State v. McCowan

• Decision Date: 01 December 1979
• Docket Number: No. 50811,50811
• Citation: 602 P.2d 1363,226 Kan. 752
• Parties: The STATE of Kansas, Appellee, v. Richard M. McCOWAN, Appellant.
• Court: Kansas Supreme Court

Page 1363

602 P.2d 1363

226 Kan. 752

The STATE of Kansas, Appellee, v. Richard M. McCOWAN, Appellant.

No. 50811.

Supreme Court of Kansas.

Dec. 1, 1979.

Syllabus by the Court

In an appeal from a conviction in a second prosecution for first degree murder, the original conviction having been reversed by this court (State v. McCowan, 223 Kan. 329, 573 P.2d 1029 (1978)), the record is examined and it is held: (1) the trial court did not commit error in (a) refusing to dismiss the charge for alleged violations of the Uniform Extradition Act; (b) the admission of physical evidence; (c) not dismissing the charges at the end of the State's case for alleged insufficient evidence; (d) refusing to instruct on self-defense; (e) finding defendant had not been deprived of his constitutional or statutory rights to a speedy trial; (f) allowing the State to file an amended information; (g) refusing to supply defendant with jury instructions three weeks before trial; (h) its rulings on the admission of evidence and testimony as to the victim being a police officer and of defendant's prior crime of unlawful possession of a firearm; (i) allowing the State to endorse witnesses on the amended information; and (j) all other rulings of the court complained of by the defendant; (2) the retrial of the defendant was not barred by former jeopardy under the federal and state constitutions and K.S.A.1978 Supp. 21-3108; (3) there was no error in the determination that the Hon. Bert J. Vance was not disqualified to conduct the trial, and (4) the judgment of the trial court is affirmed.

J. D. Muench, Scott City, argued the cause and was on the brief for appellant.

Adrian M. Farver, Burlingame, argued the cause and Robert T. Stephan, Atty. Gen., Glendon E. Rewerts, County Atty., and Claude S. Heath, Leoti, were with him on the brief for appellee.

HOLMES, Justice:

This is a direct appeal by defendant-appellant Richard M. McCowan from conviction by a jury of one count of first degree murder. K.S.A. 21-3401. This is the second time this case has been before this court. The action was tried the first time in Saline County, on a change of venue from Wichita County, resulting in a conviction of first degree murder under the felony murder theory. State v. McCowan, 223 Kan. 329, 573 P.2d 1029 (1978), (McCowan I ). In the prior action the complaint alleged both premeditated murder and felony murder with the underlying felony being an allegation of aggravated escape from custody (K.S.A. 21-3810(B )). This court found the underlying felony to be improper and reversed and remanded the case.

In this action, which was tried in Reno County on a change of venue, the State filed an amended information again charging both premeditated murder and felony murder with the underlying felony being unlawful possession of a firearm. K.S.A. 21-4204(1)(B ). In McCowan I the trial court, at the end of the evidence, did not instruct the jury on the elements of premeditated murder and instructed solely on first degree murder under the felony murder theory. In the present case the trial court, prior to trial, ruled that the case would be tried solely under the theory of premeditated murder and not under the felony murder rule. Later the court instructed solely on premeditated first degree murder along with the lesser included offenses of second degree murder and voluntary manslaughter.

The following statement of the facts is taken from McCowan I :

"The appellant is a resident of Wichita County, Kansas. On December 15, 1975, he pled guilty to a charge of unlawful possession of a firearm in violation of K.S.A. 21-4204(1)(B ), a class D felony. On April 12, 1976, he was placed on probation in connection with this crime. The appellant was then advised by James Robison, his probation officer, on April 21 of the terms of his probation and his parole schedule.

"On May 19, 1976, the appellant failed to keep his scheduled appointment with Mr. Robison. He testified he was in California with his wife visiting his sick mother-in-law. He stated he tried on at least three different occasions to contact Mr. Robison in order to tell him of his whereabouts.

"Thereafter on May 24, 1976, Mr. Robison issued a 'pick-up and detain' order pursuant to K.S.A. 22-3716 against the appellant for parole violations. The alleged violations were failure to keep a scheduled appointment and traveling outside a fifty-mile radius of Leoti, Kansas.

"Mr. Robison subsequently requested a cancellation of this detainer order on May 25, 1976, at approximately 3:43 p. m. In its place he requested a bench warrant be issued for apprehension of the appellant. During the interim between cancellation of the 'pick-up and detain' order and the issuance of the bench warrant, the death occurred.

"Carl A. Simons, chief of police of the Leoti, Kansas, Police Department, stopped the appellant approximately one and one-half miles north of the city limits of Leoti. The appellant was traveling with his four children who ranged in ages from several months to twelve years. Chief Simons, with his service revolver drawn, ordered the appellant from his car. At this time Chief Simons had not received any notice of the cancellation of the detainer order. He then arrested the appellant for violating the conditions of his parole, advised the appellant of his rights, and handcuffed the appellant behind his back.

"The appellant testified he was fearful for his own personal safety and his children were frightened. He stated Chief Simons struck him with a blunt object on the back of the head after being handcuffed.

"Apparently the appellant requested permission to return to his car to quiet his children and to reassure them, but Chief Simons refused the request. While Chief Simons was making a radio transmission from his patrol car, however, the appellant returned to his car. With the help of his oldest daughter he took a .357 Magnum revolver from the glove compartment. With the gun in his hands, which were still handcuffed behind his back, he returned to the patrol car to order Chief Simons to remove the handcuffs. A scuffle ensued and two shots fired by the appellant struck and killed Chief Simons instantly.

"The appellant instructed his twelve-year-old daughter to drive to a nearby farm building where he was able to sever the handcuff chain through the use of a grinding machine. He then drove to a friend's home where he left his children and he proceeded to flee to the State of Colorado.

"Upon discovery of the deceased, Lloyd Neyer, the sheriff of Wichita County, issued a pick-up order for the appellant. He also ordered the appellant's wife, Pam McCowan, be placed in custody at the sheriff's office.

"Several hours later the appellant was arrested by Colorado authorities and advised of his rights. He waived extradition after Colorado officials told him his wife was being held by Kansas authorities.

"Agents from the Kansas Bureau of Investigation arrived in Eads, Colorado, on the morning of May 26, 1976. They had a warrant for the appellant's arrest charging him with first degree murder under the felony murder provision of K.S.A. 21-3401. The underlying felony charged was aggravated escape from custody (K.S.A. 21-3810(B )). After being advised of his rights, the appellant was questioned by the agents. They returned to Kansas with the appellant in their custody later in the day.

"The agents did not proceed directly to the sheriff's office in Wichita County. After a lengthy drive through northwestern Kansas, they placed the appellant in the custody of the sheriff in Scott County, Kansas. The following morning, approximately 34 hours after his original detainment in Colorado, the appellant was first brought before a judge. He was formally advised of his rights and counsel was appointed for him." pp. 329-331, 573 P.2d pp. 1030-31.

The evidence in the present case was essentially the same as in McCowan I except the defendant did not take the witness stand in this case and offered no evidence. Therefore, there was no direct testimony from defendant about the shooting.

Appellant asserts eighteen points of error in his brief and presents thirteen arguments in support thereof. Many of the points overlap and the brief does not address them in the order set forth in the statement of points. The arguments are merely numbered one through thirteen and do not identify the point or points being covered in each argument. The State responds with an enumeration of seven points and supporting arguments but not in the order addressed by appellant and in some instances not responsive to the issues as propounded by appellant. In addition, neither brief is adequately keyed to what is a rather voluminous record. Consequently the briefs in many instances have been more frustrating than helpful to this court. However, we will attempt to address the numerous points in the order originally listed by appellant and will include such additional facts from the record as they become necessary.

1. "That the Trial Court erred in not dismissing the charges and ordering the release of the defendant after having heard evidence to the effect that the Uniform Extradition Act was not complied with by Kansas law officials."

Appellant makes several arguments, the first being that his return to Kansas from Colorado was not effected in accordance with the Uniform Criminal Extradition Act, K.S.A. 22-2701, Et seq. Appellant states that Colorado has adopted the uniform act and that the Kansas statutes he cites have identical counterparts in Colorado. We will assume this to be true. Appellant concedes he was advised of his rights under Miranda and as a fugitive from justice and he executed a waiver of such rights, although not before a judge as required by K.S.A. 22-2726. The statute also contains the following language:

"Provided, however, That nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and...