State v. Trotter

• Decision Date: 12 April 1969
• Docket Number: No. 45076,45076
• Citation: 453 P.2d 93,203 Kan. 31
• Parties: STATE of Kansas, Appellee. v. Jerry TROTTER, Appellant.
• Court: Kansas Supreme Court

Page 93

453 P.2d 93

203 Kan. 31

STATE of Kansas, Appellee. v. Jerry TROTTER, Appellant.

No. 45076.

Supreme Court of Kansas.

April 12, 1969.

Syllabus by the Court

1. Undue delay in bringing one accused of a crime before an examining magistrate is not a denial of due process unless such delay in some way deprives the accused of a fair trial.

2. The right of a speedy trial guaranteed by § 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination but rather to the trial held after an indictment is returned or an information filed.

3. Once an accused is brought before the magistrate, a preliminary examination must be conducted without unreasonable delay (K.S.A. 62-610, 62-614), and the examination cannot be continued at any one time longer than ten days over the accused's objection (K.S.A. 62-611).

4. On a review of the sufficiency of evidence in a criminal case, this court will examine the record to determine if from all of the facts and circumstances disclosed by the evidence, the jury could have reasonably drawn an inference of guilt.

5. Evidence of the acts and declarations of a co-conspirator, done and made in the absence of the accused, if made while the plan is in existence and before its complete execution, is admissible so far as it pertains to the furtherance of the common criminal design and to its consummation, as an exception to the rule against the admissibility of hearsay evidence.

6. Testimony is not inadmissible as hearsay evidence when it is not offered to prove the truth of the matter asserted.

7. Before a photograph is admissible, it must be shown by extrinsic evidence to be a substantially true representation of the thing intended to be portrayed.

8. The adequacy of instructions is determined by their being considered as a whole, each in conjunction with all other instructions in the case.

9. In a criminal prosecution wherein the defendant was convicted in separate trials of second degree burglary and grand larceny (K.S.A. 21-520 and 21-524) and maiming, wounding, disfiguring, or causing great bodily harm (K.S.A. 21-435), the record is examined, and it is held: Defendant was not denied his right to a speedy trial; and the district court did not err in (1) finding the verdicts were supported by the evidence, (2) its rulings on various evidentiary matters, (3) its instructions to the jury, and (4) denying defendant's separate motions for new trials.

Brian G. Grace, Wichita, argued the cause, and was on the brief for appellant.

R. K. Hollingsworth, Deputy County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.

O'CONNOR, Justice.

The defendant, Jerry Trotter, has appealed from the judgments and sentences entered following his conviction on three felony offenses.

Defendant was charged in a single information containing two counts: second degree burglary and grand larceny (K.S.A. 21-520 and 21-524), and felonious assault (K.S.A. 21-431). At defendant's request, separate jury trials were had on each count. He was found guilty as charged on Count 1 (burglary and larceny). On Count 2, the jury returned a verdict of the lesser included offense of maiming, wounding, disfiguring, or causing great bodily harm (K.S.A. 21-435). Following the denial of defendant's motions for new trials, the district court sentenced him under the habitual criminal act to the state penitentiary-the sentence on Count 2 to run consecutively to those imposed on Count 1.

The numerous questions raised on appeal may be categorized as follows: (1) Undue delay between defendant's arrest and his preliminary hearing; (2) insufficiency of evidence to support the verdicts; (3) various evidentiary rulings of the trial court; and (4) erroneous instructions.

The facts giving rise to the charges arose from happenings on two separate occasions. In brief, the state's evidence showed that during the evening of November 11, 1965, a rear door of the ABC Appliance Company in Wichita was forced open and ten portable television sets, two tape recorders, two portable stereos, and approximately $40 to $45 in cash removed from the premises. The door was pried open by one Cornelius Franklin, who entered the store, took some money, and then departed. He went to a pool hall on Murdock street where he saw the defendant and one Leon Peterson and told them about the break-in. The three returned to the store, along with one W. C. Kimble. As nearly as we can tell from the somewhat abbreviated record, while Kimble waited in his car, Peterson and the defendant obtained merchandise from the store, which included some television sets. What part Franklin had in the ensuing events, we do not know. At any rate, the articles were placed in Kimble's automobile, and Peterson, the defendant and Kimble drove away. Peterson was let out of the car near his home, taking one of the television sets with him. Kimble and the defendant proceeded to Hutchinson, where they deposited at least part of the merchandise in the home of defendant's brother. The brother was not home at the time, and upon his return found portable television sets and a stereo in the kitchen of his house. Later in the day (November 12) two Hutchinson police detectives, acting on information received from the Wichita Police Department, searched the brother's home in Hutchinson and seized the articles later identified as belonging to the appliance company.

Also on the morning of November 12, defendant went to the home of one Hazel Simms and Peterson and talked to Peterson, who in turn told Hazel that defendant was leaving town and had a television set to sell for $20. Hazel gave him $20 and defendant left. Hazel and Peterson then walked to an apartment house on East Murdock. In an upstairs apartment they saw Kimble and a large number of television sets. Hazel picked out the one she wanted, and soon after she returned home, Kimble delivered the set to her-one of those stolen from the appliance company. Hazel then called the police and a detective went to her home, picked up the television set and arrested Peterson.

Although a warrant for defendant's arrest on the burglary and larceny charges had been issued on November 15, defendant was not apprehended until May 26, 1966, when a police officer, Richard E. LaMunyon, who was aware of the outstanding warrant, heard the dispatcher advise a detective that the defendant was at a pool hall located at Seventeenth and Poplar streets in Wichita. Since the detective did not know the defendant on sight, but LaMunyon did, LaMunyon was dispatched to the scene, where he was met by two other officers. At their request, the defendant walked out of the building with them. When the officers advised him it would be necessary to handcuff him, he resisted. The officers sought to restrain him, and in the ensuing struggle defendant grabbed LaMunyon's pistol from its holster, and fell to the ground on top of one of the other officers. In the course of LaMunyon's attempting to retrieve the weapon, the defendant fired the gun and the bullet struck LaMunyon in the right hand. Despite his resistance, defendant was subdued and taken into custody at that time.

Defendant's initial specification of error is that he was denied his right to a 'speedy trial' in violation of the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of the Bill of Rights of the Constitution of the State of Kansas.

Defendant's point is predicated on the following sequence of events occurring after his apprehension on May 26:

The original complaint was amended the next day to include the felonious assault charge, and an amended warrant for defendant's arrest was issued. The original warrant apparently was withdrawn. At least the record fails to disclose it was ever executed. The marshal's return on the amended warrant shows the defendant was arrested and brought before the court of common pleas on September 19, 1966-116 days after the wounding of Officer LaMunyon. When brought before the court, defendant requested a preliminary hearing, which was set for October 3. Defendant and his retained counsel appeared on the scheduled date, when the matter was continued to October 17, and thence to October 18. On the latter date the state produced several witnesses, and at the state's request, but over defendant's objection, the hearing was continued to October 27, at which time it was concluded and defendant bound over for trial in the district court. Defendant's trial on Count 1 commenced February 27, 1967, and was concluded on the 28th; his trial on Count 2 commenced March 15 and was completed on the 17th.

Defendant's contentions with respect to denial of a speedy trial are unmeritorious for several reasons.

In the first place, the right of a speedy trial guaranteed by § 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination but rather to the trial held after an indictment is returned or an information filed. (Witt v. State, 197 Kan. 363, 416 P.2d 717; Cooper v. State, 196 Kan. 421, 411 P.2d 652.) No question is raised about the promptness of trial following the filing of the information.

In regard to his preliminary examination, defendant is in no position to complain of the 116-day delay between the time of his apprehension on May 26, 1966, and when he was brought before the examining magistrate on September 19. The record discloses, and it was admitted at oral argument, that at the time he was taken into custody there were outstanding city police court commitments, and pursuant thereto he was confined at the city prison farm until September 19, when he was brought before the magistrate on the amended warrant. An analogous factual situation existed in State v. McGee, 194 Kan. 246, 398 P.2d 563, where the contention was made that the accused was not provided a preliminary hearing within ten days after his...