State v. Martinez, 71543

• Decision Date: 07 April 1995
• Docket Number: No. 71543,71543
• Parties: STATE of Kansas, Appellee, v. David MARTINEZ, Appellant.
• Court: Kansas Court of Appeals

Page 267

893 P.2d 267

20 Kan.App.2d 824

STATE of Kansas, Appellee, v. David MARTINEZ, Appellant.

No. 71543.

Court of Appeals of Kansas.

April 7, 1995.

Syllabus by the Court

1. K.S.A. 22-3402, the purpose of which is to implement an accused's constitutional right to a speedy trial, requires that a defendant charged with a crime and held in jail solely by reason of that crime shall be brought to trial within 90 days. It is the State's obligation to insure that an accused is provided a speedy trial. If the State fails to bring such an accused to trial within 90 days, the accused shall be entitled to be discharged, unless the delay is specifically provided for under K.S.A. 22-3402.

2. Delays in bringing an accused to trial which are the result of the application or fault of the accused are not counted in computing the statutory speedy trial period. The State, however, is not relieved of its duty to provide the accused a speedy trial merely because the accused has requested a continuance.

3. When an accused causes a delay in being brought to trial, the trial court must determine what period of time should be assessed against the accused. Any period of time assessed against an accused due to the necessity of rescheduling a trial because of the accused's fault should be limited to a reasonable time measured by the particular circumstances of the case.

4. In Kansas, all crimes are established by legislative act. There are no common-law crimes, and there can be no convictions except for crimes defined by statute.

5. Under the law as it existed in May 1993, an assault could result from either an intentional threat to do bodily harm or an attempt to do bodily harm. When an alleged assault arises out of an attempt to do bodily harm, a defendant cannot be convicted of an attempted assault because there can be no attempt to commit a crime which itself is an attempt.

6. When assault is alleged as a result of an intentional threat to do bodily harm, no conceptual or philosophical difficulty prevents a conviction for attempted assault. However, the language of K.S.A. 21-3408, as it existed in May of 1993, precludes a valid conviction for attempted assault or attempted aggravated assault.

7. According to K.S.A. 21-3408, as it existed in May 1993, apprehension of bodily harm is a threshold requirement of criminal culpability. A threat that does not put the person threatened in apprehension of harm does not meet this threshold requirement and there can be no criminal liability under K.S.A. 21-3408, K.S.A. 21-3410, and K.S.A. 1992 Supp. 21-3301 for attempted assault or attempted aggravated assault.

8. All the elements required to prove a simple assault must necessarily be included in the greater offense of aggravated assault. Thus, under either degree of assault, the State is required to show the victim was placed in immediate apprehension of bodily harm.

Stephen Douglas Bonney, Special Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Robert L. Stuart, Asst. Dist. Atty., Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before LARSON, P.J., and RULON and PIERRON, JJ.

PIERRON, Judge:

David Martinez was found guilty by a jury of attempted aggravated assault. In this direct appeal, defendant argues he was denied his right to a speedy trial. Defendant also contends he was denied due process because the jury was instructed on and he was found guilty of an offense that allegedly does not exist under Kansas law.

Larry and Lori Grubb were driving Sheree Hale to a store to collect boxes to be used by Sheree, as she was moving out of her apartment. Sheree saw defendant walking down the street. Defendant and Sheree had lived together until early May 1993. When she saw defendant, Sheree asked Larry to stop the car, and she asked defendant if he wanted to help get boxes. Before getting into the car, defendant pulled a sawed-off shotgun from his pants. He got into the car with the gun, despite requests that he not bring the gun into the car.

Lori asked Larry to take her and the children home because she did not want to be around the gun. Larry drove back to their home, directly across the street from Sheree's apartment. Upon reaching the apartment, Sheree told defendant to get rid of the gun. Defendant got out of the car, entered Sheree's apartment, and returned minutes later without the gun.

Sheree and defendant returned to her apartment and began to argue. While in the kitchen, Sheree asked defendant where he had put the gun. Defendant pulled the shotgun out of the clothes dryer and began swinging it around, but he did not point it at anyone. Sheree told defendant to get the gun out of her house. She then went to the front room to watch television and ignored the defendant.

At trial, Sheree testified the next thing she knew, she heard a "click" at the side of her head. She turned her head and saw the gun was inches away and pointed at her left temple. She immediately knocked the gun away with her arm.

Sheree testified she had not seen the gun from the time she left the kitchen and did not know defendant was next to her until she heard the click. Upon hearing the click, Sheree suspected the gun was not loaded. Sheree testified that when she saw the gun pointed at her, she was mad. She did not testify that she was in immediate apprehension of bodily harm.

After defendant left her apartment, Sheree went across the street to the Grubbs' and called the police. Defendant was arrested on May 17, 1993, and charged with aggravated assault. He was arraigned on June 10, 1993, and the case was set for trial in August 1993. However, for reasons described below, defendant was not tried until January 5, 1994.

At the conclusion of all the evidence, the trial court held an instruction conference. Over defendant's objection and at the request of the State, the trial court instructed the jury on attempted aggravated assault as a lesser included offense.

The jury found defendant guilty of one count of attempted aggravated assault. On March 17, 1994, defendant was sentenced to one to two years, and his guidelines sentence was calculated to be eight months. The trial court granted defendant's request for probation. Defendant appeals his conviction.

Defendant first argues his statutory right to a speedy trial was violated. The Sixth Amendment to the Constitution of the United States and § 10 of the Bill of Rights of the Kansas Constitution guarantee a criminal defendant the right to a speedy trial. In addition, the Kansas Legislature has imposed a statutory time limitation, K.S.A. 22-3402, within which an accused must be brought to trial. State v. Green, 252 Kan. 548, 550, 847 P.2d 1208 (1993). "The purpose of K.S.A. 22-3402 is to implement an accused's constitutional right to a speedy trial." State v. Green, 254 Kan. 669, 672, 867 P.2d 366 (1994).

K.S.A. 22-3402(1) provides:

"If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."

"It is the State's obligation to insure that an accused is provided a speedy trial." Green, 254 Kan. at 672, 867 P.2d 366. The accused has no duty to bring himself to trial. State v. Warren, 224 Kan. 454, Syl. p 2, 580 P.2d 1336 (1978). If the State fails to bring the accused to trial within the time limit fixed by K.S.A. 22-3402, the accused is entitled to be discharged. However, "[d]elays which are the result of the application or fault of the accused are not counted in computing the statutory speedy trial period." Green, 252 Kan. at 550, 847 P.2d 1208; see K.S.A. 22-3402(1)

Defendant was brought to trial 209 days after arraignment. Defendant, who was held in custody for the entire time prior to his trial, contends his right to a speedy trial, as set forth in K.S.A. 22-3402(1), was violated and the charges should have been dismissed.

The defendant's case was first set for trial on August 16, 1993, well within the statutory 90-day period. The trial court continued the trial until September 13, 1993. The first continuance was based on K.S.A. 22-3402(3), which provides:

"(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:

....

"(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground."

Based on K.S.A. 22-3402(3)(d), the trial would have been timely on September 13, 1993, even though the 90-day period expired on September 8, 1993.

On September 2, 1993, 84 days after the arraignment, defendant requested a continuance because defense counsel was going on vacation. Defense counsel informed both the court and the State that he would be returning to the area on the evening of September 14, 1993. The trial court granted the continuance and ordered the case to be reset for trial as soon as possible.

Defendant acknowledges that delays which are the result of the application or fault of the accused are not counted in computing the statutory speedy trial period. However, defendant argues that the delay in rescheduling after his motion for continuance was unreasonable and charging the entire time to defendant would be manifestly unfair.

In State v. Dreher, 239 Kan. 259, 261, 717 P.2d 1053 (1986), the Kansas Supreme Court held that "any additional period of time assessed against a defendant due to the necessity of rescheduling a trial because of his fault should be limited to...