State v. Hamilton, s. 58927

• Decision Date: 16 January 1987
• Docket Number: 58980,Nos. 58927,s. 58927
• Citation: 731 P.2d 863,240 Kan. 539
• Parties: STATE of Kansas, Appellee, v. Gene HAMILTON, Appellant.
• Court: Kansas Supreme Court

Page 863

731 P.2d 863

240 Kan. 539

STATE of Kansas, Appellee, v. Gene HAMILTON, Appellant.

Nos. 58927, 58980.

Supreme Court of Kansas.

Jan. 16, 1987.

Syllabus by the Court

1. A sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice.

2. Under K.S.A. 22-3602(a), there is no direct appeal of a denial of probation after a plea of guilty or nolo contendere.

3. The trial judge is not merely a moderator, but is the governor of the trial. The judge must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant.

4. The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions. He should not permit any person in the courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues.

5. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct; and in order to warrant or require the granting of a new trial it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.

Benjamin C. Wood, Chief Appellate Defender, argued the cause and was on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him, on brief, for appellee.

HOLMES, Justice:

The appeals of Gene Hamilton from the sentence imposed upon him after a plea of guilty to one count of aggravated arson (K.S.A. 21-3719) in case No. 58,927, and from his convictions by a jury of aggravated robbery (K.S.A. 21-3427) and aggravated battery (K.S.A. 21-3414) in case No. 58,980, have been consolidated in this court.

We will first consider the appeal from sentence in case No. 58,927. Following a plea of guilty to one count of aggravated arson, Hamilton was sentenced by Judge Ray Hodge to imprisonment for a term of five years to life. His application for probation was denied and he was sent to the Kansas Reception and Diagnostic Center (KRDC) for examination and a report. A subsequent motion for modification of sentence was also denied.

The familiar rule in Kansas is that a sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice. State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). The sentence here is within the statutory limits for the class B felony of aggravated arson.

It is contended that the sentence should be set aside for failure of the court to consider the alternatives set out in K.S.A. 21-4601 and K.S.A. 1985 Supp. 21-4603. It appears to be the position of the appellant that as the KRDC was "inclined" to recommend probation in a well-structured and highly monitored setting and, as Judge Hodge did not clearly state his consideration of the various alternatives in the statutes cited above, he abused his discretion. If this case is considered as an attempt to appeal from a denial of probation, we held in State v. Haines, 238 Kan. 478, Syl. p 2, 712 P.2d 1211 (1986), that "[u]nder K.S.A. 22-3602(a) there is no direct appeal of a denial of probation after a plea of guilty or nolo contendere," and the appeal is precluded. In State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), we overruled certain statements made in Haines but did not address the issue of an appeal from probation. We now affirm our holding in Haines as it applies to an appeal from a denial of probation.

As the appellant has couched his appeal as one from the original sentence and denial of his motion for a modification thereof, we will consider that issue. At the time of the hearing on the motion for modification of sentence, Hamilton had been convicted of the crimes of aggravated robbery and aggravated battery committed while he was free on bond in this case. Clearly there was no abuse of discretion in denying the motion to modify the sentence.

At the time of the original sentence, Hamilton had not been examined at the KRDC. The presentence and psychological reports made available to the court at the time of sentencing indicated that the defendant was an abuser of heroin, alcohol, and other drugs, and that when the defendant was under the influence of alcohol or drugs, he expressed his anger in an explosive and hostile manner. The court imposed the minimum sentence possible, but set the maximum sentence at the long end of the permissible statutory range awaiting the KRDC report. The court's comments at sentencing indicated, contrary to the contentions of appellant, that the court was deeply concerned about the dangerous propensities of the offender and sought a disposition which would be consistent with the needs of public safety. We find no abuse of discretion, partiality, or prejudice in the sentence originally imposed. The judgment and sentence in Case No. 58,927 must be affirmed.

We now turn to the appeal from the convictions of aggravated robbery and aggravated battery in case No. 58,980. In view of the result reached, it is not necessary to set forth the facts in detail. Suffice it to say there was evidence that Edward J. Washington was threatened and beaten on the night of March 2, 1985, by appellant and one Nathan Lattimore. There was also evidence to support the contentions of the State that appellant and Lattimore took $161.00 from Washington during the encounter.

The first issue raised by appellant is that he was denied his right to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution because of the interference, comments, and conduct of Judge Robert D. Watson during the jury trial. It is the position of the appellant that the trial judge interjected himself into the trial of the action to such an extent that Hamilton was deprived of a fair trial. The Supreme Court has long recognized "the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial." Spencer v. Texas, 385 U.S. 554, 563-564, 87 S.Ct. 648, 653, 17 L.Ed.2d 606 (1967), and cases cited therein. Appellant asserts that the trial judge created an atmosphere during trial which implied that defense counsel was withholding or misstating the evidence, showed partiality to the State's case, and indicated bias on the part of the judge, and that the comments of the judge reflected upon the credibility of the defendant, his defense, and defense counsel.

Hamilton was charged in an amended information with one count of aggravated robbery, one count of aggravated battery, and one count of attempted first-degree murder. Prior to trial, defense counsel unsuccessfully sought dismissal of the aggravated battery and attempted murder charges. The attempted murder charge was subsequently dismissed upon completion of the evidence and prior to submission of the case to the jury. At the beginning of the proceedings before the jury, Judge Watson, during his opening explanation of the case, read the amended information to the jury in order that it would be apprised of the charges against Hamilton. Immediately prior to reading the information, the trial judge stated:

"I might inform the Jurors at this point, that at the time that you get the case for final decision, there may be one count that you'll consider. There may be two counts that you'll consider and or there may be three counts that you'll consider as a result of this. Or it may be under the correct factual situation and legal situation that the Court could take the whole case away from you. Very doubtful because it is extremely rare where you have an information with more than one count in it, that by the time that you receive the case and receive instructions from the Court, that the Court would be required to say by the law that you heard of three counts but now in your jury room you'll only consider this count. This is the count that you consider. The rest has been taken care of in a manner which I will explain to you. But you'd be instructed. But at this point, there's three counts pending as a result of accusations, allegations by the State." (Emphasis added.)

Appellant argues that the comments reflected an opinion that the State's case had merit, implied an opinion of guilt, and from the very start of the proceedings cast the trial judge in the role of an advocate partial to the State.

Appellant also points to numerous occasions where the trial judge commented upon the evidence, gave his recollection or opinion of the evidence, and admonished counsel about his manner of presenting and developing his defense. There are numerous incidents of such conduct in the record, not all of which need be detailed here. During cross-examination of the alleged victim, defense counsel was interrupted at least seven times by the judge's comments upon the testimony, some of which were combined with admonishments to counsel. At the preliminary hearing, the witness had testified he had not drunk any alcoholic beverages on the day of the alleged crimes but during direct examination at trial, he testified to the...