State v. Owens
| Decision Date | 01 March 1991 |
| Docket Number | No. 64223,64223 |
| Citation | 248 Kan. 273,807 P.2d 101 |
| Parties | STATE of Kansas, Appellee, v. Archie E. OWENS, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Amnesia alone should not supply the basis for declaring a defendant incompetent to stand trial. Amnesia is a factor to be considered in determining whether a defendant is able to meet the test of competency to stand trial and to obtain a fair trial.
2. In State v. Blake, 209 Kan. 196, 495 P.2d 905 (1972), we adopted the fair-trial effect of amnesia case-by-case approach announced by the majority in Wilson v. United States, 391 F.2d 460 (D.C.Cir.1968). Blake does not mandate, for every alleged amnesia case, the post-trial findings discussed in Wilson.
3. K.S.A. 22-3301(1) states the standard for determining competency to stand trial. In a criminal proceeding where the competency of the defendant to stand trial is an issue, the test for determining competency must be whether the defendant has sufficient present ability to consult with his or her lawyer with a reasonable degree of understanding and whether the defendant has a rational as well as factual understanding.
4. The determination of competency of a criminal defendant to stand trial is made by the trial court after conducting a hearing. An adversarial hearing, where an accused may cross-examine court-appointed physicians, is not required. Absent an abuse of discretion, a trial court's determination of competency will not be reversed on appeal.
5. K.S.A. 22-4508 provides for authorization of funds for expert services. The authorization of funds for expert services necessary for an adequate defense in a criminal defendant's case lies within the sound discretion of the trial court. Appellate courts will not disturb the trial court's ruling unless the defendant shows prejudice to his or her substantial rights resulting from abuse in the exercise of the court's discretion.
6. Under the facts of this case, defendant has not made the threshold showing that the effect of amnesia upon his mental capacity was a significant issue for a defense to the charges.
7. K.S.A. 22-3414 addresses the assignment of error in the giving or failure to give an instruction. K.S.A. 22-3414(3) precludes a party from claiming instruction error where there is no contemporaneous objection, unless the instruction is clearly erroneous.
8. We find no prejudicial error with the use of "should not" under PIK Crim.2d 52.13 rather than "must not" in an instruction informing the jury not to consider the fact that defendant did not testify.
9. The trial court has a duty to instruct on all lesser included offenses supported by the evidence. The evidence supporting such an instruction must be considered in the light most favorable to the defendant. The test is whether the evidence might reasonably cause a jury to convict the defendant of the lesser charge.
Reid T. Nelson, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the briefs, for appellant.
Nick A. Tomasic, Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.
Archie E. Owens, Jr., appeals his jury convictions of first-degree murder (K.S.A. 21-3401) and theft over $500 (K.S.A. 21-3701). We have jurisdiction under K.S.A. 22-3601(b)(1). This appeal considers as primary issues the defendant's alleged amnesia and his competency to stand trial. Ancillary issues concern the validity of jury instruction PIK Crim.2d 52.13 concerning a defendant's choosing not to testify and of the trial court's refusal to instruct on the lesser included offense of misdemeanor theft.
We find no error and affirm.
Owens was a codefendant with Shari Bierman, the murder victim's sister. Bierman was also convicted of first-degree premeditated murder and theft over $500. We affirmed Bierman's conviction in State v. Bierman, 248 Kan. 80, 805 P.2d 25 (1991).
The facts relating to the murder of the victim, Syndi Bierman, are contained in State v. Bierman. We have set out additional facts relating to the issues Owens asserts in the instant case.
Tambi Lewis, the woman with whom Owens lived, pled guilty to aiding a felon. She was at Owens' apartment the night of February 18, 1989, and the morning of February 19, 1989 (the victim's body was found in the early hours of February 19, 1989). She testified that Owens, Joseph Hernandez, and Shari Bierman dropped off Bierman's children at Owens' apartment shortly after midnight. Owens, Hernandez, and Bierman said they were going to burglarize Bierman's parents' house in Wyandotte County. The three returned later with the stolen property.
Lewis testified that Owens did not seem to be intoxicated or under the influence of drugs when he left to burglarize the Bierman house or when he returned with the stolen property. She talked with him for some time. Owens made sense and knew what was going on.
Lewis testified that on the Sunday afternoon or evening of February 19, 1989, Owens and Hernandez told her that they had beaten Syndi "real bad." Lewis and her friend, Tina Reilly, accompanied Owens and Hernandez when they left Kansas City on the evening of February 19. She testified that during their escape trip out of Kansas City, Owens kept saying that he did not know if Syndi was dead or alive and that he did not see how anybody could survive such a beating.
Lewis further testified that Owens told her that he had left his motorcycle chain, which he wore through his belt loops, at either his apartment or the Bierman house. Lewis identified a chain found in Bierman's bedroom as belonging to Owens.
Tina Reilly was also present at Owens' apartment when Owens, Hernandez, and Bierman returned with the stolen property. Reilly testified that she saw Owens washing his hands. She was not sure but thought that Owens had blood on him. Reilly stated that Owens did not appear to be under the influence of any type of drugs. Reilly testified that during their trip out of Kansas City, Hernandez said that they (Hernandez, Owens, and Bierman) had beaten Syndi and that Hernandez had cut Syndi's throat. She stated Owens did not want Hernandez to tell her.
Hernandez testified that during the night of the crime he drank gin and beer and Bierman smoked marijuana. He stated that Owens did not drink alcohol, smoke marijuana, or use any type of drugs during that time period.
Bierman testified that Hernandez drank alcohol and that she smoked marijuana, but that Owens did not smoke marijuana and was not "out of it" on drugs.
Hernandez and Reilly also lived with Owens at his apartment. Hernandez, Reilly, Lewis, and Owens were at Lewis' father's house when the police searched Owens' apartment on Sunday, February 19, 1989. Through a neighbor, they learned that police were at the apartment. They left town in Lewis' car, which broke down in Oklahoma.
Reilly and Hernandez were apprehended in Oklahoma. Owens and Lewis hitchhiked to Arizona. Owens turned himself in to the FBI in Arizona and was returned to Kansas City. Lewis was also apprehended and returned to Kansas City.
Owens and the State both moved for a determination of his competency to stand trial. The trial court ordered that Owens be examined by the Wyandot Mental Health Center (Health Center).
The Health Center filed its report with the trial court. The report included the following:
The report concluded:
Owens moved for a further determination of competency and for funds for psychiatric services. In this motion, Owens stated that he was suffering from amnesia, either hysterical, drug induced, or feigned and that he could not remember the events at the time of the crime.
During the hearing on the motion, Owens' counsel stated that a psychiatrist, Dr. Claude Werth, and a sociologist had examined Owens. Owens requested funds for additional tests, stating that Dr. Werth advised taking the additional tests. It was claimed that these tests could possibly retrieve Owens' memory or eliminate the possibility of feigned amnesia. The State opposed the motion, arguing that the Health Center had found Owens competent. The Health Center report was the only evidence before the...
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