State v. Goss

• Decision Date: 14 July 1989
• Docket Number: No. 62083,62083
• Parties: STATE of Kansas, Appellee, v. John E. GOSS, Appellant.
• Court: Kansas Supreme Court

Page 781

777 P.2d 781

245 Kan. 189

STATE of Kansas, Appellee, v. John E. GOSS, Appellant.

No. 62083.

Supreme Court of Kansas.

July 14, 1989.

Syllabus by the Court

1. The 90-day provision of K.S.A. 22-3402 applies only to a defendant charged with a crime who is being held in jail solely on such charge.

2. Ordinarily, the 90-day provision of K.S.A. 22-3402 commences to run only at the time of arraignment, and time involved

prior thereto including prior dismissal of the same or similar charges is not included. An exception thereto occurs when the dismissal of a prior case and the subsequent refiling constitute a subterfuge to avoid the effect of the statute.

3. A defendant's right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution is discussed and held not violated herein.

4. When constitutional grounds are asserted for the first time on appeal, they are not properly before the court for review.

5. Media publicity alone has never established prejudice per se.

6. The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. State v. Haislip, 237 Kan. 461, Syl. p 12, 701 P.2d 909 cert. denied 474 U.S. 1022, 106 S.Ct. 575, 88 L.Ed.2d 558 (1985).

7. The defendant must show that such prejudice exists in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977).

8. It was not error or an abuse of judicial discretion for the trial court to refuse defense counsel's request to call the prosecutor as a defense witness relative to the prosecutor's opinion of the veracity of a prosecution witness.

9. It was not error or an abuse of discretion for the trial court to refuse to delay an ongoing jury trial to attempt to compel attendance of an out-of-state witness defense wished to call.

10. An administrative judge hearing a motion to disqualify the trial judge, filed pursuant to K.S.A. 20-311d(b), did not err in finding allegations contained therein were insufficient to sustain any belief the trial judge was biased or prejudiced against the defendant.

Linda L. Eckelman, Dodge City, argued the cause and was on the brief, for appellant.

Joe Shepack, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

McFARLAND, Justice:

John E. Goss appeals his jury trial convictions of first-degree murder (K.S.A. 21-3401) and unlawful possession of a firearm (K.S.A. 21-4204).

Janice Amerin resided with her parents near Plains. On September 8, 1986, as Janice was preparing to leave for work, defendant appeared at the residence. He and Janice had dated sporadically. Shirletta Amerin, Janice's mother, heard her daughter screaming in the garage. She rushed to the scene and saw Janice and defendant struggling. Defendant forced Janice into her automobile. As defendant was attempting to start the vehicle, Janice broke away and started running for the house. Defendant fired two shots at her before Janice ran inside the home. Defendant followed and Shirletta heard more shots. Defendant then returned to the garage and drove away in Janice's car.

Shirletta ran into the house and found her daughter standing in the kitchen. Janice told her she had been shot by defendant. An ambulance was called but Janice died before it arrived. An autopsy revealed Janice had been shot three times. On his way to the Amerin home, the Meade County Sheriff saw Janice's car in a ditch, with footprints from the vehicle pointing north into a milo field. A fruitless manhunt was organized. On September 22, 1986, defendant was arrested in Tyrone, Oklahoma. Additional facts will be stated as necessary to the discussion of particular points.

SPEEDY TRIAL

A number of issues are raised relative to alleged violations of defendant's statutory and constitutional rights to a speedy trial. For convenience, these will be discussed as subsections of one issue.

K.S.A. 22-3402 provides, in pertinent part:

"(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).

....

"(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:

(a) The defendant is incompetent to stand trial;

(b) A proceeding to determine the defendant's competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section...."

Defendant was arraigned on February 27, 1987, on the information on which he was ultimately tried. His jury trial commenced on October 14, 1987. On March 6, 1987, defendant, who was in jail on the charges herein, was served with a second criminal warrant involving unrelated burglary and theft charges (case No. 87 CR 41). Thus, defendant was held in jail solely on the case before us approximately one week between his arraignment and trial. Accordingly, he does not meet the requirement of K.S.A. 22-3402(1) of being "held in jail solely by reason thereof." Whereas this fact disposes of this point, it should be noted that defendant, on March 26, 1987, sought a continuance on the basis of an insanity defense and abandoned this defense on September 10, 1987. The period in between was consumed by matters pertaining to this defense and chargeable to defendant for purposes of computation of time under K.S.A. 22-3402.

The next claim under this issue is whether pre-arraignment time should be tacked onto post-arraignment time in computing the 90-day period. Defendant was arrested on September 22, 1986, on a charge of second-degree murder (case No. 86 CR 64). On September 24, 1986, the complaint was amended to include additional counts, including felony murder. On November 5, 1986, a preliminary hearing commenced and defendant was bound over on, inter alia, felony murder. Arraignment was set for November 21, 1986. This was continued at defendant's request. On November 25, 1986, a second amended complaint was filed charging premeditated first-degree murder. Defendant was never arraigned on case No. 86 CR 64, and it was ultimately dismissed on January 5, 1987. Meanwhile, the case before us (case No. 86 CR 95) was filed on December 22, 1986.

In order to exceed the 90-day limit, one would have to tack on a major portion of the time defendant was being held in the prior case. We have tacked on such time only under exceptional circumstances where it is obvious that a dismissal and refiling was clearly a subterfuge engaged in by the State to avoid dismissal under the speedy trial statute. In State v. Cuezze, Houston & Faltico, 225 Kan. 274, 278, 589 P.2d 626 (1979), two of the defendants were arraigned in the first case and shortly before the statutory speedy trial period would have expired, these charges were dismissed and a virtually identical complaint was filed. We held that the State cannot dismiss and refile charges solely to set the statutory clock back to zero. To hold otherwise, we reasoned, would defeat the purpose of the statute. Dismissals and refilings when the statutory period is about to expire are suspect and a showing of necessity must be made.

In the case before us, the 90-day clock in the prior case did not commence to run, as there was no arraignment therein. The State had considerable difficulty in deciding on what charges it desired to proceed Defendant next argues his right to a speedy trial, as guaranteed by the Sixth Amendment to the United States Constitution, has been violated.

but the element of subterfuge to avoid the statute is wholly lacking herein. There is no reason to utilize the extraordinary remedy of tacking together the times involved in both cases, as was done in Cuezze.

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.

Less than five months after Barker, we adopted the Barker four-point analysis in State v. Otero, 210 Kan. 530, 502 P.2d 763 (1972). In Otero there was more than an eight-year delay between charges being filed and trial. The court found this delay violated defendant's right to a speedy trial and reversed his conviction.

The length of delay herein--a...