State v. Prewett
| Decision Date | 19 January 1990 |
| Docket Number | No. 62278,62278 |
| Citation | 246 Kan. 39,785 P.2d 956 |
| Parties | STATE of Kansas, Appellee, v. Nolan PREWETT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Pursuant to K.S.A. 22-3402, a defendant shall be brought to trial within 90 days of arraignment unless a proceeding to determine competency to stand trial is pending and not completed within the statutory time limitation.
2. It is the State's obligation to ensure that an accused who is in custody is provided with a speedy trial. Delays which are the result of application or fault of the defendant are not to be counted in computing the 90-day statutory speedy trial period.
3. Delay caused by filing a motion for a competency hearing is chargeable to the defendant in computing the statutory speedy trial period. The time period between filing a competency hearing motion and the district court's decision on the motion is chargeable to the defendant where the judicial decision is made within a reasonable time period.
4. Before a warrant may be issued, there must be a finding of probable cause by a neutral and detached magistrate supplied with sufficient factual information to support an independent judgment that probable cause exists.
5. A determination of probable cause by a magistrate should be based upon the totality of circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of persons supplying hearsay information.
6. An affidavit which supports a search warrant is presumed valid, except when the party against whom the search warrant is directed attacks matters within the affidavit and offers proof that the affidavit contains material statements of deliberate falsehood or of reckless disregard for the truth.
7. A defendant is not entitled to a suppression hearing unless he offers proof the affidavit for a search warrant contains statements of deliberate falsehood or reckless disregard for the truth. An argument based on the sufficiency of evidence will not support the granting of a suppression hearing.
Lisa Nathanson, of Washburn Law Clinic, Topeka, argued the cause and Jessica R. Kunen, Chief Appellate Defender, and Carol Gilham, Sp. Appellate Defender, were with her on the briefs, for appellant.
Randy M. Hendershot, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief, for appellee.
This is a criminal action wherein Nolan Prewett directly appeals from his convictions after a trial to the court. Prewett was convicted of the following offenses: two counts of first-degree murder, K.S.A. 21-3401; two counts of aggravated kidnapping, K.S.A. 21-3421; two counts of aggravated criminal sodomy, K.S.A. 21-3506; two counts of rape, K.S.A. 21-3502; and two counts of enticement of a child, K.S.A. 21-3509. Prewett was sentenced to life imprisonment on each count of murder and aggravated kidnapping. For aggravated sodomy and rape, Prewett was sentenced to not less than fifteen years nor more than life on each count. Finally, Prewett was sentenced to not less than three nor more than ten years for each of the two counts of enticement of a child. The sentences on the two counts of murder are to be served consecutively and all other sentences are to run concurrently with the murder sentences. The district court suspended execution of the sentences and Prewett was committed to the Larned State Security Hospital in lieu of imprisonment pursuant to K.S.A. 22-3430.
The facts are that on July 19, 1986, Pamela Mahomes, who lived at 1530 Tyler, Topeka, Kansas, reported to the Topeka Police Department that her three-year-old daughter, Shavon, and six-year-old daughter, Shannon, were missing. A neighborhood search for the young girls proved fruitless. Two neighborhood children told police they had last seen Shavon and Shannon on Nolan Prewett's porch at 1524 Tyler. The children stated Prewett stood in the open front door, with his hands behind his back, talking with the girls. Ultimately, a search warrant for Prewett's residence was issued on July 20, 1986. Police officers discovered the bodies of Shavon and Shannon in Prewett's basement stuffed between a furnace and stud wall. Prewett and another individual in the house, David Howard, were arrested and charged with the sexual violations and deaths of the Mahomes girls. David Howard was tried and acquitted.
On January 27, 1987, Prewett filed a motion to quash the search warrant and suppress evidence, alleging a lack of probable cause to issue the warrant. Prewett also filed a motion to dismiss on the grounds of denial of a speedy trial. The trial court denied both motions. Prewett waived a jury trial, and a bench trial was held October 20, 1987. Prewett was found guilty of the crimes charged and sentenced, and execution of the sentences was suspended for Prewett's commitment to Larned State Security Hospital. Prewett appeals.
Prewett first contends the trial court erred in failing to dismiss charges against him as a result of the violation of his right to a speedy trial. K.S.A. 22-3402 provides:
"(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."
Subsection (3) extends the time for trial beyond the 90-day limitation in the following circumstances:
Prewett was in custody from the time of his arraignment, August 28, 1986, until his trial, October 20, 1987; a total of 418 days. The pertinent dates are as follows:
August 28, 1986 Prewett's arraignment.
October 16, 1986 Prewett's motion to determine competency to stand trial and notice of intent to rely upon insanity defense; trial court order to transport Prewett to Larned State Hospital.
December 31, 1986 Trial court received competency report from Larned State Hospital.
January 7, 1987 Prewett's motion for competency hearing filed.
January 27, 1987 Prewett's motion for competency hearing granted and hearing date set.
February 20, 1987 Trial court determines Prewett incompetent to stand trial and orders transfer to Larned State Hospital.
July 29, 1987 Trial court received competency report from Larned State Hospital.
August 11, 1987 Prewett's second motion for competency hearing filed.
September 3, 1987 Trial court accepts Prewett's waiver of hearing and stipulation to competency.
September 11, 1987 Trial court grants Prewett's motion for trial setting of October 19, 1987.
October 20, 1987 Trial.
It is the State's obligation to ensure that the accused who is in custody is provided with a speedy trial. State v. Fink, 217 Kan. 671, 679, 538 P.2d 1390 (1975). Delays which are the result of application or fault of the defendant, however, are not to be counted in computing the 90-day statutory period. State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). Clearly, Prewett is properly charged with the 76-day delay from October 16, 1986, to December 31, 1986, the period between Prewett's motion for a competency evaluation and the trial court's receipt of that evaluation. Prewett is also charged with the delay from January 27, 1987, when his motion for competency hearing was granted, to July 29, 1987, the date the trial court received the competency report from Larned State Hospital, a total of 183 days. The delay from August 11, 1987, when Prewett filed a second motion for a competency hearing, to September 3, 1987, when the trial court found him competent to stand trial, is also charged to Prewett, a total of 23 days. The 77 days charged to the State and 321 days charged to Prewett are not in serious dispute.
Prewett contends, however, that the 20-day period between January 7, when he filed a motion for a competency hearing, and January 27, when the trial court granted his motion and set a hearing date, is chargeable to the State in computing the statutory period. Prewett argues he neither caused nor consented to a delay by the filing of a motion for a competency determination. For support, Prewett relies upon our recent decision in State v. Roman, 240 Kan. 611, 731 P.2d 1281 (1987).
In Roman, the trial court held defendant's motion to suppress evidence under advisement for 179 days. 240 Kan. at 612, 731 P.2d 1281. We found that it was not error to charge the entire 179-day delay to the State and recognized that any party filing a motion has a right to assume it will be acted upon expeditiously. 240 Kan. at 613, 731 P.2d 1281.
We do not agree, however, with Prewett's contention that Roman controls the present case. Roman dealt with a motion to suppress, unlike the motion to determine competency in the instant case. We stated in Roman that judicial procrastination was not the defendant's fault and should not be charged to him. Prewett, however, fails to acknowledge our additional statement that a reasonable time, two to three weeks, for a judicial decision on the motion might well be chargeable to the defendant under appropriate circumstances. Furthermore, in Roman, the 7-day period between the defendant's motion to suppress and the hearing on the motion was found properly chargeable to the defendant. 240 Kan. at 612-13, 731 P.2d 1281. Therefore, we find Prewett's reliance upon Roman meritless.
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