State v. Pruett, 46676
| Decision Date | 03 November 1973 |
| Docket Number | No. 46676,46676 |
| Citation | 213 Kan. 41,515 P.2d 1051 |
| Parties | The STATE of Kansas, Appellee, v. Gary D. PRUETT, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The county attorney is the representative of the state in criminal prosecutions, and as such he controls them. It is for him to determine the charges to be filed in a particular case.
2. When the prosecutor exercises his discretion as to the charges to be filed or as to amendments of the information seeking to reduce the charges to lesser offenses, the trial judge has no right to substitute his judgment for that of the prosecutor absent some compelling reason to protect the rights of the defendant.
3. A waiver of trial by jury, voluntarily and regularly made by the defendant in a criminal action who knew and understood what he was doing, cannot afterward be withdrawn except in the court's discretion.
4. The purpose of the law is that no judge shall hear and determine a case in which he is not wholly free, disinterested, impartial, or independent.
5. Under the factual circumstances set forth in the opinion where a trial judge stepped down from his role as an impartial judge and assumed the role of public prosecutor, it was an abuse of discretion to refuse the defendant his request to withdraw his previous waiver and to deny to the defendant a trial by jury.
6. The escape statutes, K.S.A.1971 Supp. 21-3809 and 21-3810, are applicable only where a person escapes from lawful custody while being held on a written charge contained in a complaint, information or indictment.
7. K.S.A.1971 Supp. 21-3808, which provides for the offense of obstructing legal process or offical duty, is broad enough to cover cases where a person escapes from lawful custody prior to the filing of a formal written complaint, information or indictment.
Clyde Wendelken of Wendelken, Cline & Crockett, Wichita, argued the cause, and Charles M. Cline and David G. Crockett, Wichita, were with him on the brief for appellant.
Clifford L. Bertholf, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., Keith Sanborn, Dist. Atty., and Gary Austerman, Legal Intern, were with him on the brief for appellee.
This is a direct appeal by the defendant in a criminal action. The defendant-appellant, Gary D. Pruett, was tried by the district judge sitting without a jury. He was convicted and sentenced under an information charging aggravated battery as defined by K.S.A.1971 Supp. 21-3414 in count one and aggravated escape from custody as defined by K.S.A.1971 Supp. 21-3810 in count two. In this opinion we will refer to the appellant as the defendant or Pruett.
This case arose out of an altercation which occurred at the Knotty Pine Tavern in Wichita on August 5, 1971. A controversy arose among certain patrons of the tavern including the defendant and his mother. The bartender, Larry Stepp, attempted to quiet the patrons. The defendant took umbrage at certain words uttered by the bartender. The defendant struck the bartender on the side of the head with a beer glass causing a gash which required 12 stitches. Defendant claimed that he struck the bartender in self-defense. There also was a dispute as to whether the defendant already had the beer glass in his hand or picked it up prior to striking the blow. After striking the bartender the defendant picked up a pool cue and swung it at various people in the tavern. He broke the pool cue upon the hands of another patron and ran out of the tavern where he was apprehended by a police officer who had been called to the disturbance. The police officer informed the defendant Pruett that there was enough evidence to charge him with aggravated assault and proceeded to give him the miranda warning. The officer arrested the defendant and attempted to place him in the police car. Defendant started to run away but was quickly recaptured and taken to the police station. There he was booked on charges not disclosed by the record and was promptly taken by the paddy wagon to the City Prison Farm. While being unloaded from the paddy wagon the defendant again ran off and was recaptured within an hour and returned to the City Prison Farm. On the following day, August 6, 1971, a complaint was filed charging defendant with aggravated battery under count one and aggravated escape from custody designated as a misdemeanor under count two. The defendant was bound over to the district court on both counts following a preliminary hearing. The county attorney thereafter filed an information charging defendant in count one with aggravated battery and in count two with 'aggravated escape custody-misdemeanor.' The printed word 'feloniously' was stricken out of count two of the information.
On November 15, 1971, the case was called by the honorable Howard C. Kline, Judge of Division No. 2 of the district court. With counsel present the defendant waived trial by jury and the case was set for trial on December 20, 1971. On December 20 the case was assigned to the Honorable William C. Kandt, Judge of Division No. 1 of the district court. When Judge Kandt called the case Mr. Wendelken answered ready for trial on count one, the charge of aggravated battery, and announced the defendant's readiness to enter a plea of guilty on count two to a charge of escape from custody as a misdemeanor under K.S.A. 21-3809. The deputy county attorney, S. A. Issinghoff, immediately moved for a continuance because the bartender was not available as a witness at that time. The deputy county attorney then announced to the court that the defendant had been charged in count two under the wrong statute in that he should have been charged under K.S.A. 21-3809, escape from custody, a misdemeanor. At the direction of the court Mr. Issinghoff described the factual circumstances arising out of the fracas at the Knotty Pine Tavern. At that point the following colloquy took place between court and counsel:
'THE COURT: And had he been charged yet at the time of this case?
'Mr. Issinghoff: He had been charged but held for State Warrant, held pending the issuance of State Warrant.
'THE COURT: And later when the State Warrant was served and he was apprehended, he was charged with aggravated battery, is that correct?
'Mr. Issinghoff: Yes.
'THE COURT: And this is a felony under the new code?
'Mr. Issinghoff: As it now reads it is, your Honor, but the State, number number two, if we were going to trial number two, if we wee going to trial the State would move to amend that to a misdemeanor, simple battery.
'THE COURT: Well, it would appear that the Information has correctly charged this person with aggravated escape for the reason he was being held and later charged with having committed a felony. The definition for aggravated escape under the new code for criminal procedure is escaping while held in lawful custody on a charge or a conviction of a felony.
'Mr. Issinghoff: Well, based upon the facts that we just made known to the Court, the State moves then to amend Count Two to conform substantially with 21-3809, which I believe, relates to persons escaping who are being held on a misdemeanor.
'THE COURT: Except the facts do not show he was held for a misdemeanor and we could not accept a modification or amended Information which does not conform to the facts. The Information should be amended to change the word misdemeanor to a felony since he was being held in lawful custody upon a charge of a felony as it later developed, so the suggested amendment does not conform to the facts and cannot be accepted. But the Information is amended to change the word 'misdemeanor' to 'felony' since obviously this is a mistake in the typing of the Information.
'Mr. Wendelken: In which case, your Honor, I don't think my offer to have the defendant plead guilty to violation of 21-3809, as I thought Count Two contained, would stand up, so I suppose the defendant is ready for trial on Count One, if need be, or Count Two, if need be.
'Nine-thirty tomorrow mornign, please.
'Mr. Wendelken: For the record, I would object to the amendment.
'THE COURT: Very well, court is adjourned.'
On the morning of December 21, 1971, the following colloquy took place between Judge Kandt and counsel before any proceedings were had in the trial of the case.
'Mr. Wendelken: Yes, but before we commence the trial I would like to make the motion that this case be transferred to the jury docket.
'THE COURT: The motion is overruled.
'Mr. Wendelken: And next I would like to make a motion for an order removing the witnesses from the courtroom pending their testimony.
'THE COURT: So far as the removal to the jury docket is concerned, was a jury properly waived in the arraignment court by all parties concerned?
'Mr. Wendelken: (November 15, 1971), yes.
'Mr. Issinghoff: It was.
'Proceed, please.'
The case proceeded to trial before Judge Kandt and was concluded about noon. After argument by counsel the court found that aggravated assault was...
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