Zimmer v. State
| Decision Date | 12 December 1970 |
| Docket Number | No. 45892,45892 |
| Citation | 206 Kan. 304,477 P.2d 971 |
| Parties | William F. ZIMMER, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
1. Exclusion of jurors opposed to capital punishment will not be presumed, nor was it shown by evidence adduced at postconviction hearing, to result in an unrepresentative jury on the issue of guilt or to increase the risk of conviction, in violation of constitutional standards.
2. The determination of reliability requisite to admission into evidence of learned treatises under K.S.A. 60-460(cc) rests in the sound discretion of the trial court.
3. An accused is not deprived of his constitutional rights against self-incrimination or of due process by a unitary procedure whereby a jury which determines guilt of a capital offense then determines whether the penalty should be death or life imprisonment.
4. Prosecution for a capital or otherwise infamous crime in a Kansas court of competent jurisdiction by information, followed by trial, conviction, and sentence, all in conformity with the code of criminal procedure, does not deprive a citizen of his liberty in violation of, or rights guaranteed by, the provisions either of the fifth or fourteenth amendment to the constitution of the United States.
5. A proceeding under K.S.A. 60-1507 cannot ordinarily be used as a substitute for a second appeal.
6. Prior to preliminary examination by a magistrate, an accused has no constitutional right to the services of a psychiatrist to be appointed by the magistrate.
7. Only where trial errors impinge on constitutional rights will they be considered in a postconviction action brought under K.S.A. 60-1507, and then only in exceptional circumstances.
8. The record is examined in a post-conviction proceeding wherein the petitioner was convicted of murder in the first degree and aggravated kidnaping and it is held, the trial court did not err in ruling:
(a) appelant was not denied counsel at critical stages of the proceedings;
(b) appellant was mentally capable of giving consent to a vehicular search and did voluntarily and intelligently do so;
(c) the prosecution did not suppress evidence favorable to appellant;
(d) a lineup procedure wherein appellant was identified by a prosecution witness did not result in infringement of appellant's right to due process of law;
(e) the totality of the circumstances surrounding the making of statements by appellant did not render them inadmissible as violative of basic constitutional requirements; and
(f) juror misconduct resulted in no prejudice to appellant.
Wayne T. Stratton and Arthur E. Palmer, Topeka, argued the cause and were on the brief for the appellant.
Gene M. Olander, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for the appellee.
HARMAN, Commissioner:
This is a postconviction proceeding. William F. Zimmer was convicted by a jury of the offenses of kidnaping in the first degree, with harm inflicted (K.S.A. 21-449) and murder in the first degree (K.S.A. 21-401). The jury imposed death for the kidnaping and life imprisonment for the murder. Upon direct appeal the conviction and sentences were affirmed (State v. Zimmer, 198 Kan. 479, 426 P.2d 267, cert. den. 389 U.S. 933, 88 S.Ct. 298, 19 L.Ed.2d 286). Reference is made to that decision for facts supplementary to those stated herein.
Zimmer then commenced this proceeding for relief under K.S.A. 60-1507. The trial court held a pretail conference in the nature of an omnibus hearing with appellant present, at which it made a definitive order narrating the factual history, reciting agreements of the parties with respect to evidence, stating issues, requiring the prosecution to submit to requested discovery procedure and furnish certain services requested by appellant, and generally establishing a blue print for the formal hearing. In this order the court specifically stated all issues on which proof was offered would be decided on their merits.
After evidentiary hearing at which Zimmer appeared and was represented by present court-appointed counsel the trial court modified appellant's sentence by vacating the death penalty and resentencing him upon the kidnaping charge to life imprisonment. In all other respects appellant's application was denied and he now appeals.
Evidence adduced at the 60-1507 hearing will be referred to as necessary in considering appellant's specifications of error.
Under our law, in event of conviction by a jury of the offenses of first degree murder or aggravated kidnaping, the jury is required to fix the penalty either at death or life imprisonment (formerly K.S.A. 21-403 & 21-449, now K.S.A. 1970 Supp. 21-4501(a)). Prior to appellant's initial trial the then presiding judge in chambers excused nineteen prospective jurors from service in the case, without voir dire examination, because of their indication of conscientious or religious objection to the death penalty. At trial upon voir dire examination thirty-one additional veniremen were, upon the state's challenge for cause, excused upon their statement they had conscientious or religious objection to imposition of the death penalty. No effort was made to probe prospective jurors' attitudes within the dimensions of K.S.A. 62-1404 or 62-1405.
At the postconviction proceeding the court applied the retroactive rule announced June 3, 1968, in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, that a death sentence cannot constitutionally be executed if imposed by a jury from which have been removed for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty, and, upon this basis, the trial court vacated appellant's death sentence and resentenced him to life imprisonment upon the kidnaping charge.
Appellant now contends the exclusion of jurors evincing opposition to capital punishment denied him trial by a representative and impartial jury on the issue of guilt or innocence, in violation of the due process and equal protection clauses of the state and federal constitutions. The contention is based largely on the theory that people who have a belief, attitude or prejudice upon one issue frequently have a predictable belief, attitude or prejudice upon another. As applied here, appellant urges that selective exclusion of jurors having an attitude against capital punishment amounts to selective exclusion of jurors whose verdict would tend more toward innocence than guilt, thus resulting in a more prosecution-prone jury with increased risk of conviction.
As presented, the contention has both legal and factual aspects. In its support appellant offered at the 60-1507 hearing certain testimony and exhibits upon which in an excellently prepared memorandum opinion the trial court acted as follows:
'Issue A. (1). Did the exclusion of jurors who opposed the death penalty result in an unrepresentative jury on the issue of guilt and increase the risk of conviction?
'Findings of Fact:
'1. Dr. Hans Zeisel, witness for petitioner, testified that he is Professor of Law in Sociology at the University of Chicago Law School.
'2. For approximately fifteen years he has studied the jury system.
'3. He made various studies on jury attitudes toward capital punishment and authored 'Some Data on Jury Attitudes Toward Capital Punishment.'
'Conclusions of Law:
In Witherspoon the petitioner made the same complaint as here, concerning which the court stated:
'He maintains that such a jury, unlike one chosen at random from a cross-section of the community, must necessarily be biased in favor of conviction, for the kind of juror who would be unperturbed by the prospect of sending a man to his death, he contends, is the kind of juror who would too readily ignore the presumption of the defendant's innocence, accept the prosecution's version of the facts, and return a verdict of guilt. To support this view, the petitioner refers to what he describes as 'competent scientific evidence that death-qualified jurors are partial to the prosecution on the issue of guilt or innocence.'
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