State v. Huber, 57252

• Decision Date: 15 August 1985
• Docket Number: No. 57252,57252
• Parties: STATE of Kansas, Appellee, v. Jeffrey D. HUBER, Appellant.
• Court: Kansas Court of Appeals

Page 1004

704 P.2d 1004

10 Kan.App.2d 560

STATE of Kansas, Appellee, v. Jeffrey D. HUBER, Appellant.

No. 57252.

Court of Appeals of Kansas.

Aug. 15, 1985.

Syllabus by the Court

1. A person charged with a crime and held on an appearance bond must be discharged if he is not brought to trial within 180 days after arraignment on the charge. K.S.A. 22-3402(2).

2. The date of arraignment begins the running of the 180-day limit regardless of whether a felony or misdemeanor is charged.

3. A defendant effectively waives arraignment when he goes to trial without objection and submits the question of guilt to the jury.

4. Standing to claim an infringement of Fourth Amendment rights depends not merely on whether the defendant had a possessory interest in the area searched or items seized but whether he had a legitimate expectation of privacy in the property searched or seized.

5. A defendant may have an expectation of privacy in certain property he possesses even though he has no such interest in the place in which he possesses it.

6. Whether an individual has a legitimate expectation of privacy in a certain item involves two inquiries. The first is whether the individual, by his conduct, has exhibited an actual or subjective expectation of privacy or whether he has sought to preserve the item as private. The second question is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable.

7. The exclusionary rule does not bar admission of evidence seized in good faith on the authority of a search warrant issued without fraud or falsity in the affidavit or partiality by the magistrate. Following United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

8. When a defendant alleges that an informant's statement to a police officer was untrue but makes no claim of falsity by the police officer affiant, there is no taint on the appearance of good faith possessed by the police which would undercut the application of the good faith exception to the exclusionary rule adopted in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

9. The record in a criminal prosecution is reviewed and it is held: (1) Defendant's right to a speedy trial was not denied; (2) the trial court erred in holding that defendant lacked standing to challenge the lawfulness of the search of his jacket; (3) the evidence seized from defendant's jacket during execution of a search warrant was properly admitted at trial.

Jerry L. Harrison of Noah & Harrison, P.A., Beloit, for appellant.

Charley Laman, Sp. Asst. Prosecutor of Laman Law Office, Clyde, and Robert T. Stephan, Atty. Gen., for appellee.

Before FOTH, C.J., and REES and PARKS, JJ.

PARKS, Judge:

Defendant, Jeffrey D. Huber, appeals from his jury conviction of two misdemeanors, possession of marijuana (K.S.A.1984 Supp. 65-4127b[a] and possession of drug paraphernalia (K.S.A.1984 Supp. 65-4152).

Defendant contends that the trial court erred in refusing to dismiss the charges for failure of the State to bring him to trial within the statutory time limits.

A defendant's right to an expeditious trial is protected both by statute (K.S.A. 22-3402 and the constitutional provisions requiring a speedy trial. U.S. Const., Sixth Amendment; Kansas Const. Bill of Rights § 10. The statutory provision establishes definite limits within which a defendant must be brought to trial while the constitutional provisions have been interpreted to require a balancing test of the pertinent circumstances in each case. State v. Rosine, 233 Kan. 663, 667, 664 P.2d 852 (1983).

Defendant contends that he was denied his statutory right to a speedy trial because he was not tried until 194 days after December 7, 1983, the date defendant was arrested on a warrant and made his first appearance before a magistrate. However, K.S.A. 22-3402(2) provides that a person charged with a crime and held on an appearance bond must be discharged if he is not brought to trial within 180 days "after arraignment on the charge." The date of arraignment begins the running of the 180-day limit regardless of whether a felony or misdemeanor is charged. Rosine, 233 Kan. at 669, 664 P.2d 852; State v. Taylor, 3 Kan.App.2d 316, 320, 594 P.2d 262 (1979). Moreover, an arraignment is not necessarily equivalent to a first appearance before a magistrate but is defined as follows:

"The arraignment in a criminal proceeding is the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offense charged; informing the defendant of the offense charged by reading the complaint, information or indictment or stating to him the substance of the charge; and asking defendant whether he is guilty or not guilty or to otherwise plead as permissible by law." Rosine, 233 Kan. 663, Syl. p 3, 664 P.2d 854.

In addition, K.S.A. 22-3205 provides that arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to him the substance of the charge and calling upon him to plead thereto.

Defendant was originally charged with a felony offense in addition to the two misdemeanor charges but the felony was subsequently dropped and an amended complaint filed. Defendant was tried on June 18, 1984. The only in-court proceeding held more than 180 days before trial was the first appearance held on December 7, 1983. Thus, defendant must contend that this hearing retroactively served as his arraignment on the surviving misdemeanor charges. However, the complaint on which defendant was ultimately tried was not filed until April 17, 1984; therefore, the court could not have accurately read the charges against defendant until after that time. In addition, the journal entry of the first appearance conducted after the first complaint was filed does not indicate that defendant was given any opportunity to enter a plea. In fact, there is no indication in the record that defendant ever entered a plea.

Furthermore, it appears from the record that defendant was never arraigned at all. From the time the amended complaint was filed charging only the commission of the two misdemeanors until the day of trial, there is no indication in the record that defendant was advised of the charges in open court or called upon to enter a plea. This procedural lapse in no way taints defendant's conviction since a defendant effectively waives arraignment when he goes to trial without objection and submits the question of guilt to the jury. State v. Jakeway, 221 Kan. 142, 143, 558 P.2d 113 (1976); State v. Cutshall, 4 Kan.App.2d 240, 241, 604 P.2d 288 (1979), rev. denied 227 Kan. 927 (1980). Defendant never contended that he was improperly tried without arraignment; to the contrary, he had to contend that the hearing on December 7, constituted arraignment in order to assert a denial of his statutory right to a speedy trial. In sum, since this December hearing did not conform to the procedures necessary to be called an arraignment, defendant was not tried more than 180 days "after arraignment on the charge."

There are four relevant factors to consider in determining whether there has been a denial of the constitutional right to a speedy trial: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. The length of 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. Rosine, 233 Kan. at 667, 664 P.2d 854, citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Rosine compared instances in which delay has been found not to be prejudicial, stating as follows:

"In State v. Calderon, 233 Kan. 87, , the court found a thirteen-month delay between the time defendant was charged and brought to trial did not violate his constitutional right to a speedy trial. In State v. Ward, 227 Kan. 663 , the court affirmed a conviction where there had been a 243-day lapse between arrest and trial. A similar result was reached in State v. Wilson, 227 Kan. 619 , where a three-year period existed between arrest and trial. State v. Dolack, 216 Kan. 622, 636, 533 P.2d 1282 (1975), found no abridgment of constitutional rights where more than three years passed. State v. Hemminger, 210 Kan. 587 , reached a like result with over four years. In Barker v. Wingo, 407 U.S. 514 [92 S.Ct. 2182, 33 L.Ed.2d 101], the U.S. Supreme Court found no violation of defendant's constitutional right to a speedy trial where more than five years passed between his arrest and trial. Recently, in State v. Hunt, 8 Kan.App.2d 162 , where exactly one year passed between arrest and trial, the Court of Appeals held such a delay was not per se unreasonable. 8 Kan.App.2d at 168 ." 233 Kan. at 667-68, 664 P.2d 854.

With these precedents in mind, it is clear that the delay of 194 days between defendant's arrest and trial cannot be found to be presumptively prejudicial. Moreover, defendant has not suggested any way in which the delay actually prejudiced his case. Therefore, defendant's constitutional right to a speedy trial was in no way impaired in this case.

Prior to trial, defendant filed a motion to suppress the evidence seized pursuant to the search warrant on the grounds that the affidavit offered in support of the warrant's issuance was insufficient to establish probable cause. The court refused to consider the merits of this motion, holding that defendant lacked standing to contest the warrant's validity.

In two relatively recent U.S. Supreme Court cases, the rules regarding standing to attack a search on Fourth Amendment grounds in cases involving possessory crimes were completely rewritten. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, ...