State v. Dedman, 53710

• Decision Date: 27 February 1982
• Docket Number: No. 53710,53710
• Citation: 640 P.2d 1266,230 Kan. 793
• Parties: STATE of Kansas, Appellee, v. Kenneth W. DEDMAN, Appellant.
• Court: Kansas Supreme Court

Page 1266

640 P.2d 1266

230 Kan. 793

STATE of Kansas, Appellee, v. Kenneth W. DEDMAN, Appellant.

No. 53710.

Supreme Court of Kansas.

Feb. 27, 1982.

Syllabus by the Court

1. Where defendant's attorney becomes aware before the verdict that the acting bailiff has not been sworn, his failure to object amounts to a waiver of the irregularity where no prejudice is shown.

2. When an appeal is docketed, the trial court's jurisdiction ends and the sentence may then be modified only after the mandate from the Supreme Court or Court of Appeals is returned, or by motion to remand temporarily for modification of the sentence.

3. The doctrine of separation of powers prohibits the trial court from ordering the district attorney to subject the victim of a crime to a polygraph examination.

David Michael Rapp, of Moore, Rapp & Schodorf, Wichita, argued the cause and was on the brief for appellant.

Jack Peggs, Asst. Dist. Atty., argued the cause and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

HERD, Justice:

Kenneth W. Dedman appeals from his jury conviction of the crime of rape (K.S.A. 21-3502).

The victim, a middle-aged widow, had established a "second mother" relationship with the appellant, Kenneth Dedman. She knew him through her daughter and the appellant's ex-wife. Appellant visited the victim's home on several occasions, sometimes claiming he had been beaten and kicked out of his home.

During the early morning hours of February 20, 1981, the victim was at home alone watching television and doing her laundry when Dedman showed up at her door. He told her he had been kicked out of his dad's house, and asked if he could come in. He asked for coffee, but she had none made.

Shortly thereafter, as the victim came from her bathroom where she was hanging laundry, the appellant grabbed her and stuck a knife in her ribs. He pushed her into the bedroom and forced her to have sexual relations with him. During the struggle appellant lost his knife. He dragged the victim into the kitchen where he got a pair of scissors out of a drawer and put them to her neck. The appellant then took her back to the bedroom where he again raped her. Afterward, appellant handed her the scissors and told her to "do what you have to do" to him. She called the emergency phone number. Sheriff's officers came to the residence and placed the appellant under arrest. As a result of this ordeal the victim suffered scratches on her face and back, gouged eyes, cracked ribs, and contusions on both shoulders, her left arm and left thigh. A jury convicted appellant of rape. He appeals.

Appellant argues the trial court erred in failing to grant a new trial because the acting bailiff was not sworn before taking charge of the jury. Immediately following the closing arguments of counsel the bailiff, Roberta Ruse, was sworn. The jury then retired. Later that afternoon, the jury reached a verdict. During the jury's deliberations Ms. Ruse had to leave and Les Henry became acting bailiff. Mr. Henry was not sworn at the time he replaced Ms. Ruse. The court instructed the parties on the procedure to be followed in receiving the verdict and then directed the jury be returned to the box. At this point the following exchange took place:

"Acting Bailiff, Les Henry: You need to swear me in, Judge.

"The Court: Didn't you swear this guy?

(Whereupon the bailiff's oath was administered to the acting bailiff, Les Henry, by the reporter.)

"The Court: Let the record show the bailiff was not sworn when he reported."

The jury was returned to the box and the verdict read. The court then asked for any objections to receiving the verdict and discharging the jurors. Defense counsel made none.

K.S.A. 22-3420(1) states:

"When the case is finally submitted to the jury, they shall retire for deliberation. They must be kept together in some convenient place under charge of a duly sworn officer until they agree upon a verdict, or be discharged by the court, subject to the discretion of the court to permit them to separate temporarily at night, and at their meals."

There are no cases construing the specific statute in question. The issue has, however, been dealt with in earlier cases interpreting prior statutes. In State v. Crilly, 69 Kan. 802, 77 P. 701 (1904), no oath was administered to the bailiff who took charge of the jury. The court stated the oath was "a substantial requirement of the statute which should not be disregarded." The court then discussed whether that error was waived by defendant's failure to timely object:

"In The State v. Baldwin, 36 Kan. 1, 12 P. 318, it was held that an irregularity in administering the oath to the jury could not be made a ground for a new trial unless the attention of the court was called to it at the time. In the opinion it was said:

" 'If the form of the oath was defective the attention of the court should have been called to it at the time the oath was taken, so that it might have been corrected. A party cannot sit silently by and take the chances of acquittal, and subsequently, when convicted, make objections to an irregularity in the form of the oath.'

"The same principle was applied where there was an omission to administer any oath to the bailiff upon his taking charge of the jury, in Dreyer v. The People, 188 Ill. 40, 53 N.E. 620, 59 N.E. 424, 58 L.R.A. 869, the reporter's head-note reading:

" 'The requirement of the statute that the jury in a criminal case shall be placed in charge of a sworn officer upon retirement is waived by the failure of the accused to object at the time to the omission of the oath, and the question is thereafter not open to review upon writ of error, although the point is urged as a ground for new trial by motion supported by affidavits.'

"In the opinion many decisions are cited supporting the conclusion reached. In the present case the fact that the bailiff was not sworn was proved by several affidavits, including one made by the defendant's attorney, in which it was set out that the affiant was personally present at the time the cause was finally submitted and when the jury retired to deliberate upon their verdict, and knows the facts to be as stated. There was an affirmative showing by the state that the conduct of the bailiff was in all respects such as is enjoined by the statutory oath. Whether a new trial should ever be granted a defendant for a failure to have the bailiff properly sworn, when no exception is taken to the omission at the time it occurs, need not now be determined. Certainly when as in this case, there is an express showing that the defendant's attorney was present and cognizant of what was taking place, his silence must be taken as an effectual waiver of the irregularity, where no actual prejudice resulted." State v. Crilly, 69 Kan. at 809-10, 77 P. 701.

More recently, in State v. Palmer, 173 Kan. 560, 251 P.2d 225 (1952), this court held it was error for the trial court to fail to have the bailiff sworn. Unlike the Crilly case, in Palmer the defendant's attorney was not in the courtroom when the jury was sent out to consider the case. Further, in Palmer there was evidence of bailiff misconduct.

Appellant argues since neither he nor his attorney were present when the acting bailiff took charge there was no waiver. He claims an objection when counsel became aware of the omission would have been pointless since the jury had already reached its verdict. This claim is without merit. Appellant became aware of the error before the verdict was returned. The Crilly case controls. We hold appellant waived any objection he had and failed to show prejudice.

For his next issue appellant contends the trial court erred in holding it lacked jurisdiction to modify his sentence after notice of appeal was filed. On September 25, 1981, appellant filed his notice of appeal from the "Judgment, Order and Sentence of the Court." That notice was filed with the Clerk of the Appellate Courts on October 2, 1981. On October 5, 1981, appellant filed a motion for an order modifying his sentence. The motion was set for hearing October 20, 1981. At that time the trial court declined to hear the motion because it was "without jurisdiction ... for the reason that defendant has chosen to appeal his conviction and said appeal has been docketed in the Supreme Court." Appellant claims this constituted error.

The statutory authority relied upon by appellant to support his position is K.S.A.1980 Supp. 21-4603(2). It provides in part:

"Any time within one hundred twenty (120) days after a sentence is imposed or within one hundred twenty (120) days after probation has been revoked, the court may...