State v. Snodgrass, s. 81,173
| Decision Date | 16 April 1999 |
| Docket Number | 81,174,Nos. 81,173,s. 81,173 |
| Citation | 267 Kan. 185,979 P.2d 664 |
| Parties | STATE of Kansas, Appellant, v. Lillian K. SNODGRASS, Torre Conway, and Healthcare Organization Promoting Excellence, Inc., Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A grand jury's function is to inquire into crimes cognizable by it and, upon the concurrence of 12 or more jurors, an indictment may be found and presented to the district court for filing.
2. Absent a showing to the contrary, the district court must presume that a grand jury was properly impaneled and properly performed its duties. The party objecting to the selection or presentment of a grand jury has the burden of presenting evidence to overcome the presumption.
3. The State has no duty to conduct a voir dire of a grand jury, and due to the limited function of a grand jury, a trial-like voir dire is not required or feasible.
R. Douglas Sebelius, Norton County Attorney, argued the cause and was on the brief for appellant.
Andrew E. Busch, of Busch & Johnson, of Wichita, argued the cause and was on the brief for appellees.
Kurt P. Kerns, of Ariagno & Kerns, L.L.C., of Wichita, was on the brief for amicus curiae Kansas Association of Criminal Defense Lawyers.
The State appeals, pursuant to K.S.A. 22-3602(b)(1), from an order of the district court dismissing indictments returned by a grand jury against Lillian Snodgrass, Torre Conway, and Healthcare Organization Promoting Excellence, Inc., (HOPE). The district court found that the grand jury was not lawfully impaneled. The State also appeals from the district court's order changing venue.
At the request of the Norton County Attorney, the district court ordered the clerk to summon 36 people for possible service as grand jurors. The order states that the subject for grand jury consideration would be "the commission of offenses of making a false writing and criminal defamation."
The names on lists of registered voters and licensed drivers were numbered, the numbers were placed in a wheel, and numbers were drawn to select who would be summoned. Before appearing on June 23, 1997, for jury selection, each person summoned was to complete a questionnaire. The following "statutory qualifications"--age, citizenship, residence, literacy, competence, and no felony convictions--were established by answers on the questionnaires. On the day the grand jurors were chosen and sworn, the first 15 names were called. One member of the panel was excused due to a conflicting school schedule and the 16th person was called. The county attorney asked if any member of the panel "could not return an indictment if there were probable cause shown." The county attorney then passed the panel for cause.
After having a presiding juror and deputy presiding juror sworn, excusing the unselected prospective jurors, and having an oath administered to the grand jurors, the district judge spoke for the first time during the proceeding of the nature of the crimes under investigation. At that time he said only that the county attorney had asked that he call a grand jury to investigate "[t]he offenses of making a false writing and criminal defamation." The grand jurors knew nothing more about the subject of their investigation when the district judge adjourned the jury selection proceeding and turned the matter over to them.
In October 1997, as a result of the grand jury investigation, indictments were returned charging Lillian Snodgrass, Torre Conway, and HOPE with making false informations and criminal defamation. The bill of particulars states that HOPE and those associated with it made numerous complaints to regulatory agencies about the Norton County Hospital, its staff, administrator, and Board of Trustees (Board) in order to gain control over the hospital's operations and to punish the staff, administrator, and Board. On December 2, 1997, the district judge who ordered the grand jury summoned and presided when it was selected recused himself.
Defendants sought a change of venue. They documented the local notoriety of the matter involving complaints being made against the hospital and its operations and argued that prejudice existing in the community precluded a fair and impartial trial. In an order filed March 10, 1998, an assigned district judge granted the motions for change of venue.
Torre Conway filed a motion and an amended motion to dismiss the indictments. In an order filed April 24, 1998, the assigned district judge dismissed the indictments.
The State appealed. The notice of appeal states that the appeal is taken from the order changing venue as well as the order dismissing the indictments.
Appellees contend that whether the State made a record showing that the grand jurors were legally qualified is a question of fact, which should be reviewed for abuse of discretion. The issue, however, is whether the district court erred in dismissing the indictments. Even if the question were as appellees contend, this court reviews a fact determination to see if it is supported by substantial competent evidence, not for abuse of discretion. Moreover, the lack of a record of the jurors' qualifications, as envisioned by the district court, is not controverted.
The question of whether the grand jurors were legally qualified depends on statutory interpretation, which is a question of law, and this court's review is unlimited.
Although it made no findings that any of the grand jurors was unqualified, the district court found that the grand jury "was not properly impaneled in accordance with the law of the state" and dismissed the indictments against Snodgrass, Conway, and HOPE. According to the district court, it is the duty of the county attorney to make a record showing that the grand jurors were legally qualified. The district court's finding that the grand jury was not properly impaneled seems to have been presumed from the absence of a record of "any inquiry of any discretionary legal qualifications and many of the mandatory legal qualifications." In the district court's view, the "mandatory legal qualifications" are set out in K.S.A. 43-156 and K.S.A. 43-158, and the "discretionary legal qualifications" are set out in K.S.A. 43-159.
K.S.A. 43-156 provides: "Every juror, grand and petit, shall be a citizen of the state, resident of the county and possess the qualifications of an elector as now, or in the future established." Citizenship, residence, and age were established by the juror's questionnaire answers and by questions directed by the district judge to the panel at the time of jury selection.
K.S.A. 43-158 provides:
"The following persons shall be excused from jury service: (a) Persons unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out a jury questionnaire form prepared by the commissioner;
(b) persons under adjudication of incompetency;
(c) persons who within ten (10) years immediately preceding have been convicted of or pleaded guilty, or nolo contendere, to an indictment or information charging a felony."
Literacy, competence, and the lack of felony convictions were established by answers on the questionnaires.
What the district court termed the "discretionary legal qualifications" are found in K.S.A. 43-159:
"[T]he following persons may be excused from jury service by the court: (a) Persons so physically or mentally infirm as to be unequal to the task of ordinary jury duty;
(b) persons who have served as jurors in the county within one (1) year immediately preceeding [sic ];
(c) persons whose presence elsewhere is required for the public welfare, health or safety;
(d) persons for whom jury service would cause extraordinary or compelling personal hardship;
(e) persons whose personal relationship to the parties or whose information or interest in the case to be tried is such that there is a probability such persons would find it difficult to be impartial."
Dismissal of the indictments was sought on the ground that a number of the jurors should have been but were not excused pursuant to subsection (e) because they would find it difficult to be impartial. The following list of grand jurors and their interests in the matter was supplied to the district court:
Although the defendants presented information on individual jurors, the memorandum decision and order dismissing the indictments reflects that the district court did not consider the status of individual jurors. Instead, the district court found fault with the record's not showing that the jurors were legally qualified: "What's not in the record is presumed to not exist." In the view of the district court, all items identified in K.S.A. 43-156, 43-158, and 43-159 are legal qualifications that must be shown in the record.
With regard to the items identified in 43-156 and 43-158, the district judge rejected the State's position that the completed questionnaires established the jurors' qualifications. Because the jury questionnaires "were not on the record of the proceeding," which seems to refer to the jury selection proceeding, the district judge concluded that they were "not sufficient."
The district court cites State v. Ji, 251 Kan. 3, 8, 832 P.2d 1176 (1992), ...
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