State v. Sanders, 48891

• Decision Date: 10 December 1977
• Docket Number: No. 48891,48891
• Citation: 574 P.2d 559,223 Kan. 273
• Parties: STATE of Kansas, Appellee, v. Dennis G. SANDERS, Appellant.
• Court: Kansas Supreme Court

Page 559

574 P.2d 559

223 Kan. 273

STATE of Kansas, Appellee, v. Dennis G. SANDERS, Appellant.

No. 48891.

Supreme Court of Kansas.

Dec. 10, 1977.

Syllabus by the Court

1. Mere presence as a spectator at a prior trial or at some hearing related to a present trial involving the defendant does not, standing alone, disqualify a juror for cause.

2. Under K.S.A. 22-3410(i ) before a juror should be excused for cause the court must determine that the juror's state of mind with reference to the case or any of the parties is such there is a doubt that the juror can act impartially and without prejudice to the substantial rights of any party.

3. Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of discretion.

4. The record on appeal from a conviction of murder in the first degree is examined and it is held there was no error (1) in failing to disqualify two of the jurors for cause, (2) in admitting appellant's oral confession into evidence, (3) in refusing to grant a change of venue, (4) in instructing the jury on the M'Naghten test of insanity, and (5) in denying a bifurcated trial, the first part to be held on the question of guilt and the second part to be held on the question of insanity.

Robert K. Osborn, Stockton, argued the cause and was on the brief for appellant.

Randall W. Weller, Sp. Prosecutor, argued the cause, and Curt T. Schneider, Atty. Gen., and William B. Elliott, Hill City, were with him on the brief for appellee.

FROMME, Justice:

Dennis G. Sanders was convicted of first degree murder (K.R.S. 21-3401) in the death of Linda Leebrick of Hill City, Kansas. Sanders relied on the defense of insanity and filed notice thereof in accordance with K.S.A. 22-3219. He appeals from that conviction. The evidentiary facts leading to the arrest of Sanders are not in conflict.

Linda Leebrick, a school teacher in the Hill City schools, failed to appear for classes. On investigation the officers found the door to her apartment had been smashed and she was not there. The police organized a manhunt and her body was located several days later in a secluded area near Hill City. Miss Leebrick had been badly beaten. She had suffered a skull fracture and a severed trachea. A tire print and the print of a tennis shoe were found at the scene of the crime. Several bloody tree limbs found at the scene appeared to be the murder weapons.

The Kansas Bureau of Investigation was called into the case. A coroner's report and various laboratory reports confirmed that death had been caused by blows to the head and neck. There was no evidence of rape. The tire print had been made by a pickup truck which had a flap of rubber missing from one tire. The tennis shoe print had a rippled tread. Blood from the victim was spattered in the area where the body was located and blood was found on the limbs and leaves of a tree nearby. Sanders became a suspect when it was discovered a tire on his pickup truck had a flap of rubber missing which compared favorably with the defect discovered in the tire print left at the scene of the crime. It was further discovered that Sanders had a pair of tennis shoes with rippled soles. He voluntarily turned the shoes in to the sheriff. They had been laundered recently. A laboratory examination of the shoes uncovered the presence of human blood of the same type as that of the victim. Sanders was arrested and later confessed to committing the crime.

On appeal the defendant-appellant raises several alleged trial errors which we will consider in the order presented in his brief. He first challenges the qualifications of two jurors who sat during the trial and who had previously been spectators, either during portions of the preliminary hearing or during a pretrial hearing concerning this same case.

Our examination of the record discloses that these two jurors were examined separately on voir dire. Their attendance at these previous hearings was brought out during voir dire and neither juror was challenged separately for that cause.

Our statute K.S.A. 22-3410 contains a list of grounds upon which a juror may be successfully challenged for cause. This statute provides that a party may challenge any prospective juror for cause and each challenge shall be tried to the court. Presence as a spectator at some pretrial hearing in the case is not one of the grounds specified. The only ground listed in the statute which could possibly authorize disqualification of the two jurors is listed under (2) (i ) which authorizes a party to challenge a juror for cause when:

"His state of mind with reference to the case or any of the parties is such that the court determines there is a doubt that he can act impartially and without prejudice to the substantial rights of any party."

The statute requires all challenges for cause to be made before the jury is sworn to try the case.

Appellant cites no Kansas cases directly in point; however, in State v. Scott (1895), 1 Kan.App. 748, 42 P. 264, it is held:

"A juror who was in the court room and heard the evidence upon a plea in bar is not thereby disqualified to serve as a juror in the original case." (Syl. 3.)

There is no dearth of decisions in other jurisdictions on this point. The cases fall into two categories: (1) when a juror has participated in the trial of a criminal case or some related hearing involving the same defendant, and (2) when a juror's presence at an earlier trial or some related hearing involving the same defendant was merely as a bystander, one who had no interest in the proceeding other than curiosity. See Anno: Juror Disqualification Criminal Case, 6 A.L.R.3d 519, § 2, p. 526. In the latter category it is generally held that mere presence as a spectator at a prior trial or at some hearing related to a present trial involving the defendant does not, standing alone, disqualify a juror for cause. This general rule is in accord with our statute and case law.

In State v. Paxton, 201 Kan. 353, 440 P.2d 650, cert. den. 393 U.S. 849, 89 S.Ct. 137, 21 L.Ed.2d 120, a juror's wife was a first cousin of the wife of the complaining witness. The juror in the Paxton case was never challenged for cause prior to the trial and this court said:

". . . Ordinarily, a question touching upon a juror's qualifications, if not raised until after the verdict is rendered, comes too late and is not available for the purpose of the defendant's obtaining a new trial. (Citations omitted.) K.S.A. 62-1410 (now K.S.A. 22-3410) requires that all challenges for cause be made before the jury is sworn, except where the cause for challenge is not discovered until after the jury is sworn and before the introduction of evidence. When a party, knowing at the time of impanelling the jury that a juror is incompetent, fails to challenge for cause, he waives any right to make complaint upon that ground thereafter. (Citations omitted.)" (201 Kan. pp. 359-360, 440 P.2d p. 656.)

Under K.S.A. 22-3410(2)(i ) before a juror should be excused for cause the court must determine that the juror's state of mind with reference to the case or any of the parties is such there is a doubt that the juror can act impartially and without prejudice to the substantial rights of any party.

Whether a prospective juror is qualified to sit in the trial of a case is a question for determination by the trial court and its ruling will not be disturbed unless it is clearly erroneous or there has been an abuse of discretion. (State v. Amodei, 222 Kan. 140, Syl. 4, 563 P.2d 440.)

Accordingly appellant's present challenges of these two jurors must fail for two reasons: First, the alleged cause for challenge was known during voir dire yet it was not raised before the jury was sworn; and second, it has not been shown the jurors' states of mind prevented them from acting impartially and without prejudice to the substantial rights of the defendant. The trial court did not err in permitting the two jurors to serve.

The next point on appeal involves the admission into evidence of appellant's oral confession. Appellant's complaint of coercion is based upon (1) expert testimony which established that appellant had a low intelligence quotient and (2) the use of a polygraph examination by the investigating officers. Appellant contends the circumstances which preceded the taking of the statement constituted coercion, rendering the confession involuntary.

When the victim was discovered missing on April 21, 1976, the police interviewed appellant along with other neighbors who lived in the same neighborhood. Appellant lived across the street from Linda Leebrick. After the victim's body was discovered and the distinctive tire track was discovered appellant was again interviewed and he consented to an examination of his pickup which included photographing and measuring the tires. At that time he was asked and denied owning tennis shoes but later that same evening appellant voluntarily appeared at the sheriff's office and handed the K.B.I. agents a pair of tennis shoes. He advised them he had lied about not owning tennis shoes and didn't know why. After an overnight laboratory examination was made of the shoes appellant was picked up. At this time he became the prime suspect.

After being advised of his Miranda rights he was questioned and he agreed to a polygraph examination which was administered. After the polygraph examination he was interviewed further by K.B.I. agent Lyons and then appellant confessed to the murder. Later he repeated his oral confession in the presence of K.B.I. agent Pruter. Before the two agents could arrange for a court reporter to obtain appellant's statement in writing appellant asked for an attorney. The interrogation ceased at this point and no further effort was made to obtain a written statement.

A motion to suppress the confession was...