State v. Freeman

Decision Date21 January 1978
Docket NumberNo. 48932,48932
Citation574 P.2d 950,223 Kan. 362
Parties, 100 A.L.R.3d 418 STATE of Kansas, Appellee, v. Barbara Ann FREEMAN, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.

2. In determining whether the length of a sentence offends the constitutional prohibition against cruel punishment three techniques should be considered:

(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;

(2) A comparison of the punishment with punishment imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and

(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.

3. A five year mandatory minimum sentence without probation and parole privileges for the crime of murder with a firearm cannot be held so cruel or unusual either in its method or its length that it shocks the conscience and offends fundamental notions of human dignity so as to be constitutionally impermissible.

4. A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment.

5. K.S.A.1977 Supp. 21-4618 and 22-3717(8), which deny the privileges of probation and parole and require mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime, are not constitutionally impermissible as denying equal protection of the law.

6. In light of the Kansas sentencing statute, K.S.A. 21-4501(b ), the provisions of K.S.A.1977 Supp. 21-4618 and 22-3717(8) denying probation and parole privileges to a defendant convicted of an Article 34 crime in which the defendant used a firearm in the commission of the crime of murder in the second degree are not such a restriction on the judicial power of the sentencing judge as would constitute an impermissible legislative usurpation of the court's prerogatives.

7. The mandatory provisions for separation of witnesses in K.S.A. 22-2903 apply to preliminary hearings and until such time as the accused is bound over for trial; thereafter the exclusion or sequestration of the witnesses is not a matter of right but lies in the sound discretion of the trial court.

8. The record of conviction for murder in the second degree in which the defendant used a firearm is examined and it is held no reversible error has been shown and the conviction and judgment are affirmed.

T. L. O'Hara, of Warner, Bailey, O'Hara & Busch, Wichita, argued the cause, and Charles A. O'Hara, Wichita, was with him on the brief for appellant.

Stuart W. Gribble, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for appellant.

FROMME, Justice:

The appellant, Barbara Ann Freeman, was convicted by a jury of murder in the second degree in the death of her husband on November 20, 1976. This crime is set out in Article 34, Section 02 of Chapter 21 of the Kansas Statutes Annotated and is commonly known as an Article 34 crime. She fired eight bullets from a handgun into the body of her drunken husband after he had attempted to hit her. She was given a sentence of five years to life, which is the least sentence permissible for such crime under K.S.A. 21-4501(b ). Probation was requested but denied by the sentencing judge by reason of K.S.A. 1977 Supp. 21-4618 which denies probation to any defendant who is convicted of an Article 34 crime in which the defendant used a firearm in the commission thereof. The additional facts surrounding this murder have no real significance on appeal. We will treat the points raised by appellant in her brief in reverse order.

Appellant attacks the constitutionality of K.S.A. 1977 Supp. 21-4618 which mandatorily requires that probation be denied. She contends the statute is constitutionally impermissible on three grounds: (1) It constitutes cruel and unusual punishment; (2) it denies her equal protection of the laws; and (3) it deprives her of liberty without due process of law.

K.S.A. 1977 Supp. 21-4618 became effective July 1, 1976, and provides:

"Probation shall not be granted to any defendant who is convicted of the commission of any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act."

K.S.A. 1977 Supp. 22-3717(8), effective July 1, 1976, provides:

"Notwithstanding any other provision of this section, any person sentenced pursuant to K.S.A. 1976 Supp. 21-4618 shall not be eligible for parole therefrom prior to serving the entire minimum sentence imposed, . . ."

When these concomitant statutes are read in conjunction the legislative effect is to impose mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime. These statutes appear to indicate a legislative retrenchment from the policy declared in K.S.A. 21-4601, effective July 1, 1970, which reads:

"This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law."

The ABA Standards Relating to Sentencing Alternatives and Procedures, § 2.1, state:

"(b) The sentencing court should be provided in all cases with a wide range of alternatives, with gradations of supervisory, supportive and custodial facilities at its disposal so as to permit a sentence appropriate for each individual case.

"(c) The legislature should not specify a mandatory sentence for any sentencing category or for any particular offense."

However, these standards are merely an expression of the consensus of opinion of a committee of the American Bar Association, approved by its house of delegates, and there is no suggestion in either the standards or the commentary that mandatory sentences are constitutionally impermissible. This court has not addressed the question directly.

The question of what constitutes cruel and unusual punishment as that term is used in state and federal constitutions has been examined in many jurisdictions. In the case of Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, the United States Supreme Court held that said term not only prohibits methods of punishment which are inhuman and barbarous but also terms of sentences which are so out of proportion to the nature of the crime that they shock the general conscience in light of concepts of elemental decency. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. den. 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163, the unacceptability of a punishment to society was a factor considered in determining whether the punishment was cruel and unusual. It is apparent after reading Furman that the concept of cruel and unusual punishment is not rigid but acquires meaning from the evolving standards of decency which mark the progress of a maturing society. In Furman it was the method of punishment, the taking of a defendant's life, that was being considered. The question must be determined on a case by case basis. If inherent cruelty is not involved in the method of punishment the criteria which have been considered in determining what is cruel and unusual punishment because of the length of the sentence include such things as excessiveness, disproportionality, lack of necessity, unacceptability to society, and arbitrariness of infliction. (Anno: Cruel Punishment Length of Sentence, 33 A.L.R.3d 335.)

We have found no cases where statutes such as those we now consider have been held constitutionally impermissible per se because they require the imposition of a mandatory sentence without right of probation and parole. In the case of Gallego v. United States, 276 F.2d 914 (9th Cir. 1960), the court upheld the sentence imposed for unlawful importation of marijuana. Under the code section involved, 26 U.S.C.A. § 7237(d), the defendant was not eligible for probation or suspension of sentence. The court held the statute did not impose a penalty so out of proportion to the crime as to shock a balanced sense of justice:

". . . At worst it merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place." (p. 918.)

See also United States v. Williams, 143 U.S.App.D.C. 16, 442 F.2d 738 (1970); and Sperling v. Willingham, 353 F.2d 6 (7th Cir. 1965), cert. den. 384 U.S. 962, 86 S.Ct. 1591, 16 L.Ed.2d 675.

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    ...it had relied upon the now obsolete federal precedents in formulating its proportionality test set forth in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). 228 Kan. at 184, 612 P.2d 1231. Finding that Rummel was "a retreat from the philosophy which spawned the [test] recited in Freeman......
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