State v. Latham
| Decision Date | 03 November 1962 |
| Docket Number | No. 42907,42907 |
| Citation | 375 P.2d 788,190 Kan. 411 |
| Parties | The STATE of Kansas, Appellee. v. James Douglas LATHAM and George Ronald York, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In a joint appeal by two defendants from convictions of murder in the first degree where the jury's verdict assessed the death penalty to be inflicted pursuant to G.S.1949, 21-403, it is held that, under the facts, conditions and circumstances, and for reasons set forth at length in the opinion, the judgment rendered and sentences imposed against each defendant must be affirmed.
Marvin E. Thompson and Richard M. Driscoll, Russell, and Bernard E. Whalen, Goodland, argued the cause, and Jesse I. Linder, Sharon Springs, was with them on the briefs for appellants.
James E. Taylor, County Atty., Sharon Springs, and Selby S. Soward, Sp. Asst. Atty. Gen., Goodland, argued the cause, and William M. Ferguson, Atty. Gen., and A. K. Stavely, Asst. Atty. Gen., Topeka, were with them on the briefs for appellee.
The defendants were convicted of murder in the first degree as defined in G.S.1949, 21-401, and the jury assessed the death penalty pursuant to G.S.1949, 21-403. Post-trial motions were filed, including a motion for a new trial, which were overruled, and the defendants have appealed.
A chronological statement of the proceedings had is essential to a proper understanding of the questions involved, hence those matters are detailed as follows: The defendants were apprehended and taken into custody by the sheriff and his deputies in Tooele County, Utah, on June 10, 1961. On June 16, 1961, agents of the Kansas Bureau of Investigation returned them to Wallace County, Kansas, where they had been charged jointly on June 12, 1961, with the deliberate and premeditated murder of one Otto Ziegler on June 9, 1961.
Shortly after their return to Kansas and on June 16, 1961, the defendants were taken before the county court of Wallace County for a preliminary examination as provided in G.S.1949, 62-805. The complaint and warrant, the statutes under which the arrest was made and on which the complaint and warrant were based, the penalty imposed by statute for murder in the first degree, the purposes of a preliminary examination, that the defendants had the right to employ counsel to represent them at a preliminary hearing and that they could insist the state produce evidence in support of the crime of murder in the first degree as alleged in the complaint and warrant, were all fully explained to them in open court. Being so advised, the defendants executed a written waiver of a preliminary hearing and consented to being bound over to the district court of Wallace County to await trial at the first day of the next regular term of court. As examining magistrate, the judge of the county court found that the offense charged was not a bailable offense under the laws of Kansas.
Thereafter, the judge of the county court determined that the jail of Wallace County was not of sufficient security to guarantee to defendants a place of safekeeping; that Wallace County did not have sufficient facilities to protect the defendants, and that the public safety and welfare required a change of custody. Accordingly, and on the same day, the county court made an order that the defendants be confined in the Kansas State Industrial Reformatory at Hutchinson, Kansas, to await trial.
On July 14, 1961, the county attorney filed a verified information in the district court of Wallace County charging the defendants with the deliberate and premeditated murder of Otto Ziegler in Wallace County on June 9. On July 17, 1961, the deputy warden of the State Reformatory delivered to each defendant personally a certified copy of the information as is required by G.S.1949, 62-1302.
On July 20, 1961, the defendants were brought before the district court of Wallace County at Sharon Springs, Kansas, for arraignment. The transcript of proceedings discloses that Jesse I. Linder, an able and experienced lawyer practicing law in Sharon Springs, was appointed to represent the defendant James Douglas Latham. Wallace County has but three practicing attorneys, and for good cause, the third practicing attorney of the county declined appointment. Thereupon, Bernard E. Whalen, of Goodland, likewise an able and experienced attorney of Sherman County which is located approximately 30 miles north of Sharon Springs, was appointed to represent George Ronald York. The question of inconvenience of counsel to confer with the defendants in Hutchinson was raised and the district court stated that while it might be inconvenient for anyone to represent the defendants, any other attorney appointed would of necessity be a nonresident of Wallace County.
After their appointment by the court, counsel conferred with their clients in separate rooms. The county attorney furnished each defendant with copies of all papers on file at that time. After consultation with counsel and in open court, each defendant was arraigned by a reading of the information separately. Each defendant stood mute, and a plea of not guilty was entered by the court for each.
The suggestion of possible insanity was made and the court, at the request of all attorneys, appointed a sanity commission pursuant to G.S.1949, 62-1531 'to determine whether or not said defendants or either or both of them are insane * * * and unable to comprehend his position and to make his defense.' The commission consisted of William Wilks, M.D., of the Larned State Hospital; G. A. Chickering, M.D., and DeMerle E. Eckart, M.D., both of Hutchinson. Dr. Chickering is a psychiatrist.
The district court fixed the time of trial for September 18, the first day of the September 1961 term, and ordered the defendants returned to the State Reformatory.
The court and court appointed counsel discussed the matter of taking depositions outside the state and the court advised counsel they could incur reasonable expenses and would be paid their statutory per diem by Wallace County in taking the depositions and in conferring with the defendants in the State Reformatory.
The sanity commission examined the defendants at Hutchinson and on August 24, 1961, filed separate reports stating that each defendant 'is sane and that he is able to comprehend his position and to make his defense.'
On August 10, 1961, York filed a motion for change of venue on the ground that he could not obtain a fair and impartial trial because the minds of the inhabitants and residents of Wallace County were prejudiced against him. A supplemental motion was filed August 31, to which was attached articles appearing in some twenty-one different newspapers.
On August 29, 1961, Latham filed a plea in abatement, a motion for change of venue, a motion for separate trials, a request for addresses and occupations of witnesses endorsed on the information, and to appear in court without handcuffs or leg irons. Articles from three different newspapers were attached to the motion.
On September 14, 1961, in the presence of counsel and the defendants, the district court heard the defendants' several motions. At that time photostatic copies of the defendants' purported confessions given to agents of the K. B. I. were furnished the defendants and their counsel and they were also furnished the names, addresses and occupations of the witnesses endorsed on the information. Separate trials were ordered for each defendant. Latham's plea in abatement was overruled. The motions for change of venue were sustained as to each defendant and the case was transferred to Russell County, the farthest east county in the 23rd judicial district, being some 150 miles east of Wallace County. A transcript of all proceedings was certified to Russell County with the exception of copies of the newspaper clippings attached to the motions for change of venue. At the conclusion of the hearing the district court ordered the defendants returned to the State Reformatory and further ordered that upon the filing of the transcript in Russell County the sheriff of that county take custody of the defendants and transfer them to the Russell County jail there to await trial. The district court also examined annd approved the findings of the sanity commission and fixed the date of trial in Russell County for Monday, October 23, 1961.
On a date not disclosed, the defendants were permitted to withdraw their request to have separate trials and they consented to be tried jointly. Through their counsel they gave notice to take depositions in the state of Texas. Commencing on October 17, 1961, depositions of John W. Roper, M.D., Robert Nodine, M.D., John G. Higgins, M.D., Evan Katz, M.D., and Harris M. Hauser, M.D., were taken at Brooke Army Medical Center, near San Antonio, Texas, and at other points in Texas. The deposition of each doctor was filed with the clerk of the court in Russell County. As hereafter indicated, the depositions of Dr. Roper and Dr. Nodine were introduced in evidence at the trial.
On October 5, 1961, the defendants were transferred to the Russell County jail. On October 23, 1961, the day set for trial, court appointed counsel for the defendants made application for change of venue, or in the alternative for the appointment of local counsel to assist them in the trial. The district court overruled the motion for change of venue, but sustained the motion for the appointment of local counsel and appointed Marvin E. Thompson to represent York and Richard M. Driscoll to represent Latham to assist previously appointed counsel. Both Thompson and Driscoll are able and experienced lawyers and regularly practice law at Russell.
Following their appointment, Thompson and Driscoll advised the court that they were not prepared for trial and orally moved that the trial be continued to the January 1962 term of the court to enable them to make adequate preparation. The...
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