State v. Wood, 56154

• Decision Date: 13 July 1984
• Docket Number: No. 56154,56154
• Citation: 686 P.2d 128,235 Kan. 915
• Parties: STATE of Kansas, Appellee, v. Daniel Allen WOOD, Appellant.
• Court: Kansas Supreme Court

Page 128

686 P.2d 128

235 Kan. 915

STATE of Kansas, Appellee, v. Daniel Allen WOOD, Appellant.

No. 56154.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

1. A change of venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. Media publicity alone has never established prejudice per se. The defendant must show prejudice has reached the community to the degree it is impossible to get an impartial jury.

2. In a criminal trial where a prospective juror indicates during voir dire examination a belief in the guilt of a defendant and is excused and defense counsel thereafter passes the jury for cause, defendant may not later, for the first time, raise an issue of alleged jury taint from the prospective juror's remark.

3. Two acts of rape (K.S.A. 21-3502), although perpetrated by the same accused against the same victim on the same afternoon, are held to constitute two separate crimes. This result is distinguished from that reached in State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978).

4. The M'Naghten test for insanity is steadfastly adhered to, and the doctrine of diminished or reduced mental capacity is rejected as a substitute therefor.

5. In a factual situation where an accused fires shots through a door knowing law enforcement officers are on the other side and where a shot aimed at a hostage carries through the wall into the vicinity of an officer: (1) the doctrine of merger of offenses is discussed and held not to bar the aggravated assault of a law enforcement officer convictions herein; and (2) accused's lack of knowledge as to exact location of the officers does not preclude conviction for aggravated assault of law enforcement officers.

6. K.S.A. 22-2404, the Kansas version of the Uniform Fresh Pursuit Law, is discussed. "Pursuit" is held to continue from its commencement to actual capture of the accused under the circumstances herein.

7. A "properly identified" law enforcement officer under K.S.A. 21-3411 (aggravated assault of a law enforcement officer) and K.S.A. 21-3415 (aggravated battery of a law enforcement officer) is one who has been identified in such a manner to the defendant that he reasonably should know him to be a law enforcement officer.

8. To sustain a conviction under K.S.A. 21-3411 or 21-3415, it is not necessary that the State prove the defendant had actual knowledge that the person assaulted or battered was a law enforcement officer.

9. An officer-victim under K.S.A. 21-3411 or 21-3415 need not personally identify himself as a law enforcement officer to the defendant. The statute merely requires that the officer assaulted or battered be properly identified without designating the method.

10. Sentences imposed within the statutory framework are to be upheld on appeal absent a showing the sentences were so arbitrary and unreasonable as to constitute an abuse of judicial discretion.

Robert L. Morse, Mission, argued the cause and was on brief for appellant.

Joseph E. Cosgrove, Jr., Asst. Dist. Atty., argued the cause, and Dennis W. Moore, Dist. Atty. and Robert T. Stephan, Atty. Gen., were with him on brief for appellee.

McFARLAND, Justice:

Daniel Allen Wood appeals his jury trial convictions for aggravated sodomy (K.S.A. 21-3506); aggravated battery of a law enforcement officer (K.S.A. 21-3415); aggravated kidnapping (K.S.A. 21-3421); aggravated burglary (K.S.A. 21-3716); aggravated assault (K.S.A. 21-3410); three counts of aggravated assault of a law enforcement officer (K.S.A. 21-3411); two counts of rape (K.S.A. 21-3502); and two counts of felony theft (K.S.A. 21-3701).

Highly summarized, the events from which the twelve felony convictions arose commenced on the morning of December 9, 1982, when two Kansas City, Missouri, police officers noticed a suspicious vehicle in their city. The officers activated their emergency equipment and the suspect vehicle sped away. A high-speed chase ensued which ended in Johnson County, Kansas, where the defendant (driver of the fleeing vehicle) forced his way into an apartment, taking the female occupant thereof as hostage. All of the crimes against persons occurred in or near the apartment building. The hostage escaped after several hours of confinement and defendant was then arrested. Additional facts will be stated in the discussion of particular issues as necessary.

The first issue is alleged error in the trial court's refusal to change venue. During the hours the hostage was being held prisoner, there was extensive media coverage devoted to the incident. Public interest in the case remained rather high through the trial.

In State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982), the law relative to trial venue was summarized as follows:

"The law favors a trial, criminal or civil, taking place in the locality from which the litigation arises. This view is by no means new and dates well back into Anglo-Saxon common law. In Crocker v. Justices of the Superior Court, 208 Mass. 162, 94 N.E. 369 (1911), the Massachusetts Supreme Judicial Court observed:

" 'It was the common law that the indictment for a crime must be found and tried in the county where it occurred, and ordinarily this principle was applied with great strictness.' 208 Mass. at 167, 94 N.E. 369. The federal and Kansas constitutions, Kansas statutes, and Kansas judicial pronouncements reflect the common law on venue.

"Amendment Six of the United States Constitution reads:

" 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ....' (Emphasis supplied.)

Section Ten of the Kansas Bill of Rights provides:

" 'In all prosecutions, the accused shall be allowed ... a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.' (Emphasis supplied.)

"Consistent with the federal and state constitutions and the common law policy of a trial taking place in the locality, K.S.A. 22-2616(1) declares:

" 'In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.'

The Kansas statute reflects a balancing of the constitutional right to a fair and impartial trial and the constitutional declaration and common law belief that a trial occur in the county wherein the crime shall have been committed.

"Recently the court in State v. Shaffer, 229 Kan. 310, 624 P.2d 440 (1981), discussed the matter of change of venue as follows:

" 'A change of venue will be granted a defendant when he or she can show prejudice has reached the community to the degree that it is impossible to get an impartial jury. Such prejudice may not be established by speculation but must be shown by specific facts or circumstances. State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980). Media publicity has never established prejudice per se. State v. May, 227 Kan. 393, 395, 607 P.2d 72 (1980). The granting of a change of venue lies within the sound discretion of the trial court. The burden is on the movant to show prejudice in the community, not as a matter of speculation but as a demonstrable reality.' 229 Kan. at 320, 624 P.2d 440.

In State v. Sanders, 223 Kan. 273, 574 P.2d 559 (1977), we concluded:

" 'Thus, it has been held (1) the burden of proof is on defendant, (2) not only prejudice must be shown but it must be such prejudice as to make it reasonably certain the defendant cannot obtain a fair trial, (3) there must be more than speculation, (4) the state is not required to produce evidence refuting that of the defendant, and (5) granting a change of venue lies within the sound discretion of the trial court and its ruling will not be disturbed if supported by competent evidence and if there is no showing of prejudice to the substantial rights of the defendant.' 223 Kan. at 280, 574 P.2d 559." 232 Kan. at 295-96, 654 P.2d 934.

The record reflects there was no particular difficulty encountered in selecting the jury, the process taking less than a day. Defendant relies only upon media publicity in support of his claim of prejudice herein. As we recently iterated in State v. Richard, 235 Kan. 355, 681 P.2d 612 (1984):

"A change of venue in a criminal case lies within the sound discretion of the trial court. The burden of proof is cast upon defendant to show prejudice in the community which will prevent him from obtaining a fair and impartial trial. Media publicity alone has never established prejudice per se. The defendant must show prejudice has reached the community to the degree it is impossible to get an impartial trial." Syl. p 5.

We conclude no abuse of discretion has been shown in the trial court's refusal to change the venue of the trial herein.

For his second issue defendant contends the trial court erred in refusing to strike the entire jury panel for cause after a prospective juror indicated she believed the defendant was guilty.

During voir dire examination the State was asking questions about whether any of the pretrial publicity had affected potential jurors. One of the potential jurors was a Ms. Rita Summers who on the day of the incident had been listening to police radio communication on her police radio scanner. The following exchange occurred between Mr. Dennis Moore, prosecuting attorney, Ms. Summers and the court.

"MR. MOORE: Thank you. Very good.

"The third row. How many people there? Rita Summers, is that correct?

"VENIREWOMAN SUMMERS: Yes, radio, television, and I have a scanner in my home and I would definitely be prejudiced he...