State v. Jones

• Decision Date: 12 June 1976
• Docket Number: No. 48134,48134
• Citation: 551 P.2d 801,220 Kan. 136
• Parties: STATE of Kansas, Appellee, v. Herbert Ray JONES, Appellant.
• Court: Kansas Supreme Court

Page 801

551 P.2d 801

220 Kan. 136

STATE of Kansas, Appellee, v. Herbert Ray JONES, Appellant.

No. 48134.

Supreme Court of Kansas.

June 12, 1976.

Syllabus by the Court

1. Death of an appellant during the pendency of his direct appeal from the conviction of a criminal offense does not abate the appeal.

2. In the interest of the appellant's family and estate, and in the interest of the public, the issues raised upon such an appeal will be fully reviewed and adjudicated.

3. Upon appeal from a conviction of murder in the first degree, the record is examined and it is held that the trial court did not err in the admission of defendant's exculpatory statement; in failing to instruct on lesser included offenses; or in failing to sustain defendant's motions for a mistrial and for discharge.

Robert J. Foster, Kansas City, argued the cause and was on the brief for appellant.

Philip L. Sieve, Chief Deputy Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

MILLER, Justice.

Herbert Ray Jones took this appeal from his conviction of murder in the first degree. A codefendant, George Bright, was convicted of murder in the second degree, and that judgment was affirmed by this court. State v. Bright, 218 Kan. 476, 543 P.2d 928.

The jury returned its verdict finding Herbert Ray Jones guilty of murder in the first degree on October 23, 1974. A motion for new trial was argued and overruled on October 31, 1974, on which date Jones was sentenced to life imprisonment by the trial court. Notice of appeal was filed on November 19, 1974, and thereafter the record and briefs were filed and the appeal was docketed in this court. The last brief was filed February 19, 1976. The matter was then set for oral argument on our May calendar.

Following oral argument we were advised that Herbert Ray Jones died on March 19, 1976 while serving the life sentence in the Kansas State Penitentiary. Our first consideration must be the effect, if any, of his death upon this appeal.

Many of the courts which have considered the matter have reached the conclusion that the death of a defendant during the pendency of his appeal from the conviction of a criminal offense abates the appeal and all proceedings had in the prosecution from its inception. Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200; Crooker v. United States, 325 F.2d 318 (8th Cir.); annotations in 83 A.L.R.2d 864 and 9 A.L.R.3d 462, 496. And see, 24A C.J.S. Criminal Law § 1702, p. 3, and 21 Am.Jur.2d, Criminal Law, § 608, p. 559. Our own cases have held that the death of a defendant pending appeal does not abate the judgment for costs, and this court has twice reviewed criminal proceedings after the death of the defendant-appellant, in order to determine the liability of the decedent's estate for costs of prosecution. State v. Fisher, Adm'r., 37 Kan. 404, 15 P. 606; State v. Ellvin, 51 Kan. 784, 33 P. 547. Other courts have held that when the defendant dies following conviction and pending appeal, the appeal may be fully reviewed and decided. We find persuasive the following language from Commonwealth v. Walker, Appellant, 447 Pa. 146, 148 (Footnote), 288 A.2d 741, 742:

'. . . We . . . (believe) . . . that it is in the interest of both a defendant's estate and society that any challenge initiated by a defendant to the regularity or constitutionality of a criminal proceeding be fully reviewed and decided by the appellate process.'

A defendant's conviction is at this state in midair. The judgment of conviction is not final due to the pendency of an appeal. While death moots the sentence, renders impossible a new trial, and abates any fine imposed, the matter of costs remains. The state and the defendant (not to mention his family) have endured the strain, the tribulation and the expense of trial and appeal. Oftentimes rights other than those of an individual defendant are involved. The right to inherit, or to take by will or otherwise, may be affected. K.S.A.1975 Supp. 56-513. The family of the defendant and the public have an interest in the final determination of a criminal case. We conclude, under the circumstances of this appeal, that this proceeding should be adjudicated upon the merits.

Four points are raised on this appeal: that the court erred first, in admitting into evidence a written statement taken from the defendant by law enforcement officers in the absence of his attorney; second, in failing to grant defendant's motion for discharge for violation of his right to a speedy trial; third, in refusing to instruct on lesser included offenses; and fourth, in refusing to grant his motion for a mistrial on the ground that he was kept handcuffed all of one afternoon before the jury, without provocation.

Defendant's present counsel, Robert Foster, was retained on the day of defendant's arrest. On the following morning at approximately 7 o'clock a. m., the defendant stopped a jailer and informed him that he, Jones, would like to make a statement to the detectives. The jailer relayed this information to the detective bureau and later the same morning the defendant was transported to the detective bureau for questioning. Detective Al June, who conducted the interview, was aware that defendant was represented by counsel, and that he had previously refused to make any statement. At the commencement of the interview Detective June advised the defendant of his Miranda rights, including his 'right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning' and Detective June ascertained that the defendant fully understood his rights. The defendant signed a form indicating that he had been advised of his rights and that he understood them. At this point defendant stated that he did not then need his attorney, Mr. Foster. He wanted to go ahead and make a statement. The statement, exculpatory in nature and implicating his co-defendant, George Bright, was then given. While the statement was in the process of being transcribed by a court reporter, defendant stated that he wished to consult with his attorney before signing the statement. He was not questioned further, and he did not sign the statement.

As we have noted, the defendant initiated the contact with the detectives which led to the statement. He was fully and repeatedly advised of his rights, including his right to counsel and to have his attorney present during questioning. The trial court held a Jackson v. Denno hearing, out of the presence of the jury, after which it concluded, 'the . . . evidence before me was that he asked to make the statement; that he said he didn't want his attorney there; and that he wanted to make a statement. I think at least it's a submissible question to the jury. . . .' The statement was subsequently submitted to the jury, and no question is raised here relating to the court's instructions dealing with the statement.

The defendant testified at the trial substantially in accordance with the statement.

The right to have couns...