State v. Kinnell
| Decision Date | 05 November 1966 |
| Docket Number | 44000,Nos. 43976,s. 43976 |
| Citation | 197 Kan. 456,419 P.2d 870 |
| Parties | STATE of Kansas, Appellee, v. Dale KINNELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action a defendant, in person and by his own employed counsel, may, under the provisions of G.S.1961 Supp., 62-1401, now K.S.A. 62-1401, enter into a written stipulation whereby he entered a plea of not guilty, waived a trial by jury, and consented that he be tried by the court on the transcripts of the records of the previous trials of two other participants in the same episode from which charges against defendant arose. (Following State v. Burnett, 194 Kan. 126, 397 P.2d 346.)
2. A trial court's acceptance and approval of a stipulation such as that described in the foregoing paragraph of this syllabus, under the facts and circumstances more fully set out in the opinion, did not constitute an invasion of defendant's constitutional rights by violating defendant's fundamental right to a fair trial.
Glenn H. Louderback, Fort Scott, argued the cause and was on the briefs for appellant.
Charles M. Warren, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the briefs, for appellee.
The defendant, Dale Kinnell, appeals from a conviction of the offenses of kidnapping in the first degree (G.S.1961 Supp., 21-449, now K.S.A. 21-449) and forcible rape (G.S.1949, 21-424, now K.S.A. 21-424.).
The defendant, pro se, filed a notice of appeal on April 9, 1964, which was docketed as No. 43,976. Subsequently, and on May 19, 1964, defendant through his attorney filed a notice of appeal which was docketed as No. 44,000. The two appeals were consolidated with the consent of defendant's attorney and will be treated as one case herein.
Defendant Kinnell was one of six men charged with offenses of kidnapping in the first degree and forcible rape in the district court of Bourbon County as a result of a gruesome series of events occurring on the night of August 20, 1962. Among those charged were Gerald Lee Woods, Allan Davis, Melvin Lee Burnett, and defendant Kinnell. Woods was tried first and convicted by a jury on both charges, his conviction was affirmed by this court in State v. Woods, 191 Kan. 433, 381 P.2d 533, and a petition for a writ of certiorari was denied by the Supreme Court of the United States (376 U.S. 919, 84 S.Ct. 676, 11 L.Ed.2d 615.).
On November 6, 1963, Burnett and this defendant (Kinnell) were tried by the district court without a jury on the evidence offered in the trials of Woods and Davis. The transcripts of the Woods and Davis trials were submitted to the court under a stipulation of the parties. Burnett and Kinnell was convicted on both charges. Burnett appealed to this court and his conviction was affirmed on December 12, 1964, in State v. Burnett, 194 Kan. 126, 397 P.2d 346.
Kinnell has now perfected his appeal and asks us to set aside his convictions (1) because the trial court permitted defendant to waive his rights to trial by jury and to confront witnesses without first making inquiry to ascertain whether defendant was competent to waive said rights and whether the waivers were understandingly and intellingently made, and (2) the trial court's acceptance and approval of the stipulation was an invasion of defendant's constitutional rights to a fair trial. In a supplemental abstract and brief defendant makes a third specification of error in which he claims that the record in the Woods case contained inadmissible statements that implicated and incriminated defendant.
Defendant has not included an abstract of the evidence in his abstract on appeal but adopts the abstract of record on file with this court in the case of State v. Woods, supra. The details of the episode from which these cases arose are narrated in the opinion in the Woods case, a repetition is unnecessary for purposes of our consideration here.
The stipulation referred to was submitted to the district court on November 6, 1963. Even though it is identical with the stipulation set out in the Burnett opinion, except as to names, signatures and a challenge of the court's jurisdiction, we think a complete reproduction is necessary here to facilitate a thorough examination of the issues raised herein.
The stipulation, entered into in open court in the presence of the defendant and his attorneys, reads follows:
'Now on this 6th day of November, 1963, the same being a regular judicial day of the September, 1963, term of this court, the above entitled matter comes on for trial upon the charges alleged in the Information of first degree kidnapping and forcible rape. The State of Kansas appears by Charles M. Warren, County Attorney, and Howard Hudson, Special Prosecutor. The defendant appears in person and by his attorneys, Walter B. Patterson and Frank O'Brien.
'Thereupon, the defendant in open court pleads not guilty to the charge of forcible rape and not guilty to the charge of first degree kidnapping. Thereupon, the parties in open court stipulate and agree that a trial by jury shall be waived upon trial of the charge of forcible rape and the charge of first degree kidnapping and that said matter shall be submitted to the court.
'It is further stipulated and agreed that heretofore companion cases arising out of the alleged incidents were tried in the above named court before a jury, to-wit: The State of Kansas, plaintiff, versus Gerald Lee Woods, defendant, #4134, and the State of Kansas, plaintiff, versus Allan Davis, defendant, #4133.
'It is further stipulated and agreed that all of the evidence of all of the witnesses for the parties as presented in the trial of said two cases shall be considered as if the witnesses were personally present and presented such evidence subject to all objections, ruling on motions, motions, or other objections of every kind and nature presented in said trials, motions for new trials, or any other hearings had on the companion cases shall be considered by the court in the trial of this action.
'Counsel for the State and defendant further stipulate and agree that this court which presided over the two trials aforementioned shall make its judgment in captioned case upon the evidence and law presented in the said two trials aforementioned taking into consideration all rulings on objections made.
'Counsel for the State and Counsel for defendant further stipulate and agree that it is expressly understood that the court's rulings on all objections made and instructions presented to the jury for all practical purposes would be the same if the captioned case was tried, and that the court is relying on the instructions of law presented in the other two trials, noting all objections made, and rulings thereto in making its judgment and decree herein.
'It is further stipulated and agreed that the defendant challenges the jurisdiction of this court to try this case for erroneously overruling defendant's petition for change of venue.
'It is further stipulated and agreed that if on a motion for new trial or upon an appeal or other decision of any court the retrial of the above entitled action shall be granted or become necessary, the defendant specifically reserves the right to trial by jury at any subsequent trial.
/s/ Robert H. Miller
District Judge.'
The transcript of proceedings before the trial court reveals that at the hearing on November 6, 1963, the defendant was present in person with his attorneys. The trial judge read the stipulation in open court and stated that he had carefully studied it and that he had reread the transcripts of the Woods and Davis trials. The trial judge then inquired of each defendant if he had examined the stipulation and gone over it with counsel. Defendant Kinnell replied in the affirmative. The court approved the stipulation and ordered it filed.
The journal entry of judgment reveals the following proceedings:
'THEREUPON, the Court, after consideration of the evidence, law and all other matters presented in the State of Kansas, plaintiff, versus Gerald Lee Woods, defendant, No. 4134, and the State of Kansas, plaintiff, versus Allan Davis, defendant, No. 4133, both cases having been heard by this Court in Bourbon County, Kansas, and the Court being fully advised in the premises finds that the said defendant, Dale Kinnell, is guilty of kidnapping in the first degree under Section 21-449, 1961 Supplement to the General Statutes of Kansas, 1949, and guilty of forcible rape under Section 21-424 of the General Statutes of Kansas, 1949, as charged in the Information filed herein.
The motion for new trial was presented to the trial court on November 20, 1963. The journal entry reveals the following:
'THEREUPON, said motion for new trial was duly presented to the Court and the Court having heard said motion and statements of counsel and being fully advised in the premises, finds that said motion should be overruled.
'WHEREUPON, the Court caused the defendant, Dale Kinnell, to stand and inquired of the said defendant if he had any legal cause to show why the judgment and sentence of the Court should not at this time be passed upon him, at which time said defendant stated that he had none, and there appearing to the Court to be no reason why judgment and sentence of the court...
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