State v. Kimmel, 45231

• Decision Date: 07 December 1968
• Docket Number: No. 45231,45231
• Citation: 202 Kan. 303,448 P.2d 19
• Parties: STATE of Kansas, Appellee, v. Christie Laverne KIMMEL, Appellant.
• Court: Kansas Supreme Court

Page 19

448 P.2d 19

202 Kan. 303

STATE of Kansas, Appellee, v. Christie Laverne KIMMEL, Appellant.

No. 45231.

Supreme Court of Kansas.

Dec. 7, 1968.

Rehearing Denied Feb. 24, 1969.

Syllabus by the Court

In a direct criminal appeal from a conviction of robbery in the first degree (K.S.A. 21-527), the record is examined and it is held the trial court did err:

(1.) In denying a motion for continuance.

(2.) In refusing to transfer the case to another division of the district for trial.

(3.) In not granting a mistrial because of an alleged sleeping juror.

(4.) In admitting into evidence a waiver of rights and a confession.

(5.) In not granting a new trial for any of the reasons urged, as fully set out in the opinion.

Stephen T. Mermigis, Kansas City, argued cause and was on briefs for appellant.

Nick Tomasic, Asst. County Atty., argued cause, and Robert C. Londerholm, Atty. Gen., and Frank D. Menghini, County Atty., were with him on briefs for appellee.

KAUL, Justice.

The defendant, Christie Laverne Kimmel, appeals from a conviction of robbery in the first degree. (K.S.A. 21-527)

Defendant was arrested on October 7, 1966, and charged with the robbery of a service station attendant on October 6, 1966. He retained counsel and waived a preliminary hearing scheduled for October 27, 1966. An information was filed in the district court on November 14, 1966. On March 3, 1967, defendant failed to appear for a docket call in district court and a bench warrant for his arrest was issued. On August 4, 1967, defendant was apprehended and committed to the Wyandotte County jail. In September 1967 defendant's trial was set for October 5. On October 2 counsel for defendant filed a motion for continuance, which was denied. On October 5 defendant's former counsel withdrew and present counsel entered his appearance and requested a continuance, which was granted until October 23, 1967. After a request for a further continuance was denied on October 23, a trial by jury was commenced, ending with a verdict of guilty on October 25. Thereafter, defendant filed a motion for a new trial and an extension of time was granted to enable defendant to file a supplement to the motion-it was overruled on November 10. This appeal followed.

Defendant presents eight points which will be considered in the order presented.

For his first point, defendant claims error in the trial court's refusal to grant a further continuance on October 23, the date set for trial. As we have noted, defendant was granted a continuance on October 5 and that more than one year had elapsed since defendant was arrested and charged. Obviously defendant had adequate time to prepare his defense. Defendant further complains the trial court erred in denying his request for a commission to take depositions of witnesses residing in the State of Missouri or in the alternative a continuance to take their depositions. The record discloses that on interrogation by the trial court defendant's counsel admitted that he had made no attempt to contact the witnesses in question or to secure their testimony in person between October 5, when a continuance was granted, and October 23, the date set for trial. Further, the record discloses no effort by defendant to make use of the Uniform Act To Secure Attendance Of Witnesses From Without State. (K.S.A. 62-2801 et seq.)

Under the circumstances related we find no abuse of discretion in the trial court's denial of a continuance. The rule is well-established in this jurisdiction that the granting of a continuance in criminal cases lies largely within the discretion of the trial court, whose ruling will not be disturbed on appeal unless there has been an abuse of discretion which prejudiced a defendant's substantial rights. (State v. Dickson, 198 Kan. 219, 424 P.2d 274; State v. Adamson, 197 Kan. 486, 419 P.2d 860; State v. Hickock & Smith, 188 Kan. 473, 363 P.2d 541, appeal dismissed and cert. den. 373 U.S. 544, 83 S.Ct. 1545, 10 L.Ed.2d 688)

Included with contentions made in his first point, defendant now claims that he did not intelligently waive his preliminary hearing, although he was represented by retained counsel of his own choice at the time. When this point was raised before the trial court defendant's present counsel agreed to stipulate that defendant was adequately represented at the preliminary hearing and was counseled as to his rights in connection therewith by his attorney at that time. No grounds are shown to revoke defendant's waiver of a preliminary hearing. (Wright v. State, 199 Kan. 136, 427 P.2d 611; State v. Holmes, 191 Kan. 126, 379 P.2d 304.)

For his second point, defendant claims the trial court erred in not changing venue or by not transferring the case to another division of the Wyandotte District Court, because the trial judge had knowledge of defendant's past record when a notice of intent to invoke the Habitual Criminal Act was filed by the county attorney prior to trial. The contention is unsupported by any decisions of this jurisdiction and is wholly without merit. Defendant fails to point out, and the record is completely void of, any abuse of discretion or intentional discrimination by the trial court in this regard.

Knowledge of accused' past record, or even belief on the part of the trial judge that accused is guilty, is not enough in itself to require a disqualification. The question is not whether the trial judge believes the accused guilty, but whether the trial judge can give him a fair trial. (State v. Hendrix, 188 Kan. 558, 363 P.2d 522.)

Notification of intention to invoke the Habitual Criminal Act was made in the same manner-as here-in State v. Gates, 196 Kan. 216, 410 P.2d 264, and the procedure was approved. (see, also, Adair v. State, 198 Kan. 1, 422 P.2d 959.)

Defendant next claims error by the trial court in refusing to grant a mistrial because of an alleged sleeping juror. The record discloses that in the course of the trial a juror was seen several times with his eyes closed. Several spectators in attendance at the trial testified as witnesses at the hearing on defendant's motion for a new trial. They observed that the juror in question had his eyes closed several times during the trial but none of the witnesses testified that he was asleep. The defendant was unable to corroborate his allegation that the juror was asleep. The juror was not called to testify as to what testimony, if any, he may have missed. The trial court heard the testimony relative to the matter and commented on his observation of the juror during the trial. Because of its favored position, the judgment of the trial court on the matter cannot be disturbed on appeal on the showing presented here. The problem of a sleeping juror was considered in State v. Jones, 187 Kan. 496, 357 P.2d 760, 88 A.L.R.2d 1269, where it is stated:

'* * * Misconduct of a juror is in the first instance a question for the trial court and when a motion for new trial is overruled it is thereby determined that the irregularity charged was not prejudicial to the substantial rights of the defendant. State v. Lammon, 153 Kan. 822, 826, 113 P.2d 1052. Defendant fails to show that his substantial rights were so prejudiced by the conduct of this juror that a new trial should be granted.' (pp. 499, 500, 357 P.2d p. 763.)

Defendant's principal contention concerns the admission of a confession, made in the presence of several police officers, shortly after his arrest. He argues that the state fell short of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, in advising him of his constitutional rights.

Before admitting defendant's confession into evidence the trial court, in compliance with the direction of this court in State v. Seward, 163 Kan. 136, 181 P.2d 478, heard, in the absence of the jury, extensive testimony of witnesses called by the state and defendant with respect to the circumstances surrounding the taking of defendant's confession. The record discloses that prior to taking defendant's confession he executed a waiver which set out his right to remain silent, to have counsel, to stop answering questions at any time or until he had talked to a lawyer. The waiver further read that defendant understood his rights, that he was willing to answer questions and make a statement, that he did not want a lawyer, that he understood and knew what he was doing, and that no promises or threats had been made or pressure of any kind used against him. Defendant admits his signature to the waiver and further admits 'they sat me down at a desk and told me of my rights and asked me did I want to call an attorney.' However, he testified that he did not know whether he had read the waiver and confession.

Defendant was interrogated at the police station by Detective Charles Forgey, in the rpesence of three other detectives, of the Kansas City Police Department. Forgey testified that he presented the waiver to defendant and that defendant appeared to read it, that defendant made no objection to signing the waiver, nor did he indicate that he did not understand it. After the statement was typed defendant was asked to read it and sign it if it were true. Forgey testified that defendant held the statement in his hands and appeared to read it, that he made no objection, said it was correct, and signed it.

Defendant claims that when he was advised of his rights by Forgey he requested that Casey Jones, an Olathe attorney, be called by telephone. Forgey denies that any such request was made. Defendant also claims that he was intoxicated at the time he made his statement and further that the officers present have him more liquor during the interrogation. This claim was denied by Forgey and Lieutenant Myers, who was present at the time.

In addition to his own testimony, at the out of court hearing, defendant offered that of three officers who 'booked him,' following interrogation by Forgey. The three...