State v. Colbert

• Decision Date: 02 June 1995
• Docket Number: No. 71757,71757
• Citation: 896 P.2d 1089,257 Kan. 896
• Parties: STATE of Kansas, Appellee, v. Bryant L. COLBERT, Appellant.
• Court: Kansas Supreme Court

Page 1089

896 P.2d 1089

257 Kan. 896

STATE of Kansas, Appellee, v. Bryant L. COLBERT, Appellant.

No. 71757.

Supreme Court of Kansas.

June 2, 1995.

Syllabus by the Court

1. A defendant, by requesting or acquiescing in the grant of a continuance, may waive the statutory right to a speedy trial.

2. Delays which are the result of the application or fault of the accused are not counted in computing the statutory speedy trial period. K.S.A. 22-3402.

3. In computing the statutory speedy trial period, any additional period of time assessed against a defendant due to the necessity of rescheduling a trial because of a defendant's fault should be limited to a reasonable time measured by the particular circumstances of the case.

4. Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant.

5. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory, and the withholding of the evidence must be clearly prejudicial to the defendant. Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment.

6. Evidence not disclosed to the defendant before trial need not be suppressed or withheld from the jury if the defendant has personal knowledge thereof or if the facts become available to the defendant during trial and the defendant is not prejudiced in defending against them.

7. Generally, a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application for the warrant. An exception to this general rule is available if the challenger's attack to the supporting instruments is buttressed by allegations and an offer of proof under oath that the affidavit or application for search warrant contains (1) material statements of deliberate falsehood or reckless disregard for the truth or (2) deliberate omissions of material facts.

8. A person attacking an affidavit supporting a search warrant on the basis that it omitted information must prove that the omission was both deliberate and material.

9. The right of an accused to confront and cross-examine witnesses is discussed.

10. The admission of DNA evidence is discussed.

Benjamin C. Wood, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

Ann L. Smith, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief, for appellee.

LOCKETT, Justice:

Defendant appeals his convictions on one count of aggravated kidnapping, K.S.A. 21-3421; three counts of rape, K.S.A. 21-3502; two counts of aggravated burglary, K.S.A.1991 Supp. 21-3716; one count of aggravated criminal sodomy, K.S.A. 21-3506, and one count of attempted aggravated criminal sodomy, K.S.A. 21-3506 and K.S.A.1992 Supp. 21-3301. Defendant claims (1) his statutory right to a speedy trial was violated; (2) the prosecution failed to disclose exculpatory evidence; and (3) the trial judge improperly admitted: (a) evidence that one person committed all crimes, (b) a serological report without right of cross-examination, (c) DNA evidence, and (d) evidence seized under a search warrant. This court has jurisdiction pursuant to K.S.A.1994 Supp. 22-3601(b)(1).

A series of five rapes was reported to the Coffeyville Police Department between April 1990 and January 1993. The first rape occurred on April 5, 1990. E.S. was asleep inside her residence on her couch. She awoke around 1:00 a.m. A black man entered her residence and raped her.

On August 12, 1990, S.S. was in her residence. At approximately 3:15 a.m., a friend introduced the defendant, a black male, to her. After her friend and the defendant went to the upstairs of the residence to talk, S.S. went to sleep in her bedroom. At approximately 4:00 a.m., S.S. heard her friend say she was leaving, but S.S. was unsure if the defendant left with her. The next thing S.S. knew, a black male placed his hand over her mouth. She was raped. The man fled. The Coffeyville police were immediately notified of the crime. While searching for the suspect, an officer discovered the defendant in the vicinity and pursued him but was unable to catch him.

On August 6, 1991, S.C. was coming home from her boyfriend's house at 3:00 a.m. S.C. saw a black man running at her. She was dragged to the side of her house and raped. In April 1993, a person who identified himself as Bryant Colbert contacted S.C. by telephone and asked her for a date. S.C. recognized the voice as that of the man who raped her. The person who identified himself as Colbert called S.C. several times and questioned her about the rape. He advised S.C. that the police had suspected he had committed the rape, but that he was no longer a suspect because he had passed a DNA test.

In the early morning hours of December 5, 1992, S.V. was lying asleep on her couch. A man entered her house and told her that he wanted money. The man raped her and took her money. After the man left, S.V. drove to her parents' house and went to the hospital for a rape kit examination. S.V. was asked to go to the police station and look through mug books. She eventually picked two pictures that looked most like the attacker. She had told Detective Humble that she had observed the man only for two or three seconds.

Detective Humble stated that he had shown S.V. a six-person photo lineup. He testified that S.V. had picked Colbert's photograph as the person who looked most like her attacker. S.V. told police that the person who raped her had a high voice that sounded like a white person's voice. She gave Detective Humble the name of Dwight Dent as a suspect. Detective Humble did not pursue this information because he believed that Bryant Colbert had raped the women.

On the morning of January 9, 1993, D.F. was getting ready to leave home. When she opened the door, a black man with a black leather coat hiding his face rushed at her. D.F. had known Colbert since the third grade and considered him a "pretty good" friend. She told Detective Humble that the voice of the attacker sounded like Colbert's, but because of the man's height and build, she did not believe the person who raped her was Colbert.

Detective Humble noted the similarities in the manner in which the women were raped, such as the language used by the perpetrator during the commission of the rapes, the fact that the rapist covered his face or the victim's, and that the attacker threatened to harm the victim or the victim's children. The detective testified that, prior to Colbert's arrest and obtaining the DNA evidence implicating Colbert, he had requested that the KBI conduct a "secreter status" test from evidence gathered during the investigation to determine if the same perpetrator had committed each of the crimes under investigation. The detective testified that the serology report and the various similarities between the crimes indicated that a single perpetrator had committed each of the rapes.

The police arrested Colbert and charged him with the five separate rapes. Apparently, the charges relating to the April 1990 rape of E.S. and the August 1990 rape of S.S. were barred by the two-year criminal statute of limitations. See K.S.A.1990 Supp. 21-3106(3). The complaint was amended to charge one count of aggravated kidnapping, three counts of rape, two counts of aggravated burglary, one count of aggravated criminal sodomy, one count of attempted aggravated criminal sodomy, and one count of robbery.

A jury convicted Colbert on all counts except the robbery charge. Colbert was sentenced to life imprisonment for the aggravated kidnapping conviction, 15 years to life for each of the three rape convictions, 5 to 20 years for each of the two aggravated burglary convictions, 5 to 20 years for the aggravated sodomy, and 5 to 20 years for the attempted aggravated sodomy. All sentences were imposed consecutively. Colbert appealed.

Right to a Speedy Trial

Colbert was unable to post bail for his pretrial release. Colbert argues he could not be prosecuted because the State failed to bring him to trial within 90 days after his arraignment and thereby denied him his statutory right to a speedy trial under K.S.A. 22-3402(1).

K.S.A. 22-3402(1) provides:

"If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant...."

Colbert was arraigned June 23, 1993. Colbert's trial was originally set for September 15, 1993, within 90 days of his arraignment. On September 9, 1993, Colbert's defense counsel requested and obtained a continuance to allow additional time to prepare an alibi defense. The district judge noted that the additional time would be charged to Colbert. On September 14, 1993, the judge granted defense counsel's motion to withdraw because she had not been paid as per her contract with Colbert. New counsel was appointed to represent Colbert. The court assessed time for that delay to Colbert.

Because the defense was not ready for trial on September 15, a hearing was held on September 21, 1993, to set a new trial date. The district judge noted that Colbert's trial could be set for November 3, 1993, provided the preparation for Colbert's alibi defense had been completed by the defense and reasonable notice of the defendant's alibi defense had been given to the prosecution. If the defense was not prepared for trial on November 3, the next available court date would be February 10, 1994. On October 12, 1993, defense counsel requested that the case be continued past the November 3 trial date to allow additional time to prepare for...