State v. McCowan, 48773

• Decision Date: 21 January 1978
• Docket Number: No. 48773,48773
• Citation: 573 P.2d 1029,223 Kan. 329
• Parties: STATE of Kansas, Appellee, v. Richard M. McCOWAN, Appellant.
• Court: Kansas Supreme Court

Page 1029

573 P.2d 1029

223 Kan. 329

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

No. 48773.

Supreme Court of Kansas.

Jan. 21, 1978.

Syllabus by the Court

In a criminal action where the jury found the appellant guilty of felony murder under K.S.A. 21-3401, the record is examined and it is held : The charge of aggravated escape from custody (K.S.A. 21-3810(b )) as the underlying felony under the felony murder provisions of K.S.A. 21-3401 was improper, where the appellant escaped from lawful custody without being held on a written charge contained in a complaint, information or indictment.

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

Claude S. Heath, Leoti, argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict which found Richard M. McCowan (defendant-appellant) guilty of felony murder (K.S.A. 21-3401). Numerous points for reversal are asserted on appeal.

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.

The appellant's trial eventually commenced, after a change in venue, on January 3, 1977, in the Saline County District Court. The appellant was found guilty of murder in the first degree under the felony murder provisions of the statute and was sentenced to life imprisonment. His motion for a new trial was...