State v. Lamb

• Citation: 209 Kan. 453,497 P.2d 275
• Decision Date: 06 May 1972
• Docket Number: No. 46414,46414
• Parties: STATE of Kansas, Appellee, v. Thomas P. LAMB, Appellant.
• Court: United States State Supreme Court of Kansas

Page 275

497 P.2d 275

209 Kan. 453

STATE of Kansas, Appellee, v. Thomas P. LAMB, Appellant.

No. 46414.

Supreme Court of Kansas.

May 6, 1972.

Syllabus by the Court

1. A decision by the defendant in a criminal action to either waive or not waive a trial by jury is a matter of trial tactics, and where the defendant decides to waive the jury in order to avoid the effects of prejudicial publicity, he cannot later complain that he was 'forced' to waive his constitutional right to a trial by jury, because the trial court denied a change of venue.

2. The trial court may, in its discretion, properly deny a motion to change venue, when the defendant in a criminal action fails to present affirmative evidence that prejudice exists so as to make it reasonably certain he cannot obtain a fair trial.

3. Probable cause, which a magistrate must find to warrant the issuance of a search warrant, refers to that quantum of evidence which would lead a prudent man to believe that an offense has been committed. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the evidence lead the magistrate to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information.

4. in the absence of statutory authorization to the contrary, it is generally held a person against whom a search warrant is directed may not dispute the matters alleged in the affidavit or complaint supporting the warrant.

5. The sheriff of a county within this state is authorized to serve process outside his county.

6. Under K.S.A. 62-1830, a search warrant issued by a magistrate within the confines of his jurisdiction can be served anywhere within the state of Kansas.

7. In a criminal action the granting or denial of an application for discovery or inspection of documents in the custody of the prosecution lies within the sound judicial discretion of the trial court cannot be disturbed absent an abuse in the exercise of the power of discretion.

8. Where separate and distinct felonies are charged in separate counts of an information and all of the offenses are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, a defendant may be tried upon all the several counts of the information in one trial. The determination of such matter rests in the sound discretion of the trial court.

9. In a criminal action proof that a homicide was committed in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree, and where an information charges a defendant with murder in the first degree on both theories-the premeditated killing and killing while in the perpetration of a felony-a defendant is not prejudiced because the state has apprised him that it is proceeding on both theories of first degree murder, and that it intends to produce evidence on both theories.

10. In the absence of any statute or rule of law recognized in Kansas which would authorize the trial court to grant the defendant a bifurcated trial-permitting the defendant first to present evidence in an attempt to raise a reasonable doubt as to his guilt, and then, if unsuccessful in this endeavor, to proceed with the presentation of evidence as to his alleged insanity at the time of the commission of offense-the trial court does not err in refusing the defendant's request for a bifurcated trial.

11. The M'Naghten rule is adhered to as the proper test to be administered in determining whether the accused in a criminal action had sufficient mental capacity to be held criminally responsible for his wrongful act.

12. The defendant in a criminal action cannot be heard to object to the testimony of expert psychiatric witness called on behalf of the state to testify in rebuttal on the ground that such psychiatrists had not interviewed or tested the defendant, where the defendant had successfully resisted the state's provious motion to require the defendant to submit to such examination and testing, on facts more particularly related in the opinion.

13. In a criminal action where the defendant's mental responsibility for crime is put in issue, his mental responsibility for the crime becomes an essential issue which must be proved by the prosecution beyond a reasonable doubt.

14. The competency of an expert witness to give an opinion concerning matters of expertise lies largely within the trial court's discretion, and its ruling will not be set aside on appeal in the absence of a clear showing of abuse.

15. On appeal the Supreme Court's function, when considering the sufficiency of circumstantial evidence competent to sustain a criminal conviction, is limited to ascertaining whether there was basis in the evidence for a reasonable inference of guilt.

16. In a criminal action, charging the defendant with two counts of kidnapping in the first degree with bodily harm having been inflicted and one count of murder in the first degree, the defendant pleaded 'not guilty' and waived a jury trial. On appeal the record is examined and it is held: There is substantial competent evidence to sustain a conviction on each count, and the trial judge is empowered to fix the punishment.

17. In a criminal action an application of the defendant to defer sentencing pursuant to K.S.A. 62-1534 et seq., rests largely within the discretionary power of the trial court, and the trial court's decision will not be disturbed absent a showing of abuse.

Eugene T. Hackler, Olathe, argued the cause and was on the brief, for appellant.

Mark L. Bennett, Jr., Asst. County Atty., argued the cause, and Vern Miller, Atty. Gen., and James A. Wheeler, County Atty., were with him on the brief, for appellee.

SCHROEDER, Justice:

This is an appeal in a criminal action wherein Thomas P. Lamb (defendant-appellant) was convicted of two offenses of kidnapping in the first degree with bodily harm having been inflicted (K.S.A. 21-449), and of murder in the first degree (K.S.A. 21-401). The trial court sentenced Lamb to life imprisonment on each count, and decreed the sentences to run consecutively.

The charges arose out of the abduction and murder of Karen Sue Kemmerly, and the abduction of Patricia Ann Childs.

Numerous points, including trial errors, are asserted by the appellant for reversal.

The chronology of events disclosed by the record may be stated as follows:

Karen Sue Kemmerly left her home in Kansas City, Missouri, at approximately 10:00 o'clock on the morning of December 2, 1969, to go shopping. She was attired in a gray plaid dress with a chain- link belt. In her possession was a number of credit cards issued to her as well as a checkbook, billfold and wrist watch in good condition. Miss Kemmerly's departure from home in her 1967 green Mustang was witnessed by her mother, Mrs. Dorothy Moberly. The Mustang contained an electronic garage door opener.

Later, on the morning of December 2, 1969, Dorothy Hamilton, a clerk in the Chasnoff Store in Ward Parkway Shopping Center, sold a purse to Miss Kemmerly. Erwin Sterm, an employee of the Caldwell Store in the shopping center, on the same morning sold a pair of shoes to Karen Sue Kemmerly. The shopping center is located on the east side of State Line Road in southern Kansas City, Missouri.

On December 3, 4 and 5 an officer of the Leawood, Kansas, police department, while on routine prtrol, observed Miss Kemmerly's 1967 Mustang parked in the Ward Parkway Shopping Center. The officer examined the vehicle on at least one occasion and observed a woman's gray plaid dress with a chain-link belt, as well as other articles of women's clothing, folded and placed on the right front seat of the automobile. This vehicle and the clothing were later identified by Mrs. Moberly as belonging to her daughter. The clothing was the same clothing her daughter had been wearing when she left the family home the morning of December 2, 1969.

While quail hunting with two friends on December 7, 1969, Vernie Rome discovered the body of a nude female lying in a hedgerow. The body was found in a rural area of Johnson County, Kansas, approximately three miles south and east of Olathe, Kansas. Mr. Rome promptly telephoned the Johnson County sheriff's office to report the discovery. An on-the-scene investigation by the officers established the body was covered with snow and that neither any clothing of the victim nor any possible murder weapon could be found in the vicinity of the body.

Subsequent to its discovery the body was transproted to the Amos Brothers Funeral Home in Shawnee, Kansas, where an autopsy was performed by Dr. James Bridgens, a pathologist with extensive experience in that field. Mrs. Dorothy Moberly identified the body as being that of her daughter, Kanren Sue Kemmerly.

After positive identification of the body, the 'Metro Squad' of the greater Kansas City area was activated and an intensive investigation ensued. During the course of the investigation, Miss Kemmerly's Mustang automobile was processed and a partial fingerprint was taken from the right front seat support. Despite the intensive investigation conducted by the 'Metro Squad,' no charges were filed against anyone between December 7, 1969, the date the body was discovered, and January 16, 1970.

Patricia Ann Childs, an eighteen year old college coed, left her home in Overland Park, Kansas, on January 15, 1970, to go shopping at the Metcalf South Shopping Center. The Metcalf South Shopping Center is only a few miles distant from the Ward Parkway Shopping Center.

Miss Childs testified that after shopping approximately forty-five minutes, she proceeded to her car in the parking lot surrounding the shopping center and started...