State v. Hill, 71398

Citation895 P.2d 1238,257 Kan. 774
Decision Date02 June 1995
Docket NumberNo. 71398,71398
PartiesSTATE of Kansas, Appellee, v. Harold H. HILL, Appellant.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. The 90-day speedy trial 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. A defendant's right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution is discussed and held not to have been violated under the facts herein.

3. Whether a defendant will be tried on all separate charges in a single trial is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion.

4. Before expert scientific opinion may be received into evidence, the basis of that opinion must be shown to be generally accepted as reliable within the expert's particular scientific field. If a new scientific technique's validity has not been generally accepted as reliable or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence.

5. The trial court's determination that the type of DNA testing known as polymerase chain reaction (PCR) amplification has been generally accepted as reliable within the scientific field is supported by the evidence, and no error or abuse of discretion is found in the trial court's admission of expert testimony thereon.

6. When the sufficiency of the evidence is challenged in a criminal case, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

7. In an aggravated burglary instruction the elements of the felony or felonies defendant was alleged to have intended to commit inside a victim's residence need not be included if such felony or felonies are separately charged counts (or lesser included offenses thereof) and the jury is fully instructed on their elements.

8. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive.

Thomas Jacquinot, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Debra S. Peterson, Asst. Dist. Atty., argued the cause, and Charles R. Reimer, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Carla J. Stovall, Atty. Gen., were on the brief for appellee.

McFARLAND, Justice:

Harold H. Hill appeals from his jury trial convictions of aggravated kidnapping (K.S.A. 21-3421); two counts of aggravated robbery (K.S.A. 21-3427); three counts of rape (K.S.A. 21-3502); three counts of theft (K.S.A. 21-3701[a]; and four counts of aggravated burglary (K.S.A.1992 Supp. 21-3716).

The convictions herein arise from four incidents occurring in the College Hill area of Wichita in July and August of 1992. These are summarized as follows:

July 16, 1992

S.W. lived alone in her apartment. Around 4:30 a.m. she was awakened by a man sitting on her. He held a knife to her throat. She was gagged and then raped. S.W.'s attacker took her purse, some videotapes, and around $200 in cash. Her telephone cord had been cut.

July 21, 1992

Kristin Pelowski, Sonja Tucker, and Lisa Fiers rented a house. Each had her own bedroom. The door to Kristin's bedroom sticks and is hard to open and close. During the early morning hours of July 21, 1992, Kristin was awakened by her door "popping" open. She asked who was there, but received no answer. She then heard footsteps descending the stairs. Assuming one of her roommates was the source of the noises, Kristin went back to sleep.

The next morning Kristin discovered the front door was open and that a pane of glass had been removed from the back door. The telephone cord had been cut. Missing from the residence were a camera, painkiller medication, a VCR, some videotapes, an extra set of house and car keys which were on a wooden key chain with "Sonja" inscribed thereon, and Sonja's purse which had contained $30-$40. A fingerprint was taken from the removed glass pane. The print was later matched to that of defendant's left thumb.

August 24, 1992

During the early morning hours of August 24, 1992, C.B., who lived alone in her apartment, was awakened by a man leaning over her bed. The man held a gun on her. He told her if she would be quiet she would not be hurt. The man tied C.B.'s hands behind her back with loop-knotted twine and raped her. The man dumped the contents of C.B.'s purse on the floor and again raped C.B. C.B. complained that he was hurting her and offered to masturbate her attacker. The man then freed her hands. C.B. felt bumps on the underside of her attacker's penis. The man then raped C.B. again. His gun was against C.B.'s head. She touched the gun and pulled the trigger. C.B. testified it sounded like a toy gun or cap pistol. This angered her attacker, who beat C.B.'s face until she stopped struggling. He then tied C.B.'s hands and ankles and gagged her.

Later, when C.B. had freed herself, she discovered her TV, VCR, stereo and speakers, videotapes, and the contents of her purse, including her wallet, were missing.

August 29, 1992

During the early morning hours of August 29, 1992, Nancy Fesler was asleep on the living room couch of her apartment. She awakened to see a man about 3-4 feet away. He had moved her stereo equipment and telephones into the middle of the room, with their cords wrapped for transport. The man went into the kitchen. Nancy checked her purse and found her house and car keys were missing. She went upstairs and dialed 911.

The first police car arrived in time for the officer to see Nancy's automobile leaving her driveway. The officer gave chase. Nancy's automobile was abandoned after it hit a parked Jeep. A search of the area disclosed defendant hiding behind a bush. On his person were a pocket knife, a steak knife (identified as Nancy's), Nancy's television remote control, a toy gun, lengths of slip-knotted twine, and $132 in cash. In Nancy's vehicle were her stereo equipment and telephones. Nancy later discovered $160 in cash had been taken.

Defendant's residence was searched. Found in the residence were S.W.'s purse and checkbook, Sonja Tucker's purse, and C.B.'s wallet and her videotapes, as well as twine identical to that found on C.B.'s bed. After arrest, bumps on defendant's penis

similar to those described by C.B. were observed. An information was filed charging defendant with the 11 felonies and 2 misdemeanors herein. Additional facts will be set forth for the discussion of particular issues.

SPEEDY TRIAL

For his first issue, defendant contends his statutory and constitutional rights to a speedy trial have been violated. We do not agree.

We shall first consider the statutory claim. K.S.A. 22-3402(1) provides:

"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)."

Defendant was arraigned on October 26, 1992. His trial commenced on June 14, 1993. Defendant's motion for dismissal under K.S.A. 22-3402(1) was denied on two grounds: (1) a crucial trial continuance was granted by agreement; and (2) defendant was not held in jail solely on the charges herein.

What time should be charged to whom is hotly disputed herein. We find it unnecessary to determine the propriety of the district court's ruling in that regard and turn instead to the alternative ground found by the district court, namely that the statute did not apply as the defendant was not being held in jail solely on the charges herein.

Evelyn DeLoche testified that defendant was released from prison on March 20, 1991, and that she had been assigned as his parole officer. Defendant was arrested on the charges herein on August 29, 1992. On August 31, 1992, she placed a state arrest and detain order against defendant for failure to report his arrest as required by the terms of his parole. Ms. DeLoche further testified that defendant was to be held in jail under the order until his appearance before the Parole Board. She further testified that her order would have stayed in effect even if the State had dismissed the charges herein.

Unless a defendant is being held in jail solely on the charges in the case, the 90-day time limit set forth in K.S.A. 22-3402 does not apply. State v. Goss, 245 Kan. 189, Syl. p 1, 777 P.2d 781 (1989). There was substantial competent evidence supporting the district court's determination that K.S.A. 22-3402 was inapplicable because the defendant was not being held in jail solely on the charges herein. We find no error or abuse of discretion in the district court's determination thereof.

Next, defendant argues his right to a speedy trial under the Sixth Amendment to the United States Constitution has been violated.

The leading United States Supreme Court case on the right to speedy trial is Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (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...

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