State v. Cushinberry

• Decision Date: 08 November 1969
• Docket Number: No. 45406,45406
• Citation: 204 Kan. 65,460 P.2d 626
• Parties: STATE of Kansas, Appellee, v. Matthew CUSHINBERRY, Appellant.
• Court: Kansas Supreme Court

Page 626

460 P.2d 626

204 Kan. 65

STATE of Kansas, Appellee, v. Matthew CUSHINBERRY, Appellant.

No. 45406.

Supreme Court of Kansas.

Nov. 8, 1969.

Syllabus by the Court

1. It is the function of the jury, not that of a court of appellate review, to weigh the evidence and pass upon the credibility of witnesses, and where the sufficiency of the evidence is being reviewed, the function of an appellate court is limited to ascertaining whether there was a basis for a reasonable inference of guilt.

2. Although the law requires that a jury panel be truly representative of a cross-section of the community in which a defendant is to be tried, a Negro defendant in a criminal case is not constitutionally entitled to be tried by a jury on which there is a member, or members, of his race, and he is entitled to relief only upon proof presented by him which discloses a purposeful discrimination to exclude members of a class from the jury panel. Following State v. Clift, 202 Kan. 512, 449 P.2d 1006.

3. In an appeal from a conviction of second degree burglary and larceny, the record is examined, and, as more fully set forth in the opinion, it is held: The district court did not err in any of the particulars specified.

John S. May, Atchison, argued the cause and was on the brief for appellant.

Robert D. Caplinger, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellee.

FATZER, Justice.

The appellant, Matthew Cushinberry, has appealed from a conviction by a jury for the commission of second degree burglary and larceny (K.S.A. 21-520 and 21-524) and a sentence imposed from ten to twenty years pursuant to K.S.A. 21-523, 21-524 and 21-107a.

At about 2:00 o'clock a. m. on Saturday, January 6, 1968, the Atchison Police Department received a report that a station wagon was suspiciously parked on North Seventh Street with its motor running. The report was radioed to police patrol cars and officers of two patrol cars converged on the area, located the car, and followed it. The police officers stopped the station wagon and upon approaching it, noticed that one Charles Brown was driving, a Marion Redman was in the right front seat, the appellant, Matthew Cushinberry, was in the rear seat, and on the rear floor beside Cushinberry was a portable television set.

Because of the extreme cold, the officers asked the three men to drive to the police station one block east. At the police station, Redman, the owner of the car, agreed to a search of the vehicle. The police officers examined the television and found it to be a General Electric 17 black and white set with a brown and gray case.

None of the occupants of the station wagon were arrested at that time.

Later in the morning and on the same day, the custodian at the Centennial Corporation, Inc., located on North Seventh Street near where the station wagon was parked, arrived to clean the building. Upon opening the building, he noticed damage to the room and file cabinets and that a portable television was missing. He called Mr. Monk, the president of Centennial Corporation, Inc.

Upon arrival with the police, Mr. Monk found the room 'a complete mess'; the filing cabinets were in disarray, having been broken open with some type of tool. A General Electric portable television set with a brown and gray case was missing.

On January 8, 1968, a complaint was filed and a warrant issued charging the appellant in one count with burglary in the second degree and larceny in violation of K.S.A. 21-520 and 21-524. The latter statute provides in substance that if any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count.

Following the appellant's arrest on charges of second degree burglary and larceny in connection with the burglary, and on January 19, 1968, he was given a pre-liminary examination before Richard A. Dempster, judge pro tem of the City Court of Atchison; the duly elected judge of said court, the Honorable Richard P. Senecal, being absent from Atchison County. The appellant was represented at the preliminary examination by his employed counsel, Maurice P. O'Keefe, Jr., of the Atchison County Bar.

At the conclusion of the preliminary examination, the appellant was bound over to the first day of the next regular term of the district court to appear and answer the charge made against him. The judge of the City Court filed a transcript of the preliminary examination with the clerk of the District Court, which recited in part:

'* * * (T)he complainant and the witnesses to support the prosecution were examined on oath in the presence of said defendant; and from the whole examination and after argument of counsel, the Court finds that the offense as charged herein has been committed and that there is probable cause for charging said defendant with the commission of said offense.'

It appears the judge pro tem used the term 'the offense as charged herein' as referring to the charges of second degree burglary and larceny in connection with the burglary since both offenses were contained in one count.

The county attorney timely filed an information charging the appellant with second degree burglary and larceny in one count.

On April 8, 1968, the appellant appeared before the district court without counsel. With the appellant's consent, the district court appointed Mr. William C. O'Keefe, a member of the Atchison County Bar and a brother of counsel who was employed to represent the appellant at the preliminary examination. On that date, the appellant was arraigned on the charges contained in the information and entered a plea of not guilty.

On April 15, 1968, counsel for appellant filed a petition for change of venue and an objection to the selection of the jury panel. Attached to the petition for change of venue were two newspaper articles from the Atchison Daily Globe, the first, dated January 12, 1968, making reference to the setting of the preliminary examination and of the fact that the three named occupants apprehended in the station wagon had previously been convicted of felonies, and that 'there is a burglary involved here.' The second, dated January 19, 1968, made reference to the fact the appellant had been bound over to the district court to stand trial. The objection to the selection of the jury panel alleged that 'said selection does not represent a proportionate amount of race and color found (within) the County of Atchison and that as a result the defendant, Matthew Cushinberry, is prejudiced by the selection of the panel.'

The record discloses the district court considered and overruled the appellant's petition for change of venue, and, as hereafter noted, likewise overruled the objection to the selection of the jury panel.

The case was tried before a jury on April 15, and 16, 1968, and it returned its verdict finding the appellant guilty of burglary in the second degree and larceny.

Following his conviction, the appellant employed James E. Woodson, and William L. Harris, Jr., members of the Shawnee County Bar, to represent him and the district court excused William C. O'Keefe from further service in the case.

On May 10, 1968, appellant's motion for a new trial was heard by the district court and overruled. The appellant timely perfected his appeal to this court. Thereafter, Mr. Woodson and Mr. Harris withdrew from the case and the district court appointed John S. May, a member of the Atchison County Bar, to perfect and present this appeal.

The appellant primarily raises two points which he contends denied him a fair trial in the district court. He first argues he was denied effective assistance of counsel. In this respect he argues that a 'fledgling' attorney was appointed to represent him-one who had not previously conducted a trial. He then sets out in his brief, omissions on the part of his counsel which he contends denied him 'effective assistance.' He first argues that counsel permitted him to enter a plea of not guilty to an information charging larceny when he had not been bound over to the district court for such offense. As indicated, the complaint and warrant issued for the appellant's arrest charged him with both second degree burglary and larceny all as permitted by K.S.A. 21-524, and the examining magistrate bound the appellant over as charged. We think the point requires no further discussion.

It is next argued that counsel failed to present the petition for change of venue to the district court. The appellant's motion for a new trial alleged the district court erred in 'denying' the petition. Obviously, the petition for change of venue was presented to the district court and denied. It may not be said counsel was derelict because the petition for change of venue was not sustained. On this point, it appears the district court was of the opinion the publicity through the two newspaper articles did not prejudice the appellant's right to a fair and impartial trial because it was derogatory to him and prejudicial to his interest. So far as the record discloses, no suspicion of prejudice against the appellant entered the jury box when the jury was sworn and there is nothing in the record to indicate that a fair and impartial trial could not be had in Atchison County. See State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. den. 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64. Moreover, on voir dire examination, members of the panel stated they had not read the newspaper articl...