State v. Duke
| Decision Date | 11 April 1970 |
| Docket Number | No. 45571,45571 |
| Citation | 205 Kan. 37,468 P.2d 132 |
| Parties | STATE of Kansas, Appellee, v. Elmer McDaniel DUKE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Proof that a defendant has previously been convicted in this state, or elsewhere, of one of the enumerated offenses is a necessary element of the crime defined by K.S.A. 21-2611.
2. In a criminal prosecution for violation of K.S.A. 21-2611, records certified by a warden or director of a penal institution in which defendant served may be used as proof of a previous conviction.
3. A record of prior felony conviction which is silent or ambiguous concerning the presence of counsel or the valid waiver thereof is presumptively void, and it alone cannot form the basis for establishing a valid conviction as an element of K.S.A. 21-2611 or for imposing enhanced punishment under the habitual criminal act (K.S.A. 21-107a).
4. The principle announced in syllabus 2 of State v. Engberg, 194 Kan. 520, 400 P.2d 701, cert. denied, 383 U.S. 921, 86 S.Ct. 899, 15 L.Ed.2d 676, to the effect that a defendant is precluded under the full faith and credit clause of the United States Constitution from attacking a foreign conviction on the basis he was denied right to counsel no longer has constitutional vitality to prevent a collateral attack upon the judgment, and the same is overruled.
5. In a criminal prosecution wherein the defendant was convicted of the unlawful possession of a pistol after having been convicted of grand larceny (K.S.A. 21-2611), the record is examined, and it is held, the trial court's determination that defendant had a prior grand larceny conviction in Alabama at which time he was represented by an attorney was supported by substantial, competent evidence.
James F. Foster, Wichita, argued the cause, and was on the brief for appellant.
James Z. Hernandez, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., Keith Sanborn, County Atty., and Russell E. Grant, Deputy County Atty., were with him on the brief for appellee.
The defendant, Elmer McDaniel Duke, has appealed from his conviction of the offense of unlawful possession of a pistol after having previously been convicted of grand larceny (K.S.A. 21-2611).
When his case came on for trial June 13, 1968, defendant waived a jury, and the matter was tried to the court. Defendant stipulated he possessed a pistol, as charged, leaving at issue his former conviction.
The state's evidence consisted of a certified copy of records on file with the Alabama Board of Corrections which included a copy of 'Judgment entry and Sentence' certified by the clerk of the circuit court of Russell county, Alabama, showing defendant had been convicted in 1946 of grand larceny and sentenced to the penitentiary for fifteen months. The journal entry recited the defendant appeared before the court in person 'and by Attorney,' at which time he pleaded guilty as charged. After introduction of the exhibit, defendant's counsel requested a continuance until he could secure copies of records from the office of the clerk of the circuit court in Alabama which he claimed indicated defendant had not had the benefit of counsel. A continuance was denied; whereupon, the defendant took the stand, admitted his prior conviction in Alabama, but denied that he had an attorney when he entered his plea of guilty. Defendant then renewed his motion for a continuance until he could secure the additional records from the Alabama court, but the motion was denied. Thereupon, the court found the defendant guilty as charged.
On July 3, 1968, the court heard oral argument on defendant's motion for a new trial, or in the alternative, for acquittal. By this time defendant's counsel had received the additional records of the Alabama proceedings and introduced them into evidence. Among the records was a docket sheet on which a space was provided for the listing of the parties' attorneys. The only entry was 'A. S. Borders, Solicitor.' Likewise, nothing was said about the defendant being represented by counsel in the court's minutes which were signed by the circuit judge. Defendant's motion was overruled and the trial court sentenced him to a term not exceeding five years in the Kansas State Penitentiary pursuant to K.S.A. 21-2611.
Although on appeal defendant urges that the district court erred in denying his requests for continuance, he concedes that at the hearing on his motion for new trial he presented all the evidence he would have presented, had the continuance been granted. Since the court had the opportunity to consider and weigh the additional records in light of the evidence already admitted in the initial proceedings, there was no reversible error as a result of the court's rulings on the motions for continuance.
The sole question remaining for determination is whether or not the state sustained the burden of proving beyond a reasonable doubt that the defendant had a prior grand larceny conviction in Alabama at which time he was represented by an attorney.
Proof that a defendant has previously been convicted in this state, or elsewhere, of one of the enumerated offenses is a necessary element of the crime defined by K.S.A. 21-2611. Among the offenses listed is that of grand larceny, of which defendant was admittedly convicted in Alabama. We have held that records certified by a warden or director of a penal institution in which defendant served may be used as proof of a previous conviction for the purpose of enhancing punishment under K.S.A. 21-107a. (State v. Eaton, 199 Kan. 610, 433 P.2d 347, and authorities therein cited.) We know of no reason why a prior conviction should not be provable by the same type of evidence when a defendant is charged with violation of K.S.A. 21-2611.
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, established the rule that the right to counsel guaranteed by the sixth amendment was applicable to the states by virtue of the fourteenth amendment, thus making it constitutionally impermissible to try a person for a felony in a state court unless he had an attorney or validly waived one. That ruling has been given retroactive application.
In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, the United States Supreme Court made it clear that a conviction obtained in violation of Gideon was void and could not be used against a person either to support guilt or enhance punishment for another...
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