State v. Wilson

• Decision Date: 05 April 1980
• Docket Number: No. 50704,50704
• Citation: 608 P.2d 1344,227 Kan. 619
• Parties: STATE of Kansas, Appellee, v. Albert L. WILSON, Appellant.
• Court: Kansas Supreme Court

Page 1344

608 P.2d 1344

227 Kan. 619

STATE of Kansas, Appellee, v. Albert L. WILSON, Appellant.

No. 50704.

Supreme Court of Kansas.

April 5, 1980.

Syllabus by the Court

1. The determination of a constitutional violation of the right to speedy trial depends upon the facts and circumstances of each case; the mere passage of time alone is not determinative.

2. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) adopts a test of balancing the action or inaction of the State with that of the accused. Four relevant factors are identified: length of the delay; the defendant's assertion of his right to speedy trial; the reason for the delay; and prejudice resulting to the defendant.

3. One who is charged with offenses in two or more states cannot dictate which of the charges should be tried first. The orderly administration of justice leaves that choice to the good faith action of the prosecuting officials.

4. In an appeal from convictions of aggravated robbery, aggravated burglary, and felony murder, the record is examined and it is held : on the basis of the four-part Barker test, the defendant was not denied his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution or under § 10 of the Kansas Bill of Rights; defendant was not denied due process of law; and the evidence was sufficient to support a finding of guilt beyond a reasonable doubt by a rational trier of fact.

Mark F. Anderson, of Kidwell & Williamson, Chartered, Wichita, argued the cause and was on brief, for appellant.

Paul W. Clark, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty. and Neal Brady, Asst. Dist. Atty., were with him on brief, for appellee.

MILLER, Justice:

This is a direct appeal by Albert L. Wilson, following his jury conviction of aggravated robbery, K.S.A. 21-3427, aggravated burglary, K.S.A. 21-3716, and felony murder, K.S.A. 21-3401. Wilson was sentenced to consecutive terms of fifteen years to life, five to ten years, and life imprisonment. The principal issues on appeal are whether defendant's constitutional right to a speedy trial was infringed or alternatively whether his due process rights were violated by the State's action in bringing the matter to trial. A chronological statement of the background facts is necessary to an understanding of the issues.

Wilson escaped from the Kansas State Penitentiary at Lansing, Kansas, in June, 1975. During the next several months he traveled extensively, spending some time in Wichita and some time in the State of California. On August 28, 1975, the body of Johnnie Mae Hull Rider was found in her Wichita home. She had sustained some 48 stab wounds; knives were left in her back, chest, and throat. The front door of the house had been "kicked in"; various items of personal property and the victim's car were missing. A complaint, charging Wilson with felony murder, aggravated robbery, and aggravated burglary was filed on October 3, 1975; this was given Case No. 75 CR 1451. Two weeks later, Wilson was arrested in Missouri. He waived extradition and was returned to the Kansas State Penitentiary.

The defendant was taken before a magistrate at Wichita on October 28, 1975 for his first appearance on the murder and related charges. Counsel was appointed, and a preliminary hearing date was set. Short continuances were granted, one at defendant's request and one on the State's motion.

The State of California also had a pending first-degree murder charge against defendant Wilson, and California was seeking to bring him to trial. A crucial witness in both the California and Kansas prosecutions, Mrs. Julie Adams, was in custody in California. The Kansas court, on motion of the State, removed the pending case from the docket on November 21, 1975, over defendant's objection. No preliminary hearing was then held. Defendant was extradited, was tried and convicted of first-degree murder in California, and was sentenced to death. Before the sentence was carried out, the California death penalty law was declared unconstitutional. On July 29, 1977, the sentencing court reduced Wilson's sentence to life imprisonment, concurrent with any other sentence previously imposed, and ordered that Wilson be returned to Kansas to complete serving his earlier Kansas sentence. Wilson was returned to the Kansas State Penitentiary on or about July 30, 1977.

On February 1, 1978, a new complaint (Case No. 78 CR 231) charging Albert L. Wilson with the aggravated robbery and felony murder of Robert Hind and Jerry Wilson, and including the earlier charges of aggravated burglary, aggravated robbery, and felony murder of Johnnie Mae Hull Rider, was filed in Sedgwick County. Upon learning of the new charges, defendant filed a motion for a speedy trial. He was taken to Wichita and first appeared before the court on May 10, 1978; counsel was appointed. On July 20, 1978, defendant appeared with counsel before the trial court; Cases No. 75 CR 1451 and 78 CR 231 were consolidated; preliminary hearing was waived; and a trial date of September 18 was agreed upon by stipulation. On defendant's motion, the trial was set over until October 16, 1978, on which date trial commenced. The Hind-Wilson charges added by the February 1 complaint were dismissed before trial, and defendant was tried and convicted of the original Rider charges of felony murder, aggravated robbery, and aggravated burglary. The sentences imposed were made consecutive to each other but concurrent with the california and the earlier Kansas sentences.

Defendant alleges no denial of statutory speedy trial rights, and therefore we need not consider the time frames fixed by various statutes. Instead, defendant alleges that he has been denied his constitutional right to a speedy trial, as preserved by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Bill of Rights. The Sixth Amendment guarantee of the right to a speedy trial is enforceable against the states through the due process clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The right preserved by both state and federal constitutional mandate is the same: the right of one accused of crime to be tried promptly and with due dispatch. The right attaches when an individual becomes an "accused." United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

The right applies not only when the accused is within the jurisdiction but also when the accused is confined in a penal institution in another jurisdiction. For example, when a federal prisoner demands to be brought to trial on pending State charges, the constitution imposes on the State the duty to "make a diligent, good faith effort" to bring him to trial. Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); and see Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970), and Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).

The determination of a constitutional violation of the right to speedy trial depends upon the facts and circumstances of each case; the mere passage of time alone is not determinative. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) adopts a test of balancing the action or inaction of the State with that of the accused. Four relevant factors are identified: length of the delay; the defendant's assertion of his right to speedy trial; the reason for the delay; and prejudice resulting to the defendant. We adopted this criteria (noting that the list is not exclusive) in State v. Otero, 210 Kan. 530, 532, 502 P.2d 763 (1972), and we have adhered to it in later cases. State v. Fink, 217 Kan. 671, 678, 538 P.2d 1390 (1975); State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979); State v. Ward, 227 Kan. 643, 608 P.2d 1351. When a defendant's right to speedy trial has been violated, the "only possible remedy" is dismissal of the charges. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626; Williams v. Darr, 4 Kan.App.2d 178, 603 P.2d 1021 (1979).

We turn now to examine the four Barker v. Wingo factors in the light of the facts of this case. The first is the length of the delay. The right to speedy trial attached at the time the complaint was filed and the warrant issued, October 3, 1975, or at the latest on the date of arrest, October 17, 1975. See Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Trial commenced on October 16, 1978; the elapsed time was about three years. Times greater than three years have been found nonviolative of the speedy trial right. Barker v. Wingo, 407 U.S. at 514, 92 S.Ct. at 2182 (five years); State v. Dolack, 216 Kan. 622, 636, 533 P.2d 1282 (1975) (over 3 years); State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972) (over 4 years). Although the delay in itself does not establish a violation, extended delay does serve to trigger examination of the other three factors. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191.

The second Barker factor requiring consideration is the defendant's assertion of his right to, and his request for, speedy trial. He objected to the continuance of the Kansas proceedings in November, 1975, and asked for trial in Kansas; coupled with this was his objection to extradition. From November, 1975, until February, 1978, however, defendant took no action and made no request for disposition of the Kansas charges which he knew were pending against him. Although the Supreme Court has explicitly rejected a requirement that an accused must assert his right to a speedy trial, Barker v. Wingo, 407 U.S. at 529, 92 S.Ct. at 2191, cases where a constitutional violation has been found generally arise after the State has failed to respond to repeated demands...