State v. White

• Decision Date: 02 December 1983
• Docket Number: No. 54760,54760
• Citation: 234 Kan. 340,673 P.2d 1106
• Parties: STATE of Kansas, Appellee, v. Howard WHITE, Appellant.
• Court: Kansas Supreme Court

Page 1106

673 P.2d 1106

234 Kan. 340

STATE of Kansas, Appellee, v. Howard WHITE, Appellant.

No. 54760.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. The 180-day speedy trial provision contained in Article III of the interstate Agreement on Detainers, K.S.A. 22-4401 et seq., is controlling where a prisoner incarcerated in a state penal institution requests disposition of the charges pending against him in another state. The 120-day provision contained in Article IV of the Agreement controls where the prisoner is returned for prosecution upon the request of the prosecuting authorities in the state which filed the detainer against the prisoner.

2. The 180-day speedy trial time limitation contained in Article III of the interstate Agreement on Detainers, K.S.A. 22-4401 et seq., commences only upon receipt of the prisoner's notice and request by the proper authorities in the state which filed the detainer against the prisoner.

3. The substance of a communication by an informant to a police officer is inadmissible hearsay when it tends to identify the accused and establish his guilt.

4. Hearsay evidence is admissible on the ground of necessity under K.S.A.1982 Supp. 60-460(d)(3) where (1) the declarant is unavailable as a witness, (2) the matter described was recently perceived by the declarant and the statement made while his memory was fresh, and (3) it was made under circumstances so as to show that it was in good faith, before there was an action pending and with no incentive to falsify or distort.

Daniel A. Duncan, Kansas City, argued the cause and was on brief, for appellant.

Jerome A. Gorman, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Howard White (defendant-appellant) guilty of aggravated robbery (K.S.A. 21-3427). The appellant contends he was not timely brought to trial according to the provisions of the Agreement on Detainers, K.S.A. 22-4401 et seq., and the trial court erred in admitting hearsay evidence.

The following evidence was presented at trial. Around 9:30 a.m. on March 9, 1981, the Kansas City Police Department received a call about a small boy left unattended in a black and gold Cadillac with Colorado license tags. The caller had observed a man park the car and leave with another man in a black and gold Buick with Missouri license tags, leaving the child unattended. Upon their arrival police officers found six-year-old Joseph Jackson and his one-year-old brother in the Cadillac. Joseph told the officers a man named Wallace had brought them there and had left in another car driven by his father, Howard White. The children were taken to police headquarters.

Police conducted a stake-out of the Cadillac, thinking it might be a possible getaway car. Shortly thereafer a black man ran to the car and got in it. When police officers approached the car and identified themselves, the man drove off. While in pursuit, the officers received word of a holdup at a nearby bank by two black males driving a Buick with Missouri license tags. They spotted a Buick matching the description of that suspect car parked a short distance from where the Cadillac had been parked.

Several officers converged on the area where the Buick was parked and began to search for the other suspect. Police saw a man on foot matching the description of the suspect. He fled when the officers approached him. As the search continued a woman came out of her home and told police a man was in her house and had requested a shirt and razor. The suspect was arrested. Meanwhile, the driver of the Cadillac was apprehended and was identified as one of the robbers. The appellant was identified at trial as the other perpetrator of the robbery.

The appellant first contends he was not brought to trial within the time limit set forth in the Agreement on Detainers, K.S.A. 22-4401 et seq.

Following his arrest the appellant was freed on bond. He was subsequently arrested in Colorado for armed robbery. He entered a guilty plea and was incarcerated at a correctional facility in Colorado. The appellant was notified the State of Kansas had filed a detainer against him. He requested a final disposition of the detainer, which was mailed by the Superintendent of the Colorado State Penitentiary on October 1, 1981, and received by the Clerk of the District Court of Wyandotte County on October 5, 1981. The appellant was tried on April 5, 1982, 182 days after the request was received by the clerk of the district court. The 180th day fell on Saturday, April 3, 1982.

The interstate Agreement on Detainers provides two methods for the disposition of charges pending against a prisoner incarcerated in another state or federal institution. See generally Annot., 98 A.L.R.3d 160, § 2. Article III of the Agreement prescribes the procedures for a prisoner to follow in requesting disposition of charges for which a detainer has been filed against him. This Article provides in pertinent part:

"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." (Emphasis added.)

Article IV(a) of the Agreement permits prosecuting authorities in the state in which charges are pending against a prisoner to obtain his custody for trial from the state where he is incarcerated. Where custody of a prisoner is requested by the prosecuting state the trial "shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state," (emphasis added) except for necessary or reasonable continuances granted by the trial court for good cause shown. K.S.A. 22-4401, Article IV(c).

The appellant first contends the 120-day time limit contained in Article IV should apply to all cases handled under K.S.A. 22-4401 et seq. The time limits applicable under the two procedures contained in the Agreement were previously addressed by this court in State v. Clark, 222 Kan. 65, 67, 563 P.2d 1028 (1977):

"Under the Agreement, once a detainer has been lodged the authorities having custody of the prisoner 'shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition' thereof. (K.S.A. 22-4401, Art. III [c].) If the prisoner properly enters a request, he must be returned to the jurisdiction in which the detainer was filed and tried within 180 days of the time he requests disposition. If the prisoner makes no request for disposition, he must be tried within 120 days from the time he is returned to the requesting state. Failure to try the prisoner within the applicable time requires dismissal of the charges upon which the detainer is based."

Other authorities have similarly recognized the 120-day time limit contained in Article IV is controlling only where the prisoner is returned for trial pursuant to the request of prosecuting authorities in the state where the charges are pending. See Shewan v. State, 396 So.2d 1133 (Fla.Dist.App.1981); State v. Plant, 532 S.W.2d 900, 902 (Mo.App.1976); Annot., 98 A.L.R.3d 160, § 28[a], and cases cited therein.

The provisions of the statute are clear and straightfoward. Where the prisoner requests a disposition of the detainer filed against him under Article III he must be brought to trial within 180 days "after he shall have caused to be delivered to the prosecuting officer and the appropriate court" written notice of his request. The 120-day provision in Article IV controls where the prisoner is returned for prosecution upon the request of the state which filed the detainer. No language is contained in the statute to support the interpretation suggested by the appellant. Furthermore, such an interpretation would render the 180-day time limit contained in Article III meaningless.

The appellant next contends the 180-day time limit contained in Article III begins to run on the date the prisoner's notice and request for disposition is mailed rather than the date it is received by prosecuting authorities in the state where charges are pending. In support of this the appellant compares the language contained in the Agreement with a similar time limitation found in the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq. The Agreement on Detainers requires the prisoner be brought to trial within 180 days "after he shall have caused to be delivered to the prosecuting officer and the appropriate court" written notice of his request for final disposition, whereas the Mandatory Disposition of Detainers Act states that the prisoner shall be brought to trial within 180 days "after the receipt of the request and certificate by the court and county attorney." K.S.A. 22-4303. The appellant contends he was entitled to have the charge against him dismissed because he was not brought to trial until 187 days after he caused his request to be mailed to Wyandotte County.

This court has previously recognized that while the purposes of the Act and Agreement are analogous they are not alike or identical...