State v. Ransom, 58369

Citation239 Kan. 594,722 P.2d 540
Decision Date18 July 1986
Docket NumberNo. 58369,58369
PartiesSTATE of Kansas, Appellee, v. Peter H. RANSOM, Appellant.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. A challenge to the granting of a rehearing in an earlier appeal is considered and rejected.

2. Constitutional and statutory speedy trial challenges directed to the proceedings following remand are considered and held to be without merit.

3. Evidence of aggravated kidnapping is held to be insufficient to support the conviction.

4. PIK Crim.2d 54.01 relative to intent is considered and held to create a permissible inference rather than a rebuttable presumption and, accordingly, is not constitutionally defective.

5. In a direct appeal from convictions of aggravated kidnapping, aggravated battery, rape and misdemeanor theft, the record is examined and it is held the trial court did not err or abuse its discretion in: (1) refusing to admit hearsay statements of an absent witness; (2) admitting an incriminating statement made by defendant to an arresting officer; or (3) refusing to grant a new trial on the grounds of violation of a witness sequestration order and newly discovered evidence.

Ralph J. De Zago, Junction City, argued the cause and was on brief, for appellant.

Steven L. Opat, Co. Atty., argued the cause and Robert T. Stephan, Atty. Gen. was with him on brief, for appellee.

McFARLAND, Justice:

Peter H. Ransom appeals his jury trial convictions of aggravated kidnapping (K.S.A. 21-3421), aggravated battery (K.S.A. 21-3414), rape (K.S.A. 21-3502), and misdemeanor theft (K.S.A. 21-3701).

This is the third time this case has been before us for decision. The first issue concerns the prior appeal and the facts relative thereto must be set forth in some detail. In June of 1982, the district court (William D. Clement, presiding) dismissed the charges herein on the basis that defendant's statutory speedy trial rights (K.S.A. 22-3402) had been violated. The State appealed from the dismissal. The appeal was argued on January 14, 1983. Due to the death of Justice Alex Fromme, District Judge Floyd Coffman was appointed to serve temporarily with the court on this docket under authority of Art. 3, § 6(f) of the Kansas Constitution. In a four to three decision filed on March 31, 1983, the district court was affirmed (State v. Ransom, 233 Kan. 185, 661 P.2d 392 [1983]. The State filed a motion for rehearing which was granted, in May 1983, by a majority of the six justices of this court participating in the original decision. Thus, the presence and participation of Judge Coffman in the original decision was not a factor in the granting of the rehearing. The case was set for oral argument in September 1983. On June 17, 1983, Judge Floyd Coffman retired from his position as district judge and, hence, was therefore no longer eligible to sit with this court in other than an advisory capacity as provided by K.S.A. 20-2616(b). The appeal was argued on rehearing before a seven member court (Justice Tyler Lockett having been appointed to succeed Justice Fromme). On December 2, 1983, the opinion on rehearing was filed reversing the district court's dismissal of the charges (State v. Ransom, 234 Kan. 322, 673 P.2d 1101 [1983], cert denied 469 U.S. 818, 105 S.Ct. 88, 83 L.Ed.2d 34 [1984]. On remand, defendant was convicted of the charges previously enumerated and defendant brings this direct appeal therefrom.

For his first issue defendant attacks the granting of the rehearing and the subsequent opinion on rehearing. Defendant contends that his state and federal constitutional rights to equal protection and due process required that Judge Coffman participate in the rehearing rather than Justice Lockett. The point is not well taken for a variety of reasons. This is a collateral attack upon a prior opinion in a different appeal. The same issue was raised on rehearing. Further, as noted earlier, the participation or nonparticipation of Judge Coffman in the decision of whether or not to grant rehearing was irrelevant as the majority of the six regular members of this court participating in the original decision voted to grant rehearing. Also, as previously noted when the case was reargued, Judge Coffman, then retired, was no longer eligible to sit with the court except in an advisory capacity. Further, Justice Lockett was a member of this court at the time of reargument and entitled to participate in all decisions of this court. The motion for rehearing was timely filed and the jurisdiction of this court was retained. Defendant had no vested right to have the case decided on rehearing by the same seven individuals determining the appeal originally.

We conclude this issue is without merit.

For his second issue defendant contends his statutory and constitutional rights to a speedy trial were violated upon remand.

As previously noted, the opinion on rehearing was filed on December 2, 1983. The mandate was issued on January 25, 1984. Trial was scheduled for April 11, 1984. On March 22, 1984, defendant moved for a continuance of the trial setting pending determination of his writ of certiorari in the United States Supreme Court. At that time the district court granted the motions finding all delay therefrom would be charged to the defendant. On October 22, 1984, the district court was advised the writ of certiorari had been denied. The journal entry of that date reflects the following:

"WHEREUPON, the Court inquires of counsel as to when the matter should be set for trial, noting the Orders made on the 22nd day of March, 1984. Upon conferring with counsel and examining its own calendar, noting that it has no time currently available due to the condition of its calendar, the Court sets this matter for trial on February 12, 1985, after ascertaining that such time is agreeable with counsel and that the defendant intends to raise no further question of speedy trial. The Court notes from its Order on the 22nd day of March, 1984, that all such time from said date until the 12th of February, 1985 is charged to the defendant, should the matter of statutory speedy trial be an issue."

The trial herein was commenced on February 12, 1985.

In his brief, defendant does not attempt to compute days chargeable to the State and himself so as to set up a claim of violation of the statutory right of speedy trial (K.S.A. 22-3402). Indeed, we are not advised of whether or not defendant was in jail all of the time pending trial. Suffice it to say the record before us does not reveal any violation of defendant's statutory right to a speedy trial (K.S.A. 22-3402).

As to alleged violation of the constitutional right to speedy trial, the record reflects the mandate was issued on January 25, 1984. Trial was scheduled at a reasonable date thereafter. Defendant sought and obtained an open-ended continuance of the trial date pending determination of his writ of certiorari. On October 22, 1984, trial was set for February 12, 1985, due to the court's crowded docket. Defendant's counsel agreed with this trial setting.

The appellant relies heavily on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker the Court found no denial of speedy trial despite the passing of five years between indictment and trial. The Court listed four factors to be considered: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2191. In finding no violation of the right the Court emphasized that the "record ... strongly indicates ... that the defendant did not want a speedy trial." 407 U.S. at 536, 92 S.Ct. at 2195. The Court also said, "We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." 407 U.S. at 532, 92 S.Ct. at 2193.

We conclude there is nothing in the record before us even approaching a violation of defendant's constitutional right to a speedy trial.

We turn now to the issues raised relative to alleged trial errors. At this point a summary of the facts is appropriate.

On July 3, 1981, Ms. B was attempting to locate a party at Milford Lake. She became lost and her automobile became mired in mud on a gravel road. She saw some cars parked nearby and thought she was in the right place after all. A man walked over and used foul language to her. She then realized the group was not the party she was seeking and that the members looked disreputable. She became concerned and started walking down the road. Four men started to chase her. She started running, outdistancing all but the defendant. She ran about a mile when an old pickup truck passed her from the opposite direction. The vehicle stopped, defendant climbed on the running board, and the vehicle backed up to her location. Defendant jumped off the truck and grabbed her. The truck left.

Defendant beat Ms. B, dragged her back and forth across the road, burned her hair with a cigarette lighter, and raped her twice. Money was taken from Ms. B's purse and the defendant walked away.

Defendant, for his third issue (first claimed trial error), contends the district court erred in refusing to admit the hearsay statement of Mark Carpentiere.

Frank Creach testified defendant made incriminating statements to him relative to the crimes herein while they were both incarcerated in the Morris County jail in 1982. Mark Carpentiere, another jail inmate, told a KBI agent, in 1982, that this conversation did not occur. The district court refused to permit the KBI agent to testify as to what Carpentiere had told him. Carpentiere did not testify.

Defendant made no attempt to locate Mark Carpentiere until the day before trial, but instead assumed he could find Mark Carpentiere in Leavenworth State Prison even though Mr. Carpentiere had been paroled therefrom in 1982. The court refused to admit Mr. Carpentiere's statement because there was no showing: (1) Carpentiere was...

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