State v. Walker, 45216
| Decision Date | 25 January 1969 |
| Docket Number | No. 45216,45216 |
| Parties | The STATE of Kansas, Appellee, v. Asberry WALKER, Appellant. |
| Court | Kansas Supreme Court |
1. Whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide.
2. The validity of a search warrant regular on its face will be presumed.
3. An issue will not be considered upon appeal where its existence depends upon facts which do not appear in the record before the appellate court.
4. Possession by an accused recently stolen property is sufficient to sustain a conviction of burglary where satisfactory explanation is not given.
5. An omission to give a special instruction concerning the defense of alibi where none was requested by the defendant is not a ground for reversal where full general instructions covering the law of the case were given.
6. The record on appeal from a conviction of burglary in the second degree is examined, and it is held: The trial court did not err in failing to appoint new counsel for defendant, in its rulings on admission of evidence, in instructions to the jury, and further held, the evidence was sufficient to support defendant's conviction and he was properly sentenced as an habitual criminal.
Donald L. Gottschalk, Hutchinson, argued cause and was on brief for appellant.
Richard J. Rome, County Atty., argued cause, and Robert C. Londerholm, Atty. Gen., Raymond F. Berkley and Kerry J. Granger, Asst. County Attys., were with him on brief for appellee.
HARMAN, Commissioner.
Appellant was convicted by a jury of the offense of burglary in the second degree. Five previous felony convictions being shown, he was sentenced to imprisonment for a term of fifteen years to life. He appeals from that judgment and sentence.
Appellant has been represented at all stages of this proceeding by court-appointed counsel. His first specification of error pertains to appointment of the attorney who represented him at trial level.
By way of background we should state that in Reno county, as well as in many of our counties, it has been customary for a judge of the judicial district to appoint attorneys to represent indigent accused at proceedings in magistrate court. This was done in appellant's case. On February 26, 1967, the following occurred in district court:
Thereafter, on February 28, 1967, preliminary hearing was held. Trial in district court commenced June 5, 1967, and was concluded by sentencing on June 26, 1967, with Mr. Earhart acting as appellant's attorney throughout. The matter of his appointment or representation was not alluded to or brought to the attention of the trial court in any way after the February 26th proceeding.
Appellant now asserts 'The trial court erred in requiring the defendant to accept counsel appointed by the court after having been advised by the defendant that counsel was not interested in his case and that counsel thought the defendant was guilty.'
Appellant's charge of error is directed only at the court's action of February 26, 1967, reflected in the proceedings quoted. He does not contend the attorney was unfaithful or derelict in the discharge of any duty to appellant and he does not charge incompetent service. The record does not disclose any such dereliction, either at preliminary examination or in the attorney's subsequent representation. Appellant argues that at the February 26th hearing he was dissatisfied with Mr. Earhart but, on the other hand, he did not want to be without counsel. We think his statement at that hearing can fairly be interpreted as a request for the services of another attorney.
Did the court err in its ruling? There can be no question, of course, as to entitlement to counsel. The nature of the right was recently discussed in Ray v. State, 202 Kan. 144, 446 P.2d 762, in which this court stated the right is not a matter of mere form, but one of substance; that it contemplates the guidance of a responsible, capable lawyer devoted to his client's interests.
This right, however, is not wholly unrestrained. An indigent defendant may not compel the court to appoint such counsel as defendant may choose. Such appointment lies within the sound discretion of the trial court (Tibbett v. Hand, 294 F.2d 68 (C.A. 10)). Likewise, whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide. (United States v. Burkeen, 355 F.2d 241 (C.A. 6)). Here appellant gave as his reason for dissatisfaction his counsel's 'impression' that he was guilty and that counsel didn't want to give him 'proper defense'. The matter was not further elaborated at this proceeding, which occurred prior to preliminary examination, and was not raised upon counsel's reappointment to represent appellant in the trial in district court, or at any time thereafter until this appeal. From the showing made we cannot discern the nature of any disagreement between appellant and his counsel. Counsel made no request to be relieved of the appointment, as professional integrity would have required in the event of serious disagreement in the conduct of the defense. Under the circumstances shown we find no abuse of discretion in the trial court's ruling of February 26th. Appellant did not plead guilty (as conceivably his attorney may have suggested), he pleaded not guilty and was afforded a defense by his counsel which so far as we can tell was adequate, though unsuccessful. We find nothing in the record from which it can be said the ruling complained of substantially prejudiced appellant's rights.
We briefly narrate the evidence offered at trial. For the state it was shown that a home eight miles southwest of Hutchinson, in Reno county, was burglarized on November 4, 1966, between the hours of 7:30 p. m. and 10:30 p. m. Certain cooking utensils and wrapped packages of dimes were stolen. On November 29, 1966, pursuant to a search warrant, police officers found some of the stolen utensils and the wrapped dimes at appellant's apartment in Newton, Harvey county, Kansas. Also pursuant to search warrant executed on the same day, a butcher knife, likewise identified as taken at the time of the burglary, was found at the home of appellant's aunt in Newton. Appellant's aunt stated she had received the knife from appellant.
Appellant did not testify but on his behalf his aunt testified that on November 4, 1966, (the night of the burglary) she was in appellant's company; she and appellant left Newton in his car at about 7:00 p. m. and went to Wichita to check on some drapes which had been advertised for sale; they stopped for coffee at a Wichita cafe going and coming and returned to Newton about 10:30 p. m.; she never...
To continue reading
Request your trial
-
State v. Ruscoe
...States v. Davis, 589 F.2d 904, 906 (5th Cir.1979) (warrant for "white string" and "brown paper" was sufficient); State v. Walker, 202 Kan. 475, 479, 449 P.2d 515 (1969) (description of "cooking utensils" was The defendant next claims that the January 5, 1987 search of his home was illegally......
-
State v. Hall
...that it constituted an unreasonable search. A warrant containing a similar description of property was challenged in State v. Walker, 202 Kan. 475, 449 P.2d 515 (1969). In that case the description used to identify the property to be seized was "cooking utensils." The Kansas Court, without ......
-
State v. Fosnight
...defendant's substantial rights by requiring Anderson to remain as counsel. (See, State v. Way, 204 Kan. 375, 461 P.2d 820; State v. Walker, 202 Kan. 475, 449 P.2d 515.)" 205 Kan. at 236-239, 468 P.2d The rules stated and applied in Henderson are equally applicable here. Under the rules stat......
-
State v. Bell
...did not believe him and that he did not want to represent him. This claim of error is manifestly without merit. State v. Walker, 202 Kan. 475, 477--478, 449 P.2d 515, 518 (1969) states: . . . An indigent defendant may not compel the court to appoint such counsel as defendant may choose. Suc......