State v. Peckham

• Decision Date: 27 May 1994
• Docket Number: No. 68747,68747
• Citation: 255 Kan. 310,875 P.2d 257
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Larry D. PECKHAM, Sr., Appellant.

Page 257

875 P.2d 257

255 Kan. 310

STATE of Kansas, Appellee, v. Larry D. PECKHAM, Sr., Appellant.

No. 68747.

Supreme Court of Kansas.

May 27, 1994.

Syllabus by the Court

1. In the absence of a record showing the district judge was furnished with the notice required by K.S.A.1993 Supp. 21-4624(1) with the intent that it be filed with the court pursuant to K.S.A.1993 Supp. 60-205(e), there is not compliance with K.S.A.1993 Supp. 21-4624(1), and the mandatory term of imprisonment of 40 years cannot be imposed.

2. The notice provisions of K.S.A.1993 Supp. 21-4624, the first-degree murder "hard-40" sentencing statute, are mandatory. Failure of the State to comply with such provisions requires a sentence imposed thereunder to be vacated.

3. For purposes of discrediting a witness, drug use evidence is admissible to the extent it shows the witness was under the influence of drugs at the time of trial or at the time of the occurrence about which the witness is testifying. It is also admissible to the extent that it shows the witness' mind, memory, or powers of observation were affected by prior use.

4. When the State relies on direct evidence, circumstantial evidence that someone other than the defendant committed the crime charged is irrelevant in the absence of other evidence to connect such other person with the crime.

5. The court may order a psychiatric or psychological examination of the defendant. To facilitate the examination, the court may: (a) if the defendant is charged with a felony, commit the defendant to the state security hospital or any county or private institution for examination and report to the court; (b) designate any appropriate psychiatric or psychological clinic, mental health center, or other psychiatric or psychological facility to conduct the examination while the defendant is in jail or on pretrial release; or (c) appoint two qualified licensed physicians or licensed psychologists, or one of each, to examine the defendant and report to the court.

6. A person is "incompetent to stand trial" when he is charged with a crime and because of mental illness or defect is unable: (a) to understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense. K.S.A. 22-3301(1). K.S.A.1993 Supp. 22-3302(2) and (3) vest the trial judge with authority to determine this issue of competency. On appeal, the reviewing court's inquiry on a trial court's determination that a defendant is competent to stand trial is whether the trial court abused its discretion.

7. When an unfavorable ruling on an evidentiary question prior to trial is received, a party must make a timely objection to such evidence when introduced at trial in order to preserve the issue for appeal.

8. Res gestae is a broader concept than an exception to the hearsay rule. It actually deals with admissibility of evidence of acts or declarations before, during, or after happenings of the principal event. Those acts done or declarations made before, during, or after the happening of the principal occurrence may be admitted as part of the res gestae where those acts or declarations are so closely connected with the principal occurrence as to form in reality a part of the occurrence.

9. Subject to K.S.A. 60-447, evidence that a person committed a crime or civil wrong on a specified occasion is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and K.S.A. 60-448, such evidence is admissible when relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. K.S.A. 60-455.

10. In ruling upon the admissibility of evidence of a prior crime or civil wrong under K.S.A. 60-455, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine the fact is a disputed material fact; and (3) balance the probative value of the prior crime or civil wrong evidence against its tendency to prejudice the jury.

11. Appellate review of the admission of prior crimes evidence under K.S.A. 60-455 is limited to whether the trial court abused its discretion or whether the trial court admitted clearly irrelevant evidence.

12. Rebuttal evidence is that which is presented to deny some fact an adverse party has attempted to prove or has placed in dispute. The use and extent of rebuttal evidence rests in the sound discretion of the trial court, and its ruling will not be reversed unless it appears the discretion has been abused to a party's prejudice.

13. Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory, and the withholding of the evidence must be clearly prejudicial to the defendant.

14. Evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof or if the facts become available to the defendant during trial and the defendant is not prejudiced in defending against them.

15. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Kiehl Rathbun, Wichita, argued the cause, and was on the brief, for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.

ABBOTT, Justice.

This is a direct appeal by defendant Larry D. Peckham, Sr., from his convictions of first-degree murder and aggravated robbery and from the "hard-40" sentence imposed.

The motive in this case is bizarre. The body of Raul "Roy" Hernandez was discovered in a field at 53rd and Greenwich Road in Wichita, Kansas, on March 6, 1992. He had been shot five times in the head, twice in the forehead with a .22 caliber weapon and three times on the right side of the head with a .38 caliber weapon. The gunshot wounds were inflicted on two occasions separated by a period of time.

Defendant had pending drug charges in Sedgwick County for which he had unsuccessfully attempted to negotiate favorable treatment by offering to provide information to law enforcement officials. He told his son, Larry Peckham, Jr., his roommate, Robbie Clem, and a friend, Chris Roberts, about a plan he had devised in order to have bargaining power concerning his drug charges. He planned to commit two murders, frame the second victim for the murder of the first victim, and enlist Clem to provide information to law enforcement officials concerning the first murder in order to seek favorable treatment for both Clem and Peckham on pending charges. Peckham enlisted Clem to purchase a .22 caliber weapon for him, which she did. He also asked her for names of some possible victims for the second murder. He asked Roberts to help him make a silencer for a weapon.

On March 2, 1992, Peckham carried out the first part of his plan, the murder of Roy Hernandez. Hernandez had told his roommate and his girlfriend that he had met a man matching Peckham's description who had asked him to help "rip off a rip-off," or rob a drug dealer in exchange for money and drugs. Hernandez had several hundred dollars with him that day. On the evening of March 2, 1992, Hernandez borrowed a car from Margaret McBroom and a gun from Robert Cochran. Neither the money and wallet nor the gun were recovered, but McBroom's car was recovered on the morning of March 4, 1992.

On the evening of March 2, 1992, Cal Cofer, who lived behind the field where Hernandez' body later was discovered, heard what sounded like gunshots shortly after dark. He recalled that there were two shots in quick succession and two more shots after brief pauses. That evening, at 8:30 or 8:45, Peckham told Clem that he had committed the murder, and he showed her some .38 shell casings. He told her that a smaller caliber weapon, such as a .22, would not have killed the victim because he tried to run away. Clem drove out to the field with Peckham, and he had her drive around while he went back into the field. He took a gun with him, and when he returned he told her, "It's a good thing I checked, because the dude wasn't dead, I had to shoot him a couple more times in the head." That evening Peckham also stopped by his son's house between 8:30 and 9:00 and asked his son to make note of the time he was there and to possibly extend the time by 30 minutes, either earlier or later.

Several days later, Peckham enlisted Mike Furthmyer to help him dig a grave, and they did dig a hole under a bale of hay. Peckham also asked Furthmyer to help him melt down a gun, but Furthmyer and Peckham buried the gun instead. The .38 caliber revolver was recovered where Furthmyer and Peckham had buried it.

Peckham was convicted of first-degree murder and aggravated robbery. The jury recommended imposition of the hard-40 sentence. Peckham received a hard-40 sentence for first-degree murder and a consecutive 15 years to life sentence for aggravated robbery. He appeals. Peckham raises 19 issues on appeal. Many of these issues are moot because of our decision on the first issue.

I. HARD-40 SENTENCE

K.S.A.1993 Supp. 21-4624 provides certain notice requirements before a mandatory term of imprisonment of 40 years can be imposed following a conviction for first-degree murder.

"If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney...