State v. Clark

• Citation: 563 P.2d 1028,222 Kan. 65
• Decision Date: 09 April 1977
• Docket Number: No. 48322,48322
• Parties: STATE of Kansas, Appellee, v. Joe Wayne CLARK, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1028

563 P.2d 1028

222 Kan. 65

STATE of Kansas, Appellee, v. Joe Wayne CLARK, Appellant.

No. 48322.

Supreme Court of Kansas.

April 9, 1977.

Syllabus by the Court

1. Under the interstate Agreement on Detainers (K.S.A. 22-4401, et seq.), a detainer is a notice filed with the confining institution that criminal charges are pending from another jurisdiction and the prisoner is wanted in order to stand trial on those charges.

2. Under the interstate Agreement on Detainers (K.S.A. 22-4401, et seq.), a request for temporary custody which has not been preceded by a formal detainer has the legal effect of a detainer.

3. The interstate Agreement on Detainers (K.S.A. 22-4401, et seq.), which requires prison officials to promptly notify a prisoner in writing of any detainer lodged against him and that he has a right to request a speedy disposition of the charges, is construed to be directory, and it does not require the dismissal of the charges and discharge of the defendant if the defendant is not promptly notified of the detainer.

4. Under the interstate Agreement on Detainers (K.S.A. 22-4401, et seq.), when prison officials fail to notify a prisoner in writing that detainer has been lodged against him and that he has the right to request a speedy disposition of the charges, the speedy trial provisions of the Agreement are not activated and a defendant's right to a speedy trial must be gauged from a constitutional viewpoint.

5. Some of the factors which courts should assess in determining whether a defendant has been deprived of his constitutional right to a speedy trial include the length of delay, the reason for the delay, the defendant's assertion of his right and prejudice to the defendant. (Following Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101.

6. A defendant cannot object to the introduction of evidence on one ground at the time of trial and assert a new objection on appeal.

7. When a declarant testifies on behalf of the state in a criminal trial his out-of-court statements may be admitted under K.S.A. 60-460(a). (Following State v. Fisher, 222 Kan. -, 563 P.2d 1012 (No. 48,359, this day decided).)

8. The erroneous introduction of evidence is beyond the scope of review on appeal when no objection was lodged to its introduction at trial.

9. There is no prejudicial error when a statement of a prosecutor is provoked by or made in response to previous arguments or statements of defense counsel.

Mikel L. Stout, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause and was on the brief for appellant.

Stephen E. Robison, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellee.

OWSLEY, Justice.

Defendant appeals from his convictions for the offenses of aggravated burglary, aggravated robbery, kidnapping and battery.

An information for the above-stated charges was filed on November 13, 1973. Defendant waived arraignment and was released leased on bond, with trial set for January 7, 1974. On that date defendant failed to appear.

Subsequently, defendant was apprehended in the State of Arkansas for offenses committed while in that state. He was convicted of several offenses and sentenced to serve a 67-year prison term.

Authorities in Sedgwick County, Kansas, learned of defendant's Arkansas incarceration and decided to bring him to Kansas to be tried on charges previously filed. On November 27, 1974, the Sedgwick County prosecutor filed a request for temporary custody of defendant, pursuant to Article IV of the Agreement on Detainers (hereinafter referred to as Agreement). (K.S.A. 22-4401, et seq.) A copy of the request was mailed to defendant and was received by him on November 27 or 28, 1974. For some unknown reason the copy to be served upon the prison authorities at Grady, Arkansas, was misplaced.

A formal detainer, as contemplated in Article III of the Agreement, was never filed by Sedgwick County with the Arkansas authorities. Although defendant received a copy of the request, he was never formally notified by Arkansas authorities of the existence of a detainer, nor was he ever informed of his right to a speedy trial.

The request for temporary custody languished in the hands of the Arkansas authorities until April 2, 1975, when they offered to turn defendant over to Kansas. Kansas authorities obtained custody of the prisoner on May 2, 1975. Upon arrival in Kansas defendant filed a motion for discharge for lack of speedy trial, which was overruled. Trial began on June 10, 1975, at which time defendant renewed his motion. It was again overruled. Defendant was found guilty.

The initial question is whether an accused imprisoned in a penal institution of another state, who has a detainer lodged against him for criminal charges pending in the State of Kansas, is entitled to dismissal of the charges when the authorities of the retaining institution fail to inform him of the existence, source and contents of the detainer and fail to inform him of the right to request final disposition thereof, pursuant to the Agreement. This question, in the context of the Agreement, is one of first impression in this jurisdiction.

The interstate Agreement on Detainers was enacted to provide a method whereby a prisoner in another state or federal institution could require disposition of charges pending against him. Under the Agreement, once a detainer has been lodged the authorities having custody of the prisoner 'shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition' thereof. (K.S.A. 22-4401, Art. III(c).) If the prisoner properly enters a request, he must be returned to the jurisdiction in which the detainer was filed and tried within 180 days of the time he requests disposition. If the prisoner makes no request for disposition, he must be tried within 120 days from the time he is returned to the requesting state. Failure to try the prisoner within the applicable time requires dismissal of the charges upon which the detainer is based.

The state argues it is not necessary to face the foregoing issue because a detainer was never filed and the Agreement has no application. We cannot construe the term 'detainer' so narrowly. Were we to do so the state could forestall the application of the Agreement by filing a request for temporary custody, ignoring the use of a formal detainer. A detainer is a hold order or informal demand by one exercising public authority for the possession of a person already in lawful custody. In the field of interstate relation, a detainer puts prison officials in the custodial state on notice that the prisoner is charged with a crime in another state and is a fugitive from justice. (Bursque v. Moore, 26 Conn.Sup. 469, 227 A.2d 255 (1966).) Under the Agreement, a detainer is simply a notice filed with the confining institution that criminal charges from another jurisdiction are outstanding and the prisoner is wanted in order to stand trial on those charges. (United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975).) We conclude that under the Agreement a request for temporary custody which has not been preceded by a formal detainer has the legal effect of a detainer.

The facts of the instant case render the 180-day provision inapplicable. The provision is not triggered because defendant was never notified of the existence of the request for temporary custody and his concomitant rights. This court must determine the effect of a detainer on a defendant's right to a speedy trial when he is not informed in the manner prescribed by the Agreement.

The Uniform Mandatory Disposition of Detainers Act (hereinafter referred to as Act) provides that a prisoner incarcerated in this state shall promptly be notified in writing of any detainer lodged against him and shall be informed of his right to request a speedy disposition of the charges comprising the detainer. (K.S.A. 22-4301(b).) Failure to notify a prisoner, as required, within one year entitles the prisoner to a final dismissal of the charges with prejudice. (K.S.A. 22-4301(c).) This court has invoked the sanction for failure to notify on two occasions. (State v. Norris, 210 Kan. 457, 502 P.2d 817; State v. Ellis, 208 Kan. 59, 490 P.2d 364.)

Although this court has stated the purposes of the Act and the Agreement are parallel (Ekis, Petitioner v. Darr, 217 Kan. 817, 539 P.2d 16; State v. Dolack, 216 Kan. 622, 533 P.2d 1282), we do not mean to imply that the Act and the Agreement are alike or identical in all respects. The Agreement is distinguishable from the Act in cases where prison officials fail to notify a prisoner of an outstanding detainer. While the Act provides a sanction which compels a court to dismiss charges when a prison official fails to notify a prisoner, the Agreement has no such provision.

A legislative enactment providing for a speedy trial, with no sanction for failure to comply with the mandate, is generally construed as directory. (State v. Fink, 217 Kan. 671, 676, 538 P.2d 1390, and cases cited therein.) In the absence of a specific sanction, the right to a speedy trial must be gauged from a constitutional viewpoint. (State v. Otero, 210 Kan. 530, 502 P.2d 763.) Criteria to be considered were set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101. There the court stated:

'. . . We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four factors: Length of delay, the...