State v. Gilder

• Decision Date: 10 December 1977
• Docket Number: No. 48759,48759
• Citation: 574 P.2d 196,223 Kan. 220
• Parties: STATE of Kansas, Appellee, v. Brentz I. GILDER, Jr., Appellant.
• Court: Kansas Supreme Court

Page 196

574 P.2d 196

223 Kan. 220

STATE of Kansas, Appellee, v. Brentz I. GILDER, Jr., Appellant.

No. 48759.

Supreme Court of Kansas.

Dec. 10, 1977.

Syllabus by the Court

1. In the absence of a showing media publicity created prejudice in the community to the extent that defendant could not obtain a fair and impartial trial, it is not error to deny a motion for a change of venue.

2. The test for insanity of an accused precluding his being put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him, and conduct his defense in a rational manner.

3. Memory loss alone does not render a defendant incompetent to stand trial. It is a factor to be considered in determining whether he is able to give rational assistance to his counsel, present any reasonably available defenses, and obtain a fair trial.

4. It is constitutionally impermissible to require an accused to stand trial in distinctive jail clothing as it may destroy the presumption of innocence.

5. In a criminal case there is a presumption of sanity and if the accused attacks the voluntariness of his confession on the ground of mental incompetency at the time the confession was given it is incumbent on the accused to overcome the presumption by substantial competent evidence.

6. The test for determining whether the defendant has overcome the presumption of sanity, thus precluding his ability to make a voluntary confession, is the same as the test for determining his criminal responsibility for committing the crime. In Kansas this is the M'Naghten test; that is, whether the accused was capable of distinguishing between right and wrong at the time of making a confession.

7. In the absence of a finding of insanity according to the M'Naghten standard, the mental condition of a defendant at the time of making a statement is relevant to the issue of voluntariness, but it is not necessarily conclusive; its weight is for the trier of fact.

8. Acts done or declarations made before, during or after the happening of the principal fact may be admissible as part of the res gestae where the acts are so closely connected with it as to form in reality a part of the occurrence.

9. Under the provisions of K.S.A. 60-441 a verdict may not be impeached by evidence concerning the reasoning employed by the jury in reaching its decision or as to what may have influenced the mental processes of the jurors in arriving at their verdict.

10. In a prosecution for aggravated battery, aggravated sodomy, and rape, it is held: (1) That the trial court did not err in (a ) denying the motion for change of venue, (b ) finding defendant competent to stand trial, (c ) allowing defendant to stand trial in clothing provided by the jailer, (d ) asking witnesses questions on the chain of custody of evidence, (e ) removing defendant from the courtroom after the jury announced its verdict, (f ) finding defendant's statements to police to be voluntary, (g ) allowing evidence of defendant's arrest to be admitted, (h ) refusing to instruct on simple battery, and (i ) refusing to allow defendant to recall the jurors to question them on how they reached their verdict; (2) that the prosecutor did not make improper closing arguments; (3) that the evidence was sufficient to sustain the conviction of aggravated battery; and (4) that the jury was properly instructed on the law of the case.

John D. Sherwood of Gray & Sherwood, P. A., Oswego, argued the cause and was on the brief for appellant.

William J. Daley, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

OWSLEY, Justice:

This is an appeal from a conviction of aggravated battery (K.S.A. 21-3414), aggravated sodomy (K.S.A. 21-3506), and rape (K.S.A. 21-3502).

On June 15, 1976, an elderly woman stopped at a rest area on Highway 160 west of Parsons, Kansas. She went into the women's restroom and was attacked by a man wielding a knife. The assault was interrupted when a passing truck driver who had stopped heard unusual noises coming from the women's facilities. Thinking someone might be ill he shouted to the victim, asking if she was in need of assistance. The assailant, imitating a woman's voice, said everything was all right. Still concerned, the driver, along with another trucker who had stopped, decided to wait until the lady emerged from the restroom before leaving. Assuming the men had left, the assailant fled from the restroom and was spotted by the two men. When the victim came from the restroom and told the men she had been attacked, one man assisted her while the other pursued the assailant's vehicle. Although he lost sight of the vehicle the truck driver broadcast a description of the car and the license tag number. Approximately one hour later police spotted the vehicle and arrested defendant. Defendant was positively identified by the victim and the two truck drivers as the man at the rest stop.

On July 8, 1976, defendant was taken to the Larned State Hospital to undergo an evaluation as to his competency to stand trial. On October 13, 1976, he was returned to Labette County authorities with a letter declaring him competent to stand trial.

After preliminary hearing defendant informed the prosecutor and the district court that he intended to use the defense of insanity. When the reports of the two court-appointed psychiatrists raised doubts as to defendant's competency to stand trial, defendant moved the court for a competency hearing. At the hearing the state called Dr. Charles Befort and Dr. Warren G. Phillips. Dr. Befort testified that he was chairman of the forensic review board at Larned State Hospital where defendant was originally examined. Based upon his review of defendant he felt defendant was aware of his environment, understood the legal predicament he was in, understood courtroom procedures, and had the ability to make a plea and assist in his own defense. Dr. Phillips stated that his examination of defendant revealed defendant was aware of his surroundings, able to concentrate and remember past and recent events accurately, and could assist an attorney in his defense.

Defendant called Dr. C. J. Kurth and Dr. Ralph D. Laskey on his behalf. It was Dr. Kurth's opinion that defendant was not competent to stand trial because he was in a delusional condition. Dr. Laskey stated that defendant factually understood what was going on around him and comprehended its importance, but suffered from delusions which made it difficult to take part in his own defense. On cross-examination, however, the doctor indicated that defendant could relate facts to his attorney, assist in his own defense, and understand a judicial proceeding.

After evaluating the evidence the trial court found defendant competent to stand trial. At trial defendant presented a defense of insanity. The jury found defendant guilty as charged.

I.

Prior to trial defendant filed a motion for a change of venue, offering several newspaper articles in support of his motion. The motion was overruled.

Change of venue is governed by K.S.A. 22-2616(1). It requires that pretrial publicity be so great as to deny a defendant the opportunity for a fair and impartial trial. The change lies within the sound discretion of the trial court and will not be disturbed on appeal where there is no showing of prejudice to the substantial rights of the defendant. (State v. McCorgary, 218 Kan. 358, 367, 543 P.2d 952, cert. denied, 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147; State v. Colin, 214 Kan. 193, 198, 519 P.2d 629.) Media publicity alone has never established prejudice. (State v. Porter, 223 Kan. 114, 574 P.2d 187, decided November 5, 1977.) The burden of proof is cast upon the defendant to show prejudice in the community, not as a matter of speculation but as a demonstrable reality. (State v. Porter, supra; State v. Gander, 220 Kan. 88, 92, 551 P.2d 797; State v. McCorgary, supra; State v. Cameron & Bentley, 216 Kan. 644, 646, 533 P.2d 1255; State v. Randol, 212 Kan. 461, 463-64, 513 P.2d 248.)

In this case defendant presented only newspaper articles in support of his motion for change of venue. No evidence or affidavits were introduced to establish the effect publicity might have on prospective jurors. It does not appear that jury selection was inordinately difficult due to pretrial publicity, or that jurors were even aware of the publicity. The trial court properly denied a motion for change of venue under those circumstances.

Because the case arose in a rather sparsely populated community, defendant urges this court to take judicial notice of the effect of any publicity and find prejudice per se. We decline to adopt defendant's suggestion. Any motion for change of venue must be supported by demonstrable evidence, regardless of where the case may arise.

II.

Defendant challenges the sufficiency of the evidence supporting the trial court's finding that he was competent to stand trial. Specifically, defendant argues he was incompetent to stand trial because he was suffering from delusions and was out of contact with reality to the degree that he could not relate the facts of the crime.

It has long been the law that persons are not to be tried while they are insane. (State v. Hamrick, 206 Kan. 543, 547, 479 P.2d 854; State v. Severns, 184 Kan. 213, 218, 336 P.2d 447, and authorities cited therein.) The rule is designed to protect persons from being put on trial at a time when they are unable to properly defend themselves. (State v. Hamrick, supra.)

Under K.S.A.1976 Supp. 22-3302 a trial court is required to determine a defendant's competency to stand trial when the issue is raised. The test of competency of an accused is set forth in K.S.A. 22-3301(1), as well as in case law. In Van Dusen v. State, 197 Kan. 718, 421 P.2d 197, this court said:

"The test of insanity of an accused precluding his being put on trial for a criminal...