State v. Zimmer

• Decision Date: 08 April 1967
• Docket Number: No. 44291,44291
• Citation: 198 Kan. 479,426 P.2d 267
• Parties: STATE of Kansas, Appellee, v. William Frederick ZIMMER, Appellant.
• Court: Kansas Supreme Court

Page 267

426 P.2d 267

198 Kan. 479

STATE of Kansas, Appellee, v. William Frederick ZIMMER, Appellant.

No. 44291.

Supreme Court of Kansas.

April 8, 1967.

Rehearing Denied May 1, 1967.

Syllabus by the Court

In an appeal by defendant from convictions of kidnaping in the first degree, with bodily harm inflicted, and of murder in the first degree, the record is examined, and it is held, under the facts, conditions and circumstances, and for reasons set forth at length in the opinion, the judgment Elwaine F. Pomeroy, Topeka, argued the cause, and Emerson M. Pomeroy, Topeka, was with him on the brief for appellant.

rendered and sentences imposed against defendant must be affirmed.

Robert D. Hecht, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., was with him on the brief for appellee.

HARMAN, Commissioner.

William Frederick Zimmer was convicted of the offenses of kidnaping in the first degree, with harm inflicted (K.S.A. 21-449) and of murder in the first degree (K.S.A. 21-401). As punishment the jury imposed the death penalty for the kidnaping charge and life imprisonment for the murder. The trial court denied appellant's motion for new trial, and adjudged sentences in accordance with the jury verdict, from which defendant Zimmer has appealed.

The charges grow out of the abduction and slaying of Gladys Cora Johnson, a Negro girl aged seven years.

Appellant Zimmer's contentions of error will, so far as practicable, be dealt with chronologically.

The first contention is based on the failure to appoint counsel for appellant during a particular period of time. To avoid possible misunderstanding in this area, certain background facts should be stated although all are not directly pertinent to the precise error asserted.

The offenses allegedly occurred on Saturday, November 14, 1964. Appellant, forty years of age, a resident of Kansas City, Kansas, was arrested about 9:00 p. m. on Sunday, November 15, at Marysville, Kansas. At the time of this initial apprehension he was advised by an agent of the Federal Bureau of Investigation of his right to have the services of an attorney and to consult with anyone else he chose. He indicated his understanding of his rights and no complaint is made as to the character of advice given. Later the same night and prior to the time he was brought by police to Topeka appellant told his brother-in-law, a resident of Marysville, to call appellant's wife and have her get a lawyer for him. Appellant was brought to Topeka the early morning of Monday, November 16. On the same day while in jail in Topeka, he was consulted by an attorney from Kansas City, Kansas. It appears this consultation was the result of the request relayed to his wife.

On November 19 the judge of the city court of Topeka, the examining magistrate upon the charges filed, in accordance with custom in Shawnee county in all felony cases, appointed Mr. Sam Crow, a practicing attorney at Topeka, counsel for appellant. This appointment was for the purpose of preliminary examination which was held November 25, at the conclusion of which appellant was bound over for trial to the district court of Shawnee county. On December 21 appellant filed in the latter court an application for the appointment of an attorney. This instrument was as follows:

'APPLICATION FOR APPOINTMENT OF COUNSEL.

'Comes now the defendant and applies to the Court for the appointment of counsel to represent him in the District Court of Shawnee County, Kansas.'

On December 23 Mr. Crow was appointed by the district court to represent appellant upon the hearing of the application. Hearing was held December 29 before the judge of the division then in charge of the criminal docket. At the hearing appellant offered no evidence in support of his application, choosing to rely on the written request. The district court then directed that appellant be examined under oath by the prosecution, which was done. In substance appellant testified he was employed as an engineer by the Union Pacific Railroad Company at a gross salary of about $300.00 every two weeks; that his wife was employed by the same company at a salary of about $400.00 per month; that he owned jointly with his wife his home in Kansas Appellant further testified he had not contacted any attorney and no attorney had refused to represent him. The prosecution introduced income tax records showing that for the year 1962 appellant had wages of $9,360.24 and his wife $5,154.80, and for the year 1963 appellant had wages of $8,448.74 and his wife $5,137.40.

City, Kansas, of a value of about $10,000, furniture, and a 1954 Plymouth, and that his wife owned a 1958 Volkswagen, all free of indebtedness; that he had approximately $2,000.00 on deposit with the railroad credit union, about [198 Kan. 481] $800.00 in a bank account, and government bonds in an amount between $250.00 and $500.00; that after these criminal charges were filed he gave a power of attorney to his wife permitting her to transfer title to the property; he testified he did not know what the purpose of any transfer was, that his wife 'asked for my cooperation on it and that's what I did.'

Based upon the foregoing the court found appellant was not indigent and was able to employ counsel of his own choosing, that appellant had made no effort to employ counsel and there was no evidence any counsel had refused employment, and the court on December 30, 1964, denied appellant's application.

Although the record proper does not so disclose, we are advised by the prosecution in its brief, and it is not controverted, that on the next day following this decision appellant's wife filed suit in the district court of Wyandotte county, Kansas, against appellant asking for divorce and division of property; the county attorney of Shawnee county attempted to intervene in the divorce action for the purpose of having a portion of the marital property set aside to defray the expense of appellant's defense in this case; this attempted intervention was denied.

Commencing with the January, 1965, term of court the judge of the second division of the Shawnee county district court assumed charge of the criminal docket and subsequent proceedings herein have been in that division.

On January 25, 1965, the court appointed a commission of three doctors to examine appellant's mental condition. On January 28, 1965, the commission reported it found appellant 'not insane, an idiot, and/or an imbecile and is in our opinion able to comprehend his position and make his defense in the cause now in hearing.'

On February 2, 1965, the court held a hearing on its own motion to determine whether counsel should be appointed to represent appellant. The court found appellant did not have counsel of his own choosing and had not employed counsel and further, that appellant had advised the court he did not intend to employ counsel. Thereupon the court appointed as counsel for appellant Mr. Elwaine F. Pomeroy, a practicing attorney at Topeka. Trial commenced March 15, 1965.

As stated, appellant filed his request for the appointment of counsel December 21, 1964; the initial application was denied and it was not until February 2, 1965, that counsel was appointed for him. It is upon the December failure to appoint counsel and the consequent absence thereof during this six week period that appellant bases his first contention of error. He asserts he was entitled to assistance of counsel at every stage of the proceedings and that this right was denied him during the period between December 21, 1964, and February 2, 1965.

There is no question under both our state and federal constitutions as to the entitlement of one accused of crime to the effective assistance of counsel in his defense. It is now well established that entitlement extends to every critical stage in a criminal proceeding where there may be a substantial loss of advantage to the defendant, and it may not be denied one who because of indigency is unable to employ counsel. This right may be waived, provided the waiver is made voluntarily, intelligently and knowingly.

We are aware of no authority for the appointment of counsel at state expense for one financially able to employ counsel absent other compelling reasons. Our statute (K.S.A. 62-1304) makes provision for such appointment only if the accused be not able to employ counsel. It expressly authorizes withdrawal of court-appointed counsel upon knowledge that the accused or his relatives or friends are able to employ counsel. Implicitly, where financial ability is concerned, our decisions have limited the benefits of the statute to indigents.

Our statute for appointment of counsel is similar to Rule 44 of the Federal Rules of Criminal Procedure. In administering this rule the federal courts have held one who is financially able to employ counsel is not entitled to have counsel assigned by the court (see 4 Barron & Holtzoff-Federal Practice & Procedure, Rules Edition, § 2461).

Appellant was of mature age, competent, with full opportunity to contact counsel (it is not contended otherwise), and he had substantial monetary resources. The guarded nature of his written application for counsel is patent, no reason being given for the request.

We would not undertake to prescribe financial standards of eligibility for appointment of counsel which would be applicable to all offenses in all districts under all conditions. These might well vary dependent upon the particular circumstances. Suffice it to say here we think the trial court in December acted properly in refusing to appoint counsel upon the showing made. Appellant argues if counsel should have been appointed in February, counsel should have been appointed in December. This does not necessarily follow. Appellant was shown not to be an indigent in December-the record contains no showing on the subject in February and the propriety of that appointment is not an issue.

It should be noted this...