State v. Lewis
Decision Date | 06 November 1976 |
Docket Number | No. 48298,48298 |
Citation | 220 Kan. 791,556 P.2d 888 |
Parties | STATE of Kansas, Appellee, v. Michael A. LEWIS, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. In an appeal from convictions of rape, aggravated sodomy, two counts of aggravated robbery and two counts of aggravated battery, the record is examined and it is held: (1) Defendant was properly certified to stand trial as an adult; (2) defendant was not denied a speedy trial; (3) defendant was competent to stand trial; and (4) defendant was not prejudiced by the prosecutor's closing argument.
Ernest C. Ballweg of Ballweg, Borth & Wilson, Prairie Village, argued the cause and was on the brief for appellant.
Nick A. Tomasic, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.
This is an appeal by defendant Michael A. Lewis from convictions of rape (K.S.A. 21-3502), aggravated sodomy (K.S.A. 21-3506), two counts of aggravated robbery (K.S.A. 21-3427), and two counts of aggravated battery (K.S.A. 21-3414). At the time these crimes were committed defendant was over sixteen but under eighteen years of age. Because the juvenile court in Wyandotte County waived its jurisdiction, Lewis stood trial as an adult in the district court. Defendant's points on appeal which merit discussion are:
I. Defendant was improperly certified to stand trial as an adult.
II. Defendant was denied a speedy trial.
III. Defendant was incompetent to stand trial.
IV. Defendant was prejudiced by the prosecutor's closing remarks.
While the facts on the crimes are not set forth in the record and are not necessary to dispose of this appeal, it appears defendant was arrested on October 24, 1974, by the Kansas City, Kansas, police. He and two other juveniles over sixteen were charged with the above, and other, offenses. Subsequently, a waiver hearing was held in juvenile court and defendant was certified to stand trial as an adult pursuant to K.S.A. 1975 Supp. 38-808(b). Certification was appealed to the district court. In conformity with the statute and our case law, a de novo hearing was held. (In re Templeton, 202 Kan. 89, 92, 447 P.2d 158; In re Long, 202 Kan. 216, 217, 448 P.2d 25; K.S.A. 38-834(c).) After hearing the evidence, the trial judge set forth an extensive set of reasons for rejection of the appeal:
'Most striking of all, both Dr. McKnelly and Dr. Burgess gave as their opinion that in the present state of knowledge, there is no effective, known treatment for a person with the type of pathology such as Michael has, in medicine or psychiatry-anywhere.
Defendant launches three attacks against the trial court's judgment. First, he argues he has been prejudiced because a record of the hearing does not exist. The record discloses that a court reporter recorded and transcribed the proceedings, but for some reason both the transcript and notes were lost or misplaced. When diligent search failed to uncover the notes, the judge prepared an extensive affidavit from his personal notes. Both the affidavit and his notes are in the record.
While it is true a transcribed record does not exist, we cannot accept appellant's argument. This court has long recognized and approved the use of reconstructed records. (State v. Jefferson, 204 Kan. 50, 52, 460 P.2d 610; Addington v. State, 198 Kan. 228, 424 P.2d 871; State v. Allen, 111 Kan. 3, 206 P. 340.) The judge's notes cover a substantial portion of the hearing. They appear to cover the essential testimony of all witnesses and the introduction of exhibits. Further, there is no allegation that his affidavit or notes are inaccurate.
Defendant next challenges the trial court's finding that he was not amenable to the juvenile process. While he recognizes that he was charged with an offense against persons, committed in a violent and aggressive manner, defendant insists there was no evidence adduced at the hearing to indicate that juvenile placement was not available or worthwhile.
In order to affirm, this court must find the trial court's decision was supported by substantial evidence. (State v. Green, 218 Kan. 438, 443, 544 P.2d 356; In re Patterson, Payne & Dyer, 210 Kan. 245, 250, 499 P.2d 1131, and cases cited therein.) The record contains abundant evidence to support the trial court's ruling. Defendant had a long history of trouble with the law. He was a school dropout and habitually truant while in school. Prior attempts at counseling had failed. All four witnesses disapproved outpatient-type treatment. Dr. Harris ruled out the Niles Home in Kansas City, Missouri. Dr. Burgess rules out Osawatomie, Hutchinson and Prairie View as places for appellant. In addition, Dr. Robert A. Haines, of the State Department of Social and Rehabilitation Services, ruled out Larned. Steve Guss, Wyandotte County probation officer, ruled out the Boys Industrial School. The witnesses could not come up with a suggestion for placement within the juvenile system.
The search for a facility need not be endless. As this court said in State v. Green, supra:
'. . . (I)t cannot be said the district court must endlessly search for every possible disposition short of waiver.
(218 Kan. p. 445, 544 P.2d p. 362.)
Finally, defendant argues he has been denied equal protection of the laws by virtue of the fact he was tried as an adult while his two cohorts remained in the juvenile system. To support his position he relies on In re Patterson, Payne & Dyer, supra, and State v. Green, supra. Both cases stand for the proposition that in juvenile cases where multiple youths are involved, each should be considered separately in a waiver proceeding. In Patterson, all three youths had been certified by the juvenile court to stand trial as adults. On de novo review the district court affirmed the decision. We reversed for further proceedings because both lower courts had failed to consider the boys and their records individually.
In the instant case defendant was certified to stand trial as an adult and the other two participants were dealt with in the juvenile system. It appears our admonition in Patterson was followed. Furthermore, counsel for the state informed the court that Michael's companions had no juvenile records prior to the instant offenses. In addition, counsel indicated that Michael was armed with a gun and the other two boys were not armed. Thus, we are disposed to treat this case as we did the case of State v. Green, supra.
As previously stated, defendant was arrested on October 24, 1974, and juvenile jurisdiction was waived. Arraignment was held in district court on December 20, 1954. A plea of not guilty was entered. Pretrial conference was set for January 6, 1975. On that date defendant's attorney, J. W. Mahoney, made a motion to withdraw as counsel. Defendant also made a motion to determine his competency to stand trial. Both motions were granted. In addition, the judge's minutes indicate the defendant requested the pretrial conference be continued. This was done. The...
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