State v. Galloway

• Court: Kansas Supreme Court
• Writing for the Court: PRAGER
• Citation: State v. Galloway, 708 P.2d 508, 238 Kan. 100 (Kan. 1985)
• Decision Date: 25 October 1985
• Docket Number: No. 57334,57334
• Parties: STATE of Kansas, Appellee, v. Sherman L. GALLOWAY, Appellant.

Page 508

708 P.2d 508

238 Kan. 100

STATE of Kansas, Appellee, v. Sherman L. GALLOWAY, Appellant.

No. 57334.

Supreme Court of Kansas.

Oct. 25, 1985.

Syllabus by the Court

1. As a general rule, an interlocutory appeal taken by the State pursuant to and authorized by K.S.A. 22-3603 justifies an appropriate delay in trial, and the period during which the interlocutory appeal is pending should not be counted against the State in determining whether a defendant's constitutional right to a speedy trial has been violated.

2. However, where it is shown that the State has taken an interlocutory appeal arbitrarily, or negligently, or in bad faith, the delay may not be justifiable and the time during which the interlocutory appeal is pending may be counted against the State.

3. After granting a petition for review from the Court of Appeals, if the Supreme Court finds it has jurisdiction to hear the appeal, it has the authority to determine any appropriate issue presented on the appeal.

Martha Coffman-Gallagher of Coffman-Gallagher & Gallagher, Lawrence, argued the cause, and Carl A. Gallagher, of the same firm, was on brief for appellant.

Glenn R. Trapp, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., James E. Flory, Dist. Atty., and Margaret Lindeberg-Johnson, Asst. Dist. Atty., were on brief for appellee.

PRAGER, Justice:

This is a direct appeal by the defendant, Sherman L. Galloway, who was convicted of rape (K.S.A. 21-3502), aggravated sodomy (K.S.A. 21-3506), aggravated robbery (K.S.A. 21-3427), and kidnapping (K.S.A. 21-3420). This case has been before this court twice on interlocutory appeals by the State. See State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982) (hereinafter referred to as Galloway I ); State v. Galloway, 235 Kan. 70, 680 P.2d 268 (1984) (hereinafter referred to as Galloway II ).

The facts are undisputed and were set forth in Galloway I as follows:

" 'On May 12, 1981, at approximately 12:30 a.m., Ms. G, a Kansas University (KU) graduate student, was attacked by a black male as she walked home. The man forced her into his car and drove her to Clinton Park in Lawrence where he raped her and sodomized her. He then left the park taking with him Ms. G's clothing, a set of keys to KU buildings issued to her, a backpack containing a textbook with the victim's name in it, a swim cap, a coin purse and other items. Ms. G went to her apartment immediately after the incident and reported it to the police, who came and took her statement that night. The next day she aided the police in assembling a composite of her assailant and notified them of the items of personal property taken from her by the rapist.

" 'On July 8, 1981, at approximately 10:20 p.m., Ms. R was jogging on the KU campus when she was attacked from behind by a black male wearing a sleeveless tank top shirt. He threatened Ms. R with a knife and dragged her down a hill into a bushy area where he raped and sodomized her. Ms. R managed to struggle free and run to a nearby street where she received a ride from passing motorist. She notified the KU police, who went to the area and found a billfold containing the driver's license of Sherman L. Galloway. The next day officers of the KU police department (KUPD) submitted to Ms. R a photographic lineup of eight black males. From the photographs she identified Sherman L. Galloway.

" 'During the afternoon of July 9, 1981, a warrant for the arrest of Sherman L. Galloway was issued charging him with the rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506) of Ms. R. The same day Lt. Detective Vic Strnad of the KU police department obtained a search warrant for the residence of Sherman Galloway. The officers were authorized to seize "one (1) sleeveless tank top shirt appearing to be brown in color with horizontal stripes and one (1) knife with a curved blade approximately 3/4 inch wide and approximately three to four inches long."

" 'KU Detectives Strnad and Mike Riner and Lawrence police Detective Mike Hall executed the warrants during the evening of July 9, 1981. Detective Hall found a knife, which he seized, in the drawer of a nightstand. Next to the knife he observed a ring with KU keys on it. Detective Hall showed the keys to Detective Riner who also recognized them as KU keys. The officers then seized the keys. Other property taken in the search included drug paraphernalia and a portable food warmer marked "Property of Domino's Pizza. If found return to Domino's for reward."

" 'On July 14, 1981, Detective Hall contacted Ms. G and showed her a ring of KU keys. She identified the keys as those taken from her by the person who sexually assaulted her on May 12. She later identified Galloway as her assailant from a photographic lineup.

" 'On July 22, 1981, Detective Hall obtained a warrant authorizing another search of Galloway's residence, along with his automobile. Property listed on this search warrant included most of the things taken from Ms. G when she was attacked. During this search officers found and seized Ms. G's backpack, textbook, class notes and swim cap.

" 'On July 24, 1981, an amended complaint was filed charging Galloway with rape and aggravated oral sodomy concerning Ms. R and kidnapping (K.S.A. 21-3420), aggravated robbery (K.S.A. 21-3427), rape and aggravated oral sodomy concerning Ms. G. The Ms. R charges were later severed from the Ms. G charges.

" 'On September 25, 1981, Galloway filed a motion to suppress the KU keys seized from his residence on July 9, 1981. The trial court granted the motion and the State took an interlocutory appeal. The Court of Appeals, in an unpublished opinion, upheld the trial court. This court then granted the State's petition for review.' 232 Kan. at 87-89, 652 P.2d 673.

"This court in Galloway I reversed the district court's suppression of the seized keys and the Court of Appeals' affirmance thereof and remanded the case for further proceedings. The issue in Galloway I focused upon the State's right to seize the ring of keys during the execution of the search warrant. As indicated in the statement of facts, the charges relative to victims Ms. R and Ms. G, while contained in one complaint, had been severed. Defendant has been convicted of the charges relative to victim Ms. R and the conviction has been affirmed by this court in an unpublished opinion. (State v. Galloway, 661 P.2d 401 (Kan.1983.) The issues herein solely relate to the charges pending relative to victim Ms. G.

"After the case was remanded to the district court for further proceedings, certain evidentiary motions were heard. The district court sustained defendant's motions: (1) to suppress a composite photograph of a completed 'Identi-Kit'; and (2) the photographic lineup identification of the defendant by the victim. Additionally, the district court held, on the State's motion in limine, the State would not be permitted to introduce any evidence relative to observation of the keys by defendant's wife.... The State then filed this interlocutory appeal pursuant to K.S.A. 22-3603 as to all three adverse rulings." 235 Kan. at 71-73, 680 P.2d 268.

The Court of Appeals in Galloway II dismissed the appeal because there were allegedly no final orders to appeal from. This court granted the State's petition for review. In Galloway II this court determined it had jurisdiction over the interlocutory appeal, reversed the Court of Appeals' dismissal of the appeal, reversed the decision of the trial court, and remanded.

The defendant then filed a motion on April 27, 1984, for an order discharging defendant for failure to grant him a speedy trial. This motion was denied on May 4, 1984, and the matter proceeded to trial by jury on May 7, 1984. The only fact issue at the trial was the identity of defendant Galloway as the rapist. The defendant was convicted on all counts and filed a timely appeal.

The first point raised by the defendant on the appeal is that the trial court erred in overruling his motion to discharge on May 4, 1984, because he was denied his constitutional right to a speedy trial. It should be noted at the outset that the defendant does not claim that his statutory right to a speedy trial under K.S.A. 22-3402 has been violated. He claims only a violation of his constitutional right to a speedy trial. The general rules regarding the constitutional right of a defendant to a speedy trial were recently discussed in State v. Rosine, 233 Kan. 663, 666-67, 664 P.2d 852 (1983), in which the court stated:

"The Sixth Amendment to the United States Constitution, as pertinent here, provides:

" 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ....'

Section Ten of the Kansas Constitution Bill of Rights similarly proclaims:

" 'In all prosecutions, the accused shall be allowed ... a speedy public trial ....'

"The leading United States Supreme Court case on the right to speedy trial is Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker more than five years elapsed between defendant's arrest and trial. The United States Supreme Court adopted a case-by-case flexible approach for determining whether an accused's constitutional right to a speedy trial had been violated, stating:

" 'A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

" 'The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.' 407 U.S. at 530, 92 S.Ct. at 2192.

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