State v. Randol, 47033

• Decision Date: 09 June 1973
• Docket Number: No. 47033,47033
• Citation: 513 P.2d 248,212 Kan. 461
• Parties: STATE of Kansas, Appellee, v. Allen Dale RANDOL, Appellant.
• Court: Kansas Supreme Court

Page 248

513 P.2d 248

212 Kan. 461

STATE of Kansas, Appellee, v. Allen Dale RANDOL, Appellant.

No. 47033.

Supreme Court of Kansas.

June 9, 1973.

Rehearing Denied July 13, 1973.

Syllabus by the Court

1. The mere publication of newspaper articles does not establish prejudice per se that defendant cannot obtain a fair and impartial trial in the county.

2. The competence of a defendant to stand trial is determined by his present ability to comprehend the nature and purpose of the proceedings against him and to make or assist in making his defense.

3. When photographic evidence is used by a coroner in describing the wounds in the body and internal organs of the victim, which wounds were received as a result of a crime of violence, such evidence is relevant and admissible to establish material facts, such as the manner and cause of death.

4. A nonexpert witness may be permitted to testify regarding a defendant's sanity at the time of committing a crime provided the judge finds such opinion appears to be rationally based on the perception of the witness and is helpful to a clearer understanding of his testimony.

5. The M'Naghten rule states the proper test in Kansas to determine whether an accused in a criminal action had sufficient mental capacity at the time he committed the crime to be held criminally responsible for his wrongful acts and the rule is adhered to in this appeal.

6. The jury choice of a death penalty in a class A felony case is no longer constitutionally permissible under K.S.A.1972 Supp. 21-4501(a). (Following Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.)

7. The record on appeal in a prosecution for first degree murder is examined and it is held no prejudicial error occurred when the accused was convicted and the jury determined the punishment to be life imprisonment.

Dennis L. Bieker, of Dreiling & Bieker, Hays, argued the cause and was on the brief for appellant.

Don C. Staab, Asst. County Atty., argued the cause, and Vern Miller, Atty. Gen., and Simon Roth, Jr., County Atty., were with him on the brief for appellee.

FROMME, Justice:

Allen Dale Randol appeals from a jury conviction of first degree murder (K.S.A.1970 Supp. 21-3401). The state sought imposition of the death penalty after a week long trial. The jury determined the punishment to be imprisonment for life as authorized by K.S.A.1970 Supp. 21-4501(a). The court entered judgment and sentence in accordance with the jury's verdict.

The charge arose from the murder of Fern Poer, the proprietor of the West Hays Motel in Hays, Kansas. She died from bullet wounds received at the hands of the defendant while he was engaged in an armed robbery.

Numerous points are asserted on appeal by Randol to secure a reversal of the judgment and sentence. The points raised require a chronology of events about which there is little dispute.

Randol had previously been committed to the Colorado State Hospital in Pueblo, Colorado, after an armed robbery committed in Colorado in September, 1970. His commitment followed proceedings in a Colorado court in which Randol was found not guilty by reason of insanity. Three and a half months later he escaped through a window of the hospital by filing through bars in a laundry room. By prearrangement he was met on the outside by two acquaintances, Michael G. Wilson and Rebecca Via. The trio traveled to Colorado Springs in Mrs. Via's car.

They left Colorado Springs on January 21, heading for Randol's home in Flint, Michigan. On the way they stopped in Denver, where Randol and Wilson stole a .38 caliber pistol. Mrs. Via purchased a box of cartridges for the pistol. This was verified at the trial for she was required to give certain information to the sales person, including her name, address and date of birth. The trio left Denver on I-70 highway discussing their need for funds to finance the trip to Michigan. The men decided to alleviate this need by using the revolver, and early on the morning of January 22, they stopped outside the West Hays Motel in Hays, Kansas. Randol advised Wilson to keep the car running. Randol donned a jean jacket and hat, grabbed his revolver, 'took a deep breath' and headed toward the motel office. Wilson and Via remained in the car. Shortly thereafter Randol returned with slightly more than $60.00 in bills and left behind him the mortally wounded proprietor of the motel, Fern Poer. Randol also shot one of Mrs. Poer's dogs. The trio then proceeded on their way. Mrs. Poer managed to call the police and was taken to a local hospital where she died.

As the car sped eastward Randol told his confederates of the shooting, divided the money and then cleaned the revolver. They stopped at a highway rest area along the way and Via was instructed by Randol to dispose of the jean jacket and hat he had worn during the robbery. She complied by placing them in a garbage can from which they were later retrieved by investigating officers. The trio arrived in Michigan and Randol remained with his folks. Wilson and Via made the return trip to Colorado.

Randol kept the revolver and confided to his brother that there had been a shooting. The brother watched while the revolver was hidden behind a rafter in the barn. The revolver was later found by an arresting officer, and it was identified at the trial as the murder weapon.

After Wilson and Via returned to Colorado Springs, guilt-ridden Rebecca Via alerted the Colorado authorities. Wilson and Randol were soon apprehended. Wilson pled guilty to second degree murder. Randol was then tried, and Rebecca Via served as the state's principal witness at the trial.

On appeal Randol contends his motion for a change of venue was improperly denied. The basis for a change of venue in Kansas is governed by a statute which reads:

'In prosecution in cases of felony, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.' (K.S.A.1972 Supp. 22-2616(1).)

A change of venue in a criminal case lies within the sound discretion of the trial court whose ruling will not be disturbed if there is no showing of prejudice to the substantial rights of the defendant. In State v. McLaughlin, 207 Kan. 594, 485 P.2d 1360, this court held:

'In a criminal action on a motion for change of venue the burden of proof is upon the defendant to make it affirmatively appear that in the county in which the cause is pending there exists such prejudice as to make it reasonably certain the defendant will be denied a fair trial. Failing in such proof the defendant cannot be heard to complain of the trial court's order overruling his motion.' (Syl. 1)

In the course of the opinion, the court explained:

'The failure of the defendant in a criminal action to present affirmative evidence that prejudice existed in the community so as to make it reasonably certain he could not obtain a fair trial, requires a conclusion that his evidence was totally and completely insufficient to permit the district court to order a change of venue. (State v. Poulos, 196 Kan. 253, 411 P.2d 694, cert. den. 385 U.S. 827, 87 S.Ct. 63, 17 L.Ed.2d 64.)

'Furthermore, prejudice must be established 'not as a matter of speculation but as a demonstrable reality.' (Woods v. Munns, 347 F.2d 948, 951 (10th Cir. 1965).)

'In cases of this nature the state is required to produce no evidence refuting that of the appellant, particularly where the appellant fails to sustain the burden of proof cast upon him to show prejudice in the community. (State v. Anderson, 202 Kan. 52, 446 P.2d 844.)' (p. 597, 485 P.2d p. 1363)

See also State v. Turner, 193 Kan. 189, Syl. 5, 392 P.2d 863; State v. Lamb, 209 Kan. 453, 464, 497 P.2d 275; and State v. Hill, 211 Kan. 239, 243, 505 P.2d 704.

In support of Randol's motion for change of venue he attached two newspaper articles written by a reporter for the local paper. The articles concerned the preliminary hearing of Wilson and Wilson's subsequent plea of guilty to a reduced charge of second degree murder. Randol's participation in the crime was mentioned in each article. No evidence or affidavits were introduced to establish what possible effect this publicity might have had in prejudicing the people of the community. It is true that Hays is a rural community in which homicides rarely occur. It may be assumed that these articles, which appeared in the local newspaper five or six months prior to Randol's trial, were read by residents of the entire community. However, no affirmative evidence that prejudice existed was introduced. The mere publication of newspaper articles does not establish prejudice per se that defendant cannot obtain a fair and impartial trial in the county. The trial court properly denied the motion, for prejudice against a defendant does not inevitably and logically flow from the mere publication of two newspaper articles in a local paper.

On defendant's next point it should be noted that prior to the trial defendant filed a motion requesting that he be found incompetent to stand trial. In view of the motion and defendant's personal history, the trial court committed defendant to the state security hospital at Larned for psychiatric examination. Thereafter a hearing was conducted and evidence was introduced, including the testimony of two doctors from Larned and the deposition testimony of three doctors from Colorado. The court found that defendant was competent to stand trial under K.S.A.1972 Supp. 22-3301(1) which provides:

'(1) For the purpose of this article, 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...