State v. Timley

• Decision Date: 27 May 1994
• Docket Number: No. 68697,68697
• Citation: 875 P.2d 242,255 Kan. 286
• Parties: STATE of Kansas, Appellee, v. Irvin TIMLEY, Appellant.
• Court: Kansas Supreme Court

Page 242

875 P.2d 242

255 Kan. 286

STATE of Kansas, Appellee, v.Irvin TIMLEY, Appellant.

No. 68697.

Supreme Court of Kansas.

May 27, 1994.

Syllabus by the Court

1.In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged.Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.

2.In multiple acts cases, several acts are alleged and any one of them could constitute the crime charged.In these cases, the jury must be unanimous as to which act or incident constitutes the crime.

3. K.S.A. 22-3402 states that a delay shall not count toward the 90-day speedy trial calculation if the delay arises due to the application or fault of the defendant.

4.A continuance is properly charged to the defendant if it is either the result of the application of the defendant or if it is the result of the fault of the defendant.

5.Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all as long as that reason is related to the prosecutor's view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor from challenging potential jurors solely on account of their race or gender.

6.The holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986), has been extended to criminal cases to permit a white defendant to challenge a prosecutor's peremptory challenges based on racial or gender grounds and to permit the prosecutor to challenge a criminal defendant's use of peremptory challenges, and to civil cases.

7.Appellate review of a trial court's determination whether a prima facie showing of discrimination in jury selection has been made is plenary as it involves a question of legal sufficiency.

8. K.S.A. 22-3407 requires that any objection to the manner of selecting a jury panel must be made by a written motion to dischargethe panel at least five days prior to the trial date if the names and addresses of the panel members are known, or prior to the time the jury is sworn if the names and addresses are not known; the court may entertain the motion any time thereafter for good cause shown.

9. K.S.A. 22-3203 provides that two or more separate cases may be consolidated for trial if the crimes could have been properly joined in the same complaint or information.One basis for joining crimes in the same complaint or information is that the crimes are of the same or similar character.K.S.A. 22-3202(1).

10.Within established guidelines, the decision to consolidate rests within the sound discretion of the trial court, and its holding will not be disturbed on appeal absent a clear showing of abuse in the exercise of that power of discretion.

11.The purpose of the endorsement requirement is to prevent surprise to the defendant and to give the defendant an opportunity to interview and examine the witnesses for the prosecution in advance of trial.

12.The State is not required to give an accused notice of its intention to invoke the Habitual Criminal Act prior to trial or prior to submission of a case to a jury.Reasonable notice is all that is required.

13.If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

Reid T. Nelson, Asst. Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were with him on the briefs, for appellant.Appellant filed a brief, pro se.

Mark T. Schoenhofer, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

ABBOTT, Justice.

This is a direct appeal by the defendant, Irvin Timley, from his conviction of three counts of rape and four counts of aggravated criminal sodomy stemming from three separate incidents involving three victims.Timley was charged in two separate complaints, and the cases were consolidated for trial.The Habitual Criminal Act was imposed, and Timley was sentenced to consecutive sentences of 45 years to life on each count.

Timley raises a number of issues.He alleges error in the instructions, violation of his right to a speedy trial, gender discrimination in striking two males by peremptory challenge, failure to cross-endorse witnesses, timeliness of notice to impose the Habitual Criminal Act, sufficiency of the evidence, and failure to exclude a juror who knew the trial judge.

There was no dispute at trial that sexual contact occurred between Timley and each of the victims.Timley admitted to penetration sufficient to support each of the charges.Timley's defense was that the alleged victims consented to the sexual activity.Timley contended that each alleged victim approached him and agreed that he would supply her with drugs and she would give him whatever sexual activity he wanted.He admitted to choking each victim and making threats, but he insisted that the choking was intended to be mutually stimulating and was only to enhance the sexual feeling.Each victim, on the other hand, testified that she never consented to sexual activity with Timley, nor did she consent to the choking.L.H. contended that she did not voluntarily get into Timley's car, but was knocked unconscious and awoke in the back seat of his car to discover that he was engaging in sexual activity with her.D.A. and T.S. each insisted that she accepted a ride from Timley and that rather than taking her where she requested, he began choking her and forced her into the back seat of his car to engage in sexual activity without her consent.

I.INSTRUCTIONS

Timley contends the trial court erred in instructing the jury that it could find him guilty if it found that the sexual act was perpetrated by use of force or fear.He suggests that the instructions given by the trial court were improper because he may have been deprived of a unanimous verdict.He maintains that some members may have found that a victim was overcome by force while other members may have found that that victim was overcome by fear and that if this did occur, the jury verdict would not be unanimous.Timley argues "The only way to assure jury unanimity in a multiple acts case is to require that either the state elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that they must all agree that the same underlying criminal act has been proved beyond a reasonable doubt."

Timley notes that his defense was that the sex was consensual and therefore the manner of perpetration is critical.

Timley cites without discussion or analysis State v. Kitchen, 110 Wash.2d 403, 756 P.2d 105(1988), for the proposition that the jury must agree that the same underlying criminal act has been proved beyond a reasonable doubt.In Kitchen, the appeals of several defendants were consolidated.The defendants had been charged with sex offenses but the dates of the offenses had not been pinpointed.Rather, each victim had testified that on more than one occasion the defendant had engaged in activity which could support a finding of guilt.The court noted the rule that "[w]hen the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act."110 Wash.2d at 409, 756 P.2d 105.

Timley characterizes his case as a "multiple acts" case.What he ignores is the distinction made by the Kitchen court between alternative means cases and multiple acts cases.That court stated:

"In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged.Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.[Citations omitted.]In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.[Citations omitted.]

"In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged.In these cases, the jury must be unanimous as to which act or incident constitutes the crime.To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt.[Citations omitted.]"110 Wash.2d at 410, 756 P.2d 105.(Emphasis in original.)

This court has also recognized and discussed the alternative means rule.The rule is stated in State v. Grissom, 251 Kan. 851, Syl. p 7, 840 P.2d 1142(1992):

"If an accused is charged in one count of an information with both premeditated murder and felony murder, it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilt by reason of the killer's malignant purpose.Furthermore, the State is not required to elect between premeditated and felony murder because K.S.A. 21-3401 established the single offense of murder in the first degree and only provides alternative methods of proving the crime."

In his appellate brief, Timley's counsel readily points out that there was evidence from which the jury could...