State v. Rice

• Decision Date: 01 March 1980
• Docket Number: 51114,Nos. 51113,s. 51113
• Citation: 607 P.2d 489,227 Kan. 416
• Parties: STATE of Kansas, Appellee, v. Larry Eldon RICE, Appellant. STATE of Kansas, Appellee, v. Larry Eldon RICE, Appellant.
• Court: Kansas Supreme Court

Page 489

607 P.2d 489

227 Kan. 416

STATE of Kansas, Appellee, v. Larry Eldon RICE, Appellant.

STATE of Kansas, Appellee, v. Larry Eldon RICE, Appellant.

Nos. 51113, 51114.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

1. The right to effective assistance of counsel as set forth in Schoonover v. State, 2 Kan.App.2d 481, 582 P.2d 292 (1978), is iterated and applied.

2. It is the duty of every lawyer to assist the legal profession in fulfilling its duty to make legal counsel available.

3. A lawyer should not accept or continue representation of any client if the lawyer's partner or associate would be disqualified from accepting or continuing the same employment due to a conflict of interest or if the representation creates an appearance of impropriety.

4. Lawyers holding part-time positions as judges or prosecuting attorneys should not appear as counsel for defendants in criminal matters in the courts in which they have responsibility. However, they may be far enough removed that they can appear in other courts, in which they have no substantial responsibility by reason of their government employment, as counsel for criminal defendants without giving an appearance of impropriety and without creating a conflict of interest.

5. The decision of whether a conflict of interest is actually present or whether the relationship of the defense attorney to the public servant law partner or associate might create an appearance of impropriety is one to be determined by the trial judge and counsel on an individual basis.

6. A mere allegation of a conflict of interest of counsel is not sufficient to show a denial of an accused's constitutional rights to the effective assistance of counsel.

7. "Multiplicity" in a criminal pleading is the charging of a single offense in several counts.

8. The granting of a new trial rests within the sound discretion of the trial court and absent a showing of abuse, the trial court's decision will not be overturned on appeal.

9. The sentence in a criminal action which is within statutory limits will not be disturbed on appeal absent a showing of abuse of discretion or vindictiveness on the part of the trial court.

10. If there is a variance between the oral pronouncement of sentence and the sentence as set forth in the written judgment, the oral sentence prevails.

Tom Crossan, of Crossan & Claus, Independence, argued the cause and was on the brief for appellant.

Glenn E. Casebeer, II, Asst. County Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Paul D. Oakleaf, County Atty., were with him on the brief for appellee.

HOLMES, Justice:

Two appeals from the district court of Montgomery County have been consolidated in this court.

Appeal No. 51,113 (District Court case No. 78 CR-138 I) is an appeal by Larry Eldon Rice from the sentence imposed after his plea of guilty to one count of aggravated escape from custody (K.S.A. 21-3810).

Appeal No. 51,114 (District Court case No. 78 CR-125 I) is an appeal by Rice from jury convictions of aggravated burglary (K.S.A. 21-3716), aggravated battery (K.S.A. 21-3414), aggravated assault (K.S.A. 21-3410), and rape (K.S.A. 21-3502). One count of aggravated battery and one count of aggravated assault were dismissed as being multiplicitous on motion of the defendant at the end of the evidence.

We will first turn to the appeal in No. 51,114. On June 10, 1978, a sixteen-year-old Independence girl left her home in the early evening to go to a nearby grocery store. As she walked to the store, she noticed a white pickup truck following her. After making purchases and leaving the store, she proceeded across the parking lot toward home and observed the same white truck in the parking lot. She walked past the truck and got a good look at the driver. She returned home and, after watching T.V., went to bed about 10:00 to 10:30 p. m. Near midnight she was awakened by a man in her room who was holding a chemically-treated cloth over her nose and mouth. She struggled with the intruder who wrestled her to the floor, threatened, beat and raped her. The victim testified she did not get a good look at the man due to the darkness of the room but that he was a large man wearing a dark-colored shirt and blue jeans. After he left, the victim ran to the other bedroom to call her mother. While calling she had a clear view, through the window, of the street which was illuminated by a street light. She observed her attacker leave the house and enter the white pickup truck she had seen earlier in the evening. She recognized the driver as the same person she had seen in the grocery parking lot. After contacting her mother, the victim was taken to a local hospital where police officers questioned her. Upon being shown a photo lineup, she was able to readily identify the defendant Rice as her attacker. Rice was arrested shortly thereafter at about 3:00 a. m. at his home at which time the officers found a doily soaked with some sort of chemical. Later defendant's clothes were found hidden in a load of freshly laundered clothes. The victim's purse, which was missing from her home, was found underneath a porch at Rice's home and two necklaces, which had been in the purse, were found in the yard. At trial defendant asserted an alibi but none of his witnesses could corroborate it. Defendant asserts ten points on appeal.

I.

Appellant's first point is that he was denied the effective assistance of counsel in violation of his constitutional rights. Defendant was represented throughout the proceedings which are pertinent to this appeal by appointed counsel Tom Crossan, an experienced and able member of the bar. In August, 1978, Mr. Crossan was seriously injured in an automobile accident. He was hospitalized in October, 1978, in December, 1978, and again in January, 1979, when he underwent surgery for the removal of two herniated discs. He was released from the hospital on January 19, 1979, and defendant's case was scheduled for trial on January 25, 1979. At that time, Mr. Crossan was not physically able to begin trial and the court granted a continuance until February 27, 1979. On February 27th, the matter proceeded to trial and Mr. Crossan represented the defendant throughout the trial which lasted seven days. Due to Mr. Crossan's recent surgery, he was compelled to use a wheel chair and crutches at times during the trial and numerous recesses were required. Mr. Crossan, with great candor and honesty, now comes before this court and indicates that due to his impaired physical condition, the defendant may not have received effective assistance of counsel. This possibility was also raised on the motion for a new trial which was denied by the trial court.

The standard used in determining whether counsel has been ineffective has been recently stated as:

"The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.

"Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant's Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client's conviction or otherwise works to the client's substantial disadvantage, is also a deprivation of the constitutional guarantee of 'effective' counsel.

"In applying the foregoing standard to counsel's performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney's services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells." Schoonover v. State, 2 Kan.App.2d 481, Syl. PP 2-4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978).

See also, State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979); State v. Schrum, 226 Kan. 125, 595 P.2d 1127 (1979).

The United States Court of Appeals for the Tenth Circuit has recently adopted a similar standard. In Dyer v. Crisp, 613 F.2d 275 (1980), the court stated the test to be:

"The Sixth Amendment demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney."

We have carefully reviewed the record in this case which includes, among other things, a trial transcript of 963 pages, transcripts of numerous pretrial and post-trial proceedings and the pleadings. Following arguments on the motion for a new trial the Hon. Floyd V. Palmer, trial judge, stated:

"No. 1, defendant denied effective assistance of counsel. I have reviewed the file in this case and reviewed the minutes of the trial docket, and they certainly reveal the contrary to me. In the court's opinion, the defendant had as an effective assistance of counsel as this court's ever seen . . . ."

Our review of the record confirms the trial court's opinion. By whatever standard any court might adopt, the defendant in this case has been ably and effectively represented and has no valid complaint whatsoever about the representation furnished by Mr. Crossan. Mr. Crossan is to be commended for his candor in bringing this issue before the trial court and this court but the possibility that defendant was denied effective counsel by reason of Mr. Crossan's physical infirmities at trial is totally and wholly without merit. Counsel has brought to our attention other incidents that occurred during the trial which he argues may have been the result of ineffective counsel. We have considered the same and conclude the defendant was in no way denied...