State v. Corrigan, 56182

• Decision Date: 14 December 1984
• Docket Number: No. 56182,56182
• Citation: 10 Kan.App.2d 55,691 P.2d 1311
• Parties: STATE of Kansas, Appellee, v. Michael C. CORRIGAN, Appellant.
• Court: Kansas Court of Appeals

Page 1311

691 P.2d 1311

10 Kan.App.2d 55

STATE of Kansas, Appellee, v. Michael C. CORRIGAN, Appellant.

No. 56182.

Court of Appeals of Kansas.

Dec. 14, 1984.

Review Denied March 8, 1985.

Syllabus by the Court

1. K.S.A. 22-3402 places no restrictions on continuances ordered within the applicable time limits for the commencement of a trial, regardless of the length of the continuances or the reasons therefor.

2. Only a continuance which fixes a trial date past the statutory speedy trial limit is to be considered in determining "the original trial date" under K.S.A. 22-3402(3)(c).

3. A defendant who procures the absence of a witness from a criminal trial thereby waives the Sixth Amendment right to confront that witness and also any hearsay objection to the witness's extrajudicial statements.

4. In a prosecution for arson it is held: (a) The trial court did not err in overruling defendant's motion for discharge on speedy trial grounds and (b) the court did not err in admitting certain hearsay.

Robert D. Hecht of Scott, Quinlan & Hecht, Topeka, for appellant.

John K. Bork, Co. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before FOTH, C.J., TERRY L. BULLOCK, District Judge Assigned, and FREDERICK WOLESLAGEL, District Judge Retired, Assigned.

FOTH, Chief Judge:

Defendant Michael C. Corrigan appeals his jury conviction of arson. He contends he was denied a speedy trial and that hearsay evidence was admitted in violation of his Sixth Amendment right of confrontation.

The fire occurred on the morning of October 5, 1982, at a bait shop and general store owned and operated by defendant in Perry, Kansas. Defendant, his wife Janet, and their two-month-old child were in their mobile home near the bait shop when the fire was discovered.

Combined investigations by the State Fire Marshal's office and investigators from defendant's insurance company revealed, first, that the fire showed signs of an incendiary origin. Second, defendant had insured the shop and contents for a total of $35,000 in April, 1981, but that policy had expired in April, 1982, and the premises were apparently uninsured until October 2, 1982. On that day, just three days before the fire, defendant took out a policy with a different company for $100,000. After the fire he made proof of loss under that policy.

In early November defendant's wife filed for divorce and moved into the home of her sister in Topeka. There, on November 4, she gave two statements to investigators. In them she related that defendant had stated a week before the fire that he was going to burn the shop because he needed money to repay loans from his father; that she saw him remove merchandise the day before the fire; and that he said he was going to burn the shop that night.

The same day a warrant was issued for defendant's arrest. When officers attempted to execute the warrant at his home, he fled on foot, eluding them after a lengthy chase despite repeated calls to stop and the firing of three warning shots. He surrendered two weeks later, and was released on bond. He has been free on bond ever since.

At the preliminary hearing of December 8, Janet Corrigan, who was again living with her husband, basically repudiated her prior statements to the investigators. He was nevertheless bound over for trial and arraigned on December 23, 1982. He was eventually brought to trial beginning August 15, 1983, was convicted, and now appeals.

I. SPEEDY TRIAL

At the time of arraignment the case was set for trial on March 28, 1983. In February, at the State's request, it was reset for May 23, 1983. That continuance was granted because the State couldn't locate Janet Corrigan. Later, because a prior case was still in progress, the case was continued on the court's own motion to May 31, 1983. Both dates were well within the statutory 180-day period from arraignment, which would expire June 21, 1983.

On May 24 a hearing was held as a result of the State's continued inability to secure service of a subpoena on defendant's wife Janet. The subpoena had been issued in February and extensive efforts had been made to locate her but to no avail. From the substance of her statements outlined above, it is apparent that her evidence was highly material to the State's case. The trial court so found, and granted the State a continuance to August 15, or 83 days. This continuance, which put the trial date past the 180-day limit, was expressly granted under K.S.A. 22-3402(3)(c). That statute allows trial courts to extend the statutory limit if:

"There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date ...." Emphasis supplied.

The defendant argues that the State was granted two continuances pursuant to K.S.A. 22-3402(3)(c), and that, because the original trial date was March 28, his trial had to begin within 120 days or no later than July 26.

The May 24 continuance, however, was not the second continuance ordered pursuant to 22-3402(3)(c). At the time of the first continuance, which moved the trial from March 28 to May 23, no findings under 22-3402(3)(c) were made, and the trial court later specifically stated that the continuance had not been granted under that subsection. Likewise, the continuance from May 23 to May 31 was because of the condition of the court's docket and was not ordered under 22-3402(3)(c).

The permissive extension provisions of K.S.A. 22-3402 do not apply to continuances which fix a trial date within the 180-day period. Cf. State v. Coburn, 220 Kan. 750, 752-53, 556 P.2d 382 (1976). In Coburn, the trial court ordered a 47-day continuance because of an overcrowded docket, which caused the trial to commence 196 days after arraignment. Coburn argued that he had not been tried within 180 days and that none of the exceptions in 22-3402(3) applied. Trial courts, under 22-3402(3)(d), may grant one continuance, of not more than 30 days, if a docket is too crowded to hold the trial within the statutory period. Coburn claimed that since the continuance was greater than 30 days, 22-3402(3)(d) was not satisfied. The Court rejected Coburn's argument, declaring that the 30-day requirement was intended to place a 210-day limit on bringing an accused to trial when he is on bond. The Court further ruled that "K.S.A. 22-3402 places no restrictions on continuances ordered within the applicable time limits for the commencement of a trial, regardless of the length of the continuances or the reasons therefor." 220 Kan. 750, Syl. p 1. Under Coburn, because the March 28 continuance did not postpone the trial's commencement beyond the 180-day period, 22-3402(3)(c) does not apply to that continuance. Because the continuance to August 15 was the first one ordered pursuant to 22-3402(3)(c), the trial did not have to commence within 120 days of March 28. For the purposes of this subsection, the "original trial date" from which the 120 days is to be computed was May 31, not March 28. The actual trial date of August 15 fell within both the 90-day limit for a first continuance and, obviously, the outside limit of 120 days which would have applied if there had been a second continuance on this ground.

The defendant also argues that because there were nearly 30 days remaining in the 180-day period when the trial court declared Janet Corrigan unavailable (at the May 24 hearing), the State should have commenced his trial during those remaining 30 days. This argument also has no merit. Once the trial court found 22-3402(3)(c) satisfied, it could continue the trial beyond the 180-day period. To what date a trial is continued rests largely within the discretion of the trial court. See State v. Jones, 226 Kan. 503, Syl. p 5, 601 P.2d 1135 (1979). Considering the past difficulty in locating the witness, allowing as much time as possible for future effort was understandable. The trial court did not abuse its discretion by continuing the defendant's trial beyond the 180-day period. Cf. State v. Petrin, 213 Kan. 258, 261, 515 P.2d 748 (1973).

II. HEARSAY

The hearsay admitted at trial comprised three separate declarations of the defendant's wife, Janet Corrigan, who did not testify at the trial. One was her testimony at the preliminary hearing of December 8, 1982. The other two were the statements made to Robert Schmidt, an insurance investigator, on November 4, 1982. One of these was tape-recorded and the other was given under oath before a court reporter. The latter two statements were taken in the Topeka home of Janet's sister, Deborah Hunter. Present at the first, in addition to Schmidt, were Janet, Deborah, their mother, and a deputy state fire marshal. At the second the state official was not present, but the court reporter and Janet's lawyer were added to the previous group.

All three declarations were admitted at trial upon a finding by the trial court that the defendant had procured the absence of the witness. If so, the defendant thereby waived his right of confrontation and a fortiori his hearsay objection to her statements. The principle is bottomed on the maxim that one should not profit from one's own wrongdoing. See, e.g., United States v. Thevis, 665 F.2d 616, 632-3 (5th Cir.), cert. denied 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982) (grand jury testimony admissible where defendant had murdered the witness); United States v. Balano, 618 F.2d 624, 628-30 (10th Cir.1979), cert. denied 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980) (grand jury testimony admissible where witness refused to testify because of defendant's...