new trial.

"7. The defendant has now been advised that he must stand trial on the charge of second degree murder.

"8. The State of Kansas has indicated that the evidence and theory of the case to be presented on the charge of second degree murder would be identical to that presented in the first trial in 1972 on the charge of first degree murder and the defendant has no other evidence to present other than that presented in the first trial.

"9. Both parties waive their right to trial by jury and pursuant to K.S.A. 22-3403 submit the trial of this case to the Court.

"10. The Court should consider all of the evidence of all of the witnesses for the parties as was presented in the first trial as if the witnesses were personally present and presented such evidence subject to all objections, ruling on motions, motions, or other objections of every kind and nature presented in said trial, or post trial proceedings, or present proceedings.

"11. Following the consideration of the evidence presented at the previous trial, both parties will have an opportunity to make legal arguments prior the the Court entering its judgment in this matter.

"12. Both parties understand that by proceeding in the above described manner, they are waiving their rights of further confrontation with the witnesses presented at the previous trial and their right to present additional evidence other than that presented at the previous trial.

"13. By entering into this stipulation, neither party waives any rights they may have in regard to any legal positions they have asserted or may assert in the future in regard to the issues of this matter other than those specifically waived above.

"14. If on a motion for new trial or upon an appeal or other decision of any Court, the retrial of this matter shall become necessary, the defendant specifically reserves the right to request trial by jury at any subsequent trial."

Appellant makes two principal points on appeal. The first is that the original first-degree murder indictment was not amended and no new indictment, information or complaint was filed charging second-degree murder. Hence, it is argued defendant could not be tried for second-degree murder under an indictment charging first-degree murder. The second principal point is that the undisputed evidence will not support a conviction of second-degree murder as it clearly shows the defendant was either guilty of first-degree murder or nothing.

It is undisputed that the defendant cannot be tried a second time upon a greater charge than that of which he was convicted in the first trial. A conviction of second-degree murder in the first trial is tantamount to an acquittal of the original charge of first-degree murder. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); K.S.A. 1979 Supp. 21-3108(1)(c ). Appellant argues that as the original indictment charging first-degree murder was never amended or superseded by a complaint, information or indictment charging second-degree murder, he cannot be tried for second-degree murder under the original instrument charging first-degree murder.

We find no Kansas cases wherein the question of amending an indictment has been before the court.

K.S.A. 1979 Supp. 22-3201 provides in part:

"(1) Prosecutions in the district court shall be upon complaint, indictment or information.

"(2) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged . . . .

"(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced."

As is apparent from the statute, a complaint or information may be amended and the courts have been lenient in allowing such amendments. In Cox v. State, 205 Kan. 867, 473 P.2d 106 (1970), we held that in the second trial of a defendant an amendment of an information was not necessary.

"No amendment of an information is necessary in order that the prosecuting attorney may abandon a greater charge and proceed against an accused on a lesser one included therein (and) a simple motion made verbally in open court, or an announcement of such intention (is sufficient) if made before the trial begins." Syl. P 7.

However, nothing in the statute allows the amendment of an indictment. K.S.A. 1979 Supp. 22-3201 is based largely on Rule 7 of the Federal Rules of Criminal Procedure. Under the federal rules it has long been the general rule that an indictment may not be amended.

In 1 Wright, Federal Practice and Procedure: Criminal § 127, it is stated:

"The federal courts continue to adhere to the historic rule...