State v. Mick, 52240
| Decision Date | 17 January 1981 |
| Docket Number | No. 52240,52240 |
| Citation | 229 Kan. 157,621 P.2d 1006 |
| Parties | STATE of Kansas, Appellee, v. Garry D. MICK, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The regularity of the extradition proceedings in an asylum state may be attacked only in the asylum state. After a fugitive has been delivered into the jurisdiction of the demanding state, the proceedings in the asylum state may no longer be challenged.
2. It is the general rule that the right of confrontation under the Sixth Amendment and Section 10 of the Kansas Bill of Rights is satisfied, in cases of necessity, if the accused has been once confronted by the witness against him in any stage of the proceedings on the same accusation and has had an opportunity of cross-examination by himself or counsel in his behalf.
3. An admonition to the jury normally cures prejudice from an improper admission of evidence.
4. The record is examined in a prosecution for aggravated robberies and it is held the evidence was sufficient to sustain the convictions and no reversible error has been established.
Felix G. Kancel, Jr., Kansas City, argued the cause and was on the brief for appellant.
James F. Foster, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick Tomasic, Dist. Atty., were with him on the brief for appellee.
Garry D. Mick was convicted of two counts of aggravated robbery (K.S.A. 21-3427), both occurring on the morning of February 23, 1979, at the Bruns Pharmacy.
Two men robbed this pharmacy in Kansas City, Kansas. Tom Bruns was ordered to fill two wastebaskets with drugs. He was then ordered to lie on the floor and his hands were tied. The clerk in the pharmacy, Mrs. Norma Good, was ordered to lie on the floor. Money was taken from both the cash register and from Mrs. Good's billfold. She was also tied up. The robbers then left the pharmacy carrying the two wastebaskets containing drugs and the money taken from the cash register and from Mrs. Good's personal billfold. (At the trial both Mr. Bruns and Mrs. Good identified the defendant Mick as the shorter of the two robbers, the one who took the money from the cash register and from Mrs. Good's billfold.)
Later that same afternoon the Missouri police investigated a complaint at a motel in Missouri. When the manager and three police officers opened one of the rooms they found a man and woman lying on the bed in an unconscious condition. In the room the officers found a gun, some money and a wastebasket of drugs bearing the name of Bruns Pharmacy. A call was made to Kansas City, Kansas, and the robbery earlier in the day was discovered by the Missouri officers. The unconscious man was subsequently identified as Clyde Burkhart and after further investigation the police obtained the name of the defendant, Garry Mick. Mick was arrested but refused to waive extradition. He was returned to Kansas after extradition proceedings were completed. The additional facts material to the points raised will be developed as we discuss the issues.
Defendant-appellant alleges that the order under which he was detained by the Missouri authorities was illegal and void because he was detained in Missouri without a hearing for more than 90 days in violation of Mo.Rev.Stat. 548.151 and 548.171.
The appellant appears to be in error in his computation of the number of days between the day of his arrest and the date of his hearing. He was arrested on February 24, 1979. A hearing was granted after Missouri authorities issued the rendition warrant. This was on May 16, 1979, a period of 82 days from the date of his arrest. At the hearing appellant requested and was granted time to apply for a writ of habeas corpus. At the hearing on the petition for the writ the appellant raised several questions but none of them concerned the 90 day requirement of the Missouri statute which he now raises.
In interstate extradition proceedings, the prisoner is held under the extradition process only until the time he is brought into the jurisdiction of the demanding state, and he is thereafter held under the process issued by the courts of the demanding state. Consequently, the regularity of the extradition proceedings in an asylum state may be attacked only in the asylum state. After a fugitive has been delivered into the jurisdiction of the demanding state, the proceedings in the asylum state may no longer be challenged. State v. Wellman, 102 Kan. 503, 508, 170 P. 1052 (1918); State v. Ulriksen, 210 Kan. 795, 799, 504 P.2d 232 (1972); Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886); 31 Am.Jur.2d, Extradition § 74, p. 980.
The point which appellant seeks to raise here in the demanding state cannot now affect his conviction in this state. The point is one which could only have been raised in the asylum state of Missouri. The jurisdiction of a district court in Kansas to try an accused for a criminal offense committed in Kansas does not depend on how he came to be in this state. State v. Ulriksen, 210 Kan. at 799, 504 P.2d 232.
The appellant complains of a failure to receive a speedy trial. The 90 day requirement of K.S.A. 1979 Supp. 22-3402 was not violated. The appellant must be charged with the time he had feloniously escaped from jail and remained at large. He was returned to Kansas from Missouri a second time on March 25, 1980. His trial began on April 28, 1980. Eliminating the period of time that appellant was an escapee leaves less than 90 days chargeable to the prosecution. State v. Porter, Green & Smith, 228 Kan. 345, Syl. P 6, 615 P.2d 146 (1980).
In addition the appellant raises the question of lack of a constitutional speedy trial which is not necessarily dependent upon the requirements of a statutory speedy trial as imposed by the state legislature. The case of Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972), sets forth the interests of an accused which the constitutional right to speedy trial is designed to protect. This right is designed to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused, and to limit the possibility the defense of the accused will be impaired.
Much of the delay in the present case arose by reason of the voluntary actions of the appellant. He refused to waive extradition and sought additional time to process a petition for writ of habeas corpus in Missouri. When unsuccessful in that, he was returned to Kansas for trial but he then escaped from jail and returned to Missouri. Much of the delay was of his own choosing. He has failed to establish material prejudice to any of the rights mentioned in Barker v. Wingo, 407 U.S. at 531, 532 and 533, 92 S.Ct. at 2192, 2193. The point is without merit.
Appellant alleges error by reason of the admission in evidence of a transcript of the testimony of Kim Gordon taken at the preliminary hearing. The applicable statute, K.S.A. 60-459, provides:
"But a witness is not unavailable (1) if the judge finds that his or her exemption, disqualification, inability or absence is due to procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the witness from attending or testifying, or to the culpable neglect of such party, or (2) if the unavailability is claimed under clause (4) of the preceding paragraph and the judge finds that the deposition of the declarant could have been taken by the exercise of reasonable diligence and without undue hardship, and that the probable importance of the testimony is such as to justify the expense of taking such deposition." Emphasis supplied.
And K.S.A. 60-460:
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