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The opinion of the court was delivered by
Bbewek, J.:
Defendant in error brought his action in the district court for malicious prosecution, and recovered a j’udg ment against the plaintiffs in error for one hundred dollars. One point seems to us decisive of the case. It is well settled that a defendant in a criminal proceeding who brings his action of damages against the parties instituting the same for malicious prosecution must allege in his petition, and show on the trial that the prosecution has been ended, and he discharged or acquitted. Whithworth v. Hall, 2 Barn. & Adolp., 695; 1 Chitty’s Pl., 679; Cole v. Hawks, 3 Monroe, 208; Spring v. Besore, 12 B. Mon., 551; Wood v. Lacock, 3 Metc., (Ky.,) 192; Bacon v. Towne, 4 Cush., 217; Parker v. Farley, 10 Cush., 279; Bacon v. Waters, 2 Allen, 400; Davis v. Clough, 8 N. H., 157; Gorrill v. Snow, 31 Ind., 215; Wheeler v. Nesbitt, 24 How., (U. S.,) 544. It is even held in Massachusetts that a dismissal and discharge is insufficient to sustain this action, and that there must be a trial and acquittal. See the cases in Cushing’s Reports above cited. The pleadings fail to show any such termination of the prosecution. The petition, after alleging a complaint, a warrant, an arrest, and a continuance, adds this allegation — “that since that time the said defendant William Ketchum nor the said defendant G. W. Gillespie have not further prosecuted said complaint, but have abandoned the same.” The answer admits that at the solicitation of the friends of the plaintiff “the defendants consented not to insist upon the further prosecution of the plaintiff unless the county attorney insisted on the same.” This is all there is in either pleading bearing on this point. As the criminal prosecution is under the control of the county attorney, it may, for aught that appears, be still pending, or even have been prosecuted to the conviction of the defendant. When we turn from the pleadings to the testimony we find the same lack. The record of the justice before whom the criminal proceedings were had was not offered in evidence, nor any attempt made to prove its contents. The following is all the testimony on this question: The defendant in error over objection testified, “I was never tried in that case. Gillespie abandoned it. I did not know it till the day I went to Atchison to the justice’s office for trial. Milt. Dix informed me that Gillespie had abandoned it.” And James Hudson in like manner testified that he “ went with Alexander Hudson to the justice’s office and there learned prosecution was abandoned.” A demurrer to the evidence was interposed, but was overruled. We think the demurrer should have been sustained. Neither pleading nor proof show any right to recover. The case will be remanded with instructions to set aside the judgment in favor of the defendant in error Alexander Hudson, and to enter a judgment in favor of the plaintiffs in error G. W. Gillespie and William Ketchum, for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is whether the district court erred in overruling a motion for a new trial. The motion was based on the ground of newly-discovered evidence. While the rules by which motions of this kind must be determined are well settled, and clearly defined, yet in the application of these rules much must be left to the discretion of the trial court. When a case has been once fairly submitted to a jury, the verdict ought not to be disturbed, and the successful party put to the labor, the expense, and the hazard of another trial for any light or trivial reasons, or upon the mere possibility of a different verdict. Especially is this true where the amount in controversy is small, for then it is to the interest of both parties, as well as that of the public, that the litigation should cease as speedily as possible. Here the judgment was for forty-one dollars and twenty cents. Before granting a new trial in case upon the ground of newly-discovered evidence, it should be very evident that the other party has, after using all reasonable and proper diligence, lost the verdict through lack of testimony which he has since discovered. Diligence prior to the trial in seeking testimony is an essential prerequisite. Such diligence must be shown. An allegation in the affidavit of the party, that “he has used due diligence,” is insufficient. In this case the newly-discovered evidence is of an admission of the defendant in error of a fact which he denied on the trial. This was the second trial, more than two months having passed since the first. The affidavit of the discovery of this e vidence is made two days after the verdict. It nowhere appears how this evidence was discovered, whether by the volunteer statement, or through inquiry made directly of the witness} nor where the- witness had been prior to the trial, and why no inquiry had previously been made as to her knowledge. For aught that the record discloses, her relations to the parties and transaction may have been such that a failure to procure her attendance and testimony was really gross negligence. All the evidence of diligence presented is the mere allegation in the affidavit that the party made inquiry of every person he thought might know anything about the case, and failed to obtain this evidence, and that, he has used due diligence. This is virtually swearing to a conclusion. He does not in his affidavit even name the witness who is to furnish this newly-discovered evidence. True, the affidavit of Helen Smith is produced, who testifies to hearing this admission of the defendant in error, and we may therefore infer that she is the witness intended. But this is simply an inference. We do not think this showing of diligence is sufficient to justify us in reversing the ruling of the district co urt. The judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a controversy about a sidewalk tax. We fail to see anything in the record which places this case outside the decision in Parker v. Challiss, 9 Kas., 155, and that in Challiss v. Parker, Treas., in which the opinion has just been filed, (supra, 384.) The 16th finding which contains the substance of this case simply aggregates all the points of objection to the validity of the proceedings presented in those cases. It is unnecessary therefore to enter anew into their consideration. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question really involved in this case is, whether a dog is the subject of larceny; for if it is, then words charging the stealing of a dog are actionable per se, as 'charging a crime involving moral turpitude. It may be conceded that at common law the answer would have been in the negative: 2 Wharton Am. Cr. Law, §1755; 4 Blackstone’s Com., 236; Findlay v. Bear, 8 Serg. & Rawle, 571. But under our statutes we think a different rule obtains. By §78 of the crimes act, (Gen. Stat., 332,) “the taking and carrying away of any money, goods, rights in action, or other personal property or valuable thing whatever,” is declared to be larceny. Now if a clog is personal property, or a thing of value, it would seem plain that the stealing of one was larceny within the statute. That a dog was property, was conceded at common law, as also that the owner might maintain a civil action for its loss: 4 Blackstone, 236. And this doctrine has universally been recognized in this country. Perry v. Phipps, 10 Iredell, 259; Hinckley v. Emmerson, 4 Cowen, 251; Parker v. Wise, 27 Ala., 480; Wheatly v. Harris, 4 Sneed, 468; Cummings v. Perham, 1 Mich., 555; Lentz v. Stroth, 6 Serg. & R., 34. In our own state the legislature at one time passed an act levying a tax on dogs: Laws 1867, p. 215, ch. 129. This act in one of its sections speaks of “ owners of dogs.” The same language is found in § 44 of ch. 105, Gen. Stat. p. 1011, where the owner of a dog is declared liable for injuries to sheep. It seems impossible in the light of these legislative and judicial expressions to decide that a dog is not property, nor a thing of value. And while the common law is'continued in force in this state it is only “in aid of the general statutes,” and as modified by constitutional and statutory laws, judicial decisions, and the conditions and wants of the people:” Gen. Stat., 1127, §3. We are constrained therefore to hold that a dog is property; that the stealing of one is larceny; and that words charging the stealing of a dog are actionable per se. See further as authorities, People v. Maloney, 1 Parker Cr. R., 593; State v. McDuffie, 34 N. H., 523.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is as to the existence of an implied repeal. The fourth section of the married woman’s act of 1859 is as follows: “Any woman may while married make a will, but she shall not bequeath away from her husband more than one-half of her property, both personal and real, without his consent in writing.” (Comp. Laws, 697, §4.) In 1865 an act was passed relating to wills. The first section of this act provides “ that any person of full age and sound memory, having an interest in lands, tenements and hereditaments, or any annuity or rent charged upon or issuing out of the same, or any goods, chattels, rights, credits, choses in action or possession, or any other property of any description whatever, may give and devise the same to amy person, by last will and testament lawfully executed, subject nevertheless to the rights of creditors, and the provisions of this act.” (Laws of 1865, p. 169, §1.)
In December 1865, Rebecca D. Hutchinson, a married •woman, made her will devising all her real estate to her two children, the defendants in error. In 1866 she died. Her husband never gave any consent in writing or otherwise to this will. Did the entire estate pass to the children, or one-half to the husband? The answer to this question depends on the answer which shall be given to.the question whether the law of 1865 above quoted repealed that of 1859. If we ignore the questions of sex and coverture, and regard these two sections as simply grants of power to devise, their inconsistency Avonld be too patent for doubt. The one grants poAver to devise one-half; the other to devise all. The last gives full power, Avhich was limited by the first. The grant of full poAver repeals the limitations which attached to the former grant. Suppose the first section read like this: “Any man between the ages of 21 and 30 may make a will, but shall not bequeath away from his father more than one-half of his property without that father’s consent in writing,-” and the second was as at present: who Avould question the repeal ? The only limitations on the full power given are, “the rights of creditors, and the provisions of this act.” The first of course could not affect this question, and the second does not, at least adversely. As against this counsel urge— “The law as to the rights of the husband in the wife’s estate, Avas first passed February 7th 1859, and has been the law of Kansas ever since, unless it was repealed, as claimed by defendants, in 1865, from which time it disappeared from the policy of the state on this subject until 1868 — three years— when it was once more adopted as the law of the land; § 35, ch. 117, Gen. Stat. A policy so vacillating, on a subject of so much importance, ought not to be ascribed to the legislation of the state, unless imperiously required.” But we may not refuse to language its ordinary meaning for the sake of uniformity in legislation. That would practically be either a judicial abridgment of the power of one legislature to enact its will into law, or a judicial denial of its ability to express such will. Uniformity in legislation is as a general rule, de sirable; but uniformity is not thus judicially attainable. Again, it is said that “the act of 1865 in terms repealed one law, to-wit, the law of 1859 entitled ‘an act relating to wills/ Expressio vmius, exdusio a&erius.” Therefore the legislature intended that all other laws touching on the same subject should stand. True; but if one section of this conflicts with one of a previous law, both cannot stand. The earlier must give way to the later law. The legislature of 1865 authorized Mrs. Hutchinson to make this will. Can the act of any previous legislature be appealed to, to destroy this authority ? Again, it is urged that at common law a married woman had no power to make a will devising real estate; that §4 of the married yoman’s act of 1859 gives this power in terms, and that therefore the authority to make this will is derived from this section rather than from the act of 1865. In other words, the claim is, that the general terms of the act of 1865 do not include married women, and a decision of the supreme court of Indiana is cited upon somewhat similar words favoring such construction. Under § 6 of article 15 of the state constitution, and the general scope of our legislation concerning married women, and the general recognition in our. statutes of their full control over their separate property, we should be compelled from the language of this section alone to construe it as including married women. But we need not rest with that. Sec. 77 of the same act reads “Every word in this act importing the masculine gender may extend and be applied to females as well as males; * * Provided, that no female, during her coverture, or life of the father of her child or children, shall, by virtue of this act, be authorized or empowered to appoint a testamentary guardian for any child she may have.” True, this proviso has special reference to §72; but surely, if. a proviso was; needed to limit the power of the wife and mother to appoint a testamentary guardian as against a section in which the term used is, “father,” some restriction would have been expressed if it had been intended to exclude married women from the reach of a section which said “any person.” And again counsel urge, that “The first section of the law of 1865 provides that the will made by testator shall be subject to the ‘provisions of this act/ and to that extent limits the devising power. But the ‘provisions of this act’' on this point clearly affirm that the grant shall not extend to any estate that the devisor may not ‘lawfully devise.’ Section 55 of this act says that the will shall be so ‘ construed.’' Plainly, this clause of the act recognizes a legal disability in a testator to devise an entire ‘ estate.’ ” The section reads-that “ every devise of lands, etc., shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, until it shall clearly appear that the devisor intended to convey a less estate.” -This creates no limitation. It provides simply a rule of construction. It is like the clause in §2 of the act concerning conveyances, (Gen. Stat. p. 185,)-which declares that “every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, etc. It recognizes a legal disability to devise an entire estate, as counsel says; but it does not revive a disability otherwise dead, nor operate to continue in force a statute .otherwise repealed. Its purpose, as all lawyers know, was to avoid the frequent controversies at the common law as to whether a devise passed only the life-estate or a fee-simple. Section 9 of the married woman’s act of 1859 reads, “In case any married man shall hereafter deprive his wife of over one-half of his property by will, it shall be optional with such married woman, after the death of her husband, to accept the conditions of such will, or one-half of his whole estate, both real and personal.” This prevents a husband from depriving his wife of more than one-half his estate against her wishes, as § 4 in like manner restrained the wife. True, one is in form a prohibition and the other an option, but the purpose sought to be accomplished is the same. Now in the act of 1865 by §§ 43, 44, 45 and 46, authority is given to the widow to elect whether to take under her husband’s will, or be endowed as though he died intestate. This evidently is in lieu of § 9 above quoted. It substitutes a new rule, but prevents the husband from depriving his wife of his entire estate. It is one of the “provisions of the act” by which the full testamentary power granted in the first section is limited. The matter of restriction was therefore in the thought of that legislature. It placed a restriction on the husband, but omitted to place any on the wife. And omitting this, it granted to every person full testamentary power, subject only to the rights of creditors, and the restrictions of its own enactment. We think therefore that there was an implied repeal, and that the judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The record in this case shows that Mary A. C. Killam was the owner of lots 21, 23 and 25, fronting upon New Hampshire street, on the west side thereof, in the city of Lawrence, the said lot 21, on the north side, also abutting upon "Winthrop street; and that on the 6th of March 1867 an ordinance was passed by the common council of said city providing for the building of sidewalks on various streets, including those adjacent to the above lots. It was provided by said ordinance that the walk on New Hampshire street should be four feet wide, and that on Winthrop street ten feet wide. Afterward, on the 21st of the same month, another ordinance “amendatory of and supplementary to” that of March 6th, was passed, which provided that all owners of lots adjacent to the proposed improvement, filing their notice of intention with the clerk of the city within ten days of the publication of the amendatory ordinance to construct his or her sidewalk, should have ninety days in which to do so. It also provided that the party authorized to let the contract for building said walks on the part of the city should advertise for proposals. In pursuance of these ordinances a contract was let, the sidewalks built, and the lots sold for nonpayment of the assessments thereof, the county of Douglas becoming the purchaser for a valuable consideration. Thereafter, without paying' or offering to pay any portion of these assessments, the defendant in error brought her action, seeking to have the sale declared void, and to restrain the execution of any deed therefor. She obtained a decree in the district court which plaintiffs in error now seek to reverse.
Several questions arise which will require consideration, and the first is, under what circumstances will equity, after a sale for nonpayment of taxes or assessments has been made, declare the sale void, and restrain the issue of a tax-deed. Several cases have been before this court in which efforts have been made to restrain tax-sales, and the rules to guide in such cases fully.stated and determined: Sleeper v. Justice, et al., 6 Kas., 300; Gulf Rld. Co. v. Morris, 7 Kas., 210; K. P. Rly. Co. v. Russell, 8 Kas., 558; Barker, Treas., v. Challiss, 9 Kas., 155; City of Ottawa v. Barney, 10 Kas., 270. In two of the cases cited, the two railroad cases, the tax was a tax upon personal property, and the injunctions sought were to restrain the levy and sale under a tax-warrant. The other cases were of special assessments for local improvements, as in the case at bar, and the applications were to restrain any sale. In these cases the general doctrine is laid down that courts of equity will not interfere to restrain by injunction the collection of taxes, when the property is subject to taxation, the tax legal, and the valuation not excessive, simply because of irregularities in the assessment. The rule applies to general and special taxes alike, and ah stated is taoad enough to cover every step in the collection of taxes. Now the issue of a tax-deed is but one step in the proceedings for the collection of taxes. Those proceedings are not complete when the sale is made; certainly not when, as here, the county is the purchaser: State ex rel. v. Comm’rs of Atchison, 1 Kas., 479. Equity bases its refusal to restrain a sale, not on the ground that the action is premature, and that the party’s title is in no danger until a deed is sought, but on the ground that it ought never to interfere; that in good conscience the party ought to pay, that the tax ought to be collected, and that it would be inequitable to relieve him therefrom. The reasoning applies with equal force to the tax-deed. Indeed, to refuse to restrain a sale, and thereafter to restrain a deed, would be gross trifling with the purchaser who by the one act is invited to buy that which by the other act he is not permitted to acquire. So that it may be safely laid down that the same rules will guide the court in applications to restrain tax-deeds as to restrain tax-sales. -
Where a definable portion of the tax is legal and the balance illegal, equity will.refuse to interfere unless that which is legal be first paid: City of Ottawa v. Barney, 10 Kas., 270; Smith v. Comm’rs of Leavenworth Co., 9 Kas., 296. The case of the City of Leavenworth v. Norton, 1 Kas., 432, may seem at first to conflict with the proposition, as there it was conceded by the court that a portion of the tax was legal and still the execution of tax-deeds was restrained. For all that appears in the opinion of the court, the legal- portion may already have been paid or tendered. At any rate, the attention of the. court was not drawn to the precise point here presented, and it is only incidentally stated that a portion of the tax was legal in order to show the illegality of the rest. The same rule applies to deeds and sales. In each case if the legal tax has not been paid or tendered before suit, the court may properly permit the same to be done within a reasonable time and -the terms of the decree to vary with the fact of payment.
We come now to the questions more immediately relating to the proceedings in this case. As has been already noticed, the sale was for nonpayment of a sidewalk-tax. No question is raised as to -the power of the city to construct sidewalks and assess the cost thereof upon the adjacent property; none as to the liability of the lots in question to this , . 7 ~ , , kind oi taxation, lne objections made are. that the proceedings do not conform to the require-mente of the city charter, and are therefore void. There are four of these objections which will require notice. Two of these appear in the following statement of facts presented by counsel in their brief. First: June 19th there had been built on the north side of defendant’s lot 21, on Winthrop street, a piece of walk 10 feet wide and 122J feet long, being 5|- feet longer than the lot itself, the said 5-|- feet projecting eastwardly into “ the square or area ” formed by the “ crossing” of Winthrop and New Ha mpshire streets, and the whole of said piece of walk estimated “per area” as equivalent to a piece of walk 306 J- feet long and 4 feet wide and charged up to said lot 21. Second: June 26th there had been built on the east side of all of said lots, 21, 23 and 25, on New Hampshire street, a strip of walk four feet wide and one hundred and fifty feet long, which was charged up against'said lots in equal proportions. Was the cost of the five and a half feet of sidewalk projecting east of lot 21, and into the square or area formed by the crossing of the streets, properly chargeable on one or mo re of the adjacent lots, or should it have been paid for by a general tax? Was the cost of the 117 feet of sidewalk on the north side of lot 21 chargeable wholly to that lot, or ought it to have been apportioned between that and other lots? The only authority or power to the city of Lawrence to provide for and make the "improvement in question, and to make, the assessment for payment of-the same, was conferred by the act of 1867 in relation to cities of the second class, which provides that, “For all improvements of the squares or areas formed by the crossing of streets, and for foot-walks across streets, the assessments shall be made on all the real estate within the corporate limits of the city;” and that, “for making and repairing sidewalks the assessments shall be made on all lots and pieces of ground abutting on the improvement according to the front foot thereof” As to the cost of the 5§ feet of sidewalls above described, we think that it is governed by the first of the clauses just quoted., It was an improvement of the area formed by the crossing of Winthrop and New Hampshire streets. The portion of sidewalk at such corner is as much a part of the “area” as the part more particularly designed for the use of horses and carriages. There can be no good reason why the curbing and guttering around each corner sidewalk should be paid for by the city at large and the sidewalk itself by the neighboring lots. At any rate, it is a matter which the legislature has exclusive right to determine, and it seems to us the comprehensive term “all improvexnents” must be held to include sidewalks, and that the legislature intended that only those improvements which are squarely in front of a lot should be chargeable upon that lot. By this constructioxx we avoid the question as to whether this corner sidewalk can be said to “abut” on axxy lot, inasmuch as it only corners on the coi’ner lot, and we ascxibe to the legislatxxre the ixxtentioxx of establishing a more uniform rule of apportioning the burden of street improvements than if the lots paid for the sidewalk axxd the city for curbing, guttering axxd macadamizing. Upon the second question we think the comer lot was properly chargeable with the entire cost of the 117 feet of sidewalk. It is the only p^ abutting ou such improvement, and whether the front be ten or fifty feet is immaterial. We know that in a narrow axxd restricted sense the term “abutting” is used in reference to that which touches a lot at the end and “adjoining” to that which is on the side; (1 Bouvier’s Law Diet., Abuttals;) but we do not think the term is used in this statute in such restricted sense, but rather ixxcludes everything which touches the lot, whether in front or on the sides.
A third question is thus presented: On April 1st T. H. Lescher was elected councilman; on April 4th the canvass was made and the result declared; on April 24th the contract for building the sidewalks was made with Lescher & Melville, Lescher being the councilman elect. On May 6th he took his seat as a member of the council. The work was completed and accepted while he was councilman. It is claimed under § 4 of the act of .February 26th, 1867, (Gen. Stat., 389,) that by reason of these facts “the contract was void, his claim for compensation illegal, and that it could not be charged against the defendant’s property.” At the time the contract was executed Lescher was not a councilman; the contract therefore was then valid. This contract imposes obligations on each party to it. A failure by either to perform, gives to the other a cause of action. How can either without the consent of the other, of his own choice, or by his own act, avoid the agreement? The city had a right to insist upon the performance by Lescher & Melville of their contract, and they could not avoid fulfillment by pleading that one of the firm had subsequently thereto accepted the office of councilman. They had given bond to secure their performance. The section is a penal one. It prohibits an official from making or being interested in any contract, or doing any public work over which he would have, by virtue of his office, supervision and control. Being penal' in its nature its restrictions may not be enlarged by judicial construction. Especially is this-true when the effect of such construction would work no injury to the supposed wrongdoer, but would operate only to give to one party without pay the benefit of improvements which in equity he ought to pay for, and to make another and entirely innocent party pay the entire cost. We conclude therefore that there is nothing in these facts to relieve the defendant in error from liability.
One question more remains, and that is this: The contract following the ordinances provided that payment might be made in cash at a given price within thirty days, or. in city scrip due January 1st following, at a price twentyfive per cent, higher. The city had the option ° J x to pay all or so much thereof as it might choose-in cash. Lot-owners were given the same rights as the city. It is claimed that, this conflicts with § 3 of art. 3 of the city charter, Laws 1867, page 122, which reads:
“ Sec. 3. The mayor and council of any city governed by this act shall have no power to appropriate or issue any scrip, or draw any order on the treasurer for any money, unless the same has been appropriated or ordered 'by ordinance in pursuance of some object provided for in this act; g/nd the mayor and council shall have no power to sell or dispose of serip} orders or bonds at less than their par value.”
We have been in a good deal of doubt upon this point, but our final conclusion is, that the section does not apply. The, charter provides that sidewalks should be paid for by assessments upon the lots. The city and the contractor cpntracted with reference to this ultimate liability. These assessments were collected at the time of the regular collection of taxes in the winter following. No payment could be enforced prior to that time. Any prior payment could be hoped for only by holding out some sufficient inducement therefor. The city was under no obligation to assume the primary liability and make immediate payment in cash, and then wait till the tax collections to reimburse itself. It could rightfully contract Avith reference to payment at such time as in the ordinary process of tax collections it could hope to realize funds therefor. Making a contract for payment at such time upon the best terms possible, it invaded no right of the lot-owner. If in addition it stipulated, with the assent of the contractor, that prompt payment at a much less sum should discharge the lot from further liability, it Avould seem as though it Avas entitled to the gratitude of the lot-owner instead of provoking a laAV-suit at his hands.
The judgment of the district court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an ordinary action on two promissory notes. The defendant (now plaintiff in error) set up as a defense in substance as follows: “The notes are secured by a certain mortgage on a certain mill in the State of Illinois; these notes with said mortgage, together with certain other notes not yet due, were given by the defendant to the plaintiff on January 20th 1868, in the state of Illinois, for the purchase-money of said mill; that about October 1869 defendant, with the knowledge and approbation and consent of plaintiff, sold the remaining estate in him in said mill to one Louis Wood, of Dixon, Illinois; that in said sale to said Wood by the consent of plaintiff it was there and then expressly stipulated and agreed between defendant and said Wood that the latter took said mill subject to the mortgage of plaintiff, and charged with said debt, said debt so assumed by said Wood being made a part of the consideration of said sale; that said property still exists, unchanged, and undiminished in value, and is of ample and of abundant value to pay off and discharge said debt.” The plaintiff demurred to this defense. The court sustained the demurrer, and the defendant excepted. . The defendant also made two motions to stay execution, which motions were overruled by the court, and the defendant excepted.
The only question raised by said demurrer and by said motions, and indeed the only question involved in this case is, whether the plaintiff may sue on said notes alone, and in Kansas, or whether he must go back to Illinois, and there institute a proceeding on the notes and mortgage together and for the purpose of making the mortgaged property pay the debt. We suppose there can be no doubt about the plaintiff’s right to sue on the notes alone, and in Kansas. The debt is the primary obligation between the parties. The notes are the primary evidence of that debt, and the mortgage is only ^ security for the payment of the notes. The action on the notes is transitory; the action to foreclose the mortgage is. local; and while the plaintiff can foreclose his mortgage in the county and state only where the property is situated, yet he may sue on the notes wherever he may find the defendant. And he always has his election whether he will sue on the notes alone, or sue on the notes and mortgage together. This is not only the law in Kansas, but it is also the law in Illinois, and elsewhere. (Vansant v. Allmon, 23 Ill., 30, 33; ánd cases cited in brief of defendant in error.) In this state there is nothing like a strict foreclosure of a mortgage. The plaintiff must always sue for the debt whether he asks to have the mortgaged property applied in payment thereof or not; (Code, §399; ch. 87, Laws of 1870, page 175, §13;) and his judgment is always a personal judgment for the debt whether he obtains an order to have the property sold to satisfy the debt or not.
Before closing we would say that there is no allegation in the defendant’s answer that the plaintiff ever agreed to relinquish any right that he at any time had by virtue of said notes and mortgage. He merely knew and consented that the defendant should sell the mill to Wood; but the agreement that Wood should pay the mortgage was between Wood and the defendant alone. The plaintiff never released the defendant. And we see nothing especially equitable in requiring the plaintiff to go back to Illinois to commence his action.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
There are but two questions in this case. The plaintiff is the owner of certain lots on Santa Pe street in the city of Atchison. The authorities after proper proceedings let a contract to sidewalk that street. The sidewalk was built. The assessments therefor upon plaintiff's lots were not paid, and the authorities proceeded to sell. To restrain such sale this action was brought. And first, the plaintiff insists that the supposed sidewalk is no sidewalk, but a bridge. The proposals were for a sidewalk; the contract was for a sidewalk; the work was accepted as a sidewalk, and the attempted sale is for nonpayment of a sidewalk-tax. The structure is spoken of all through the findings as- a sidewalk. It is described in the petition as a board walk, four feet wide, resting on stringers set on blocks and posts. The only reason for not considering it a sidewalk is, that in two places for short distances it does not rest on the ground, but is elevated on trestle-work, and has a hand-rail on either side. On one of these places it crosses a branch of White Clay creek, a running stream. ■ A sidewalk is defined by Webster as a “raised way for foot-passengers at the side of a street or road; a foot pavement.” The structure described in the petition and findings answers this definition exactly. It is a raised way for foot-passengers. The mere fact that for a short distance it is elevated on posts, instead of resting on the ground, is wholly immaterial. Nearly all of Chicago has been and much of it is still sidewalked in that way. Yet it would amuse the citizens of that city to be told that these walks thus elevated on posts were not sidewalks. You can hardly travel over any city in the land, without finding here and there for short distances the sidewalks raised on posts, instead of resting directly on the ground. Nor is it any the less a sidewalk because under it in one place is a stream of running water. It appears from the findings to have been built on the side of a regularly laid-out street, and all the way in front of regularly laid-out lots. If the flow of water is not sufficient to hinder the platting and sale of city lots, it will hardly be sufficient to change a sidewalk into a bridge. It not unfrequently happens that the owners of ground, proposing to lay it off into streets and blocks, wholly ignore small streams of water, expecting that the sewerage of the future will change the channels; and for all the record shows this seems to be just such a case. Can it be that under these circumstances no sidewalk can be built? Of course, it is possible to conceive of large streams of water over which the city authorities might attempt to build foot-bridges under the name of sidewalks. In such case we should hardly expect to find the bed of the stream laid off into lots, and the owners vigorously striving to prevent tax-titles from accumulating on' them. At any rate, the record presents no such case. We have treated these objections as they have been presented in. the brief of counsel. Yet after all,- it seems to us that the gist of the objection really lies in this, that the street was .sidewalked before it was graded, and that in this indirect way the learned counsel has ingeniously sought a re-examination <of the question decided in a similar case between the same parties about a year ago. (9 Kas., 155.) We have re-examined that question, and see no reason to change the conclusion we then reached. The streets are placed under the care- of the municipal authorities. (A. & N. Rld. Co. v. Garside, 10 Kas., 552.) To them is given the power to grade, to sidewalk, to sewer, to cm’b and gutter, to macadamize, and otherwise improve these public highways. The order in which such improvements shall be made is nowhere prescribed. There is in the nature of things no fixed order in which such work must be done. There is no reason why streets should be made passable for teams before they are for footmen. They •ate designed for the use and convenience of foot travelers, -equally with those who drive in carriages. The power to do these several works carries with it, in the absence of any restrictions, the discretion to detérmine the order and the manner of doing them. Whether that discretion was wisely -exercised in this case, we are unable from the facts in the record to determine; and even if we were able, it would not .affect the question of power.
The second question is thus stated by counsel: “ It must be conceded that defendant has no authority to sell for a tax never on his tax-roll. Has he any more in case of a tax which no law authorizes to bé placéd on his tax-roll? ' He could not sell real estate for a personal tax, because not authorized, yet he may receive the tax. All assessment for taxation is ad valorem; and no front-foot description has ever existed on the assessment or tax-roll of defendant’s county. Sec. 69, ch. 107, Gen. Stat., 1043, contains the only authority for any city tax to go upon the tax-roll of the county, and it extends only to the percentage levied on the real and personal property in such city as returned on the assessment-roll of the county. By what authority or law does any other than a percentage tax predicated on the assessment-roll get upon the tax-roll?” The 2d subdiv. of § 30 of the charter, Gen. Stat., 160, after providing for the asssessment for sidewalk and other street improvements, some of which were to be by the front foot, and some ad valorem, closes with this sentence: “The assessments made under this act shall be known as special assessments for improvements, shall be levied and collected as one tax in addition to the taxes for general revenue purposes, and shall be certified, to the county clerk of the proper county to be placed on the tax-roll for collection, subject to the same penalties and collected' in like manner as other taxes under existing law.” We think this clause gives ample authority for placing this tax upon the tax-roll of the county treasurer. True, in this case the tax is placed in a column on the treasurer’s books headed “sidewalk tax,” instead of “special improvement tax,” or “special assessments for improvements;” but this, if a defect, is not one that calls for the interposition of the strong arm of equity. True, also, this section has been amended, and this particular sentence omitted: Laws 1871, pp. 148, 149, §§16, 17; p. 166, §81; Laws of 1872, pp. 200, 201, §§ 32, 33. But these taxes were on the tax-roll before the passage of these acts, and under the decision in Gilleland v. Schuyler, 9 Kas., 569, the right accrued, and the proceedings commenced were not interfered with. More than that, it may well be contended that § 26 on page 152, laws of 1871, and §43, page 205, laws of 1872, should be construed as a continuation of the authority given in the omitted sentence, for they provide that “ all taxes and assessments shall be certified,” etc. The judgment of the district court will be affirmed.
All the Justices concurring.
[ * Query : Did not eh. 122, laws of 1870, (p. 248,) “an act in relation to sidewalks and sidewalk taxes in cities of the second class,” furnish specific authority to the county clerk to place the u sidewalk taxes ” in question on the tax-roll ?—Reporter.] | [
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The opinion of the court was delivered by
Brewer, J.:
The petition in error in this case must be dismissed because there is attached to it no properly authenticated record of any proceedings, order, or judgment. No transcript of any kind was filed with the petition in error, but in July 1870, for reasons not now necessary to consider, an order was made in this court giving to the plaintiff in error the right to file a transcript of the proceedings sought to be reversed at any time before the first day of the succeeding term. In accordance with this leave, and within the. time prescribed, a record was filed purporting on its face to be a copy of the pleadings and proceedings in a case between these parties in the district court of Douglas county, and of a bill of exceptions and case made filed in such case. To this record a properly prepared certificate is attached, but such certificate is not signed by the clerk of the district court. It is not therefore authenticated in such manner as to render it available in this court. It may be a mere oversight which can be corrected without delay or trouble, yet in view of what has been brought to our knowledge by the proceedings in this case, as well as by the record in a subsequent case between the same parties, it seems more than probable that the clerk’s signature is intentionally withheld. But at any rate, whichever may be the fact, as the record now stands there is nothing for us to act on, and the petition in error must be dismissed. Civil code, §§ 546, 550, 303; ch. 86, Laws of 1870, § 2, p. 169.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
John F. Carter brought his action against a school district on an account for rent due and owing from the district to one William Collins. Carter alleges in his petition that Collins assigned said account to him by means of a certain written instrument, a copy of which written instrument he sets out in full as an exhibit'-to his petition. The school district answers by a general denial, without verification. On the trial the plaintiff Carter offered said written assignment in evidence, to which the defendant (the school district) objected for the reason that it was incompetent, without proof of its execution, which objection was overruled by the court, and the defendant duly excepted. The first and main question to be considered by the court is, whether the assignment by Collins of his claim for the rent in question is such a “written instrument” as is mentioned in §108 of the civil code, and therefore whether the allegation of the execution of said assignment “shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney:” We know of no reason- why said section does not include this written instrument as well as others. Its terms are broad enough, and we suppose it means just what it says. A section intended to prevent parties from pleading a falsehood should not be so construed as to. invite such pleading. If the allegation of the execution of the instrument in any given case is true, the other should not deny it. If it is not true, then the other party should so affirm under oath. But if it is believed to be untrue only, then the other party may verify his pleading on belief merely. (Code, §111.) Other errors were assigned in the petition in error, but as they have not since been referred to in the bi’ief of counsel or otherwise we suppose they have been abandoned, and we shall therefore take no notice of them. (Wilson v. Fuller, 9 Kas., 176.) The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an action to reverse a judgment of the district court of Cowley county. Plaintiff in error was defendant below, and appears from the record to have objected to every proceeding in the district court. Finding it recorded in the earliest law book that “in the multitude of counselers there is safety,” he seems to have thought that in a multitude of exceptions there is hope. His main objection seems to have been to the fact of a trial, as between the time the case was called for trial and the rendition of the verdict he made eight applications for postponement, or continuance. We shall not attempt to discuss all the points made in the brief, but will notice the more important. And the first question to be noticed is an objection to the judge who tried the case. The regular district judge had left before all the cases on the docket had been reached for trial, and a judge pro tem. had been duly elected. By him all the cases but this had been disposed of. He was one of the counsel in this. Thereupon the parties not being able to agree, the members of the bar present elected another attorney judge pro tem. for this case. To this plaintiff in error objected. This objection was not well taken. He made no application for a change of venue, so as to bring himself within the rule laid down in K. P. Rly. Co. v. Reynolds, 8 Kas., 623. Defendant in error was entitled to a trial at that term. If the regular judge was absent a judge pro tem. was proper, and the method procured to obtain one was the method prescribed by the statute.
II. The case was originally brought before a justice of the peace, and taken on appeal to the district court. And plaintiff in error insists that he had a right to have the case tried upon the original papers. This may all be true; but the original papers were lost, and the parties were unable to agree as to their contents, so the court properly directed each party to prepare and file new pleadings.
III. After the new petition had been prepared and filed, and during the progress of the trial; the plaintiff by leave of the court twice amended his petition. After the filing of the petition, and after each amendment, defendant insisted upon time to answer, but was required to plead forthwith. Several applications were made for a continuance, one being made made upon affidavit. These, and kindred matters, are committed largely to the discretion of the trial court. It must appear that that discretion has been abused before a reversal can be ordered. Little or none of the testimony given on the trial is preserved in the record; and though it is unusual to permit a pleading to be twice amended during a trial without imposing any terms, of costs, or continuance, still, considering the nature of the case, the nature of the amendments, and the amount in controversy, we do not feel warranted in holding that there was any such abuse of discretion as would justify us in reversing the judgment.
IV. It is claimed that there was error in overruling the demurrer to the petition. We think not. The petition alleged in substance that the cattle of defendant trespassed upon the lands and crops of plaintiff in the county, and destroyed growing corn belonging to plaintiff, whereby he sustained damage in the sum of twenty dollars. We think this petition good as against any objection that could be raised on dumurrer. Larkin v. Taylor, 5 Kas., 434.
V. After the jury had been sworn, and the case partially tried, defendant moved for a change of venue, and filed an affidavit charging bias and prejudice on the part of the judge. This application was too late. A party cannot, after a case has been partially tried before a jury, prevent a verdict by swearing that the judge is prejudiced against him.
VI. So far as any questions are made upon the admission and rejection of testimony, it is enough to say that it is impossible to determine its relevancy or materiality without the other testimony in the case. The testimony rejected, though competent, may have been, in the light of the facts and circumstances already in evidence, wholly irrelevant, and therefore properly rejected. Certain testimony was also admitted over the objection of the defendant. ' No ground of objection was stated, and ordinarily it will not be deemed error to disregard any such general objection. Walker v. Armstrong, 2 Kas., 199; Wilson v. Fuller, 9 Kas., 176; K. P. Rly. Co. v. Pointer, 9 Kas., 620.
VII. The court it is claimed erred in submitting a question of law to the jury for decision. Of course if he did this, it was error. But if the jury decided that question correctly, how did the defendant suffer prejudice, and wherein were his substantial rights injured? The State v. Lewis, 10 Kas., 157. We cannot say that they did or did not apply the law to the facts correctly, until we know what the facts were, and of them we are in ignorance.
VIII. The court gave some instructions to the jury which were not in writing, and to this defendant excepted, or at least claims to have excepted. It is very doubtful whether the language of the record shows that any exception was taken to the manner of giving the instructions. It seems rather to indicate an exception to the instructions themselves. After reciting that the court refused an instruction, to which the defendant excepted, the record proceeds as follows: “ The court proceeded further to instruct the jury, which said instructions were not in writing, but oral, to all of which the defendant then and there excepted.” But it is unnecessary to decide this question, for conceding that the exception goes to the fact that the instructions were not in writing, still we think it cannot be sustained. The code provides that the court shall give instructions to the jury, “which shall be in writing, and be numbered and signed by the judge, if required by either partyNow it does not appear that defendant made any request prior to the commencement of the charge, to have it reduced to writing, nor indeed at any time; ‘but after the oral instructions had been given, took his exceptions. If a party desires written instructions he must make his request before the instructions are given.' The court may charge orally unless written instructions are demanded. A party cannot, after an act which may at the time it is done be properly so done, by simply excepting to the act turn it into an error. An exception merely enables a party to avail himself of a previous error. It does not make the error.
IX. The only remaining point we deem it necessary to notice, is the claim that the herd law of 1872, (Laws 1872, p. 384,) is unconstitutional, but if not, that the proceedings under it had by the commissioners of Cowley county, were void for want of conformity to its provisions. We do not think that this question is fairly before us on this record. Under the petition the plaintiff might, and, for all there is before us, did, prove a willful or wanton trespass, in which case the question of fence, or fence law would cut no figure. Such a trespass is “not intended to be protected by.our fence laws.” Larkin v. Taylor, 5 Kas., 446. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
A single question disposes of all these cases. They were all separately referred to three referees to hear the proofs and allegations, and report thereon. The referees made their report in each' case, finding generally in favor of the plaintiff, now defendant in error. Upon motion of of the defendant (now plaintiff in error,) the district court set aside and vacated this report. At a subsequent term the plaintiff filed the motion to vacate and modify the order, setting aside and vacating the report of the referees, and for leave to' the referees to file an amended report. This motion was overruled. Thereafter, and without any further order or direction of the court, the referees made a further and amended report, also in favor of the plaintiff, stating their findings of facts and conclusions of law separately. Upon this report judgment was entered in favor of the plaintiff, over the objection of the defendant. Is such a judgment valid? We think not. “A referee is born of an order; without it he is not.” And when he has performed the duty imposed by that order he is fimetus officio, and his acts are no more than the acts of a private individual. Up to the time his report is made and filed he can modify and change it, he can alter and amend it. But when once it has been filed, and become a record of the court, his power over it is at an end, and his relation to the case has ceased.' If his report is set aside and vacated the case stands in the court as before the order of reference was made, and may be tried by the court, or a jury, or referred to the same or new referees. How far the court may, after the report is filed, and before any order is made setting it aside, send it back for consideration and amendment, is not involved in this case, and we express no opinion thereon. Even in such cases the referee would have no power without the permission or direction of the court. In this case the report was set aside and vacated. The attempted trial was at an end. A jury might as well come back after a verdict had been set aside, and return an amended verdict, as a referee, after his report has been set aside, make a further and amended report. . It follows therefore that the judgment upon the second report was irregular and must be set aside. Edwards on Referees, 80, 141; Voorhis v. Voorhis, 50 Barb., 119; Leffler v. Field, 33 How. Pr., 385; Trufant v. Merrill, 37 How. Pr., 531; Nelson v. Ingersoll, 27 How. Pr., 1; Niles v. Price, 23 How. Pr., 473; Pratt v. Stiles, 17 How. Pr., 211; Shearman v. Justice, 22 How. Pr., 241.
The judgment of the district court will be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error obtained a decree of divorce in the district court of Jefferson county. To reverse this decree plaintiff in error has instituted this proceeding. Two questions only are involved. Was the petition properly verified? If not, did plaintiff in error pursue the proper course to take advantage of this defect? The first question must be answered in the negative. The affidavit verifying the petition was made before the attorney of the plaintiff. This was unauthorized. Civil code, §§641, 113, 348, 349, 350, 345; Gilmore v. Hempstead, 4 How. Pr. Rep., 153; Taylor v. Hatch, 12 Johns., 340; Nash’s Pleading’s, 99; Voorhies N. Y. Code, 311.
The second question must be answered in the affirmative. The defendant made a motion to strike out the petitiop for want of a proper verification, which motion was overruled. He then objected to any testimony under the petition, which was also overruled. This practice was correct. The defect was not one that could be reached by demurrer. It could only be reached by motion. Gilmore v. Hempstead, supra; Webb v. Clark, 2 Sandf., 647. For these reasons we shall be compelled to reverse the decree of the district court and. remand the case with instructions to sustain the motion to strike out.
We feel constrained to call the attention of the legislature to a glaring deficiency in our statutes. The defeated party in a divorce suit can take the case to the supreme court, and if error be shown, can obtain a reversal as in any other action. He has three years in which to institute such proceedings in error. On the other hand the successful party (or indeed for that matter either party) is at liberty to marry the day after the decree of divorce is entered in the district court. Suppose the successful party should marry after the decree in the district court, and before proceedings in error were instituted, and that thereafter this court should b.e compelled to .reverse the decree of the district court for manifest error: in what condition would this second marriage be, and what would be the status of the issue, if any,' of such marriage? It seems to us either that the decree of the district court should be final, and not the subject of review,'or else that a certain time be limited for the commencement of proceedings in error; and that until after that time, and the determination of the case in the supreme court, neither party should be allowed to remarry. This case brings the possibilities of such a dilemma before us, and we respectfully refer the matter to the consideration of the legislature.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The defendant in error brought his action on the bond of the county treasurer of Labette county. The sureties demurred. The demurrer was overruled, and they now allege error. The petition alleged ownership of certain county warrants bearing date prior to August 1st 1870; that the county commissioners submitted to the voters the question of issuing bonds to pay off the warrants and orders due Aug. 1st 1870; that the vote was in favor of the issue; that the bonds were issued, negotiated, and the proceeds placed in the hands of the county treasurer; that the amount was sufficient to pay off this entire indebtedness; that after the money was so-placed in the treasurer’s hands these warrants of plaintiff’s were presented for payment and payment refused. The sureties, plaintiffs in error, claim that the commissioners had no power thus to fund the county indebtedness; that the bonds were void; that hence, “ the ownership of the money paid thereon was not changed, and if paid into Bridgman’s (the treasurer’s) hands he was a mere private bailee, and of course his sureties were not liable for his acts as such.” This claim is not tenable. The commissioners are, it is true, agents with limited powers, but they have express statutory authority to borrow money “to meet the current expenses of the county in case of a deficit in the county revenue.” Gen. Stat., ch. 25, §16, clause 4. True, they cannot borrow without first submitting the question to a vote of the people of the county: Gen. Stat., ch. 25, § 17. But that was done in this case, so that they were authorized to borrow money to make good the deficit in the county revenue. And power to borrow money carries with it the power to issue the ordinary evidences and security of a loan, and among them are county bonds. Commonwealth, ex rel., v. The Council of Pittsbwrg, 41 Penn. St., 278. Counsel claims that there cannot legally be any such thing as outstanding indebtedness to be funded, because by § 1 on page 295 of the General Statutes the commissioners are' restrained from issuing warrants in excess of the levy, less the amount for delinquency. This is all true; but as the warrants issue before the taxes are payable, suppose no one pays any taxes: then the warrants which were legally issued will be outstanding, and the treasury empty. For all the record shows that was partially at least the case here. We think therefore that so far as appears from the record the bonds were valid, and the money received from their sale, county funds, and properly in the hands of the treasurer, and' .secured by his official bond. Again, it is urged that if county funds they could be used to pay off any county indebtedness, and it is not averred that they were not so used. This is not true. County funds raised for a specific purpose can be appropriated by the treasurer only for that purpose. The money' was borrowed to pay off certain indebtedness. The treasurer could not divert the funds from that purpose without rendering himself and sureties liable to the holders of that indebtedness. Again, it is said that the warrants are not tendered for cancellation. It is unnecessary to make a formal tender of them in the petition, any more than it would be of a note upon which the plaintiff sued. We would suggest however that it is proper and desirable for all courts to require the .surrender to the clerk of the court, and the cancellation by him of all municipal paper before the entry of judgment 'thereon. This will prevent any imposition on innocent pur chasers. We see no error in the ruling of the district court, and its judgment will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
The petition below shows that the plaintiff James Wood resides upon and occupies a certain quarter-section of land included in the tract ceded by the Osage Indians to the United States by virtue of the treaty of September 29th 1865. (14 Stat. at Large, 687.) Said petition also shows that said plaintiff “settled” upon said land on the 22d of July 1871; that afterward he attempted -j-Q pre-empt the land; that the government land officers refused to permit him to do so; that the defendant, the Missouri, Kansas and Texas Railway Company, claims to have some estate or interest in said land; but that the title to the same still remains in the government of the United States; and the plaintiff asks to have his said possession and occupancy quieted as against said defendant. When the action came on for trial in the court below the plaintiff offered to introduce in evidence an agreed statement of the facts of the case. The defendant objected thereto on the ground that the petition did not state facts sufficient to constitute a cause of action, and also objected on the ground that the court did not have any jurisdiction of the subject-matter of the action. The court below sustained the objection on the first ground, and the plaintiff excepted. Said agreed statement of facts contained substantially the same facts as were alleged in the said petition. Di<l the petition or the agreed statement of facts state -a cause of action ? Neither did, as we think. It all depends however, in our judgment, upon the validity of that clause of said treaty which provides that “no preemption claim or settlement shall be recognized,” ag attaching to or affecting said Osage Ceded Lands. The first article of said treaty reads as follows:
“Article 1. The trihe of the Great and Little Osage Indians, having now more lands than are necessary for their occupation, and all payments from the government to them under former treaties having ceased, leaving them greatly impoverished, and being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the.United States the lands contained within the following boundaries, that is to say: beginning at the southeast corner of their present reservation, and running thence north with the eastern boundary thereof fifty miles, to the northeast corner; thence west with the northern line, thirty miles; thence south, fifty miles, to the southern boundary of said reservation; and thence east with said southern -boundary, to the place of beginning : Provided, That the western boundary of said land herein ceded shall not extend farther westward than upon a line commencing at a point on the southern boundary of said Osage country one mile east of the place where the Verdigris river crosses the southern boundary of the state of Kansas. And in consideration of the grant and sale to them of the above described lands, the United States agree to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians, in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribes semi-annually, in money, clothing, provisions, or such articles of utility as the Secretary of the Interior may from time to time' direct. Said lands shall be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, [including any act granting lands to the state of Kansas in aid of the construction of a railroad through said lands;] but no pre-emption claim or homestead settlement shall be recognized; and after reimbursing the United States, the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the ‘ civilization fund,’ to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States.” (14 U. S. Stat. at Large, 687, 692, article 1, and amendments.)
Whether the president and senate of the United States have the power by treaty to dispose of Indian lands we shall no* discuss, as we do not consider the question as still an open one. (Parker v. Winsor, 5 Kas., 367, 368; Joy Holden, 14 Wallace, 211, and cases there cited.) That they have such power, and the power to prescribe the manner in which the terms and conditions upon which Indian lands may be sold or conveyed, seems to have been settled by all the departments’of the federal government. (See the numerous treaties where such power has been exercised; the numerous acts of congress where such power has been recognized by appropriations, and other legislation carrying into effect the provisions of such treaties and recognizing their validity; and the cases above cited, particularly United States v. Brooks, 10 Howard, 442, 460.) If this were still an open question we should probably be inclined to question the power of the president and senate in such cases. But that question is foreclosed. And we proceed to the consideration of this case as though the president and. senate, by treaty with the Indians, have full, ample and undoubted power to dispose of all the Indian lands, and to do so in the manner and upon such terms and conditions as they may in their judgment tbink best and Pr0Per- will generally be con-ceded that the Indians have power by treaty to sell to the United States (in contradistinction to individuals,) all their lands absolutely, unconditionally, and every right and interest therein. Now, if the Indians possess-this power, what is there to prevent them from disposing of less than the whole of their interest in their lands, or from attaching conditions to tne sale of it? It would seem to follow as a necessary consequence that if they could sell all they possessed, they could sell less than all; if they could sell the whole of their interest, they could sell a portion of the same;. if they could sell absolutely, they could sell conditionally. And if such does folluw, then the sale to the United States, with the conditions attached, that their lands must be sold to individuals “on the most advantageous terms for cash,” and that “no pre-emption claim or home7 ± j. stead settlement shall be recognized,” is valid in every respect. There were doubtless sufficient reasons for inserting these conditions in the treaty; but whether there were or not we suppose we are hardly at liberty to question. The reasons for these conditions would seem to be that the Indians desired to make the “civilization fund” “for the education and civilization” of themselves and other members of their race as large as possible. They unquestionably had a right to create such a fund, and the object was undoubtedly a noble one. But if they had allowed this land to be opened for pre-emption claims and homestead settlements, (as the plaintiff claims they did,) probably not a dollar would ever have been raised from these lands for said fund. It is even probable that there would not have been enough money realized from the sales of said lands to reimburse the United States. But with these conditions the fund will probably be large. Taking this view of the case, the plaintiff cannot pre-empt said land, for such pre-emption is prohibited by the treaty. His possession and occupancy is therefore merely a trespass upon government land. Of course, it will not be claimed that the plaintiff has any right to said land under the joint resolution of congress of April 10, 1869, (16 Stat. at Large, 55,) for the right to settle upon the Osage Ceded Lands, of which this was a part, expired April 10th, 1871, and the plaintiff did not go upon this land until July 22d, 1871. Neither will it be claimed that the plaintiff has any right to said land under §12 of the act of congress of July 15th, 1870, (16 U. S. Stat. at Large, 362,) for that section can apply only to the Osage Diminished Reservation and the Osage Trust Lands, and cannot by any possible construction be made to apply to the Osage Ceded Lands. And there is no other act of congress or treaty, that has taken effect since the treaty of September 29th 1865 was made, which would give the plaintiff any right to said land. He is therefore, as we have before said, merely a trespasser upon government land. Can such a person maintain an action to quiet his possession against some person who has no interest in the land, but claims that he has? We think not. It is claimed however by the plaintiff that he can, and the cases of Eaton v. Giles, 5 Kas.; 24, and Brenner v. Bigelow, 8 Kas., 496, are cited as authority therefor. But neither of these cases is in point. In both cases the property in question had passed from the United States to an individual, and in both cases the court had a right to award title and possession to some individual, for it is certain that some individual owned the property, and had the right of possession thereto; and in neither case was the plaintiff a trespasser on any lands. Not so in the'present case. In the present case the court has no power to give any right to the property or the possession thereof to any individual upon the face of the earth. The question involved in this case was not decided in either of those cases, and it could not have been so decided, (whatever may have been said in the opinion,) for it was not involved in either of said cases. ; In the case of Eaton v. Giles the action was decided against the plaintiff, (not for him,) on the ground that he had no sufficient possession of the property or interest therein to maintain the action. In the case of Brenner v. Bigelow the plaintiff not only held the actual possession of the property, but also held the legal title thereto, and claimed to hold the equitable title and the right of possession as against all the world. ' He was no mere trespasser, nor any trespasser, 'as the plaintiff in the present case is. In the case of Baton v. Giles the court say in the opinion that “ It is not every person who may bring a party into court for the purpose of determining the validity of his title. The plaintiff must show some right in himself, and some injury to that right by another, before he can subject him to the costs and vexations of a law suit.” (5 Kas., 27.) And this is good law, and applicable to this case. It has never yet been decided by this court that a mere trespasser without color of right or title can maintain an action to quiet title or possession. Possibly however such a person may in some cases maintain such an action. A mere trespasser without color of right or title, who has been in the actual possession of real estate for fifteen years, claiming title thereto, becomes the owner of the property by virtue of the statute of limitations, if the property has been owned during all that time by some individual or individuals, and not by the United States. (Gen. Stat., 633, code, §16, subdiv. 4.) Mere pos session therefore of lands to which the government has parted with its title, for any period, however short, with a claim of ownership, may be said to be an incipient or inchoate title, for such a possession will in time ripen into a complete, perfect and absolute title. And it may be that a person with such a possession may maintain an action to quiet his possession, or for injuries thereto against any person who has not a paramount right, and who may claim adversely to him, or who may disturb his possession. But this can never be so where the government owns the real estate in controversy. The statute of limitation never runs against the government. (Lindsey v. Miller, 6 Peters, 666; Gibson v. Chouteau, 13 Wall., 92, 99.) Therefore no trespasser can ever obtain any rights upon government land. And no decision of any state court under the laws of the state can ever possibly give him any such rights. He may occupy the land a hundred years, and have a hundred decisions in his favor, and still the right of the government will be as absolute as ever. He may quiet his title and possession against every person in the known world, and still he has obtained nothing. The government may still sell to any one of these persons as freely as to him, and any one of them has the same right to purchase from the government that he has. And no length of time in which he may be in possession of the land will shorten the time in which the government has the right to assert its title or claims thereto, or in which it may sell to others, or in which these others may purchase from the government. A decision therefore quieting title to government land, being absolutely nugatory, it can hardly be supposed that our law-makers ever intended that such a decision should ever be made. But even if they should so intend, and pass a statute accordingly, the statute would be void. It is not necessary to examine to see whether the defendants own the land in controversy or not. If they own it, of course they should recover. If they should have even a mere license from the government to go upon the land, their right thereto would be paramount to that of the plaintiff's rights, and they should recover. But. if the gov- eminent owns tbe land, as the plaintiff’s petition shows that it does, then the plaintiff has no sufficient interest in the subject-matter of the controversy to maintain this action. If the defendant is setting up an illegal claim to government land, it is for the government to object. The government ought to be able through its proper officers to protect its own rights and interests.
In the investigation of the question whether the Osage Ceded Lands are subject to pre-emption claims, we have not only had the benefit of the able arguments of counsel in this particular case, but we have also had the pleasure of examining the able arguments of Hon. S. O. Thacher, Hon. B. E. Curtis, and Hon. Wm. Lawrence, the opinion of the assistant attorney-general of the United States, Hon. W. H. Smith, and the decision of the Secretary of the Interior, Hon. Columbus Delano, upon the same question. Said arguments were made before the assistant attorney-general and the Secretary of the Interior; and it is the opinion of the assistant attorney-general, and the decision of the Secretary of the Interior, made after due consideration, that said Osage Ceded Lands are not subject to pre-emption claims.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The action in the district court was on the bond of a treasurer of a school district, and was brought to recover a balance not paid over to the successor in office. The alction was brought in the name of the present treasurer as plaintiff. To the petition a demurrer was filed, which was overruled by the court. This was error. Coffman v. Parker, ante, p. 9.
Leave was given to amend the petition, but no amendment appears to have been made. The journal entries subsequent to this were entitled “School District No. 45, or A. C. Durland v. Simon Armstrong.” This was manifestly improper. The plaintiff cannot be described in the alternative, as one, or another. If the plaintiff elected to proceed in the name of the district, it must so appear; if of the treasurer, that must also appear. He cannot cover the contingencies of future rulings by using both names joined by a disjunctive. The judgment was entered in favor of the school district. This, whether we consider the title of the cause as shown by the petition, or the journal entries, was wrong.
On the 24th of April an order was entered allowing de« fendant ten days to file answer. On the 3d of May judgment was entered for want of answer. This was error. The time for answering had not elapsed, and the defendant was not in default.
It seems to us also that the showing made subsequent to the judgment was- sufficient to have vacated the judgment. We have noticed these errors, not because we proj>ose to reverse the case upon them, but as a guide in the future disposition of the case in the district court.
The petition in error will have to be dismissed for the reason that the party in whose favor the judgment was rendered is not made defendant in error, nor brought into this court. The party in whose favor the judgment was rendered was the school district. The defendant in error is A. C. Durland, Treasurer of the district. There is no judgment in favor of Durland to be disturbed. Ferguson v. Smith, 10 Kas., 394.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
It is our opinion that a petition in error will lie in the supreme court, to reverse an erroneous order of the district court which grants a new trial, although the action may still be' pending undisposed of in the district court; (Civil code, § 542;) but we do not think that any such erroneous order has been made in this case. The new trial was granted in favor of the plaintiff below, .(defendant in error,) and it is claimed by plaintiff in error that the order granting the same was erroneous, first, because the petition below did not state facts sufficient, to constitute a cause of action, and second, because the evidence introduced on the trial by the plaintiff below did not prove any cause of action. Now it may be true, that if the petition fielow were examined and construed in a critical and unfriendly spirit no cause of action would be found to be stated therein; and it may also be true, that if the evidence were examined and construed in the same spirit no cause of action would be found to have been proved on the trial; but this is not the manner in which the petition and the evidence should be examined and construed in determining the question of granting or refusing a new trial in a case like this; certainly not in the supreme court for the purpose of reversing an order of the district court granting a new trial. The merits of this case had not been determined, by - a jury, but had been determined by the court only on a demurrer to the evidence. A jury had been impanneled, but when the plaintiff closed her evidence the defendant interposed a demurrer thereto (under § 275 of the code as amended by the laws of 1872, page 329,) and the court sustained the demurrer and took the case from the jury. Afterward the court granted the plaintiff a new trial, and this is the only ruling of the court of which the plaintiff in error now complains. Did the court err? We think not. Or if so, it was not such an error as will require a reversal of " the order granting 'the new trial. Generally, where a new trial'has been granted the supreme court will require a much stronger case before it will interfere and reverse than where a new trial has been refused. (Field v. Kinnear, 5 Kas., 233.) The petition below if liberally construed.we think states a cause of action; and the evidence if liberally construed we think tends to prove (very remotely and indirectly however,) a cause of action; and this is sufficient to sustain the order complained of. The order of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff brought suit on a promissory note executed by defendant, and payable to Seth Taylor or order. After the execution of the note Seth Taylor died, leaving as his heirs the plaintiff, his widow, and three children by a former wife. Plaintiff was appointed administratrix, and settled the estate, paying all the debts except one due and allowed to herself. She made a final settlement which was approved. In her statement for final settlement she reported this note uncollectible on account of the then insolvency of defendant. The probate court, after finding that all the claims but hers had been paid, and approving the final settlement, made this order: “ The court therefore orders that the note against Truman D. Keith be retained in the hands of said administratrix to be collected if possible and applied upon her said'account, and the surplus, if any, reported to this court.” The balance due plaintiff from the estate on her allowance was about double the amount due on the note. No question was made as to the validity of the note, and the only point to be decided was as to plaintiff’s right to recover. The district court decided against her, and she here alleges error. If the order quoted was one within the power of the probate ■court to make, then the full title to the note was transferred to her; she was entitled to all the proceeds, and was the real and only party in interest, and the only party authorized to .sue. If the order was ultra vires, and of no force, then, the. final settlement of the estate having been approved, and the debts, except hers, all paid, she has as one of the distributees, an interest in the note, and though that be only a half-interest, still it is enough to enable her to maintain this action. Dean v. Hewitt, 5 Wend., 257. If there be a defect of parties, in that all the distributees are not joined as plaintiffs, it is waived because not raised by demurrer or answer. Code, § 91. The judgment of the district court is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action to set aside a certain order of the district court; claimed to be void, and for the recovery of certain moneys'belonging to the defendant in error, formerly in the hands of the sheriff, but paid over by the sheriff .to the plaintiffs in error in pursuance of said order of the district court. The judgment below was in favor of Milhoan, plaintiff below, and the defendants below bring the case to this court.
At the commencement of the trial in the court below a question was raised by the defendants as to the sufficiency, of the petition, by objecting to the introduction of any evidence under it on the ground that it did hot state facts sufficient to constitute a cause of action. This objection was overruled by the court, and the defendants excepted. Objections were also made to the introduction of certain particular portions of the evidence for other and special reasons, which objections were also overruled, and the defendants excepted. Motions were also made for a new trial, setting- up various grounds therefor, which motions were also overruled, and the defendants excepted.
We cannot consider the motions for a new trial, for the reason 'that they were filed too late. (Odell v. Sargent, 3 Kas., 80.) They were not filed until five days afl(;er ¿[ecj[gj|on 0f COurt, although they should have been filed within three days thereafter. (Code, § 308.) These motions did not set up the ground of newly-discovered evidence, and no reasons were given why said motions were not filed sooner. The court therefore properly overruled them.
The objections to the introduction of evidence, except for the reason that the petition did not state facts sufficient to constitute a cause of action, will not require any discussion from this court, for reasons that will become ob- . , ■, vious to any one who will examine said objections. The plaintiffs in error do not as we understand rely upon them in this court. The only questions then for us to consider are, whether the petition states facts sufficient to constitute a cause of action, and whether the petitions and findings taken together sustain the judgment. This latter question, and indeed the first, may generally be considered by the supreme court whether any exception has been taken to any ruling of the district court or not. (Wilson v. Fuller, 9 Kas,, 176; Greer v. Adams, 6 Kas., 206.) The subsequent proceedings however, the answer, the reply, the evidence, the findings or verdict,' often cure a defective petition. (Barrett v. Butler, 5 Kas., 355, 359; Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244; Zane v. Zane, 5 Kas., 140.) This is generally the case where no objection is made to the petition in the court below, or where the objection is made by merely objecting to the introduction of any evidence under the petition; and except where the objection is made by demurrer, or by a motion to require the plaintiff to make his petition or some allegations thereof more formal or more definite and certain, the objection should generally be overruled, unless there is a total failure to allege some matter essential to the relief sought; and the objection should seldom if ever be sustained where the allegations are simply incomplete, indefinite, or conclusions of law. Laithe v. McDonald, 7 Kas., 254, 261, 262; Fitzpatrick v. Gebhart, 7 Kas., 35, 40, 41; Greer v. Adams, 6 Kas., 206; Hawley v. Histed, 10 Kas., 266. Viewed in this light, the petition in the present case is sufficient, even if it should be required to allege all that the plaintiffs in error claim that it should allege. The petition among other things alleges the following facts: Two judgments were rendered against Milhoan, each in a separate and independent action, one in favor of the People’s Savings Bank of Olathe and against Milhoan and wife, and the other in favor of David H. Mitchell, and against Milhoan alone; the first judgment was rendered on a note and mortgage, and was a lien on the homestead of Milhoan and wife; on this first judgment, said homestead was sold for the sum of $4,334; after said sale was confirmed, and said first judgment satisfied out of the proceeds thereof, there still remained in the hands of the sheriff the sum of $3,060.93 as a surplus fund, which fund was not liable to be applied in payment of said second judgment; the district court then made an order, without any notice to Milhoan, that the sheriff should satisfy this second judgment out of this surplus fund; the sheriff, in pursuance of said order paid over to Devenney & Green, as attorneys for Mitchell $1540.58 out of said surplus fund, and in satisfaction of said judgment. The plaintiffs in error claim that the said petition was defective for the foL lowing reasons: 1st, It showed the sheriff had a right by virtue of said order to pay said money over to Mitchell, or to his attorneys. 2d, It showed that the -sheriff had an execution in his hands issued under said second judgment, and therefore that he had a right by virtue of said execution to pay over said money as he did, whether said order was valid or not. 3d, It showed that said Devenney & Green were only attorneys for Mitchell, and were therefore not liable for the money paid to them.
First: The court had no right to make said order. Said surplus fund could not legally be subjected to the payment of Mitchell’s judgment. It was the proceeds of the forced sale of Milhoan’s homestead, and was } therefore exempt as long as Milhoan intended to use it in acquiring another homestead. We do not however purpose to discuss at present the question whether said surplus fund was or could be made liable for the payment of Mitchell’s judgment, for we think said order was void, or at least voidable, for other reasons. The Mitchell judgment was rendered August 28th 1871; the bank judgment was rendered November.23d 1871; an order of sale was issued thereon (on the bank judgment) December 6th 1871; the homestead was sold January 13th LS72; the sale was confirmed on or before January 16th 1872; the motion was made for said order (that the sheriff apply the surplus to Mitchell’s judgment) January 16th 1872, and on the same day the motion was heard and the order granted; the sheriff paid said money, $1554.25, to Devenney & Green, attorneys for Mitchell, January 20th 1872; and Devenney & Green paid $1429.25 of the same to Mitchell on January 21,1872, retaining $125 as attorney-fees for themselves. This was an extraordinary order. It was made in an action iong after judgment was rendered therein, at a subsequent term of the court, in the absence of Milhoan, without any notice of any kind ever having been given to or received by him, and on the same day that the motion for the order was made. This is not such an order as may be made without notice, or as, may be made as of course in the case, or such as the parties are required to anticipate; nor is it one for which the parties are bound to remain in court and watch. It could only be made (if it could be made at all) upon proper and sufficient notice. Milhoan never had any opportunity to appear and oppose the motion for said order. He never had his day in court; and therefore the obtaining of said order was a legal fraud upon him, and the order must be considered in this action (which is an action in part to set aside said order) as voidable, if not absolutely void, and as giving the parties obtaining it no right. (See authorities cited in brief of defendant in error.)
Second: There is at.least one answer to the second claim of the defendants below, plaintiffs in error. Said money was the proceeds of the forced sale of Milhoan’s homestead, and was therefore exempt from any execution issued on any iudgment which was not a lien on Milhoan’s homestead, so long as he desired and expected to use said money in purchasing another homestead, or in redeeming his aforesaid homestead from said sale, as the evidence shows he subsequently in fact did: Keyes v. Rines, 37 Vt., 260. Upon kindred questions, see Pearson v. Minturn, 18 Iowa, 36; Sargent v. Chubbuck, 19 Iowa, 37; Robb v. McBride, 28 Iowa, 386; Marshall v. Ruddick, 28 Iowa, 487. This is evidently the spirit of our homestead laws, and we think we should construe them liberally so as to carry out their spirit. The plaintiffs in error claim that the petition below was defective because it did not negative the exceptions contained in the homestead laws, to-wit — “first, that Mitchell’s judgment was not for taxes; second, that Mitchell’s judgment was not based upon an obligation contracted for the purchase-money of the premises; third, that the note upon which Mitchell’s judgment is based was not given for the erection of improvements thereon; fourth, that Mitchell’s execution was not obtained by virtue of a lien given by the consent of Milhoan and his wife; fifth, that the premises are not situate within the limits of an incorporated town or city; and sixth, that said premises so sold did not exceed 160 acres of land.” Now, if it was necessary for the plaintiff below to state these matters in his petition, (but queere, was it necessary?) still w.e think the petition was sufficient to withstand any objection made against it in the court below when we consider the time and- manner in which such objection was made. It is true that some of these matters, perhaps nearly all of them, were stated defectively, or inferentially, or as conclusions of law from facts, and not the facts themselves. But such statements (as we have already stated) áre sufficient to withstand such an objection as was made in this case. The plaintiff below alleged in his petition, “that he the said plaintiff, being the head of a family did then [December 19th, 1870,] occupy and keep the said lands and tenements as his homestead,” and that “said money [said surplus fund of $3,060.93,] the plaintiff avers was not liable [January 13th 1872, and subsequently,] to execution in' the hands of the said sheriff, nor liable for the payment of any debt or obligation or judgment, the same being the proceeds of judicial sales of the homestead of the said Thomas E. Milhoan, he being the head of a family.” (See Keyes v. Rines, 37 Vt., 260.) It must be admitted that these allegations are very informal, and not sufficient if the question had been raised by a motion to make the same more definite and certain, and probably not sufficient -if the question had been raised by demurrer. In the discussion of this question we have assumed that said money would have been liable to be applied in satisfaction of the execution issued on the Mitchell judgment if the same had not been the proceeds of the forced sale of Milhoan’s homestead. But would it have been? Could the sheriff have applied it on said judg ment by virtue of said execution ? (See Hill v. La Crosse Rld. Co., 14 Wis., 291; Payne v. Billingham, 10 Iowa, 363; Crocker on Sheriffs, 2d ed., § 451, and authorities cited in brief of counsel for defendant in error.)
Third: We think the defendants Devenney & Green, were liable to Milhoan in this action for all moneys of Milhoan’s that remained in their hands at the time of the commencement of this suit. The parties agreed that the sheriff paid to Devenney & Green $1,554.25; that Devenney & Green paid to Mitchell $1,429.25, and that they retained $125 for their services -as attorneys. The court rendered judgment accordingly.
In construing the petition we have examined the evidence and the findings of the court, in order to understand some obscure portions of it; and' viewed in this manner we think the petition is sufficient to sustain the judgment. The findings of the court below are sufficient, and taking P^eac^ngs an(l findings together we think they are sufficient to sustain the judgment. It is true that the judgment does not literally follow the prayer of the petition, but we think it substantially does. The variance is so slight that the plaintiff would have had the right at any time, without costs, to amend the prayer of his petition; and therefore the variance was immaterial. (Mo. Valley Rld. Co. v. Caldwell, 8 Kas., 244.) The judgment was for a small amount more than claimed in the petition, but it was for the amounts agreed upon by the parties, to-wit, $1,429.25 against Mitchell, and $125 against Devenney & Green, and therefore the variance was immaterial. The plaintiff however should have amended, his petition so as' to claim these amounts.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The first question presented by counsel for plaintiff in errot in their brief is as to the sufficiency of the following bill of particulars:
“Leavenworth, Kansas.
W. C. Lobenstein, To Patrick MeGraw, Dr.:
To damages sustained by allowing a large pile of buffalo hides exposed on the said Lobenstein’s lot on the NE corner of Choctaw and Third streets, in Leavenworth city, on the 9th June 1872, thereby causing the said McGraw’s horse to run off, and thereby damaging said horse, and the .said McGraw’s buggy, to the amount of $100.00.”.
It is not to be expected that a bill of particulars will be drawn with the same fullness and precision as a petition. Much of the business in justices’ courts is done by the parties themselves, and not through the instrumentality of attorneys. It is well that this is so, for thus a convenient, expeditious and cheap method of settling minor disputes, and collecting small accounts, is furnished to all. The justices themselves are selected not on account of their legal knowledge, but because of their good common sense. The chief value of these tribunals, to the poorer classes at least, would be lost if the rules of pleading in them were made so technical and difficult that the services of an attorney were necessary in every case. In .the case before us there is no possibility that the defendant was misled by the bill of particulars, or that he failed to understand fully the nature of the claim made against him. The court therefore did not err in holding it to be sufficient.
A more material question is as to the liability of the plaintiff in error for the injury. The facts are these: Lobenstein had been for a length of time in possession of the vacant lots on the corner of Third and Choctaw streets. These he was using for the purpose of curing, drying, packing and baling buffalo hides. They were not inclosed by any fence. Neither was anything done to protect the hides from exposure to the sight of passing animals. Several horses had been frightened by these hides, and Lobenstein had been notified of the danger. On the day in question McGraw’s horse, while being driven at an ordinary gait down Third street, took.fright at the hides and ran away, causing the damage complained of. The uniform testimony was, that as a general thing horses are frightened at the sight of hides, some witnesses saying that green hides would, through smell and sight, scare horses more than almost anything else. The court after speaking of the right of a man to use his property as he pleases, and to pursue any lawful business in a lawful manner, summed up the case to the jury in these words: “Now, from what I have said you will understand that the defendant cannot be held responsible to the plaintiff in this action unless it affirmatively appear by the weight or preponderance of the testimony, first, that there is a peculiar tendency in the business he was engaged in, or rather for which he was using the lots in question, that induces fright in horses traveling the public streets in the vicinity, and unless it appears that he was aware of the fact-; and also unless it appears that he failed to inclose his lot, or to shield or hide in a reasonable manner the robes or hides that, he had exposed upon the lot from the view of animals in the street.” Was there error in the instruction, or the verdict?
The business Lobenstein was engaged in was a lawful business, and he had a right to pursue it. But it does not follow therefrom that he had a right to pursue it in any manner deemed most convenient. Sió utere tuo, ut alimvm non laidas, expresses his rights, and measures his obligations. The amount of care which one engaged in any business must exercise, to prevent injury therefrom to • others, varies with the character of - the business, and the place in which it is carried on. All that can be said is, that he must exercise reasonable care. A railroad company must put forth more watchfulness and effort to prevent injury from its trains, than a teamster in driving his wagons. That which would be reasonable care in running trains away from any settlement, might be gross negligence when running through the crowded streets of a city. Reasonable care, therefore, being not an absolute, but a relative term, no statement can be made of the particular act or acts one must do to avoid any responsibility for injuries caused by the manner of conducting one’s business. Lobenstein’s right to use this lot is not more sacred than the right of the public to use the streets. No man has a right to block up the streets so as to prevent or endanger Lobenstein’s access to or use of his lots. Neither has he any right to so cover his lots with robes and hides as to endanger the use of the street by the public, when by the exercise of ordinary and reasonable care such danger can be averted. In Shearman & Redfield on Neg., p. 641, § 590, the rule is thus laid down in reference to machinery, and it is equally applicable here: “It is the duty of every one owning or using machinery which is or may become dangerous, to take such precautions as reasonable care would suggest to prevent it from injuring persons who are rightfully in the vicinity. If for this purpose it is necessary to surround any part of such machinery with a fence, that must be done; and where machinery cannot be in that or any similar way prevented from doing any injury it must while in motion be watched by some person capable of warning others of their danger.” We see no reason to question the correctness of the instruction, nor do we feel warranted in disturbing the verdict and judgment.'
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Margaret Salmon, administratrix of-the estate of Daniel Salmon de ceased, against the Kansas Pacific Railway Company, to recover damages for wrongfully causing the- death of said Daniel Salmon. The issues were tried by a’jury; and on the trial the parties submitted the following agreed statement of facts to the jury as evidence, to-wit:
“ 1st. The plaintiff is the administratrix of the estate of Daniel Salmon deceased, duly and legally appointed, as in the petition alleged. 2d.-At the time of death of Daniel Salmon, he left surviving him, the plaintiff Margaret Salmon, his widow, and two children of the said Margaret and the said Daniel, issue of their marriage. 3d.-The defendant is a corporation and common carrier, as alleged in the petition, and also of freight trains; and as such owned and operated the line of railroad alleged in the petition. 4th.-On the 13th of September 1870 said Daniel Salmon was, and for a long time previous thereto had been in the employ of the defendant as locomotive engineer. The family of the said Salmon resided at Ellsworth, and the said Salmon was, by permission of the defendant, accustomed, on days when it was not his regular turn to run an engine, to return upon his route on defendant’s trains to Ellsworth, a distance of twenty-three' miles from Brookville, to stay with his family, instead of remaining at Brookville, which was the eastern end of his regular run as an engineer; and this was not forbidden by the foremen of engineers, his immediate superior, but was by the consent and permission of the defendant; but he was then subject to be ordered by defendant to take charge of any engine of defendant at any moment. And on the morning of the said 13th of September, having remained all night with his family at Ellsworth, he set out to ride to Brookville, as was his custom to do, upon the defendant’s freight train, (which did not carry passengers, and was by the defendant forbidden to do so, unless the facts herein stated constituted the deceased a passenger,) to take his run; that is, to operate an engine from Brookville westward, according to his regular turn ;• and as such employee, by permission of the conductor in charge of the freight-train from Ellsworth to Brookville, being a freight-train with a caboose car, in which laborers on the line of the said railway, and other employees, had been and were accustomed to travel to their work on said road, with the assent and permission of the defendant said Salmon got into the caboose car for the purpose of going to Brook-ville to resume his duties as such engineer at said point. He paid no fare, nor was he requested by the conductor to pay any fare, and was known tó the conductor as an employee as aforesaid; and the said Salmon knew the usages of defendant respecting the prohibition of passengers upon freight trains. He was not actually employed in operating that train in any capacity, and such facts were known to the conductor of such train. On the road between Ellsworth and Brookville, in the state of Kansas, and while said Daniel Salmon was in the caboose car as aforesaid, the train was endeavoring to ascend a heavy grade, and being unable to do so, backed down the grade, and came in collision with another train belonging to said defendant, going in an opposite direction from the way the aforesaid train was backing down. The trains so coming into collision, the car in which said Daniel Salmon was, was crushed without fault or negligence on his part, and was thrown from the track, and he mortally wounded thereby, from which mortal wound he died the succeeding day. That the injury received by him and from which he died, was not occasioned by any neglect or fault on his part, other than may be legitimately inferred from the facts aforesaid.”
1. Passengers;employees. There was some evidence introduced on the trial, but nothing that in the least affects or modifies the foregoing agreed statement of facts. ' The jury found a#special verdict; and in their verdict they found the facts literally as agreed to in the foregoing statement, except that they omitted the following concluding words of the agreed statement of facts, to-wit — “other than may be legitimately inferred from the facts aforesaid.” The jury made some other findings, but it is scarcely necessary to notice them, for those that harmonize with the foregoing statement of facts raise no question of law not already raised by such agreed statement, and those that conflict with said agreed statement were found by the jury without any evidence to sustain them, and against the evidence. The main, and in fact the only question in this case is, whether the deceased was a passenger, or merely an employee of the defendant, while riding on the defendant’s train. If he was a passenger, the other facts would undoubtedly give the plaintiff the right to recover, in this case; but if he was merely an employee, the plaintiff would not have any such right. The court among other instructions charged the jury as follows:
“I instruct you, that the mere, naked, unexplained fact of a collision of two trains of cars, operated by the same railroad company, raises the presumption of negligence on the part of the company.”
And the jury, in pursuance of this instruction, found as follows: “ 5th.-The death of said Daniel Salmon was caused by the negligence of the defendant, without any fault of the said Daniel Salmon” — and upon this finding the court below rendered judgment for the plaintiff and against the defendant. All this would have been correct if the deceased had been a passenger; but it was certainly incorrect if the deceased was only an employee of the company. The said collision was the only proof of negligence on the part of the railroad company introduced on the trial. A collision always presumptively shows negligence, but whether negligence of the company, or negligence merely of some one or more of its officers, agents, or employees, is the important question in this case. As between the railroad company and a passenger, the negligence of any officer, agent, employee or servant of the company is the negligence of the company itself; but as between the railway company and one of its employees, the negligence of another employee, a co-employee, is not at all the negligence of the company. (Dow v. K. P. Rly. Co., 8 Kas., 642.) Therefore while a collision presumptively proves negligence on the part of the company as between the company and a passenger, yet it never proves negligence on the part of the company as between the company and one of its employees. It is a general rule that one employee does not represent the principal any more than any other employee; and negligence between co-employees is not at all the negligence of the principal. This rule has its exceptions. As to railroad companies, the general manager, the general superintendent, the general officer for the employment or discharge of the other agents and servants of the railway company, or indeed any other general officer, would probably be the representative of the company, in fact the company, as between the company and all other persons, whether such persons were employees or not. But proof of a collision does not at all show negligence on the part of any one of these general officers. It tends more properly to show negligence on the part of the brakeman, the fireman, the engineer, the conductor, or some other inferior officer, agent or servant of the company, who has a more close and direct connection with the collision.
Was the deceased a passenger? We think not. It is not every person who may enter a car, or go upon a train, or even ride upon a train, that can thereby claim that he is a passenger, or that he is entitled to all the rights and privileges of a passenger. (U. P. Rly. Co. v. Nichols, 8 Kas., 505.) Among the reasons why the deceased was not a passenger in the legal sense of the term we would state the following: He bought no ticket, paid no fare, nor offered to buy any ticket or pay any fare; nor did- he intend to buy any ticket or pay any fare. He did not at any time claim to be a passenger, or act as such. He did not go into a passenger car, nor upon a passenger train. But on the contrary, as he was a mere employee of the railway company, he chose to ride as such, and all the time acted as such. He went into a caboose car attached to a freight train, and rode in such caboose car as an employee of the company, because he was an employee, where other 'servants and employees of the company rode, and from which passengers, and all other persons except employees of the company, were excluded; and of •this exclusion the deceased had full knowledge. He was going from his home to the place of his employment, as was his custom, for the purpose of performing the duties of his employment, and rode in the caboose car on a freight train, and paid no fare, according to custom, usage, understanding and agreement of the parties. Now, as the facts of this case show beyond all doubt that the deceased was not a passenger, but merely an employee of tlie company, the charge of the court was erroneous, the finding of the jury with regard to negligence of the company was erroneous, not being sustained by any evidence, and the judgment founded on the verdict wás erroneous. The plaintiff did not by the evidence make out any case against the defendant, and the court therefore erred in refusing to grant a new trial. [Higgins v. Han. & St. Jo. Rld. Co., 36 Mo., 418; Gilshannon v. Stony Brook Rld. Co., 10 Cush., 288; Seaver v. Boston & Maine Rld. Co., 14 Gray, 466: Russell v. Hudson River Rld. Co., 17 N. Y., 134.) Chapter 93 of the laws of 1870, p. 197, has no application to this case. That act applies only where a railway company, as a company, has been negligent, and does not apply to negligence between co-employees of a railway company. The judgment- of the court below must be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Lee sued Hunter to recover $4,027.24 damages, for an alleged failure on the part of Hunter to receive and pay for a lot of cattle according to contract. Hunter in answer to the petition, admits that in July 1870 he made a contract with Lee for the purchase of ,840 head of cattle, for which he agreed to pay three-and-three-fourths cents per pound, gross weight, on delivery at the depot of the Kansas Pacific Railway Co. at Topeka, Kansas, to be delivered and weighed on or before the first day of October 1870; also, that at the time of making said contract he paid Lee on the same $1,000, and that about the 21st of September 1870 he received on the contract 272 head of the cattle, amounting to $12,777.37, and that he paid Lee at that time, on the contract, $10,000. He denies all the other allegations in the petition. Hunter for a second answer, and by way of defense, sets out that the sale was by sample, and warranty, and he avers that the cattle were not according tp contract. And for a third defense, and by way of counterclaim, he sets up a contract of sale by sample and warranty, and claimed $10,000 damages for a failure on the part of Lee to deliver the cattle according to contract. To these several answers Lee interposed a general denial. The case was tried upon these several issues, by a jury, at the December Term 1871 of said court. ■A verdict was given in favor of Lee for $1,936.97, and judgment was rendered thereon by the court.
The questions presented for our consideration arise on the refusal of one, and the giving of another, instruction. If thé one given was correct it was right to refuse the other. Our inquiry therefore is limited to a simple matter. The instruction given was as follows:
“That upon the allegations made by the defendant (Hunter,) in his answer and the evidence he has offered, you cannot find that Hunter is entitled to damages for any breach of contract on the part of Lee.”
The third defense in the answer was substantially, that in July 1870, the plaintiff represented to him, defendant, that he was the owner of a large number of cattle, in three different lots of about 300 in each lot, and that he was anxious to sell the same to defendant; that plaintiff showed to defendant a sample of his cattle, and as an inducement to get defendant to purchase the cattle, represented to defendant that the residue of the cattle were as good as the sample shown; that defendant, relying on said representations, and believing them to be .true, agreed with the said plaintiff to buy of him 840 head of said cattle, and to pay therefor three-and-three-fourths cents per pound gross weight, to be paid for at the time and place of delivery, as alleged, provided said cattle were in every way as good, large and fat as they were represented to be, and upon no other terms, conditions or consideration whatever; that the said plaintiff then agreed to sell the same to defendant upon the terms and conditions aforesaid, and agreed to deliver and weigh the same to defendant at the depot of the K. P. Rly. Co. at Topeka, Kansas, on or before the 1st of October 1870; that defendant at the time of making the agreement paid plaintiff on said cattle, $1,000; that about the 21st of September 1870, the plaintiff delivered to the defendant 272 head of said cattle, and at that time the defendant paid the said plaintiff the further sum of $10,000. It is also averred in said answer, that the defendant duly performed all the conditions of said agreement on his part; that he has always been ready and willing to accept the residue of said cattle so purchased, and to pay the price he agreed to, but that the said plaintiff did not on the first day of October 1870, or at any other time, deliver or offer to deliver to the defendant the residue of said cattle as he agreed to. And defendant further averred that the residue of said cattle claimed to be owned by plaintiff, as aforesaid, were greatly inferior in quality and value to the sample or lot exhibited as aforesaid, and were wholly unfit and worthless to the defendant, of all which the plaintiff well knew when he made the representations aforesaid; that by reason of the failure of .the plaintiff to comply with and perform his said agreement, and by reason of the false and fraudulent representations of the plaintiff, he has sustained damages to the amount of $10,000. Hunter’s testimony as to the contract was, that “We parted with the understanding that if I did not see the other cattle I was to take them if the two herds we had seen were a fair sample.” He also testified that the cattle other than those he did take were inferior, of less value, unfit for the purposes for which he was buying, and in no ways equal to the representations of Lee, or to the cattle which he had seen. He also stated that he was ready and willing to receive and pay for cattle of the quality he had contracted for. He did not pretend that he was ready or willing or offered to receive the cattle as they were. Upon this answer and testimony could Hunter recover any damages ? We think not. The contract was a conditional one. The condition did not exist. Hunter was not to take the cattle unless they were as represented. They were not as represented. Therefore there was no sale. Lee’s representations were false, but no action will lie therefor. There was no breach of contract on his part. He agreed to sell these cattle. He was ready to complete the sale. Hunter was unwilling, and declined. A distinction must be noted between this contract and one to deliver so many cattle of a given quality. In that case if he failed to deliver such cattle there would be a breach of his contract. Here was a contract to deliver certain specific cattle. He was ready to deliver those cattle. Hence he was not in default. By reason of the falsity of his representations he could not compel Hunter to receive the cattle, nor recover damages for his refusal; nor could Hunter, declining to receive them, recover damages on account of such false representations. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a contest over a county-seat election. The contest arose in the county of Wilson. The county commissioners, canvassing the returns, declared the majority to be in favor of Fredonia. Upon this contest the district court decided in favor of Neodesha. To reverse that decision this proceeding in error has been instituted. The main question is concerning' the ‘vote of Fredonia precinct. With that counted, Fredonia received 230 majority. With that rejected, Neodesha had 316 majority. The poll-books of that precinct showed 546 votes, all for Fredonia. The election was conducted in a small room, with only one window in front, and that boarded up to the upper sash. The judges refused admittance to any friends of Neodesha during the time the votes were received. The polls were closed at noon, and the ballot-box carried away by two of the judges. An attempted challenge was met by threats of violence. After the closing of the polls the ballot-box was removed to another place, and the votes counted there. There was evidence showing' that one of the judges and one of the clerks prepared the poll-books the night before the election, and wrote in the list of voters a large number of fictitious names. The original poll-books are brought up with the record, and it is evident at a moment’s glance that the names were not all written at the same time. They appear in different colored ink and handwriting, and those of like ink and handwriting not together. They alternate, as it were, now one of one color, the next of a different, the third like the first, and so on. And finally, it was admitted that 127 of these fictitious names were so written on the poll-books, and 127 spurious ballots deposited in the ballot-box prior to the opening of the polls. The district court held, from this proved and admitted fraud, that that prima facie character which attaches to the poll-books as evidence of the results of an election, and the number of votes cast, was lost and destroyed, and, there being no evidence aliunde, that there was no proof of any votes having been cast in that precinct. Was this error? It has been well said, “that any irregularity in conducting an election which does not deprive a legal voter of his vote, or admit a disqualified voter to vote, or. cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election.” Cooley’s Const. Lim., 618, and cases cited in note; We have followed that rule in this state: Gilleland v. Schuyler, 9 Kas., 569; Morris v. Vanlaningham, supra, 269. The misconduct of the officer should not deprive the legal elector of his vote, nor the candidate of the benefit of that vote. He alone should suffer the penalty of his own misconduct, and be punished in a direct proceeding therefor. With the rule thus enunciated, and so well supported upon both principle and authority, we are entirely content, and see no reason to change or limit its force. But does the decision of the district court conflict with this rule? We think not. . The poll-books do not constitute the election. They are simply evidence of what was done, and but prima facie at that. You can always in a contest go back of them and inquire into the facts. ' They are evidence, because they are the records of official acts, made by certain officers of the law, who are presumed to have followed the law, and honestly discharged their duties under it. The possibility of error and mistake attaches to all official acts and records, yet such possibility does not destroy the value of the records as evidence of the facts. Probably also the existence of error and mistake, if it resulted from accident or inadvertence, would not affect the credibility of the record outside of such error and mistake. But when it appears that the record was manufactured in fraud, and the evidence a lie, what rights can be established by it ? .The records of a court import absolute verity, and the parties to a suit are concluded by its judgment. Yet if it be shown that'judge and clerk have fraudulently combined and entered up a false judgment, its rottenness destroys it altogether. It Concludes nobody. No rights can rest upon it. Here the record purports to show that 546 voters recorded their choice of Fredonia as the county-seat. Outside of that record there is no evidence except the general statements of witnesses, that an election was held that day, and that votes were received at such a place. No testimony showing how many votes were cast, or that those voting were legal voters. The case rests upon the records of the poll-books. Now comes the contestant and says that the record is a lie, and proves that 127 of the names so recorded as the names of legal voters are fictitious, and that 127 spurious ballots were cast into the ballot-box. In other words, he proves absolutely that nearly one-fourth of this record is false. And this falsehood cannot have been the result of ignorance or mistake. It is not possible that this could have happened without the knowledge, consent, and connivance of both the clerks, and some at least if not all of the judges. Surely, there was criminal culpability if not actual, intentional wrongdoing on the part of all the officers of that election board. But, says the contestee, the whole record is not shown to be false. Reject the 127 votes proved to have been spurious, and accept the balance not thus proven. In other words, accept all of the record not proved untrue. If the falsehood resulted from mere mistake there would be great force in this demand. So also if the falsehood resulted from the fraud or wrongdoing of others than the board. But where the recording officers are proved to have knowingly made a largely false and fraudulent record, how can we place reliance on any of the record ? Falsus in wno, falsus in omnibus. Hoes the written testimony of a witness stand any higher than the oral ? If these five election officers were on the witness stand and testified that 546 legal voters cast their votes on that day for Fredonia and it should afterward appear that they knowingly and willfully testified falsely in reference to T27 of those votes, and the number of votes was material, would not the district court have been compelled to reject their entire testimony? Campbell v. The State, 3 Kas., 488. Yet this was all that was done in this case. It doubtless happens that some legal voters are by this decision deprived of the benefit of their votes. Perhaps there were honest votes cast, enough to have given the majority to Fredonia. A large majority of the citizens of Fredonia are honest men, were ignorant of the fraud which was being perpetrated, and are doubtless as much grieved as we at this terrible trespass on the purity of the ballot-box. May this example preach its lesson, not alone to them, but equally to every citizen of the state. They who in Borne watched and kept the sacred fire were vestal virgins. Equally pure should they be who watch and guard that which is far more to us than mystic altar fires.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff brought his action of replevin for a span of mares, and the only question is, whether they were exempt from a certain execution in the hands of defendant. It is conceded that they were the only team plaintiff had, and would therefore be exempt as against any ordinary claim and judgment. They were held under an execution issued upon a judgment of a justice of the peace. The justice made a finding that the debt was for “laborer’s wages,” and so entered up the judgment. The execution followed the judgment. Of course, no personal property is exempt from seizure for laborer’s wages.. Gen. Stat., 474, ch. 38, § 6. It is claimed that this finding and statement upon the question in the justice’s court, in its judgment, and execution, was without force, and unavailable in this action. The reasons urged therefor are two-fold: first, that this is not a matter of inquiry until after a levy, that it is wholly extraneous to the question of indebtedness, and that a finding thereon is surplusage, and concludes no one. We think this is a mistake. We see no reason why the justice may not properly make a finding as to the nature of the indebtedness. A finding that the debt is for wages of a laborer, is no more than a finding that it is on a promissory note. The justice must as a matter of fact necessarily find as to the nature of the demand in order to determine the question of his jurisdiction; and we see no reason why he should not reduce such finding to writing and enter it upon his docket. A mere finding for plaintiff is in effect a finding as to the nature of the demand, for it finds that the demand set out in the bill of particulars is correct. Of course, the justice cannot go outside the issue presented by the bill of particulars; and if he does, his finding will be a nullity. His finding is not prospective, but as to a present fact. The law determines the effect of a judgment on such a demand. The second reason is, that such finding was against the evidence. Of course, if the justice had power to make such a finding, the sufficiency of the testimony offered before him to sustain it cannot be inquired into in this action. But it is claimed that the action was on a promissory note, and hence could not be for laborer’s wages. This does not follow. It is an open question as to how far the giving of a note for an antecedent debt merges that debt and destroys the rights and remedies which the creditor previously had. The plaintiff had his day in court before the justice upon that question, and the justice decided against him. He took no appeal. Can he now collaterally question that determination? But concede for the moment that there is such a merger as prevents any reference to the consideration. Suppose the note expresses on its face that it is given for laborer’s wages, may not the finding and judgment follow the note ? Is not the maker estopped from questioning the fact, or complaining of such a judgment? The note is not before us in the record. It was not copied into the justice’s docket; neither was the bill of particulars. It is enough that the record does not show that the note was not so worded. The judgment of a justice as well as that of the district court will be sustained until error is shown. The judgment will be affirmed.
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The opinion of the court was delivered by
Kingman, C. J.:
This action was brought by defendants in error and A. A. Jackson in behalf of themselves and all others, occupants of the town site of Winfield, to vacate certain deeds made by the probate judge of Cowley county to the Winfield Town Company and the Winfield Town Association. The questions made arise on a demurrer which was overruled. The demurrer was not tenable on the first ground alleged in it, that the plaintiff had no legal capacity ° , r ° . *° sue> ^or ground only goes where there is a legal incapacity, such as infancy, coverture, lunacy, an(j The pleader seemed aware of this difficulty, for he has extended his demurrer on this ground by adding that they “have no power to sue in this action for the benefit of the inhabitants and occupants of the said town.” This may be true. We think it is, as we shall presently set forth more fully; but the objection can only be taken on the ground that the petition does not state facts sufficient to constitute a cause of action.
The next ground of demurrer is that there is a defect of parties plaintiff. This also is a mistake. That there is a misjoinder of parties we have little doubt; but this defect is not one for which a demurrer.on this ground will lie. See code, § 89; Mann v. Marsh, 35 Barb., 68. Nor can we perceive that there was a defect of parties defendant. We have noticed these points briefly as they are insisted on by the plaintiffs in error. They have not been reasoned, because the questions have long been settled.
The next ground of demurrer is, that the petition does not state facts sufficient to constitute a cause of action. And on this ground we think the demurrer should have been sustained. The petition states that the plaintiffs and many other parties, on the 10th of July 1871, the _ . . . 1 . TTT, . _ day on which the town site oi Winfield was entered, were and still are inhabitants and occupants of said town site, and they seek to have four certain deeds relating to the lots in the town of Winfield set aside. They allege that on the 10th of July 1871 the town site was duly entered by the probate judge of Cowley county in trust for the use and benefit of-the occupants; that on the same day he fraudulently executed a deed for forty acres of the land to the Winfield Town Company, and at the same time he fraudulently executed another deed for 120 acres of the town site to the Winfield Town Association; that each of said deeds was made against the interests and expressed wishes of the occupants of said town site, and in violation of the trust; that these conveyances were made bjr collusion between the probate judge and the officers of the two corporations named; and that when the inhabitants of the town obtained a mandamus compelling the probate judge to appoint commissioners to set off to them their respective interests, he appointed interested men who entered into a conspiracy with the officers of the above-named corporations to defeat the claim of the occupants, and fraudulently made a report to the probate judge in favor of those two corporations, refusing to recognize the rights of the occupants in their report, and immediately upon the making of the return by the commissioners the probate judge executed to said corporations two deeds similar to those previously made. These are the four deeds Avhich the petition seeks to have declared void; and it is further asked that the order of the probate judge appointing commissioners, and the report of the commissioners so far as they affect the coiweyanees, be declared null and void. From this statement of the petition it does not appear that the plaintiffs had any joint interest in the suit. If 0f them. had any interest in the town site he held it in his own individual right. At least there is no allegation that he held it otherwise. He had his own particular interest to protect, and should have set out that interest in the pleadings. The entry was “ for the benefit of the occupants thereof according to th'eir respective interests.” 2 Lester’s Land LaAVS, 207. The mere fact of being an occupant does n(k liecessarily give any interest in the town site. man may occupy a costly store-house as tenant, of one Avho has erected it at great expense. Strictly speaking, such a man is an occupant, but his occupancy would everywhere be considered the possession and occupancy of his landlord. “The object of the laAVAvas to give the OAvners of lots a good title to their property.” Opinion of attorney general, 1 Lester, 431. These owners must be occupants, as that is the evidence of their ownership, until the government parts with its title. For aught that appears in the petition every lot on the town site of Winfield may have been occupied by settlement and improvement of parties other than the plaintiffs. How then are they interested in the object of the action ? It would seem from the argument of the defendants in error that counsel hold that each inhabitant of the town is entitled to an equal share of the town site. But this would be gross injustice. The capital and' labor of one man has resulted in his putting up buildings on ten times his average portion of the lots. He has done so much toward building up the town, and advancing the interest of the new community. He has done it, it is true, for his own interest, but the public has the benefit of it, and the amount he has so improved he is entitled to. The law of congress not only does not prescribe that each occupant shall be entitled to an equal share of the lots, but that it shall be for the occupants “ according to their respective interests,” plainly indicating that the interest of one may be greater than the others. The true criterion may be difficult in some cases of application, but that which a man has really occupied, and has manifested his occupancy of, by acts, such as improvements, that he is entitled to. Such facts ought to have appeared in the petition to have entitled the plaintiffs to relief. There would be no difficulty in their showing how they were occupants, if they were so in a sense that entitled them to any part of the town site. Then, if their interest was joint, they could unite in the action. Tf their interest was several, then they had no such interest as would authorize them to unite in , , the action. • Ihere is no averment m the petition of such a joint interest. Newcomb v. Horton, 18 Wis., 566; Barnes v. City of Beloit, 19 Wis., 93. The petition by its title proposes to be in favor of “Enoch Maris, A. A. Jackson, and C. H. Kingsbury, who sue for the benefit of all the occupants of the town site of Winfield.” But the petition •contains no allegation that the case is such as is contemplated by § 38 of the code. Neither the number of the occupants, nor their common interest, is alleged. Neither is there any averment that after the occupants have received deeds 'for what they are entitled to there will remain any part of the. town site undisposed of. If the interest was common, then its nature and character should appear by proper averments in the petition to be such as would entitle them all if before the court to maintain the action in their own names. Habicht v. Pemberton, 4 Sandf., 657. This nowhere appears in the petition. The defendants in error answer that the title is a part of the petition. This is true, but it is not a traversable allegation on which the defendants can take issue; and if even the statement in the title were repeated in the body of the petition, it would not present facts from which the court could infer such a state of facts as is provided for in § 38. These facts must be distinctly averred, so that the court as well as the pleader may see that theré are circumstances existing that take the case out of the general rule, and bring it within the provisions of the section referred to.
The conclusion already reached necessarily leads to a reversal of the judgment of the district court, and is all that is absolutely necessary to decide in this case. But we may presume that the petition will be amended so as to raise the question of the legality of the deeds mentioned in the petition, and as that question has been elaborately argued in this and another case, and the court having given it that consideration that its importance and far-reaching consequences demand, it is thought advisable to present our views on that question. The law of congress under which the entry was made by the probate judge is found in 14 U. S. Stat. at Large, 541, and is made under certain conditions, which it is presumed existed or the proper officers would not have allowed the entry to be made. When the entry is thus made it is made as the law declares “in trust for the several use and benefit of the occupants thereof, according to their respective interests, the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.” Before there can be an entry, the land must be settled upon and occupied by a certain number of inhabitants. The moment the land is entered the trust vests an absolute right in the beneficiaries. There is no provision for the execution of the trust until the local legislature prescribes the necessary rules and regulations, but the legislature can only direct in what manner the trust shall be executed. It cannot under a pretense of providing rules for the execution of the trust change its character, or deprive those for whom it is intended of any benefits of the trust. Undoubtedly congress intended that some discretion should be left to the legislature, not only as to the manner of the execution of the trust, directly, but also some regard to the public welfare. The legislature may well direct how much of the unoccupied portion of the town site shall remain as parks or public grounds, because in such case the inhabitants have ™ one way of the lands. To some extent the legislature of the state has provided the rules and regulations for the disposal of the lots in such town sites, in ch. 109, Gen. Stat., 1073. There is no controversy about any portion of said act save as to § 12. That section is as follows:
“Sec. 12. All persons who select and lay out a town site, and their assigns, shall be deemed, occupants of said town site, and the lots embraced therein, within the meaning of the above recited act of. congress, and deeds shall be made accordingly.”
So far as this section makes any other person than the occupants of the town site beneficiaries of the act of congress, it is inoperative. Undoubtedly “town companies,” as recognized by our statute, may be occupants, and embraced within the terms of the law of congress. If such company is really an occupant, to the extent of its occupancy it is protected by the law. The company stands as any other individual, and holds no other or better relation. So far as the section gives the town company or persons who select and lay out a town site any advantages over any other occupant, it is inoperative. The legislature-in prescribing the rules for the execution of the trust cannot change it by substituting other parties to receive its benefits than those indicated in the law of congress. If individuals or town companies choose to lay out lands for a town site, and make money by that means, there is no law to prevent it; but they cannot pre-empt the public domain for that purpose under the law of congress. That law was made for the benefit of the occupants of the town, and not for speculators. The law of congress has received .a construction similar to that which we have given it in the case of Cash v. Spalding, 6 Mich., 193; and while the court was divided on one of the questions raised, yet on this point both the opinion of the court and the dissenting opinion agree. Reference is made to Leech v. Rauch, 3 Minn., 448, and Castner v. Gunther, 6 Minn., 135, as making a different ruling. But the decisions do not sustain the opinion claimed for them. In the last cited case the learned judge who delivered the opinion of the court states that he holds with the decision in Michigan, but that point was not before 'the court. It could not therefore be passed upon.
The judgment of the district court sustaining the demurrer to the petition will be reversed.
AH the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Frank Lane was a witness for the state in a criminal case pending in the district court of Washington county. The case was continued, and Frank Lane required to give a recognizance, with sureties, to appear and testify at the succeeding term. He gave such recognizance with defendants in error as sureties. Failing to appear, this recognizance was forfeited, and suit brought thereon. The sureties demurred. The demurrer was sustained and this ruling the state seeks by this proceeding to reverse. The ruling of the district court was correct. Upon a continuance of a criminal case in the district court the witnesses may be required to give personal recognizances, but there is no authority for requiring sureties thereto. (Gen. Stat., 851, crim. code, § 196.) On a preliminary examination the committing magistrate may, according to the statute in certain cases, require sureties. (Gen. Stat., 829, crim. code, §§ 57, 58.) But the power given by § 58 to the committing magistrate is nowhere given to the trial court in continuances. Without such statutory authority the court would have no power to require sureties to a recognizance, and a recognizance given without authority of law binds no one. It is without consideration. The defendants in error were therefore not bound by the recognizance into which they entered, and the judgment of the district court sustaining the demurrer was correct, and must be affirmed.
The witness, Frank Lane, the principal in the recognizance, is not a party to thjs proceeding, and of course this decision will not affect him.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Charles F. Koester against William H. Clutter and wife to foreclose a certain mortgage. Francis Kirkwood and Allen Reed were afterward made parties defendant, on their own motion, on the ground that they each claimed to have some interest in the mortgaged property. The mortgaged property consisted of a certain town lot in the town of Frankfort, Marshall county. All the parties claimed under one Perry Hutchinson, to whom the lot originally belonged. Hutchinson by a parol contract agreed to convey this lot to Jeremiah L. Heasley if Heasley would build a house thereon. Heasley built the house, and therefore by operation of law Heasley became the equitable owner of that lot. While Heasley was thus the equitable owner of the lot Kirkwood obtained a judgment against him for $385 and costs. Afterward an execution was issued on said judgment, and the sheriff levied the same on said lot as the property of said Heasley. Afterward Hutchinson, with the consent of Heasley, sold and conveyed said lot by deed of general warranty to said Clutter, taking three negotiable promissory notes from Clutter to himself in payment therefor, and a mortgage on the property from Clutter and his wife to himself to secure the payment of said notes. Clutter and wife immediately took possession of the property, and have been in quiet and peaceable possession of the same ever since. Clutter and wife, and Kirkwood, were all represented in the court below, by the same counsel, and Clutter and wife admitted in their answer that they had notice at the time of their purchase of the rights and claims of Kirkwood, and were therefore not bona fide purchasers of said lot. This admission is of course binding upon themselves, but it is not binding upon Koester or Reed, or any one else. Whether Clutter and wife had in fact any notice of Kirkwood’s claims, or whether Clutter was in fact a bona fide purchaser without notice, is not shown by the record. Hutchinson transferred one of said notes before due to Koester, and another of said notes to Reed, both Koester and Reed being innocent and bona fide purchasers of said notes, having no notice of Kirk-wood’s claims. What became of the other note is not shown by the record. These first two notes and the mortgage, and Kirkwood’s judgment, constitute the subject-matter of this action. All the above-named persons are parties to this action except Hutchinson and Heasley. The trial below was before the court without a jury. The court made special findings of fact and of law, and then rendered judgment as follows: lst.-The court rendered a personal judgment in favor of Koester alone and against Clutter alone, for the amount of the first note and $30 attorney’s fees. 2d.-The court rendered a personal judgment in favor of Reed alone and against Clutter alone for the amount of the second note. 3d.-The court then ordered that in case these judgments were not paid within ten days after the close of the term of the court, the mortgaged property should be sold to satisfy said judgments, and that all the interest of Kirkwood and of the wife of said Clutter be barred and foreclosed. 4th.-And the court also ordered that executions might be issued for the collection of any balance due Koester and Reed after the sale of. said mortgaged property. It will be noticed that no judgment was rendered or order made in favor of Clutter, or of any one else except Koester and Reed. It will also be noticed that no judgment was rendered or order made against Kirk-wood, (who is now the only person complaining of the rulings of the court below,) or affecting his rights, except that said mortgaged property was ordered to be sold and Kirkwood’s interest therein barred and .foreclosed. The court did not attempt to determine what should be done with the surplus, if there should be any, that might remain from the proceeds of the sale of said mortgaged property after paying said judgments in favor of Koester and Reed, whether it should go to Clutter, the mortgagor, or to Hutchinson, or whoever else might hold said third note, or to Kirkwood the holder of said judgment against Heasley — and not one of the parties asked the court to determine this question. Probably it was considered wholly immaterial by the parties. But if it should be material the question is still open for further litigation. Neither did the court determine (if we construe the record correctly) what should be done with said mortgaged property if said judgments in favor of Koester and Reed should be satisfied without a sale of the mortgaged property. This question as we construe the record is also still' open for further litigation. If however there is any ambiguity in this respect, the record may be amended in the court below on motion of the plaintiff in error so as to make it speak plainly just what we have construed it to mean.
We think it will now be obvious that the only question for this court to decide is whether Koester and Reed had a ri¿ht to have said mortgaged property sold to satisfy their said judgments on the notes. Or in other words, was the mortgage-lien of Koester and Reed on said mortgaged property stronger than the judgment and execution-lien of Kirkwood (provided he had any such lien) on the equitable interest of Heasley in and to said property? Whose lien was prior in right ? For the purposes of this case we shall assume that Kirkwood, by virtue of his said judgment against Heasley, obtained a judgment-lien upon the equitable estate of Heasley in and to'said town lot. (Civil code, §419; Gen. Stat., 999, ch. 104, §1, clause, 8; Kiser v. Sawyer, 4 Kas., 503.) And for the purposes of this case we shall also assume that the levy made by said sheriff on said property was a valid levy. (Civil code, § 443, and sections and reference as above.) The sheriff in making said levy in form, levied upon the lot, upon the whole estate, and not upon the mere equitable interest of Heasley. It is not supposed that a sheriff can levy an ordinary execution or order of sale in the ordinary way upon a mere equity. An entirely different procedure must be followed to subject a mere equity to the payment of debts. (Civil code, § 481, et seq.) To levy upon land, the whole estate, is one thing; to levy upon an equitable interest therein, is another. But for the purposes of this case we shall assume that a sheriff may levy upon the land, the whole estate, and sell it, whatever may be the interest of the judgment-debtor in the property. But the purchaser gets nothing more and nothing less than the interest of the judgment-debtor. If the interest of the judgment-debtor is merely an equitable interest, as in this ■case, then the purchaser gets only an equitable interest. Neither the judgment, the levy, the sale, the confirmation of the sale, nor the sheriff’s deed, nor all together, can give him anything more than the mere equitable interest of the judgment-debtor. The legal estate remains just where it was before these proceedings were had. If we are correct in this, then Kirkwood at most can only claim that he stands in the place of Heasley, or rather that he has a lien on Heasley’s equitable interest in the property. This lien is merely a lien upon an equity. The lien of Koester and Reed is a lien upon the whole estate, legal as well as equitable. Hence, if the parties are equally innocent, and if their liens are equally free from such extraneous circumstances as would weaken the ordinary force and value of the same, then the lien of Koester and Reed must be the stronger. A mortgage is in form a conveyance of the property intended to be pledged as a security, and is governed by the same rules with respect to its execution, the recording thereof, notice to third persons, its use as evidence, and its relative strength and force, when compared with other conveyances, incumbrances, or equities, as other conveyances are, although in fact it is only a lien, (2 Kas., 385, 391,) and belongs to whoever may own the debt which it is given to secure. (6 Kas., 395, 397.) But whenever it purports to convey the whole estate, legal as well as equitable, as in the present case, it is alien upon the whole estate, and is a very different thing from a lien upon a secret equity which exists only in the recollection of witnesses.
As has been before stated, Koester and Reed were innocent and bona fide purchasers without notice, and before the notes were due. Hence it would be natural to suppose that they purchased the notes and mortgage freed from all equities. It is a general rule of law and equity that the holder of the legal title to real or personal property, even where the title has been obtained through fraud, may sell and convey such title to an innocent and bona fids purchaser, purged of all equities. And even if one purchaser is not an innocent and bona fide purchaser, still he may sell and convey the title he has acquired to one who is an innocent and bona fide purchaser, freed from all équities. There are some things of which a purchaser is bound to take notice, whether actual notice is brought home to him or not. For instance, he is generally bound to take notice of everything contained in the public records which affects the property he is about to purchase, or which affects the title of the person from whom he is about to purchase. In the present case all the parties claim to hold under Hutchinson, who at one time had a perfect and complete title to said property, legal as well as equitable. Koester and Reed held under Clutter, and Clutter under Hutchinson. Now Koester and Reed, before they purchased said notes and mortgage, were bound to take notice of all tax liens and tax titles shown by the public records to have accrued against said lot. They were bound to take notice of all deeds, mortgages or other incumbrances executed .by Hutchinson or Clutter, and recorded in the office of the register of deeds. They were bound to take notice of all actions pending against Hutchinson or Clutter concerning this property, and all judgments rendered against Hutchinson or Clutter as shown by the records of any court of record in the county. They were bound to take notice of all mechanic liens filed in the office of the clerk of the district court within a certain time, and which might affect said property, or the title thereto. But they were not bound to take notice of every secret equity, of many'of which they could have no possible means of making a discovery. "Will it be claimed that they were bound to examine every judgment ever ren-' dered in the county, and then ascertain whether the judgment-debtor in every one of such actions did not have some secret equity in said town lot upon which a judgment-lien might attach, and thereby affect the value of the lot, or mortgage, as a security, before they purchased said notes? How could they ascertain the existence of such an equity? A party is never bound to take notice of equities which cannot be discovered from an inspection of the public records. He must have actual knowledge of the existence of such equities, or actual knowledge of some fact sufficient to put him upon inquiry, before he can be charged with knowledge of their existence. The fact that a judgment was rendered against Heasley, and the fact that the sheriff levied on this lot as Heasley’s property, are not sufficient of themselves to charge Koester and Reed with notice of Heasley’s secret equity in said lot. Koester and Reed were not bound to know anything connected with the proceedings in the ease in which said judgment against Heasley was rendered; for neither Hutchinson nor Clutter was a party to the suit, and the action was not concerning this lot. It is not necessary for us to decide whether actual knowledge on the part of Koester and Reed of the existence of said judgment and of said levy would have been sufficient to have put them upon inquiry, for they had no such actual knowledge.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal questions involved in this, case are as follows: First, Has the legislature of the state of Kansas the power to pass an act authorizing the organization of a corporation to build a bridge across the Missouri river at a place where said river forms the boundary line between the state of Kansas and the state of Missouri? Second, Has the legislature passed any such act? or in other words, did the act of February 27th 1866, (Laws of 1866, page 124,). concerning corporations, authorize the organization of a corporation for such a purpose? Third, Did the Kansas and Missouri Bridge Company, in effecting their organization, comply with all the requirements of said act? Or to be more particular, Did the corporators describe sufficiently in their certificate of incorporation the location of the bridge and the boundaries within which they desired to claim corporate rights? (Laws of 1866, p. 125, § 3, subdiv. 2, and §§ 29, 31.) The description in said certificate was as follows: A “bridge across the Missouri river, from the state of Kansas to the state of Missouri, at some point within the county of Leavenworth in the state of Kansas, and within the county of Platte in the state of Missouri.” Fourth, Could the stockholders of the bridge company legally organize for the transaction of corporate business, as they claim they did, before all the capital stock of the company had been subscribed for? Or to be more exact, could they so organize when only ten per cent, of the amount had been subscribed? (Laws of 1866, pp. 126, 128, §§ 5, 10.) And if the company could so organize, could they then compel each stockholder to pay the full amount of the stock for which he had subscribed, when only one-tenth of the capital stock of the company had yet been taken by individual stockholders?
These questions were all raised by two demurrers, one to the fourth defense set up in the answer, and the. other to the plaintiff’s reply. It is conceded, and even claimed by both parties, that these demurrers may be carried back to any preceding pleading, and sustained as to the first insufficient pleading. This we think is correct, so far as this case is concerned. The demurrers were based upon the ground that the pleadings to which they were respectively intended to apply did not state facts sufficient, the first to constitute a sufficient defense, and the second to constitute a sufficient reply to the answer. These demurrers undoubtedly raised the question as to the'sufficiency of all the pleadings — the petition, the answer, and the reply — so far as either attempted to state a 'cause of action, a defense, counterclaim, or set-off, or a reply to the answer. In other. words, when such a demurrer as either of these two is filed, the court examines the whole record, and renders such a judgment as should be rendered upon all the pleadings taken together. Such a demurrer however never raises such questions as are deemed to be waived by not being specifically raised by demurrer or answer. (Gen. Stat., 648, § 91.) The court below sustained said demurrers as to the third and fourth defenses stated in the answer, and to these defenses only, and the defendant (plaintiff in error) now seeks in this court to have said rulings of the court below reversed. It seems however to us that the rulings of the court below must be sustained, and that all the foregoing questions must be answered in the affirmative.
I. We have no doubt concerning the power of the legislature to pass an act for the incorporation of a company to build a bridge, part of which shall be in Kansas and the other part in Missouri. If such a corporation cannot be organized in Kansas, then for the same reason such a corporation could not be organized in Missouri. If a Kansas corporation cannot build a bridge across the Missouri river, then for the same reason a Missouri corporation could not build such a bridge. And if neither a Kansas nor a Missouri corporation can build such a bridge, then for the same reason neither of them could build by itself or with the other any part of .that portion of the bridge which' may' not be located in its own state. It has already been settled that the two states acting together could not create a single corporation for such a purpose, or for any other purpose. (Ohio & Miss. Rld. Co. v. Wheeling, 1 Black, 286, 297.) Hence, it necessarily follows that no corporation) wherever or however organized, can build the whole of such a bridge; and no two corporations acting together, although one might be organized in Kansas and the other in Missouri, could build it jointly, or in common; for the Kansas corporation would be beyond its jurisdiction in Missouri, and the Missouri 'corporation beyond its jurisdiction in Kansas. Each corporation would therefore have to build, own, and operate separately and independently that portion of the bridge which might be located in its own state, and that portion only. Can this be law? We think not. A corporation of either state may build, own, and operate the whole of the bridge. It is true however, that the corporation that builds, owns or operates the bridge, must have the consent of both states in order to do so. But the consent of the state which authorizes the organization of such a corporation is necessarily given when the authority for the organization is given; and it must be presumed, in the absence of anything to the contrary, that the consent of the other state is given, for such consent, in our judgment clearly falls within the rules of comity between states. (L. G. Rly. v. Comm’rs of Coffey Co., 6 Kas., 254; Runyan v. Coster’s Lessee, 14 Peters, 122; Bard v. Pool, 12 N. Y., 495. See also in this connection Conway v. Taylor’s Executors, 1 Black, 603, 629, 630, and cases there cited.
II. The act is broad enough as we think, to cover all bridges which any corporation can get legal power from any state or person to build. Corporations may under said act be organized for the purpose of building one bridge alone, or for building a sytem of bridges. (Laws of 1866, pp. 124,133, §§ 2, 29.) A case may easily be imagined where it would be necessary for a Kansas corporation, organized for the purpose of building a system of bridges, to build a bridge wholly within the state of Missouri, in order to render their bridges built in Kansas of much service, or of much value. The act is broad enough, and was probably intended, to reach just such a case as this, as well as other cases. We have no doubt but that a Kansas corporation (without reorganizing as a Missouri corporation) could with the consent of Missouri build just such a bridge. We know of no good reason why we should limit the terms of the act by judicial construction, when the legislature has not seen fit to limit the terms of the act by legislation.
III. Was the company duly organized under said act? The certificate of incorporation should have stated more specifically and definitely the “termini or boundaries within which such company * * * desired the privilege of corporate rights.” (Laws of 1866, p. 125, § 3, subdiv. 2; pp. 133, 134, §§ 29, 31.) But still we do not think that the statements are so absolutely indefinite or defective as to render the organization of the company wholly illegal and void. At most, the organization is not so wholly void for that reason merely that the question of its validity may be raised in a collateral manner, as it is attempted to be done in this case. Besides, the defendant (plaintiff in error) participated in the organization of the company, becoming a director therein when it was first organized, and acting in that capacity; and it would now be a gross fraud upon the other stockholders, after they have paid for their stock, built the bridge, and assumed additional liabilities, for him to say that the company never had any legal or valid existence. He should be estopped from setting up any such fraudulent and unconscionable claim. (Hager v. Cleveland, 36 Md., 476, 490, 491; Eaton v. Aspinwall, 19 N. Y., 119, 121.)
IY. We think the corporation was created when the certificate of incorporation was filed with the secretary of state. In the said act concerning corporations the persons who execute and sign the certificate, are called “corporators;” (Laws of 1866, p. 125, §§ 3, 4.) The certificate is called a “ certificate of incorporation;” (§ 5.) And section 4 of the act provides “That when the foregoing provisions,” that is, the making and filing of said certificate, “have been complied with, the persons named as corporators in said certificate shall have the exclusive right to carry into effect the object named in said certificate, in accordance with the provisions of this act, and within the limits and boundaries named in said certificate ; and they and their associates, successors, and assigns, by the name and style provided in said certificate, shall thereafter be deemed a body corporate,” etc. (Laws of 1866, p. 125; and see also, Gen. Stat., 192, §10.)
Y. We think the company could legally organize for the transaction of corporate business when only ten per cent, of the capital stock of the company was subscribed. • This organization is effected by the election of a board of directors, and other proper officers, as provided in § 5 of the act of 1866. And when the company is thus organized we think they may compel each stockholder to pay the full amount of the stock for which he has subscribed, although only one-tenth of the capital stock has yet been taken by individual stockholders. The power to make assessments on the capital stock seems necessarily to follow from the power to transact corporate business. If a bridge company has power to build a bridge, they must necessarily have power to make assessments on the capital stock in order to do so. It requires money to build bridges, ferries, railroads, turnpikes, colleges, and the various other improvements authorized to be constructed and operated by said act of the legislature; and it can hardly be supposed that the legislature inténded or expected that the various corporations organized under said act should proceed to build and operate these various objects without any money, or without making any calls upon the capital stock. The question we are now considering seems to be the most important question 'in the case. It is purely a question of statutory law however, and depends upon the statutes of our own state. Hence it makes but very little difference what other courts have decided upon this question, unless their statutes are substantially like ours. The substance of our statutes affecting this question, will be found in the Laws of 1866, pp. 124 to 138, ch. 57, “an act to provide for the creation and regulation of incorporated companies.” The substance of § 4 of said chapter .has already been given. Sec. 5 provides that the persons named in the certificate of incorporation shall cause books to be opened for subscription to the capital stock of the company; but neither this nor any other section requires that anything be paid at the time of making the subscription; nor does this or any other section require that anything be paid by the subscribers at any other time except upon “a call” of the company. Said § 5 also provides that whenever ten per cent, of the capital stock of the company shall be subscribed an election shall be held for the purpose of electing directors of the company;' and that—
. “A majority of said directors [elected at said election] shall form a board, and be competent to fill vacancies in their board, and to transact all business of the corporation. An annual election shall be held for directors, at such time and place as the stockholders, at their first meeting, shall determine, or as the by-laws of the corporation may require; and the directors chosen at any election shall, so soon thereafter as may be convenient, choose one of their number president, and shall appoint a secretary and treasurer of the corporation. The directors, before entering upon their duties, shall each take an oath or affirmation faithfully to discharge his duties, and they shall, from time to time, make such dividends of the profits of said company as they may think proper.
“Sec. 6. All deeds conveying real estate belonging to any corporation, shall be signed by the president and secretary, with the seal of the company attached.
“Sec. 10. The directors shall have the general management of the affairs of the company, and may dispose of the residue of the capital stock at any time remaining unsubscribed, in such manner as the stockholders for the time being may prescribe, and may employ the capital and means of the company in such manner as they shall deem best for the company. They shall cause a record to be kept of all stock subscribed and transferred, and of all business transactions, and their books and records shall at all reasonable times be open to the inspection of any and every stockholder. They shall also, when required, present to the stockholders reports in writing of the situation and amount of business of the company, and declare and make such dividends of the profits from the business of the company, not reducing the capital stock while they have outstanding liabilities, as they shall deem expedient.”
Sec. 19. [This section provides for making “calls” upon the capital stock of the- company, and for collecting the amounts called for.]
The contract of subscription reads as follows: “We, the undersigned, hereby subscribe to the capital stock of the Kansas and Missouri Bridge Company for the number of shares set opposite our respective names, and bind ourselves, our heirs, executors and administrators to pay for the same,, at the rate of one hundred dollars per share, at such times and in such installments as the stockholders or board of directors may hereafter determine, five per cent, of which is to be paid at time of subscription.” The plaintiff in error (defendant below) was the first person who subscribed for stock and who signed this contract of subscription. We suppose it will be everywhere conceded that ordinarily, and in all cases, unless otherwise provided by the act authorizing the corporation to be created, or by the charter o’f the company, or by the contract of subscription, all the capital stock of a proposed corporation must be subscribed for by bona fide stockholders before any stockholder can be compelled to pay any assessment on his stock, or before the company can enter upon any of its corporate business, or before even any kind of a corporate organization can be effected. At least, we shall decide this case upon this theory. This disposes of all the authorities upon this question referred to by counsel for plaintiff in error; for none of them profess to go further, or even admit that they go any further than we have thus recognized the law to be.
All corporations are organized in this state under general laws. The present corporation was organized under the said laws of 1866. And said laws authorize, as we think, the organization of a corporation just as this was organized. And when the corporation is thus organized it may go into full operation at once, as such corporation. It may enter at once upon its corporate business, and may at once make assessments upon the stock of the shareholders up to the full face of their stock, although only ten per cent, of the capital stock has yet been subscribed. With respect to the present corporation, not only the law, but also the contract of subscription, authorizes the organization of a corporation just as this was organized, and authorizes assessments on the stock to be made, just as .they were made in this case. It will be admitted that the statutes do not in express terms authorize assessments to be made on the shares of stockholders as soon as the company is organized by the election of directors and other proper officers, and before all the stock is subscribed for; but we think they do by unavoidable implication. If the company after its organization can do nothing but receive subscriptions to the capital stock until the whole of the capital stock is subscribed, where is the propriety of allowing an organization •of the company at all where only one-tenth of the .capital stock is subscribed? Why go through with the farce of electing directors, a president, a secretary, a treasurer, etc., if such officers* can do nothing but receive subscriptions to the capital stock? The original corporators are the proper persons to receive subscriptions, and to do everything else connected with the corporation until the company is completely •organized for corporate business. This right belongs exclusively to them. Sec. 4 of said act of 1866 provides that “the persons named as corporators in said certificate shall have the exclusive right to carry into effect the object named in said ■certificate, in accordance with the provisions of this act.” It is not necessary under the law that anything be paid on the subscriptions until after the organization of the company is •completed; but if anything should, under the contract of subscription, be paid sooner, it may be paid to the original corporators, and taken care of as well by them as by the subsequent •directors or by any other persons or officers. Until directors .and other proper officers are elected, indeed, in our judgment^ until the corporation may enter fully upon its corporate functions, the original corporators are the representatives of the corporation, and are the only persons authorized to attend to the preliminary business of the corporation. The directors when elected are elected (in our judgment) to do the business •of a completely-organized corporation. They are not elected for the purpose of effecting an organization. That is the business of the original corporators. They are elected to attend to the business of the corporation after its organization. But if they are not, if they are elected only for the business •of receiving subscriptions.until the whole of the stock shall be subscribed, why say, as the statute does, that a majority ■of the directors elected at the organization of the company shall be a board of directors, and be competent “to transact all business of the corporation ?” And why allow the first directors chosen, as well as those subsequently chosen, to “dispose of the residue of the capital stock at any time remaining unsubscribed, in any manner as the stockholders for the time being may prescribe, if the stock can be disposed of only by subscription, and if all of it must be disposed of by bona fide subscriptions before any act can be done by the company as a corporation? The only theory upon which said unsubscribed stock can be disposed of in any other manner except by subscription is, that the company is completely organized for the transaction of corporate business, and that such unsubscribed stock belongs to the corporation as such. If however all the stock must be subscribed before the directors have the power to act ás directors, or to do any act except to receive subscriptions for stock, the stock must all be subscribed, and in the hands of individual stockholders, and beyond the reach of the directors, or even the stockholders as a body, before the directors or the stockholders as a body can have any control over it, or can dispose of it in any manner except by subscription, this makes the law absurd. The directors are authorized to do what they cannot possibly do. But if they .could so dispose of the unsubscribed stock, why authorize them to sell the unsubscribed stock when they cannot make an assessment of a dollar on the subscribed stock ? And does it not look absurd to give to the first directors, as well as to those subsequently chosen, the power to declare dividends of the profits of a corporation before the corporation has gone into operation at all, before it can possibly have a dollar of profits to divide, or even before it may have received a dollar on subscription, or from any other source ? The construction that we have given to said act of 1866 is the only natural construction that can be given to it; and it is the one that has been universally given to it in practice, so far as we are informed. The act authorizes the organization of over thirty different kinds of corporations, including railroad companies, and of course all stock corporations which are organized under it must be governed by its provisions, and by the same provisions that governed the organization of this bridge company. And so far as we are informed, such corporations have been organized and have proceeded to business just as this bridge company has done. Under the provisions of the act of 1865, (Laws of 1865, p. 94,) railroads were organized substantially in the same manner as they are under the act of 1866; subdivision 4 of § 3 of the act of 1865 corresponds to subdivision 3 of § 3 of the act of 1866. Section 8 of the laws of 1865 corresponds to § 5 of the act of 1866. And amended § 6 of the laws of 1865, (page 105,) corresponds to §19 of the laws of 1866. The act of 1865 was the first general law for the incorporation of railroad companies ever passed in this state. ' The act of 1866 was the second; and the act of 1868 (ch. 23, Gen. Stat., 190,) was the third and last. The most of the railroad •companies of the state are governed by these general laws; and yet in the construction and operation of railroads, the view taken by the plaintiff in error (defendant below) we believe has never been followed. In our system of constructing railroads it would have been impossible to procure the aid of counties under the construction claimed by the plaintiff in error. It could, before the legislature of 1872, only be done by counties subscribing to the capital stock; but according to the view of the plaintiff in error the capital stock must all be taken before the corporation has vitality to do anything, and therefore none could be subscribed, as the work on the road should be pushed from one county to another as the practice has been in this as in other western states. To say that the company is authorized to carry out the purposes of its organization, and yet that it cannot call for a dollar of its subscription to the capital stock, seems to us absurd in the extreme. The most reasonable view, as we think, is, that the legislature had in view the actual situation and wants of a young and growing state, and recognized the fact that almost every corporation in this state commenced its enterprise with but a part of its stock subscribed, and relied on obtaining further subscriptions as the enterprise should be forwarded and should commend itself to the interests of those to be benefited by it, and that this law was passed to meet the exact condition of affairs. The case of the Topeka Bridge Co. v. Cummings, 3 Kas., 55, does not in any manner affect the question now under consideration. But see the following cases as throwing some light upon the present case: N. H. & Derby Rld. Co. v. Chapman, 12 Am. Law Reg., N. S., 80; same case, 38 Conn.; Hoagland v. Cin., &c., Rld. Co., 18 Inch., 452; Schnectady Plank Road Co. v. Thacher, 11 N. Y., 102; Ashtabula Rld. Co. v. Smith, 15 Ohio St., 328, 333; Fry’s Ex’r v. Lexington Rld. Co. 2 Metc., (Ky.,) 323, 324; Taggart v. West. Md. Rld. Co., 24 Md., 563.
The judgment of the'court below must be affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an application made to this court for a mandamus compelling the defendant as county clerk of the county of Harvey to apportion, upon the taxable property situate in that portion of Harvey county which was detached from Sedgwick county, the amount of taxes necessary to pay that proportion of the interest due on the railroad bonds of Sedgwick county which was assigned to the detached territory by the act of the legislature of 1872. (Laws 1872, p. 184, ch. 97, §6.) The defendant raises four objections to the allowance of the writ. He insists that the plaintiff has no interest in the subject-matter of the action. The bonds were issued by the county of Sedgwick, and that body corporate and politic stands as the nominal debtor for the entire amount. The territorial limits of that county were by the act of 1872, diminished, and by the same act a proportionate share of the bonded liability was imposed upon the detached territory. This was not an imposition of a new burden, but a division of one already existing. As the detached portion did not constitute by itself a county, the burden was not imposed on the county at large, but a new method was devised of collecting the necessary amount of taxes from the detached portion, that is, by requiring the county clerk of Harvey county to apportion upon the detached territory the amount due therefrom as certified by the county clerk of Sedgwick county. If Sedgwick county paid in full, it could bring no action against Harvey county, and it is doubtful whether outside of this statutory remedy it would have any relief at all. The bondholders were not compelled to sue out separate writs against Sedgwick county, and whoever stood as the representative of the detached territory. They could compel full payment directly from the sole nominal debtor. Neither was there anything like the relation of principal and surety between Sedgwick county and this detached territory. Each was equitably the principal so far as its proportion was concerned. Under these circumstances we think Sedgwick county had such an interest that it could maintain this 'action.
A second objection is, that “the tax claimed to be due has never been levied or estimated and determined by any competent authority.” The statute reads that “the county clerk of Sedgwick county shall annually certify to the county clerk of Harvey county the amount of taxes to be levied on the territory so detached to pay the interest,” etc., “and the county clerk of Harvey county shall apportion,” etc. This has been done. The objection really is, that the commissioners have not made a levy. This, so far as the detached territory is concerned, is we think unnecessary. The county clerk of Sedgwick county simply divides the amount due for interest or principal by the fraction which measures the separate liability, as provided by the statute, and certifies the quotient to the clerk of Harvey county. This is all the levy which the statute provides for the detached territory.
A third objection is, that mandamus is not the proper remedy. It seems to us that it is the proper, if not the only real remedy. It is a ministerial duty which the county clerk has to perform, and it is a duty whose performance is of vital interest to the plaintiff in this action.
The fourth and last objection is, that “the apportionment of the property and indebtedness of the county of Sedgwick, as made by the legislature is inequitable and unjust.” The provision in regard to such division is, that “the territory so detached shall pay the same proportion of said indebtedness as the length of the Wichita and Southwestern Railroad within the county of Harvey bears to the entire length of said railroad between Newton and Wichita.” There is no division of property, nor on the other hand is there any division of indebtedness other than that of railroad bonds. We are not advised as to the amount of property held by Sedgwick county, or the amount of its indebtedness; neither are we informed of the comparative wealth or population of the detached strip, and the balance of the county of Sedgwick. Under these circumstances it is impossible to say that the division is other than just and equitable, even if the matter were not wholly under legislative control. As to the power of the legislature, see Dillon on Munic. Corp., §§ 36, 127, 128, 129, and notes; Cooley Const. Lim., 191,193, and notes. These are all the objections raised by the defendant to the allowance of the writ, and none of them appear to us sufficient.
The peremptory writ must therefore be awarded as prayed, for.
All the Justices concurring. | [
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By the Court,
Valentine, J.:
The plaintiffs in error have filed no brief nor made any oral argument in this case. No errors have therefore been very specifically pointed out to us. And from an inspection of the petition in error, and a hasty examination of the record, we have discovered no error. For the reasons therefore that no error is obvious, and none has been pointed out to us except by the petition in error, (Wilson v. Fuller, 9 Kas., 176,) the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
But three questions are involved in this case. First: Can a mortgagee, on the failure of the mortgagor to pay the taxes levied upon the mortgaged premises, pay the same and have them included in the judgment rendered on the mortgage? This has been recently decided in the affirmative by this court: Stanclift v. Norton, ante, 218., Second: Is a stipulation in a mortgage to pay ten per cent, attorneys’ fees upon foreclosure, valid? This also has been decided in the affirmative. Tholen v. Duffy, 7 Kas., 405 The amount of the mortgage-debt is not so large as to make a ten-per-cent, attorney fee grossly excessive. It is not so large that a court of equity will refuse to enforce a stipulation therefor. Third: Will so much of the judgment as is for attorneys’ fees and taxes draw seven per cent, interest, or the rate stipulated to be paid on the mortgage-debt ? The law as to taxes is, that they shall be “included in the judgment:” Gen. Stat., 1062, § 135. The stipulation in the mortgage is that the plaintiff “should be entitled to a judgment for the possession of the premises, and costs, expenses, and attorneys’ fees of ten- per cent, of the amount due.” Both taxes and attorneys’ fees are included in the judgment, and should, we think, bear the samé rate of interest that the parties have stipulated for the judgment.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was an action on an attachment bond given under §213 of the code. The plaintiffs in error were the sureties on the bond. A special werdict was demanded on all the issues of fact.under § 7 of the act of 1870. (Laws of 1870, p. 173.) The error alleged is, that the facts as found by the special verdict do not authorize the judgment rendered. The rule by which this question must be determined is found in § 285 of the code. The facts must be so presented as that nothing remains to the court but to draw from them conclusions of law. But the facts to be presented by a special verdict are only the facts that are necessary to be offered in evidence. What is admitted in the pleadings, need not be proved, and need not be returned in a special verdict. The pleadings put certain questions in issue; on these only the jury pass. If a fact admitted in the pleadings is necessarily involved in a general verdict, the jury are instructed to consider that fact as true. The first defect alleged is, that the verdict fails to show that the property attached was restored to the owners. The action was on an undertaking given by plaintiffs in error as sureties to procure the release of an attachment. The law provides that upon giving the bond the attachment shall be discharged, and restitution made of the property attached. (Code, § 213.) The fact is found that upon the giving of the bond the same was approved by the court, and the property was released from the attachment. Was it a necessary fact to establish the liability of the sureties on the undertaking, that it should not only appear that the property was released from attachment, but that it should be restored to the owner? We think it was. The law makes a distinction between a release of the property from attachment, and the return thereof to the owner. As we find this distinction made by the statute we cannot ignore it. And it is not difficult to perceive a great difference between the two acts. When the proper bond is given the law discharges the attachment. The bond becomes the surety of the attaching- creditor in lieu of the attached property. But the debtor has n right to a restitution of the attached property. If he does not get possession of the property taken „ from him by the attachment, he ought not to be compelled to pay the bond, the sole object for the giving it, being the restitution of his property. It is the duty of the officer holding the attached property to make the restitution; but if the plaintiff relies on the bond he must see that the officer does this duty. This is the reason of the law. The law itself is plain enough. It positively directs that restitution shall be made. It is not the policy of the law to drive the defendant, after having given security for the demand against him, to another action against the officer to obtain possession of his own property. It is urged in argument that the eighth fact found is in substance a general verdict, and therefore the judgment should be sustained on that finding. But we do not think that the finding is in form or substance a general verdict, and therefore it is unnecessary to decide whether, when a special verdict is demanded and rendered, and is found defective, a judgment will be upheld on a general verdict. Our statute makes a great innovation on the common law, and whether it is wise or otherwise, the courts cannot change it. This conclusion necessarily reverses the judgment of the district court; a result which, on account of the consequences of the decision, has not been reached without the most careful scrutiny and mature deliberation. There are no exceptions to the verdict; no motion for further findings, or for a new trial. All the facts in the case are found to the satisfaction of both parties. The facts do not warrant a judgment for the plaintiff below. Therefore the judgment ■ must be for the defendant on the verdict. It seems to us that justice requires the case to be sent back for a new trial, and if the court had the power to do so, it would make such an order, but we have no discretion in the matter. Section 559 of the code is explicit and positive on this point. The case must be sent back to the district court with instructions to enter judgment on the verdict for the defendants. If there is any hardship in the case, the remedy for future cases lies with the legislature, not with the court.
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The opinion of the court was delivered by
Valentine, J.;
This action was commenced in the district court of Coffey county by Benjamin Branner as plaintiff against C. B. Chapman and Allen Crocker, county clerk of Coffey county, as defendants. A summons was issued by the clerk of said court and directed to the sheriff of said Coffey county. The summons was served on Chapman alone, and it was served on him by a deputy-sheriff of Lyon county. No service of any summons was made on Crocker; and the deputy-sheriff of Lyon county had no authority to serve said summons on Chapman except such authority as he might have by virtue of being said deputy-sheriff. The defendant Chapman by his counsel made a special appearance in the action, and moved the court below to dismiss the action for want of jurisdiction. 'The court sustained the motion and dismissed the action. The plaintiff now brings the case to this court, and asks that the order of the district court dismissing said action shall be reversed. We do not perceive any error in the ruling of the court below. The service of the summons was certainly irregular if not illegal and void. A sheriff of Lyon county has no legal right merely by virtue of being such sheriff to serve a summons directed to the sheriff of Coffey county, and the deputy-sheriff of Lyon county has no greater power in this respect than the sheriff of said county himself has. The summons must always (if served in the state) be served by the officer to whom it is directed, or by his deputy, or by some person duly authorized by such officer to serve it: (Gen. Stat., p. 278, §106; Code, §§63, 66;) and it cannot legally be served by any other person. Therefore, whenever a summons is directed to one officer and is served by another, as in this case, we think the service should be set aside; and this is the proper practice. In the present case the parties gave the court no alternative but to hold the service bad and dismiss the action, or to hold it good and allow further proceedings to be had and judgment to be entered upon it. And, as the service was unquestionably bad, and as this was the only service in the case, we think the court did not err in dismissing the action. A special appearance to contest the jurisdiction of the court does not give the court jurisdiction. The order and judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
Attached to the petition in error is a paper purporting to be a copy of a “ case made.” It is not signed by the judge, nor made a part of the record in any way. A motion is made by the defendant in error to dismiss the petition in error, because the paper attached thereto is not a record, nor authenticated as the law requires in a “ case made.” The plaintiff in error interposes a motion suggesting a diminution of the record and asking leave to have the same perfected by obtaining the signature of the judge of the proper district court to the “case made.” As the time in which a case made could be perfected appears, from the paper, to have expired on the 25th of December, it may be very questionable whether the plaintiff in error has not by his laches lost all possibility of now making a case for-this court. But waiving that question till it arises, it is enough to say, on this motion, that there is nothing to amend by. There is no record here. It is not a case of diminution of record, or imperfect record, but a total want of it. The motion to perfect the record is overruled, and the petition in error dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On the 7th of November 1871, at the general election held in Neosho county, W. H. Morris and R. J. Vanlaningham were voted for, for the office of register of deeds. On the Friday next following the election the county commissioners of said county canvassed the election returns, and declared W. H. Morris to have been duly elected to said office. Vanlaningham contested the election.- A court was organized according to law, (Gen. Stat., 424, §§ 85 to 105,) for the trial of said contest. The case was tried; the court made special findings of fact, and a majority of the court determined as a conclusion of law from said special findings of fact that said Morris was duly elected to said office. One of the members of said court however dissented from the conclusion of the majority; he believed that said Vanlaningham was duly elected to said office, and not Morris. Vanlaningham then took the .case to the district court of said county on petition in error. The district court reversed the judgment of the trial court, and declared Vanlaningham to have been duly elected to said office. Morris now brings the case to this court on petition in error, and asks this court to reverse the judgment of the district court.
Many questions have been raised, some of which it will, not be necessary to notice at all; and others will require only a bare notice. The main question in the case is the one upon which, the trial court differed. It is claimed by the plaintiff in error, that the court that tried this contest is not such a court as is authorized by the constitution. We think it is. (Steele v. Martin, 6 Kas., 430; Norton v. Graham, 7 Kas., 166.) It is also claimed that the “statement” of the contestant was not sufficient. W'e think it was. It seems to be claimed that the contents of lost election returns cannot be proved by parol evidence. We think they can, where that is the best evidence that can be obtained. Plaintiff in error offered to introduce certain evidence (that of B. M. Smith) which did not tend to prove or disprove any fact in issue in the case. Besides, there is nothing in the record which tends to show that the evidence would have been material upon any issue that could have been presented in such case. It does not tend to show that either party received more or less votes than were counted for him. It does not tend to show that any illegal vote was polled, or that any legal voter was prevented from voting. There is not even anything in the record tending to show which party received a majority of the votes of Tioga township, (and this evidence had reference solely to Tioga township,) or how many votes either party received in said township. We therefore think there was no substantial error in excluding this evidence. It was not error for the court to permit the contestant to introduce the records of elections in evidence, over and against any objection that could have been made by the contestee. The contestee however gave no reason why he objected. And even if there were error in the introduction of said evidence, the contestee waived the same by afterward introducing the same records as his own evidence, and generally for anything they might prove, and not specially for some pai’ticular purpose. Neither was it error for the trial court in their findings to correct the erroneous calculation of the county clerk, or the county commissioners. The evidence introduced on the trial was not absolutely harmonious in every respect, but it amply sustained the findings of fact of the trial court, so far as we can judge from what is given in the record. The contestee tendered by his answer certain issues upon which the trial court made no specific findings. There was no evidence however introduced on the trial which tended to prove the allegations of the contestee’s answer in this respect, and the contestee did not ask to have specific findings made thereon. (Moore v. McIntosh, 6 Kas., 39.) The findings however that were made covered by general terms these issues, and really rendered more specific findings unnecessary. The trial court found the exact number of legal votes that each party received, and that was sufficient. It made no difference how many illegal votes were cast, as they were not counted. The court counted all the legal votes, and none but legal votes. This the findings sufficiently show, and this was sufficiently definite, certain, and specific for all the purposes of this case. It was a substantial finding upon all the issues presented by the contestee, and sufficiently definite.
The findings of the court show the following irregularities which occurred in Grant township at said election: The polls of said election were closed at about the hour of noon, and remained closed for a period varying from an hour to an hour-and-a-half, and during this period the election board dispersed for dinner. Two of the election judges took the ballot-box with them to dinner, and kept it within their view during .that time. Just before the board adjourned for dinner, and immediately upon reassembling, the ballot-box was opened by one of the judges in the presence of the other members of the board for the purpose of ascertaining the number of ballots it contained. After the election was closed in the evening, and the poll-books properly made out, signed, etc., both poll-books, and all the ballots were handed to one of the judges of the election, who was also the township trustee of Grant township, and he was to take one of the poll-books and the ballots to the county clerk, and preserve the other poll-book in his office. Neither of the poll-books nor the ballots were “put under cover,” or sealed up, or directed to the county clerk. They were put into the ballot-box, open, and loose, and in that condition handed to said judge of election and township trustee; and on the morning of the third day thereafter he lost them, and they have • never been found. Therefore no poll-book nor any of the ballots of Grant township were ever delivered to or received by the county clerk. Now it must be admitted that the closing of the polls at noon for an hour or more, was an irregularity. (Gen. Stat., 404, § 6.) The opening of the ballot-box before and after the adjournment for dinner, was also an irregularity. (Gen. Stat., 408, § 17.) . The failure of the judges of the election to “put under cover one of the poll-books, seal the same, and direct it to the county clerk,” was also an irregularity. (Gen. Stat., 410, § 26.) The failure of the judges of the election to carefully “envelope” all the ballots, and deliver them to the county clerk, was also an irregularity. (Gen. Stat., 410, §§ 26, 27.) And the loss of both the poll-books and all the ballots by said judge of election and township trustee, and his failure to deliver any of them to the county clerk, or to preserve one of the poll-books in his office, was a strange irregularity. But all of these are mere irregularities. No fraud was committed or attempted; no illegal vote was polled; and no legal voter was deprived of his vote. The utmost good faith characterized the whole of the proceedings, except possibly the loss of said poll-books and ballots. These mere irregularities cannot therefore vitiate the election either in Grant township, or in the county. The person who received the highest number of legal votes polled at said election was duly elected. The spirit of the election laws of this state is embodied in the following provision:
“Section 29. In all elections for the choice of any officer, unless, it is otherwise expressly provided, the person having the highest number of votes for any office shall be deemed to have been elected to that office; and whenever it shall satisfactorily appear that any person has received the highest number of votes for any office, such person shall receive the certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing and conducting the election, so that the real will of the people may not be defeated by any informality of any officer.” (Gen. Stat., 411.)
The findings of the trial court are sufficient to sustain the judgment of the district court. The judgment of the district court is therefore affirmed.
All the Justices concurring. | [
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• The opinion of - the court was delivered by
Bbjsweb, J. i
The plaintiffs brought their action on a policy of fire insurance issued by defendant. Judgment was entered in favor of the defendant on the pleadings, and of this judgment plaintiffs now complain. Two questions are presented for our consideration. First, Was the action prematurely brought? The policy provided that the loss should “be paid sixty days after due notice and proofs of the same, made by the assured and received at this office.” The petition was filed March 10th 1869. The answer alleged that proofs of loss were not received at the company’s office until January 26th 1869, less than sixty days prior to the commencement of the suit. The reply admitted this, but averred that subsequently, and on the 19th of February 1869, the defendant, after consulting with its western agent5 denied all liability under the policy, and “refused to pay the loss or any part of it on the ground that the circumstances attending the fire were such as to justify their refusal to pay the same,” and also requested that suit be brought in Kansas instead of Philadelphia. That' a stipulation like the one in question is valid, and that, when, the company recognizes or does not deny its liability under the policy for the loss, an action before the expiration of the stipulated time is prematurely brought, is well settled. • It is simply a contract for so much credit, and is no more to be questioned than a contract for like credit in the sale of goods. It is equally well settled that the right to notice and proofs of loss is a right which the company may waive, and that when the company denies all liability for the loss, and refuses to pay for the same, and places that denial and refusal upon grounds other than the failure to give notice or to furnish proofs, such denial and refusal avoid the necessity of-notice and proofs, and are a waiver of them. Vas v. Robinson, 9 Johns., 192; Thomas v. The Ocean Ins. Co., 6 Cow., 404; McMasters v. The Westchester Co. Mutual Ins. Co., 25 Wend., 379; O’Neal v. The Buffalo Fire Ins. Co., 3 Comst., 122; Peoria M. & F. Ins. Co. v. Whitehill, 25 Ill., 466; The President and Directors of the Ins. Co. of N. A. v. McDowell, 50 Ill., 120; Schenck v. The Mercer Co. M. & F. Ins. Co., 4 Zabr., 447; Graves v. The Washington M. Ins. Co., 12 Allen, 391; Allyn v. The Maryland Ins. Co., 6 Har. & Johns., 408; Taylor v. Merchants Fire Ins. Co., 9 How., 390. It would seem to follow that when the company by denial of its liability relieves the assured from the necessity óf giving' notice and proofs, it also waives the right to claim sixty days from notice and proofs for payment. Shall it be permitted to deny all liability under the contract for the loss, and at the same time have all the benefits of the stipulations of the contract as to time and mode of payment? A distinction should perhaps be noticed to guard against misapprehension. A mere waiver by the company of one provision of the policy intended for its benefit is not a waiver of the others. It may for instance formally waive notice of proofs, and still be entitled to the sixty days after such waiver for payment. In such case the waiver stands simply in lieu of the notice and proofs, and the time begins to run from the waiver. In all this the company recognizes its ultimate liability for the loss, and simply relieves the assured from some one or more of the steps necessary to fix that liability. But a denial of all liability places the parties in a different attitude. In effect the company says to the assured, Notwithstanding you give us notice and furnish proofs, and wait the sixty days, and comply with all the provisions inserted in the policy for our benefit, still we shall not recognize your claim, nor pay for the loss. Why compel a party to do that for the company, which when done the company wholly disregards? After having done all, he is no nearer payment than before, and must still appeal to the courts. Counsel seeks to parallel, this with the case of a promissory note, and asks if, in case ■ the- company had given a note payable in sixty days, an action thereon in thirty days would not have been premature, even though the company, subsequently to the execution of the note, denied all liability thereon. The parallel is not good. The latter is wholly a unilateral contract, with rights and liabilities fixed and determined, and without anything for adjustment, and without occasion for act or waiver by either party. To change the liability requires a new prom ise, not a denial or waiver. The decisions have all been in harmony with the views herein expressed. Columbia Ins. Co. v. Catlett, 12 Wheat, 392; Ætna Ins. Co. v. McGuire, 51 Ill., 312; Phillips v. Protection Ins. Co., 14 Mo., 220; Allyn v. Maryland Ins. Co., 6 Harris and Johns., 408; The N. & N. Y. Trans. Co. v. Western Mass. Ins. Co., 34 Conn., 561, or 6 Blatchford C. C., 241. Counsel contends that there is a distinction to be drawn between some at least of these cases and the present, in this, that in them the language of the stipulation was “sixty days after proof and adjustment,” while in this it is “after due notice and proofs made by the assured and received at this office” — as though the former required mutual action, and the latter only action on the part of the assured. Some of the cases cited are exactly parallel. In the Illinois case the language is, “after the loss shall have been ascertained and proved.” In the Missouri case, “after the loss shall have been ascertained and proved, and the proof received at the office.” And in the Connecticut case, “after sixty days from notice, and the furnishing of preliminary proofs of loss to the underwriters.” But even under the policy in this case there is to be mutuality of action. The proofs are for the purpose of an adjustment. The mere production of these proofs does not determine the amount of the loss. It. furnishes a basis.for the action of the parties in adjusting this amount as well as the extent of the liability of the company. We conclude then, that the action was not prematurely brought. /
Was the liability of the defendant destroyed by the additional insurance taken out on the stock of goods covered by this policy? The policy stipulated that it should be avoided if the assured made any other in-' . . 1 surance on the property “without notice to and consent of this company in writing.” The answer alleged a subsequent insurance without such notice and consent. The reply admits a subsequent insurance, and then alleges that this policy was originally for $6,000, but was reduced by defendant to $3,000; that at the time of such reduction- the defendant in consideration thereof requested the assured to take out a policy of $3,000 in the Home Ins. Co.; that in pursuance thereof the assured took out such ■ policy, which was the additional insurance; that the defendant had due notice thereof, and that this policy was delivered to the defendant’s agents for the purpose of having this consent indorsed in writing, and the assured being ignorant of the mode of transacting such business relied wholly upon defendant and its agents to have the business correctly done; and that the defendant and its agents, contriving and intending to cheat and defraud the assured, negligently and fraudulently omitted to indorse the consent in writing. Upon these facts was the policy rendered null and void? It will be noticed that the reply alleges notice, and that the additional insurance was at the request, which implies the consent, of the defendant; so that to this extent the requirements of the policy were complied with. ' The only thing lacking is the written evidence of the consent. The clause requiring consent in writing is a condition for the benefit of the insurer. Like any other condition of a contract it may be waived by the party in whose favor it exists. By what kind of testimony such waiver must bo proved, is a question we need not consider. .Certain facts are alleged, and for the purpose of the case, as it now stands before us, must be taken as proved and true. Do these facts amount to a waiver? or perhaps more correctly, is the insurance company estopped by its conduct from insisting on a breach of this condition as a ground of forfeiture?. The defendant reduced its policy from $6,000 to $3,000, and requested the insured to take out a policy of $3,000 in a particular company; and when’ in obedience to this request he had taken out such policy, intending to 'cheat and defraud him, fraudulently omitted to indorse- its consent in writing upon the policy when presented, for that purpose. The question of the power of an agent does not come in here, for 'though some of the acts are alleged to have been done by and through an agent, yet the acts are all charged to have been the acts of the defendant. The case stands as though the transactions were wholly between two individual principals. The company, when it requested the insured to take out the additional insurance, placed itself under obligations to give its consent in writing, and to do all other acts which might be necessary to prevent such additional insurance from injuriously affecting the rights of the insured in its own policy. It could not subject him to the labor, annoyance, and expense of taking out a new policy, and then refusing its consent insist that its policy was avoided, and the premium forfeited. The law will not tolerate such unconscionable dealing; and that which it .cannot do directly, by refusal, it cannot do indirectly by fraud. Upon this question therefore we hold against the defendant.
These being the only questions presented for our consideration we shall be compelled to order a reversal of the judgment of the district court, and remand the case for further proceedings. It is perhaps fitting to say that there is another question upon which counsel informs us the decision of the district court was placed, but which somehow does not appear in the record as it comes to us. Of course, therefore, it would be improper for us to express any opinion concerning it. The judgment will be reversed.
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The opinion of the court was delivered by
Valentine, J.:
The only question presented to us for our consideration in this case is, whether the sureties on the official bond of a justice of the peace, as well as the justice himself, are liable to the owner of a judgment rendered by such justice and entered upon his docket, for money paid to and collected by. said justice in satisfaction of said judgment, where the justice afterward fails and refuses to pay over said money to said owner of the judgment. The question thus presented must undoubtedly be answered in the affirmative. The sureties are certainly liable. The money was paid to the justice because he was a justice of the peace, and because he had the power by virtue of process issued from his court to enforce the collection of the same. It “came into his hands by virtue of his office,” and the sureties as well as himself are liable for it. (Gen. Stat., 1085, ch. 110, §191) The justice did not receive the money merely as a private citizen, as it seems to be claimed by the defendant in error. It does not appear from the record that any execution had ever been issued on said judgment, and hence the said justice of the peace was the only officer who had any right to receive said money. The view we have^taken in this case is not expressly enacted by any .statute, although it harmonizes with every statute that has any reference to this or any kindred subject: §19, ch. 110, supra; Justices’ Act, §§188, 189; Civil Code, §521; ch. 39, Gen. Stat., § 29. See also the authorities cited in plaintiffs’ brief.
The judgment of the court below is reversed, and cause remanded for 'further proceedings in accordance with this opinion.
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error brought suit in the district court, claiming damages for grass growing upon his land which had been eaten up, tramped down and destroyed by a herd of Texas cattle belonging to defendant, now plaintiff in error. The case was tried by the court without a jury, and special findings of fact made. Upon those findings a judgment was entered in favor of the defendant in error for $296, and of this judgment plaintiff in error now complains and seeks its reversal. The land upon which this trespass was committed amounted to 800 acres. The first finding is, that the plaintiff was in possession of 480 acres, describing them, and plaintiff’s wife of the remaining 320. The second and third findings are, that defendant’s cattle were herded on the land; that defendant was requested to remove them, and promised to do so, but did not, and instead thereof attempted to purchase the land and failed. The testimony showed that he tried to purchase of the railroad company, but failed because the company had already sold it. The fourth finding is, “that of said land there was 320 acres of mowing land and grass worth eighty cents per acre, and 160 acres of grazing, worth twenty-five cents per acre.” The fifth finding is, that all the grass upon said 480 acres was destroyed by defendant’s cattle, and the sixth, that the amount of plaintiff’s damage was $296. This last finding is simply a deduction from those preceding, and is more properly a conclusion of law than a finding of fact. It is perhaps uncertain whether the term “ said land” as used in the fourth finding refers to the whole 800 acres described in the petition, or to the 480 found to have been in the possession of the plaintiff. In either case the judgment will have to be reversed. If it refers to the 800 acres, the findings do not support the judgment. If to the 480, the testimony does not support the findings. If it refers to the 800 acres, then the 320 acres of mowing land may have been the land in the possession of Mrs. Clarkson, for which she alone could maintain an action, and the plaintiff been injured only in the 160 acres of grazing land, the damage to which the finding shows was only forty dollars. If on the other hand, the reference in this finding is to the 480 acres found to be in the possession of the plaintiff, then we search the record in vain for testimony to support this finding. The testimony shows that all the grass on the 800 acres was destroyed; it also shows, as does the finding, that a portion of this land had on it grass suitable for mowing which was worth a great deal more than that only fit for grazing; but there is nothing in the testimony which in any way indicates upon whose land was the grazing and upon whose the mowing grass. We quote all the testimony upon this point. The plaintiff says: “ I should think there were five hundred acres of meadow land. The balance of the land consists of gentle sloping land, with fine grazing grass upon it;” and in another place, speaking of the grazing land — “of this sort of ground there was probably about one-third of the eight hundred acres.” H. C. Harrington, a witness for plaintiff, testifies in reference to the entire body of land: “There was about two-thirds of it mowing land.” The district court evidently took the proportion as testified to by the witnesses in reference to the 800 and applied it to the 480 acres; but this is manifestly improper. For the interest of the plaintiff is not a proportionate interest in the 800 acres, but a full interest in a specific 480 acres,' while none of the testimony refers to this specific 480 acres. The testimony as to the quality of the land and grass must run parallel with that as to the plaintiff’s interest. If his interest is a proportionate interest in the entire tract then the testimony may be to the different proportion of mowing and grazing land in that entire tract; but when his interest is only in a specified portion of that land, the proportion of mowing and grazing land' in that specified portion must be shown. A proportion that is true as to a large body of land may not be true of a small fraction thereof. Two-thirds of 800 acres may be mowing land, and yet 200 acres of that tract have not a single foot of mowing land. For these reasons the judgment of the district court will be reversed, and the case remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bee wee, J.:
The action in the court below was for damages for the killing of a cow by a freight train on the railroad track of plaintiff in error. It is insisted here, as. it was in the district court, that the bill of particulars is insufficient in not alleging that the killing was willful or wanton, or that it resulted from gross negligence. It does allege that the cow, without the fault of the plaintiff, strayed upon the track of defendant’s road, and that defendant so carelessly and negligently managed its locomotives and cars as to run over and kill it. Objection is also made to the instructions given at the instance of the plaintiff, on the ground that they place ordinary care as the rule of defendant’s duty, and ordinary negligence as the measure of its responsibility. We think them justly subject to this criticism, and that in this they differ from the instructions given at the instances of defendant which follow the decision of this court in the case of U. P. Rly. Co. v. Rollins, 5 Kas., 167. The question then is fairly presented, whether there has been any change in the law since that decision.. For if not, there was error in the rule given at the instance of the plaintiff, and where two contradictory instructions are given a reversal will ordinarily have to be granted. In 1870 an act was passed, the first section of which reads:
“Sec. 1. That railroads in this state shall be liable for all damages done to person or property, when done in consequence of any neglect on the part of the railroad companies.” —Laws 1870, page 197, ch. 93.
Many interesting questions will arise under this section. Did the legislature simply intend to give statutory force to the judicial determinations of the rules and limits of railroad liability? This hardly seems possible, or else they have chosen language most inapt. Evidently they proposed a change. By that change did they seek to wipe out the doctrine of contributory negligence, as a defense to a plaintiff’s action, and to make th.e companies liable in every case of negligence on their part, even though the plaintiff’s negligence contributed equally or more to the injury? Did they intend to make the companies responsible in all cases for slight negligence? In other words, did they purpose that the measure of care should be the same toward a pig on the track, as toward a passenger on the train? It is unnecessary to pass upon those questions now. Ordinary negligence is all that was required by the charge of the court in this case, and ordinary negligence is within the letter and spirit of the law. “In consequence of any neglect,” is the language. Surely, if the company fails to use ordinary care, and is guilty of ordinary negligence, if it fails to make usual and reasonable efforts to prevent the injury, there is some neglect on its part. Can it omit that degree of diligence which men in general exercise in respect to their own concerns, without being open to the charge of neglect? We think not; and therefore decide that under the law of 1870 it is not error in an action like this to instruct the jury that the company is liable if it fails to use ordinary care and diligence and is guilty of ordinary negligence. The instructions given at the instance of plaintiff do not appear to be harmonious with those given at the instance of defendant, but as those least favorable to the plaintiff in error are correct, it cannot have been prejudiced. Of course, the decision of this question clears up any doubt, if doubt there was, as to the sufficiency of the bill of particulars. The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a proceeding by mandamus, instituted in this court, to compel the Lieutenant-Governor of this state and the Speaker of the House of Representatives, to furnish the plaintiif, S. S. Prouty, with a certificate of his election as state printer of the state of Kansas, he claiming to be entitled to such certificate by virtue of the-proceedings had in the joint session of the legislature on the third Tuesday of January, 1873. Three questions are presented, two of which at least must be decided in favor of the plaintiff before he will be entitled to the relief sought. First, Could a majority of members present in the joint session and voting, elect, or did it require a majority of all the members elected to the two> houses? Second, Did the house of representatives consist of more than ninety members? Third, Can this court look back of the final declaration of the result by the joint convention, to see whether upon either of the votes any one other than the one declared elected, was in fact elected? These questions, as can readily be seen, are, so far as this court is concerned, of a delicate nature, for they concern the regularity of the proceedings of the legislative branch of the government; and they are also questions of great moment, for they involve the rightfulness of the organization of at least one body of the legislature. Our examination has been assisted by the efforts of able counsel, whose briefs are full and elaborate, and whose arguments were models of clearness and strength. We have given to the case the full consideration which its importance demands, giving to it a priority of attention in view of the public intereste affected by its result.
There is no dispute as to the facts, and the questions are purely questions of law. On the first call, of the roll, as sb°wn by the journal of the proceedings of the joint convention, S. S. Prouty, the plaintiff, received 65 votes, and George W. Martin received 62 votes. No other votes were cast, so that the plaintiff received a majority of all the votes of all the members present and voting. Was he thereby elected? Art. 15, § 4, of the constitution, as amended in 1868, provided that a state printer should be “elected by the legislature in joint session.” This section is silent as to the manner of voting, or the number of votes necessary to elect; and if there be no limitation prescribed elsewhere it would seem that a majority of all the votes cast was sufficient. In 1861 the. legislature passed an act to regulate the proceedings of joint conventions which, at least in terms, has never been repealed. Sec. 6 of that act reads, “that to elect any person in said ioint convention a majority voting m the affirmative of all the members elected to the two houses shall be necessary.” (Gen. Stat., 547, ch. 57, § 6.) As there were 133 persons elected and admitted to the two houses, the plaintiff failed by two votes of bringing himself within the rule prescribed in this section. To avoid this plaintiff claims, first, that this act is inapplicable; second, that it was repealed by the constitutional amendment of 1868, and third, that it is unconstitutional. Was it inapplicable? The election of a state printer is not one of the things named in the act to be, or which may be, done in the joint convention. Such an officer was then unknown to our laws, and of course was not within the thought of the legislature when it passed that act. Yet the language is broad and comprehensive: “ The two houses shall meet in joint convention for the ele.ction of United States senators, or for the purpose of doing any other act that may be authorized by law.” It includes everything that a joint convention has power to do. It is prospective in its reach, and every act which a joint convention.may hereafter be required or authorized to do, must, while that statute remains unrepealed, be .done according to the rules and limitations therein prescribed. The legislator acts for the future, as the judge does for the past. He prescribes a rule of conduct, and everything which comes within the limits of that rule must be guided by it. And when an act comes within the plain limits of a legislative rule, it is no objection to the applicability of the rule, that the act was not thought of, or was even impossible, at the time the rule was established.
Was said act of 1861 repealed by the constitutional amendment of 1868? The amendment created the office of state printer, and gave to the legislature the power of election. It was s^enf as t° the manner and requisites of electi0n. These are prescribed in the act. The amendment did. not in terms, repeal the act. It could operate as a repeal only by implication. But to repeal by implication, there must be an inconsistency, a conflict between the two. The manner and requisites of election as prescribed in the act must amount to a limitation on the power granted by the amendment, or the two can stand together, and there is no repeal. Prima facie there is no inconsistency, no conflict between the grant of a power and the regulations under which that power may be exercised. Judicial power is vested in certain courts. Prescribing the method of procedure in those courts is per se no limitation on that power. Power to enact laws is vested in the legislature. The rules and orders for transacting business work no abridgment of that power. But it is claimed that under the name of a regulation this section really works a limitation, because, by § 8 of art. 2 of the constitution a majority of each house constitutes a quorum; that when a quorum is present the house is present; that a quorum can transact any business except such as by specific sections of the constitution require the concurrence of a larger number; that a majority of the quorum binds the quorum; that its act is the act of the quorum, and therefore the act of the house; that this amendment grants the power of election to the legislature in joint convention, that is, to a convention composed of a quorum of-each house; that the majority of that convention, thus organized, binds the convention, its act is the act of the convention, and executes the power granted to the convention. The propositions thus stated bring up the third inquiry presented concerning this section: Is it constitutional? The claim made is really two-fold: first, that in the absence of express limitations the majority of a quorum of a deliberative assembly can do any act and exercise any power of that assembly, and second, that because the constitution has expressly declared that a given proportion of one or both houses shall be requisite for certain specified acts, it impliedly inhibits any limitation upon the power of a quorum in all other cases. The limitations on the power of that quorum are in this case expx’essed, expressed in the act of the legislature. All legislative power is vested in the legislature. Prescribing the rules, manner, and requisites of elections, is a legislative act. Thex’e is no express constitutional inhibition. Implied inhibitions are, it is true, equally potent; but their existence must be equally evident. Good illustrations of implied inhibitions are found in the cases cited by counsel front Pennsylvania. The constitution of that state prescribed certain qualifications for voters. The legislature by statute attempted to impose additional ones. This the court decided could not be done. The constitution, they say, by imposing certain qualifications upon voters impliedly authorized every one possessing those qualifications to vote, and forbade the requirement of anything more. “Ex-pressio wnius, exelusio alterius.” Page v. Allen, 58 Penn. St., 338; McCafferty v. Guyer, 59 Penn. St., 109. To sustain an implied inhibition there must be some express affirmative provision. The mere silence of the constitution on any subject cannot be turned into a prohibition. Take the illustrations cited. Were the constitution silent as to the qualifications of voters, that silence would not by implication or otherwise restrain the legislature from prescribing them. The power of the legislature to prescribe them would be unquestioned. Again, to sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than is necessary to give full force to that provision. Pursuing the same illustration, a mere registry law will not come within the implied inhibition, even though it require the voter to do some acts to establish his right to vote, and though it frequently operate to deprive a legal voter of his vote. Such.a law is concerning the general subject of voting, and elections, but it does not reach to the exact matter of qualification; and on the other hand full force can be given to the- constitutional provision without interfering with the law. To declare a law void as conflicting with an express provision of the constitution, the conflict must be clear. So say all the authorities. None the less clear must the conflict be, when it is conceded that no express provision has been violated, and only claimed that some negation must be implied from the affirmative language of the constitution which is irreconcilable with the law. Now there are some sections of our constitution which require for specific acts the concur rence of a certain proportion of the members elected to either house: Art. 2, §13, §14, and §27; art. 3; §15; art. 11, §5; art. 14, § 1, and § 2. But these sections all refer to the action of the two houses meeting in separate session. They prescribe the number of votes in each house which shall be necessary for certain purposes. They nowhere and in no manner refer to the action of the two houses meeting as one body in joint session. The joint convention is a body as different, and with as distinct powers and functions from those of the two separate houses, as a’partnership is from the individuals composing it. Even if it were conceded that these sections cited operated as an implied prohibition on any statutory limitation of the power of a majority of a quorum in the separate houses, still they would not bear upon the powers of a majority of the quorum of a joint convention. A joint convention is a body not recognized by the constitution prior to the amendment of 1868, unless it be by the use of the phrase “the legislature shall by joint ballot,” in § 2 of art. 1. And the use of this phrase, if it refers to a joint convention, suggests this inquiry: The candidate at a popular election receiving the highest vote for any office, state, county, or city, is declared elected. This has always been the rule in this state, established by statute, and questioned by no one. Sec. 2 above referred to provides that in case two or more candidates for any state office receive an equal and the highest number of votes the legislature shall choose by joint-ballot one of such candidates. At such a legislative election must a candidate have a majority of a quorum, that is, a majority of all the votes cast, or will a plurality elect, as at the popular election? Is this question settled by the AX.. . t . . - constitution, or may the legislature determine it ( And if the legislature can say that less than a majority of a quorum shall elect, may they not also say that more than such majority shall be requisite ? But again, the act of voting is not a legislative act. Giving the election of printer to the legislature in joint convention, simply creates an electoral college composed of the members of the two houses. The powers of the college thus created are no greater than if the college had been composed of the probate judges of the several counties convened for that purpose. Shall it be said that limitations placed upon the action of the several houses, when performing their appropriate legislative functions, or certain limited judicial duties, apply either directly or by implication to the powers of an electoral college composed of the members of those houses ? It seems to us therefore that the act of 1861 is applicable; that it was not repealed by the amendment of 1868, and that it is constitutional.
The second question presented is, did the house of representatives consist of more than ninety members? It is claimed by plaintiff that the senate consisted of J 1 thirty-three, and the house of ninety members; and that these ninety were the representatives of the districts specified in § 3 of the apportionment law of 1871. (Laws of 1871, pp. 33 to 37.) ' It appears from the journals that of these 123 persons claimed to be the duly legal members of the legislature 62 voted for plaintiff. This being a clear majority, plaintiff insists that he comes within the rule prescribed in § 6 of the act of 1861, heretofore quoted, and was therefore elected. It is conceded that one hundred persons were present in the house of representatives, claiming to be members, recognized and admitted as members, and discharging equally the duties of members. Ninety of these represented the districts specified in said § 3, and ten were from counties organized subsequently to the apportionment act of 1871. Defendants claim that this court cannot look beyond the action of the house to inquire whether persons admitted as members were legally entitled to seats. Art. 2, § 8, declares that each house “shall be judge of the elections, returns and qualifications of its own members.” Its determination is not the subject 'of appeal or review. It is final, and concludes every one. But what is included in this power ? Does the power to judge of the qualifications of its members, include the power to increase such' membership? Can it enlarge its members without limit? Is it like an academy of science, or a lodge of odd-fellows, capable of indefinite expansion? If the law fixed the number of senators at twenty-five, could those twenty-five admit twenty-five more on pretense of judging “of the elections and qualifications of its own members,” and thus create a senate of fifty members? If this power exists, how easily could a partisan majority secure to itself a two-thirds vote by simply admitting new members. To create a representative or senatorial district requires a law, the consent of both houses. Neither house by itself can create a district, and then admit some one to represent it. The district must exist before it can be represented. Otherwise one house could usurp the functions of both. And if one house can admit members above the limit prescribed by law, why may it. not above the constitutional limit? But when the district exists, then the decision of the house as to who shall represent that district is conclusive and final. It determines who was elected; whether the returns are sufficient, and also whether the party elected has the proper qualifications. Over all these matters its jurisdiction is ample, its determination final. How far an inquiry could be pursued into the particular persons voting for any law,.so as to attack its validity on the ground that it received its majority only by the votes of those not legally members, we need not now decide. Many considerations other than those appropriate to this may affect that (Question. Here the plaintiff challenges certain voters. He contests an election, and ; claims that of the legal voters he received a majority. In such an issue we think he may show that certain persons were allowed to vote as representa* tives of districts which had no existence, and the judgment of a single house that there were such districts does not conclude him. Commonwealth v. Meeser, 44 Penn. St., 341. Had these ten districts (counties organized subsequently to the passage of the apportionment act of 1871) a legal existence? The first two sections of art. 10 of the constitution are as follows:
“Section 1. In the future apportionments of the state, each organized county shall have at least one representative; and each county shall be divided into as many districts as it has representatives.
“Section 2. It shall be the duty of the first legislature to make an apportionment, based upon the census ordered by the last legislative assembly of the ■ territory; and a new apportionment shall be made in the year 1866, and every five years thereafter, based upon the census of the preceding year.”
In pursuance of these sections the legislature of 1871 passed an apportionment act. (Laws 1871, p. 32.) The first section of that act is as follows:
“Sec. 1. That the senate shall consist of thirty-three members, and the house of representatives of ninety members; but the number of representatives may be increased by the organization of new counties to not more than one hundred i Provided, That no county not now organized shall be entitled to more than- one representative until the next apportionment.”
Section two defines the boundaries of the senatorial, and section three those of the ninety representative districts. To create a district requires a law — a law, the con-~ ii i sen* both houses. Conceded. But does not this law create the ten disputed districts ? Is not the language equivalent to this — that the house shall consist of 100 members, of whom ninety shall be from the following districts, and ten from the first ten counties that may hereafter be organized. Nothing further is to be done by either or both houses. The organization of both houses identifies the districts, and entitles to representation. The law is as complete as the law for the government of cities of the first class. No cities are named, but as soon as it is established that a city has over 15,000 inhabitants, it becomes subject to the provisions of the law.- No further legislation is required. No counties are named as constituting these ten districts; but as soon as the fact is established of their organization they become entitled to representation. But it is claimed that such a construction places the law at variance with the constitutional provisions just quoted; that they require an apportionment every five years, and impliedly forbid any changes intermediate the apportionment; that an apportionment implies a distribution -of the full representation among the population according to its present numbers and location, and that there is a new apportionment, a reassignment of representation every time a new representative is added, as much so as if there were a change in the boundaries of the old districts. There is great force in this argument; and if the section stopped with the creation of a house of ninety members, and a subsequent .legislature by law attempted to create a new. district, we should be brought squarely to the question of the power of the legislature to change the representation intermediate the apportionment. But this apportionment is, as we think, of the full house, of 100 members. It distributes ninety among the organized and ten among the unorganized counties. It names the boundaries of the ninety districts, and leaves the ten to be determined by the priority of county organization. It is providing for a legislature which is to be elected and to meet in the future, and it may rightfully assume that in a new and growing state like this the changes of a summer will add many tbe list of organized counties. But it may be said such an apportionment is based not upon the census of the preceding, but the expectations of the coming year. An apportionment cannot be overthrown because the representatives are not distributed with mathematical accuracy, according to the population. Something must be left to the discretion of the legislature, and it may without invalidating the apportionment make one district of a larger population than another. It may rightfully consider the compactness of territory, the density of popula-" tion, and also we think the probable changes of the future in making the distribution of representatives. It seems to us therefore that the ten disputed districts legally existed; and therefore this question must be determined against the plain tiff. The determination of these question's compel a judgment for defendants. Peremptory mandamus refused.
Kingman, C. .J., concurring.
[* And see The State, ex rel., v. Williams, 5 Wis., 308, 315, 316.] | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the breach of certain real covenants. On the 29th of April 1868, Josephine E. S. McKee bought of John W. Bain and Mary M. his wife a certain lot in the city of Leavenworth taking a general warranty deed therefor, and in consideration thereof paid $2,050 cash down and gave her two promissory notes, each for $2,000, drawing interest from date at the rate of ten per cent, per annum, one due in one year and the other due in two years; and she also gave a mortgage on said lot to secure the payment of said notes. Mrs. McKee took possession of said lot under said deed, and made lasting and valuable improvements on the lot.' Afterward Alice A. Thomas by an action in which Mrs. McKee was a party, and of which the Bains had notice, showed that she,. Mrs. Thomas, had the paramount title to said lot. Mrs. McKee expended $196.25 as costs in defending said suit, and also paid $500 therein as attorney-fees, “but the court (below) finds from the testimony that any sum over four hundred dollars paid by the plaintiff (Mrs. McKee) as attorney-fees was unreasonable and excessive.” On the 19th of March 1872 Mrs. McKee, in accordance with the provisions of the occupying claimant law, (code, §§ 601 to 613,) bought in the. paramount title of Mrs. Thomas and paid therefor $5,000. Upon these facts Mrs. McKee asked in the court below a judgment against the Bains for the amount she paid the Bains, for the amount she paid as costs and attorney-fees, with interest on these several amounts, and also asked that the said notes and mortgage should be canceled, and that the apparefit- incumbrance resting upon her title by virtue of said mortgage should be removed. On the 16th of November 1872 the court below rendered judgment in favor of Mrs. McKee and against the Bains for $43.50, and that said notes and mortgage be canceled and that the lot be free from any incumbrance by reason thereof. Mrs. McKee now seeks a reversal or modification of said judgment, claiming that the same should have been for a much larger amount. We think the decision in the case of Dale v. Shively, 8 Kas., 276, substantially determines all the questions involved in this controversy. The covenant of seizin is broken as soon as the deed is made, if the title attempted to be conveyed is bad; and when the vendee afterward buys in the paramount title the measure of his damages as against the vendor is, as a rule, the amount with interest it necessarily costs to obtain the paramount title up to the amount of the purchase-money, with interest.
In some cases the vendee may also recover the costs and attorney-fees necessarily paid by him in prosecuting or defending a suit with reference to the land attempted to be conveyed. In the present case we think Mrs. McKee is entitled to recover from the Bains just the excess of what she has necessarily and actually paid over and above what she agreed to pay to the Bains. For instance: she agreed to pay as follows: Cash down, $2,050; two notes, $4,000; interest on the notes to March 19, 1872, $1,555.55; total agreed to be paid up to March 19, 1872, $7,605.55. She actually and properly paid as follows: Cash down, $2,050; attorney’s fees, $400; costs, $196.25; for paramount title, March 19th 1872, $5,000; total paid March 19th 1872, $7,646.25. She therefore paid $40.70 more than she agreed to pay for the lot. The judgment in this case was rendered November 16th 1872, for $43.50, a little more than said $40.70, with interest. As the plaintiff in error has raised some question about taking into consideration the interest on said notes we should say that she agreed to pay the interest as well as the principal, and one must be taken into consideration just as much as the other.
The title of the Bains to said lot was derived through judicial proceedings, and although defective on account of irregularities in the judicial proceedings yet it cannot be wholly ignored. The title was apparently good. The Bains acted in good faith in selling, and Mrs. McKee acted in good faith in purchasing and defending. Mrs. McKee obtained possession of said lot under and by virtue of Bain’s title, and she held possession thereunder for nearly four years without paying anything therefor to Bains, or to any one else except what she paid-as consideration for the lot; and she still continues to hold such possession, never having been in fact dispossessed. Bains’ title, though defective, rested as a cloud upon the paramount title. By virtue of said conveyance from Bains to Mrs. McKee, this cloud was extinguished, or rather transferred from the Bains to Mrs. McKee. This was something of value. And after the action between Mrs. Thomas and Mrs. McKee was determined, the right of Mrs. McKee to compel Mrs. Thomas to purchase Mrs. McKee’s improvements on said lot, and pay therefor $14,700 or to sell the lot to Mrs. McKee under the occupying claimant law for $5,000, was founded solely upon the title which Mrs. McKee obtained from the Bains. The title therefore which she got from Mrs. Thomas, had its origin in the title she got from the Bains. Besides, Mrs. McKee appeals to a court of equity to cancel said notes and mortgage. Said mortgage was a cloud, and an apparent if not a real incumbrance, upon the title to said lot. Is the removal of said cloud, and said apparent incumbrance, of no value? Now, by virtue of the conveyance from the Bains to Mrs. McKee, and the judgment in this case, Mrs. McKee has obtained a good title to her lot free and clear from all incumbrances or clouds, all that she bargained for, or expected to get, and all that she has any right to expect; and she has paid to all persons in the aggregate only what she agreed to pay to the Bains. She has lost nothing by the failure of Bains’ title. The Bains have lost thereby $5,599.05, principal and interest up to March 19th, 1872, yet they acted in just as good faith as Mrs. McKee. It is not necessary in this case to decide what would have been the rights of the parties if the amount which Mrs. McKee expended in defending said suit, and in buying in the paramount title, had been less than the amount of said notes and interest. We think the judgment of the court below was correct, and therefore it must be affirmed.
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The opinion of the court was delivered' by
Brewer, J.:
Two questions are raised by counsel for plaintiff in error in their brief. The first grows out of these facts: The action is one for the foreclosure of a mortgage. The mortgagor failing to pay the taxes, the mortgagee paid them. The amount so paid was included in the judgment, and for it, as well as the principal debt, the premises were ordered sold. Was this error? The mortgage contains no other stipulation in reference to this matter than that upon a failure to pay the taxes when due, the entire mortgage debt should become due and the mortgagee at once entitled to recover. But the law. in force at the date of the execution of this mortgage, and continuously up to the present time, authorized the mortgagee upon the failure of the mortgagor to pay the taxes, to pay them himself and have the amount included in any judgment rendered oh the mortgage, and declared that the taxes so paid should be a lien upon the land: Geii. Stat., p. 1062, ch. 107, § 135. This mortgage contract was made with reference to the law then in force, and it was unnecessary to express in it a right which attached to all mortgages. It was by statute a condition of the contract as fully as though written in the body of the instrument. Probably too the moi’tgagee would have the right without the statute to pay the taxes and include them in the judgment, so as to keep his security perfect. There was therefore no error in this ruling of the court.
The other question arises on a demurrer to the defense stated in the answer. The time for which the note and mortgage were given had not expired when this action was brought. The only default alleged in the petition was a failure to pay the taxes when due, a sale for nonpayment, and a redemption therefrom by the mortgagee. Plaintiff claimed judgment and foreclosure for the full amount of the notes and the taxes. In their fourth defense the defendants alleged that since the filing of the petition herein, they had tendered to plaintiff the full amount of the taxes and penalty, and all costs accrued in the action, which tender was refused, and further' that they now repeated the tender and brought the money into court. To this defense a demurrer was interposed and sustained. Was this error ? We think not. By the express terms of the contract the entire amount of the debt was to become due upon a failure of the mortgagor to pay the taxes. There is nothing to vitiate such a contract. It is not prohibited by statute, nor against public policy. Nor is it a hard contract, one which it would be unconscionable to enforce. The lender of money may well insist that the security be kept intact, or the loan mature. This is but parallel to the case of a stipulation that upon a failure to pay interest promptly the principal shall become due. Such stipulations have almost invariably been sustained.;The Contributors, &c., v. Gibson, 2 Miles, 324; Ottawa Northern Plank Road Co. v. Murray, 15 Ill., 337; Hale, Rec'r, v. Governeur, 4 Edwards Ch., 207; Noyes v. Clark, 7 Paige’s Ch., 179; Sheel v. Bradfield, 4 Taunt. Rep., 227; James v. Thomas, 5 Barn. & Adolph., 40; Ferris v. Ferris, 28 Barb., 29; Valentine v. Van Wagener, 37 Barb., 60; Crane v. Ward, Clarke’s Ch., 393. In this last case the opinion contains this language: “The entire amount cannot be altered by any construction which may be given to the contract. The time of payment only is contingent. The parties to the original contract have unquestionably a right to agree that if the interest upon the money is not paid punctually the principal shall become due. So they might make any other event the criterion of the time when the principal was to be paid.” The case cited by counsel for plaintiff in error, 16 111., 400, has no application here.. Whether the facts alleged in the second and third defenses of the answer be true, we do not know. They are denied by the reply, and the record is silent as to the testimony. They must therefore be left entirely out of our consideration, and the case stands as the ordinary foreclosure of a mortgage with the default in the payment of taxes as the condition broken. The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action wherein Nolan Prewett directly appeals from his convictions after a trial to the court. Prewett was convicted of the following offenses: two counts of first-degree murder, K.S.A. 21-3401; two counts of aggravated kidnapping, K.S.A. 21-3421; two counts of aggravated criminal sodomy, K.S.A. 21-3506; two counts of rape, K.S.A. 21-3502; and two counts of enticement of a child, K.S.A. 21-3509. Prewett was sentenced to life imprisonment on each count of murder and aggravated kidnapping. For aggravated sodomy and rape, Prewett was sentenced to not less than fifteen years nor more than life on each count. Finally, Prewett was sentenced to not less than three nor more than ten years for each of the two counts of enticement of a child. The sentences on the two counts of murder are to be served consecutively and all other sentences are to run concurrently with the murder sentences. The district court suspended execution of the sentences and Prewett was committed to the Larned State Security Hospital in lieu of imprisonment pursuant to K.S.A. 22-3430.
The facts are that on July 19, 1986, Pamela Máhomes, who lived at 1530 Tyler, Topeka, Kansas, reported to the Topeka Police Department that her three-year-old daughter, Shavon, and six-year-old daughter, Shannon, were missing. A neighborhood search for the young girls proved fruitless. Two neighborhood children told police they had last seen Shavon and Shannon on Nolan Prewett’s porch at 1524 Tyler. The children stated Prewett stood in the open front door, with his hands behind his back, talking with the girls. Ultimately, a search warrant for Prewett’s residence was issued on July 20, 1986. Police officers discovered the bodies of Shavon and Shannon in Prewett’s basement stuffed between a furnace and stud wall. Prewett and another individual in the house, David Howard, were arrested and charged with the sexual violations and deaths of the Mahomes girls. David Howard was tried and acquitted.
On January 27, 1987, Prewett filed a motion to quash the search warrant and suppress evidence, alleging a lack of probable cause to issue the warrant. Prewett also filed a motion to dismiss on the grounds of denial of a speedy trial. The trial court denied both motions. Prewett waived a jury trial, and a bench trial was held October 20, 1987. Prewett was found guilty of the crimes charged and sentenced, and execution of the sentences was suspended for Prewett’s commitment to Larned State Security Hospital. Prewett appeals.
Prewett first contends the trial court erred in failing to dismiss charges against him as a result of the violation of his right to a speedy trial. K.S.A. 22-3402 provides:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
Subsection (3) extends the time for trial beyond the 90-day limitation in the following circumstances:
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(a) The defendant is incompetent to stand trial;
“(b) A proceeding to determine the defendant’s competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section.”
Prewett was in custody from the time of his arraignment, August 28, 1986, until his trial, October 20, 1987; a total of 418 days. The pertinent dates are as follows:
August 28, 1986 Prewett’s arraignment.
October 16, 1986 Prewett’s motion to determine competency to stand trial and notice of intent to rely upon insanity defense; trial court order to transport Prewett to Larned State Hospital.
December 31, 1986 Trial court received competency report from Larned State Hospital.
January 7, 1987 Prewett’s motion for competency hearing filed.
January 27, 1987 Prewett’s motion for competency hearing granted and hearing date set.
February 20, 1987 Trial court determines Prewett incompetent to stand trial and orders transfer to Larned State Hospital.
July 29, 1987 Trial court received competency report from Larned State Hospital.
August 11, 1987 Prewett’s second motion for competency hearing filed.
September 3, 1987 Trial court accepts Prewett’s waiver of hearing and stipulation to competency.
September 11, 1987 Trial court grants Prewett’s motion for trial setting of October 19, 1987.
October 20, 1987 Trial.
It is the State’s obligation to ensure that the accused who is in custody is provided with a speedy trial. State v. Fink, 217 Kan. 671, 679, 538 P.2d 1390 (1975). Delays which are the result of application or fault of the defendant, however, are not to be counted in computing the 90-day statutory period. State v. Warren, 224 Kan. 454, 456, 580 P.2d 1336 (1978). Clearly, Prewett is properly charged with the 76-day delay from October 16, 1986, to December 31, 1986, the period between Prewett’s motion for a competency evaluation and the trial court’s receipt of that evaluation. Prewett is also charged with the delay from January 27, 1987, when his motion for competency hearing was granted, to July 29, 1987, the date the trial court received the competency report from Larned State Hospital, a total of 183 days. The delay from August 11, 1987, when Prewett filed a second motion for a competency hearing, to September 3, 1987, when the trial court found him competent to stand trial, is also charged to Prewett, a total of 23 days. The 77 days charged to the State and 321 days charged to Prewett are not in serious dispute.
Prewett contends, however, that the 20-day period between January 7, when he filed a motion for a competency hearing, and January 27, when the trial court granted his motion and set a hearing date, is chargeable to the State in computing the statutory period. Prewett argues he neither caused nor consented to a delay by the filing of a motion for a competency determination. For support, Prewett relies upon our recent decision in State v. Roman, 240 Kan. 611, 731 P.2d 1281 (1987).
In Roman, the trial court held defendant’s motion to suppress evidence under advisement for 179 days. 240 Kan. at 612. We found that it was not error to charge the entire 179-day delay to the State and recognized that any party filing a motion has a right to assume it will be acted upon expeditiously. 240 Kan. at 613.
We do not agree, however, with Prewett’s contention that Roman controls the present case. Roman dealt with a motion to suppress, unlike the motion to determine competency in the instant case. We stated in Roman that judicial procrastination was not the defendant’s fault and should not be charged to him. Prewett, however, fails to acknowledge our additional statement that a reasonable time, two to three weeks, for a judicial decision on the motion might well be chargeable to the defendant under appropriate circumstances. Furthermore, in Roman, the 7-day period between the defendant’s motion to suppress and the hearing on the motion was found properly chargeable to the defendant. 240 Kan. at 612-13. Therefore, we find Prewett’s reliance upon Roman meritless.
In State v. Powell, 215 Kan. 624, 527 P.2d 1063 (1974), we determined the period of time between filing a motion for psychiatric examination pursuant to an insanity defense and the receipt of the report by the trial court was a delay caused by the defendant’s application. Thus, the resultant delay fell within the statutory exception and was charged to the defendant. 215 Kan. at 625.
This court rejected an argument in State v. Warren, 224 Kan. 454, that the defendant caused delay when he moved for a psychiatric examination and then failed to obtain a judicial determination. However, we did state “the time between filing of a motion for a psychiatric examination and the date on which the psychiatrist’s report are received are properly chargeable against the defendant.” The court determined this principle applies in connection with an insanity defense or a competency determination. 224 Kan. at 456-57.
Furthermore, we note the argument set forth by the defendant in State v. Maas, 242 Kan. 44, 744 P.2d 1222 (1987), in which the defendant contended the filing of a notice of intent to rely on an insanity defense was not an application by him causing delay since he did not take any affirmative step to delay trial. We ruled, however, that any delays reasonably attributable to the insanity defense were properly chargeable against the defendant. Thus, the 64 days between the filing of the notice of intent to rely on the insanity defense and the receipt of the defense evaluations were charged to the defendant. 242 Kan. at 48-51.
Finally, we recognize that the cases relied upon above encompass the theory of law set forth in K.S.A. 22-3302, which provides in part:
“If, upon the request of either party or upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.” K.S.A. 22-3302(1). (Emphasis added.)
In light of the statutory authority and above case law, we find no error in charging Prewett with the 20-day delay caused by his filing of a motion for a competency hearing. The trial court acted within a reasonable amount of time in granting the motion to determine competency. Deducting the 341 days attributed to Prewett, the defendant was brought to trial within 77 days of arraignment. Clearly, there was no violation of his right to a speedy trial and Prewett’s motion for discharge was properly overruled.
Prewett next argues the trial court erred in failing to hold a suppression hearing and in denying his motion to suppress evidence.
A search warrant was issued July 20, 1986, authorizing the search of Prewett’s residence at 1524 Tyler. This warrant was based upon the affidavit of a Topeka police detective and other police reports. The affidavit in question provided the following information:
“1. On July 20, 1986, two young black girls were reported missing by their mother. The girls were Shavon and Shannon Mahomes, ages 6 and 3. A copy of the Topeka Police Department’s reports filed with regard to the two missing girls is attached hereto and incorporated by reference herein as though set out in full.
“2. The girls who live at 1530 Tyler, Topeka, Kansas, were last seen at about 8:00 p.m. by their mother. After being questioned by police, Norman Carter, age 7, and his sister Jacquiline Carter, age 9, who live at 1525 Tyler, told police they had last seen the two Mahomes girls on the front porch of Norman [sic] Prewett at 1524 South Tyler.
“3. Norman [sic] Prewett was questioned by police and denied any knowledge of the girls being on his front porch. The Carter children say the girls were on Prewett’s front porch and Prewett was standing in the open front door with his hands behind his back, talking with the Mahomes girls.
“4. An extensive neighborhood search using police cars, foot searches and the TPD helicopter failed to locate the two Mahomes girls.
“5. An employee of the VA Hospital, Roger Beech, told me that Norman [sic] Prewett had been released from the VA Hospital on July 11, 1986, and his records with the hospital showed that he had a history of child molesting, hears voices that tell him to do things, and has shot and eaten a dog.
“6. Prewett told officers that the two missing girls had ridden past his residence on their tricycles and had talked with him from the sidewalk. He denied the two girls were ever on his porch as reported by the Carter children. Police looked on the main floor of Prewett’s residence and in his garage for the two girls with Prewett’s consent, however, the cursory search did not turn up the two girls or clues to their whereabouts. Officers did not look in other portions of the residence.
“7. The Carter children had pushed the Mahomes girls’ tricycles home from a vacant lot north of Prewett’s residence.
“8. Police officers have been watching the front and rear of Prewett’s residence off and on during the evening of the 19th and the morning of the 20th and Prewett has not left the residence since he first talked to officers.”
Before a warrant may be issued, there must be a finding of probable cause by a neutral and detached magistrate supplied with sufficient factual information to support an independent judgment that probable cause exists. State v. Abu-Isba, 235 Kan. 851, 853, 685 P.2d 856 (1984).
In Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), the United States Supreme Court directed that a magistrate’s determination of probable cause should be paid great deference by reviewing courts, and that it is the duty of the reviewing court to ensure that the magistrate had a substantial basis for concluding that probable cause existed. The Gates court further stated that a determination of probable cause should be based upon the totality of circumstances set forth in the affidavit, including the “veracity” and “basis of knowledge” of persons supplying hearsay information. 462 U.S. at 236-39. The totality of circumstances approach has been approved by this court. State v. Walter, 234 Kan. 78, 81, 670 P.2d 1354 (1983); State v. Rose, 8 Kan. App. 2d 659, 663, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983).
Prewett contends sufficient probable cause was lacking in the affidavit offered to support issuance of the search warrant. He argues there was insufficient information within the affidavit to show a fair probability that evidence of a crime against the Ma-homes girls would be found in his residence. Prewett also alleges the information that the girls were on his porch and that he was standing in the open front door with his hands behind his back is hearsay. In the same manner, Prewett argues the information that he had a history of child molesting and mental illness was also hearsay without any showing of reliability, and thus was insufficient for making a decision that probable cause existed.
Prewett’s argument is without merit. The affidavit reveals that two girls were missing and had not been found after a search. The missing girls were last seen by two children, ages 7 and 9, while standing on Prewett’s porch as Prewett stood in the open doorway. Further, police discovered Prewett had recently been a patient at the VA Hospital and had been told by a named employee of that hospital that Prewett’s hospital record showed a history of child molestation.
The affidavit is not invalid for failure to establish the veracity and basis of knowledge of persons supplying the hearsay information. Rather, these are only two factors to be considered in light of the totality of the circumstances. State v. Walter, 234 Kan. at 81. In the present case, it is the information that Prewett had a history of child molestation and his lying about having talked to the missing girls on his porch which establishes a fair probability they might be found in his residence. This information was supplied by a named employee of the VA Hospital. In State v. Hays, 221 Kan. 126, 557 P.2d 1275 (1976), this court stated the reliability of an identified citizen informer need not be es tablished in the same manner as an unidentified informant, and that, for probable cause purposes, it was enough that the police officer received his information from someone whom it seemed reasonable to believe was telling the truth. 221 Kan. at 129.
Furthermore, a presumption of validity attaches to an affidavit which supports a search warrant. State v. Jacques, 225 Kan. 38, 43, 587 P.2d 861 (1978). An exception to this presumption is warranted, however, when the challenger attacks matters within the affidavit and offers proof that the affidavit contains material statements of deliberate falsehood or of reckless disregard for the truth. 225 Kan. at 43-44; see Franks v. Delaware, 438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). In State v. Lockett, 232 Kan. 317, Syl. ¶ 1, 654 P.2d 433 (1982), we stated:
“Generally a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application. An exception to this general rule is recognized if the challenger’s attack is supported by allegations and an offer of proof under oath that the affidavit or application for a search warrant contains material statements of deliberate falsehood or reckless disregard for the truth, or deliberate omissions of material facts.”
In the instant case, Prewett does not contend that the information supplied to police officers was false, nor does he offer proof that information is false. Rather, he argues the sufficiency of the evidence. Prewett contends a single entry in past hospital records of an allegation of child molestation is insufficient to link him to the disappearance of the two Mahomes girls. Viewed in light of the totality of circumstances, however, we find this information, together with the other information supplied in the affidavit, provided a substantial basis for determining probable cause existed to believe evidence of the Mahomes girls’ disappearance would be found in Prewett’s residence. Therefore, we conclude the trial court did not err in denying Prewett’s motion to suppress evidence seized pursuant to a lawful search warrant.
We also conclude there was no error in denying Prewett’s motion for a suppression hearing. A defendant is not entitled to a suppression hearing unless he offers proof the affidavit for a search warrant contains statements of deliberate falsehood or reckless disregard for the truth. State v. Jacques, 225 Kan. at 44. Here, Prewett does not deny the existence of an entry upon his hospital records indicating allegations of child molestation. Therefore, he is not entitled to a suppression hearing.
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The opinion of the court was delivered by
Miller, C.J.:
Defendant James White was convicted by a jury in Shawnee District Court of first-degree felony murder and conspiracy to commit first-degree murder. His conviction was affirmed in our original opinion, filed January 19, 1990. State v. White, 246 Kan. 28, 785 P.2d 950 (1990). On January 29, 1990, defendant timely filed a motion for rehearing or modification pursuant to Supreme Court Rule 7.06 (1989 Kan. Ct. R. Annot. 36).
Two tape recordings of statements made by the defendant were crucial but neither tape was before this court at the time we reviewed the record in this case. Our original opinion states that neither tape was made part of the record on appeal, and we had no opportunity to review them. We repeated our familiar rule: “The appellant has the burden of furnishing a record on appeal which affirmatively shows that prejudicial error occurred in the trial court.” 246 Kan. at 37.
The appellant, in the motion for rehearing or modification, points out that counsel for defendant complied with the rules of this court and of the Third Judicial District in requesting that both tapes be made a part of the record on appeal. Not only was the request filed with the clerk of the district court, but a copy thereof was served on the court reporter who had custody of the tapes. A revised table of contents of the record was furnished to counsel; it indicated the tapes were included. Unfortunately, the reporter and clerk failed to transmit the tapes to this court. The fault lies not with appellate counsel but with the court officials to whom the preparation of the record is entrusted. A careful review of the district court records substantiates counsel’s assertions.
Since the motion for rehearing or modification was filed, we have ordered, received, and carefully reviewed the tape recordings, consisting of a total of four microcassette tapes recorded on both sides. Two of the tapes are recordings of the statement taken from White by the Arizona officers and two are recordings of the statement taken by the Kansas officers. The Arizona statement, by itself, is a complete confession of the offenses committed. The Kansas statement, taken by officers who were more familiar with the background facts, goes into more detail but is for the most part repetitious of the Arizona statement. As we noted in the original opinion, “The Arizona statement and the other evidence properly admitted at trial, including the testimony of many witnesses, establish an overwhelming case against the defendant.” 246 Kan. at 37.
We therefore conclude, as we did in the original opinion, that the error in admitting the Kansas statement into evidence was harmless beyond a reasonable doubt.
The appellant’s motion for rehearing is denied. We affirm our original opinion, with the exception of that part of the opinion which attributed to counsel the failure to include in the record the tape recordings of defendant’s statements. We adhere to our affirmance of the judgment. | [
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The opinion of the court was delivered by
Six, J.:
This case concerns the legal capacity of a minor to enter into a common-law marriage. The issue comes to us in a criminal procedure context. The State has appealed the dismissal of a criminal complaint against Troy Sedlack. K.S.A. 22-3602(b)(l). Sedlack was charged with indecent liberties with a child, K.S.A. 21-3503. The trial court held that Sedlack and the child, fifteen-year-old Stephanie Ebberts, were common-law married and dismissed the complaint.
Facts
Troy Sedlack and Stephanie Ebberts began a dating relationship in October of 1987. They commenced living together in February of 1988. Their living arrangement continued off and on throughout 1988. At the preliminary hearing, Stephanie, who was pregnant, testified that she and Sedlack had had sexual intercourse during the fall of 1988. Stephanie identified Sedlack as the future father.
Stephanie testified that, during the time they were living together, Sedlack supported her. They considered themselves to be husband and wife. According to Stephanie, she and Sedlack had agreed that they were married. Stephanie said that she introduced herself to people as Stephanie Sedlack. She had signed documents such as credit applications as “Stephanie Sedlack.”
Frances Larson, Stephanie’s mother, had never heard her daughter refer to herself as Stephanie Sedlack. Stephanie had indicated to her mother, however, that she considered herself to be married to Sedlack. Larson said that Stephanie did not use the term “common-law married.” Larson did not think that Stephanie knew what those words meant. Stephanie did, however, tell her mother that she and Sedlack were living together as husband and wife. When asked why Stephanie would not use the name Sedlack in her mother’s presence, Larson said:
“She knew that we disliked Mr. Sedlack and had bound [sic] him from our house and from calling our house, and she was not allowed to see him. They have run off together five different times, and she knew it would be trouble if she used that name around me.”
Larson also testified that Stephanie had asked her to consent to a formal marriage ceremony before the court. Larson refused.
The State’s complaint filed against Sedlack stated the following:
“[0]n or about September, 1988 through October, 1988, in the County of Johnson and State of Kansas,
Troy M. Sedlaic [sic]
did then and there unlawfully, knowingly, willfully and feloniously engage in sexual intercourse with a child under the age of sixteen years, to-wit: Stefanie [sic] Ebberts, who was not his spouse, with the intent to arouse or satisfy his sexual desires, in violation of K.S.A. 21-3503 and K.S.A. 21-4501(c).”
At the close of the preliminary hearing, Sedlack moved to dismiss the complaint. After further legal argument the trial court held that Sedlack and Stephanie were common-law married at the time of the alleged offense. The trial court found that (1) they had the capacity to enter into such an arrangement, (2) a present marriage agreement existed, and (3) they held themselves out to the public as husband and wife. The court dismissed the criminal complaint. The crime charged requires that the parties not be married at the time of the alleged offense.
Capacity to Enter Into a Common-Law Marriage
In State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325 (1975), we identified the three requirements which must coexist to establish a common-law marriage in Kansas:
“(1) [a] capacity to marry; (2) a present marriage agreement, and (3) a holding out of each other as husband and wife to the public. [Citations omitted.]
“The common law sets the ages of consent to be fourteen for the male and twelve for the female.”
The State argues that pursuant to K.S.A. 23-106, the marriage license statute, persons under the age of eighteen may not enter into a marriage relationship without parental consent. Since there was no evidence that Stephanie’s parents had consented to her marriage (in fact, Stephanie’s mother refused to consent), the State reasons that Stephanie did not have the capacity required for a common-law marriage.
K.S.A. 23-106 merely prohibits a clerk or judge from issuing a marriage license to any person under age eighteen without the consent of such person’s father, mother, or legal guardian, and a judge of the district court. It does not prohibit a party under the age of eighteen from entering into a marriage.
During oral argument the State conceded that we must overrule Browning v. Browning, 89 Kan. 98, 130 Pac. 852 (1913), if we adopt the State’s view and reverse the trial court. We decline to do so. In Browning we said:
“The issuance of a license for the marriage of a minor is forbidden, except with the consent of the father, mother or guardian. [Citation omitted.] The statute does not declare that the marriage of a minor entered into without the consent of the parent or guardian is void, and in the absence of a provision to that effect such legislation is construed as intended to prevent such marriages as far as possible, but not to [void] them if they are once entered into.” 89 Kan. at 99.
K.S.A. 23-106 has been amended several times since 1913, when Brooming was decided. We presume that the legislature acted with full knowledge of Browning in effecting the later amendments. City of Lenexa v. Board of Johnson County Comm'rs, 237 Kan. 782, 786, 703 P.2d 800 (1985).
We recently revisited the K.S.A. 23-106 age limitation issue in State v. Wade, 244 Kan. 136, 140, 766 P.2d 811 (1989):
“There is no minimum statutory age for marriage in Kansas. The K.S.A. 23-106 age limitation relates only to the issuance of a marriage license without parental (or guardian) and judicial consent. Anyone under the age of 18 must have the consent of a parent or legal guardian and a judge of the district court to be issued a marriage license.”
A fifteen-year-old has the capacity to enter into a common-law marriage. Under the facts of this case, the complaint charging indecent liberties with a child was properly dismissed upon the trial court’s holding that Sedlack and Ebberts were common-law married.
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The opinion of the court was delivered by
Herd, J.:
This is a medical malpractice and products liability case brought by Brenda and Bennie Humes on behalf of their nonviable fetus, as heirs at law of the fetus, and individually against Dale L. Clinton, M.D., and ALZA Corporation. Appellants Clinton and ALZA Corporation have perfected an interlocutory appeal of the district court’s ruling denying them summary judgment on appellees Humes’ claim for wrongful death, pain and suffering, strict liability, and negligence per se. Appellees Humes cross-appeal the district court ruling granting summary judgment to Dr. Clinton on Brenda Humes’ claim for emotional and physical injuries resulting from a previous abortion.
In reviewing a summary judgment, we must consider the record in the light most favorable to the party against whom summary judgment was entered. Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); Johnston v. Elkins, 241 Kan. 407, 736 P.2d 935 (1987). The district court found the following facts uncontroverted or most favorable to the Humes:
1. Defendant ALZA Corporation (ALZA) is the manufacturer of an intrauterine contraceptive device (IUD) known as the Progestasert Intrauterine Progesterone Contraceptive System (IPCS). The IPCS is a T-shaped IUD with progesterone (a female hormone) in the vertical stem which is released over time. The IPCS is inserted by a physician into the patient’s uterus for purposes of contraception.
2. The IPCS is approved by the Food and Drug Administration (FDA) for use for 12 months, with replacement recommended after that time. The physician information sheet prepared by ALZA states that the physician “should” provide the patient the patient information sheet and discuss with the patient the use of the IPCS. The physician information sheet and patient information sheet provide notice that pregnancy can occur with use of the IPCS and that for continued protection the system must be replaced after twelve months of use because the “contraceptive effectiveness of the system is retained for one year.”
3. Brenda Humes had an IPCS inserted by Dr. Clinton on June 4, 1985.
4. Even though Dr. Clinton knew the IPCS was recommended for replacement after one year, he did not inform Brenda Humes of this nor did he give the patient information sheet prepared by ALZA to her.
5. Instead, Dr. Clinton gave Brenda Humes an information sheet prepared by himself. This written material included language that “pregnancies are rare” and that the IUD “should be changed about every 15 months.” Another sheet of information prepared by Dr. Clinton and given to Brenda Humes instructed her to replace the IUD before 16 months because the “progesterone runs out by this time.”
6. Dr. Clinton told Brenda Humes that none of his patients had ever gotten pregnant while using the IPCS and that she would not get pregnant using the IPCS for at least fifteen months.
7. Dr. Clinton admitted that ALZA informed him pregnancy could occur with the IPCS.
8. Brenda Humes followed the advice of Dr. Clinton concerning the length of time she could use the IUD for contraception. On or about August 6, 1986, or fourteen months after Brenda Humes had had the IUD inserted, she became pregnant. Her pregnancy was confirmed on September 6, 1986, by Henry Buck, M.D.
9. Brenda Humes’ pregnancy was complicated by the presence of the IPCS, which exposed her to increased risk of infection, spontaneous abortion, septic shock, and death.
10. Brenda Humes suffered pain and bleeding throughout the term of her pregnancy with the IUD in place.
11. For strong medical considerations, Dr. Buck recommended that Brenda Humes terminate her pregnancy.
12. On November 4, 1986, after being advised on numerous occasions that there were substantial life-threatening risks in continuing the pregnancy, Brenda Humes underwent a therapeutic abortion. The fetus was sixteen and one-half weeks and could not have survived outside the mother’s body at that time. Thus, the fetus was nonviable.
13. Since the abortion, Brenda Humes has suffered continued physical and psychological distress. She is presently diagnosed as suffering from pelvic inflammatory disease, post-traumatic stress disorder, and post-abortion syndrome.
Additional facts will be presented where pertinent to a proper explanation of the case.
The first issue we consider is whether the district court erred in ruling that Brenda and Bennie Humes could maintain wrongful death and survival actions on behalf of an unborn, nonviable fetus. Dr. Clinton and ALZA contend these actions are not proper as a matter of law because no cause of action may be brought on behalf of an unborn, nonviable fetus.
Under this state’s wrongful death statute, the personal representative of a person killed by the wrongful act or omission of another may maintain an action for damages resulting from the negligent act if the decedent might have maintained the action had he or she lived. K.S.A. 60-1901. Thus, our ultimate inquiry is whether an unborn, nonviable fetus is a “person” within the meaning of the wrongful death statute.
At common law, the courts did not recognize a right of action for prenatal personal injuries. Scott v. McPheeters, 33 Cal. App. 2d 629, 635, 92 P.2d 678. In 1884, Justice Holmes, speaking for the Supreme Judicial Court of Massachusetts, held that a child en ventre sa mere had no jurisdictional existence; that is, the unborn fetus was so intimately united with its mother that no separate right of action could accrue to the unborn fetus. Dietrich v. Northampton, 138 Mass. 14 (1884). The Dietrich holding remained substantially unchallenged until 1946, when a United States District Court allowed recovery for a child born alive who had sustained prenatal injuries while viable. Bonbrest v. Kotz, 65 F. Supp. 138 (D.D.C. 1946). Minnesota was the first state to allow a wrongful death action on behalf of a stillborn child who sustained injuries while viable. Verkennes v. Corniea, 229 Minn. 365, 38 N.W.2d 838 (1949).
Following the Verkennes decision, other states began to adopt the view that a wrongful death action would lie when an independent life in being was negligently injured by the wrongful act of another; however, these early cases usually limited recovery to children who survived birth. Keyes v. Construction Service, Inc., 340 Mass. 633, 165 N.E.2d 912 (1960); Carroll v. Skloff, 415 Pa. 47, 202 A. 2d 9 (1964); Simmons v. Weisenthal, 29 Pa. D. & C. 2d 54 (1962); Hall v. Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960).
More recently, some courts have expressed a view that an action may be maintained for prenatal injuries negligently inflicted at any stage of gestation, provided the child is born alive. Group Health Ass’n v. Blumenthal, 295 Md. 104, 117-19, 453 A. 2d 1198 (1983); Annot., 40 A.L.R.3d 1222, 1230 § 3[a]. In such cases, it is reasoned that viability — the ability to live independently of the mother — is an irrelevant demarcation when a child survives prenatal injuries and is born with damages suffered within the womb. Other courts reason it is incongruous to recognize an unborn fetus as alive and capable of inheriting, but to reject it as capable of sustaining personal injuries. Wolfe v. Isbell, 291 Ala. 327, 332, 280 So. 2d 758 (1973); Tucker v. Carmichael & Sons Inc., 208 Ga. 201, 204, 65 S.E.2d 909 (1951); Bennett v. Hymers, 101 N.H. 483, 485, 147 A.2d 108 (1958).
A majority of states allow an action for wrongful death of a viable fetus even when it is stillborn as a result of the prenatal injuries. Kansas adopted this rule in Hale v. Manion, 189 Kan. 143, 368 P.2d 1 (1962). In Hale, a pregnant woman involved in an automobile accident gave birth several days after the accident and delivered a “perfectly formed male child” that did not survive birth. 189 Kan. at 144. The court found that on the date of the alleged negligent act the child was viable and ruled that an action for wrongful death could be maintained. 189 Kan. at 146-47.
The Hale opinion, like other jurisdictions where actions are maintainable for stillborn children, limits recovery to those fetuses which are viable when injured. The Hale court relied upon an Ohio case for support (Williams v. Transit, Inc., 152 Ohio St. 114, 87 N.E.2d 334 [1949]), which stated that a viable fetus was capable of an independent existence and therefore should be regarded as a separate entity capable of maintaining an action in its own right. Many other states have adopted a similar rationale in limiting recovery to a fetus that was viable when injured. Rice v. Rizk, 453 S.W.2d 732 (Ky. 1970); State v. Sherman, 234 Md. 179, 198 A. 2d 71 (1964); White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985); Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42 (1964); Kwaterski v. State Farm Mut. Automobile Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967); Annot., 84 A.L.R. 3d 411, 422 § 3[a].
Several courts have expressly ruled that no action can be maintained for the stillbirth of an injured nonviable fetus, reasoning that a nonviable fetus is not a separate entity and thus is not capable of independent life. Estate of Baby Foy v. Morningstar Beach Resort, 635 F. Supp. 741 (D. V. I. 1986); Mace v. Jung, 210 F. Supp. 706 (D. Alaska 1962); Renslow v. Mennonite Hospital, 40 Ill. App. 3d 234, 351 N.E.2d 870 (1976), aff'd 67 Ill. 2d 348, 367 N.E.2d 1250 (1977); Toth v. Goree, 65 Mich. App. 296, 237 N.W.2d 297 (1975), lv. to appeal denied 396 Mich. 836 (1976); Poliquin v. MacDonald, 101 N.H. 104, 135 A.2d 249 (1957); West v. McCoy, 233 S.C. 369, 105 S.E.2d 88 (1958).
The district court in the present case stated that a great number of states recognize wrongful death actions on behalf of unborn children “regardless of viability. ” After careful review of the cases relied upon to support this conclusion and in light of the discussion above, we find the district court in error.
All of the cases relied upon by the district court dealt with negligently injured viable fetuses either stillborn or who died shortly after birth. In Presley v. Newport Hospital, 117 R.I. 177, 365 A. 2d 748 (1976), the Rhode Island Supreme Court considered whether parents could bring a wrongful death action on behalf of their stillborn child where the negligently inflicted injuries occured while the child was an unborn, viable fetus. 117 R.I. at 179. The Presley court ruled that the action was maintainable and further stated gratuitously that “the decedent, whether viable or nonviable, was a ‘person’ within the meaning of the Wrongful Death Act.” 117 R.I. at 188. This statement supports the position that an unborn, nonviable fetus is a “person” within the wrongful death statute. However, the Presley case dealt with a viable fetus. The statement is dicta and therefore is not precedent for the court’s ruling in the present case.
The district court stated that viability is not a logical distinction because a tortfeasor who prevents a nonviable fetus from becoming viable is held less responsible than if his or her negligence prevents a live birth of a viable fetus. As we have previously pointed out, viability is an improper condition precedent to recovery when the injured fetus is born alive. Group Health Ass’n v. Blumenthal, 295 Md. at 116. However, viability is not an illogical condition precedent when a negligently injured fetus is stillborn. A nonviable fetus is not capable of living outside its mother’s womb; it cannot maintain a separate and distinct existence. Thus, a nonviable fetus which dies before birth has never become an independent living person. Toth v. Goree, 65 Mich. App. at 300, (citing O’Neill v. Morse, 385 Mich. 130, 188 N.W.2d 785 [1971]). In Hale v. Manion, 189 Kan. 143, this court ruled that an unborn, viable fetus was a “person” within the meaning of the wrongful death statute because it was capable of an independent existence and regarded as a separate entity. 189 Kan. at 145.
The Hale opinion is not supportive of the proposition that an action may be maintained on behalf of an unborn, nonviable fetus. A nonviable fetus is not a distinct entity; rather, its life is an integral part of its mother’s life. Therefore, we find viability an appropriate condition precedent to liability for wrongful death under K.S.A. 60-1901. We further believe the public policy decision to extend liability under the wrongful death act is properly left to the legislature.
We conclude that an unborn, nonviable fetus is not a “person” within the definition of the wrongful death act and is incapable of bringing an action on its own behalf. We further rule that the Humes are thus not authorized to maintain a survival action to recover for the alleged pain and suffering of the nonviable fetus.
The next issue we consider is the Humes’ cross-appeal as to whether the district court erred in granting Dr. Clinton’s motion for summary judgment on Brenda’s claim for emotional and physical damages from a previous abortion. In reaching its decision, the district court considered these additional facts:
1. Brenda Humes first contacted Dr. Clinton in regard to an abortion. A therapeutic abortion was performed on January 23, 1985. Brenda Humes was not advised of possible physical and psychological problems associated with having an abortion. Dr. Clinton did not have Brenda Humes sign a written consent form prior to undergoing the abortion.
2. During the course of this procedure, Dr. Clinton used a disposable plastic cannula which was inserted into Brenda Humes’ uterus to remove the fetus. This plastic instrument comes in a sterile package and is intended for use on a single patient. The only known method of properly sterilizing this type of device is a complicated gas pressure system. However, Dr. Clinton reuses these instruments repeatedly to save money. He rinses them off in the sink and soaks them in Zephiron, a strong soap solution which has not been used by the medical community for a number of years.
3. Plaintiffs filed this lawsuit on May 18, 1987.
4. Brenda Humes suffers from pelvic inflammatory disease, post-traumatic stress disorder, and post-abortion syndrome.
5. Plaintiffs’ medical expert testified that within a reasonable medical certainty Brenda Humes’ pelvic inflammatory disease was caused by the August 1986 pregnancy complicated by the presence of the IPCS and that the disease was not present prior to the August 1986 pregnancy. During oral arguments, however, plaintiffs’ counsel indicated a secondary cause of the infection could be the reuse of the disposable instrument during the January 1985 abortion.
The district court ruled that any negligence action claiming emotional distress from the January 23, 1985, abortion had to be brought within two years of the occurrence. The court concluded that no evidence was presented to indicate why the emotional distress was not ascertainable until a later date. Thus, the emotional distress claim was barred by the two-year statute of limitations, K.S.A. 60-513. K.S.A. 60-513(c) provides that a medical negligence claim shall be deemed to accrue at the time of the occurrence of the act giving rise to the cause of action, “unless the fact of injury is not reasonably ascertainable until some time after the initial act.”
Brenda Humes contends she submitted to the January 1985 abortion without proper advice. Brenda asserts that, because Dr. Clinton failed to provide her with advice on the possible psychological consequences of obtaining an abortion, she could not reasonably ascertain any psychological injury until forced to consider a second abortion. She argues the cause of action did not accrue until she was faced with a life-threatening pregnancy that caused her to experience guilt and remorse over the previous abortion, feelings she could not have discovered until she was forced to elect to have a second abortion.
In Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1301 (1985), a medical malpractice case, this court considered whether the plaintiffs claim was barred by K.S.A. 60-513. Before consenting to a surgical procedure to correct a urinary tract infection, the plaintiff in Cleveland was advised that temporary incontinence and sexual impotency were normal after the operation. 237 Kan. at 411. Following the operation, the plaintiff experienced incontinency and impotency for many months and was ultimately advised that his condition was permanent due to the physician’s negligence in the urinary tract procedure. 237 Kan. at 412. Although the symptoms of the injury were known to the plaintiff immediately following the initial surgery, we found the injury was not reasonably ascertainable until diagnosed as permanent. 237 Kan. at 414. Thus, the cause of action did not accrue at the initial surgery, but at the point when plaintiff learned the injury was permanent.
The present case, however, is distinguishable. It does not involve a known temporary condition which was later identified as a negligently inflicted permanent injury. Brenda Humes does not claim she suffered mental anguish following the initial abortion which developed into a more serious psychological problem. In fact, Brenda does not claim she suffered any injury following the January 1985 abortion.
We also note, however, that Dr. Clinton’s failure to warn Brenda about possible physical and psychological consequences of obtaining an abortion did not result in any physical injury. This court has long held there can be no recovery for emotional distress caused by the negligence of another unless accompanied by or resulting in physical injury. Bowman v. Doherty, 235 Kan. 870, 874-75, 686 P.2d 112 (1984); Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 274, 662 P.2d 1214 (1983); Clemm v. Atchison, T. & S. F. Rly. Co., 126 Kan. 181, 184, 268 Pac. 103 (1928); Whitsel v. Watts, 98 Kan. 508, 509, 159 Pac. 401 (1916). Brenda contends the pelvic inflammatory disease from which she suffers was caused either by the presence of the IUD during pregnancy or the reuse of a disposable instrument during the January 23, 1985, abortion. She makes no claim for physical injury accompanying the alleged emotional injury caused by Dr. Clinton’s failure to warn her about possible mental disturbances following an abortion. Thus, there is no fact of injury to be reasonably ascertained at a later date and the two-year statute of limitations controls. We find no error in the trial court’s decision.
The final issue we consider is the adequacy of the product warning provided by ALZA, manufacturer of the IPCS.
The IPCS is approved by the FDA for use for a period of twelve months, with replacement recommended at that time. ALZA’s physician information sheet and patient information sheet in use at the time of Brenda’s request for insertion of an IUD provided notice that pregnancy can occur with use of the IUD and that the IUD is to be replaced after twelve months’ use. Dr. Clinton, however, did not give the patient information sheet to Brenda Humes, but provided her with an information sheet prepared by himself. The physician information sheet prepared by ALZA provides: “Prior to insertion the physician, nurse, or other trained health professional should provide the patient with the Patient Information Leaflet.” A federal regulation mandates that the physician “must provide the patient with the Patient Brochure” prior to insertion of an IUD. 21 C.F.R. § 310.502 (1989). Dr. Clinton testified he would have given Brenda Humes the patient brochure if he had known of this federal regulation.
The district court denied ALZA’s motion for summary judgment on the basis that a genuine issue of material fact existed as to whether ALZA’s physician information sheet was in substantial compliance with the federal regulation.
The Humes contend ALZA is strictly liable or, in the alternative, is negligent per se because its product warning was never received. ALZA argues it had no duty to deliver the product warning information directly to the patient. The issue of whether a drug manufacturer has a duty to give direct product warnings to IUD consumers is one of first impression in this court.
The Restatement (Second) of Torts § 402A (1964) imposes strict liability on the manufacturer of a product which is sold in a defective condition and is unreasonably dangerous to the user. See Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 319, 607 P.2d 1339 (1980). Comment k of § 402A provides an exception for products which are incapable of being made safe. These products, when properly prepared and accompanied by proper directions and warnings, are not considered defective or unreasonably dangerous.
Manufacturers of prescription drugs have a duty to warn of dangerous side effects and risks associated with use of such drugs. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 409, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984). See Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87, 91 (2d Cir. 1980); Ortho Pharmaceutical v. Chapman, 180 Ind. App. 33, 39, 388 N.E.2d 541 (1979); McEwen v. Ortho Pharmaceutical, 270 Or. 375, 385, 528 P.2d 522 (1974). In many jurisdictions, the manufacturer’s duty to warn is satisfied when only the prescribing physician is informed of the inherent dangers associated with the drug’s use since the patient cannot obtain the drug except through a physician. Timm v. Upjohn Co., 624 F.2d 536, 538 (5th Cir. 1980), cert. denied 449 U.S. 1112 (1981); Hoffman v. Sterling Drug, Inc., 485 F.2d 132 (3d Cir. 1973); McCue v. Norwich Pharmacal Company, 453 F.2d 1033 (1st Cir. 1972). Cf. Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 129-30 (9th Cir. 1968). This rule is based upon the theory that the physician acts as a learned intermediary between the drug manufacturer and the patient. Since prescription drugs are available only to a physician, it is the physician’s duty to inform himself or herself of the characteristics of the drugs prescribed and to exercise his or her judgment of which drug to administer in light of the drug’s propensities and the patient’s susceptibilities. Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276, cert. denied 419 U.S. 1096 (5th Cir. 1974); Terhune v. A. H. Robins Co., 90 Wash. 2d 9, 14, 577 P.2d 975 (1978). The learned intermediary rule allows a drug manufacturer to assume a patient places reliance on the physician’s judgment and relieves the manufacturer of a duty to assist the physician in communicating with patients. Polley v. Ciba-Geigy Corp., 658 F. Supp. 420 (D. Alaska 1987).
A minority of cases have declined to follow the learned intermediary rule in products liability actions involving oral contraceptives or IUD’s. Hill v. Searle Laboratories, 884 F.2d 1064, 1070-71 (8th Cir. 1989); Odgers v. Ortho Pharmaceutical Corp., 609 F. Supp. 867, 878 (E.D. Mich. 1985); Stephens v. G. D. Searle & Co., 602 F. Supp. 379, 380-81 (E.D. Mich. 1985); MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 475 N.E.2d 65, cert. denied 474 U.S. 920 (1985). These cases hold contraceptive drugs apart from other prescription drugs for several reasons. First, each case finds that the patient does not rely on the physician’s judgment, but decides for herself whether to use some form of birth control. Second, these cases find it relevant that little contact or communication occurs between the physician and patient after the initial treatment. Finally, the cases impose a duty on the manufacturer to warn the patient directly because of marketing practices utilized by the manufacturer.
The majority of cases, however, have adopted the learned intermediary rule to relieve manufacturers of a duty to directly warn users of oral contraceptives or IUD’s. Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981); Lindsay v. Ortho Pharmaceutical Corp., 637 F.2d 87; Skill v. Martinez, 91 F.R.D. 498 (D.N.J. 1981), aff'd 677 F.2d 368 (3d Cir. 1982); Goodson v. Searle Laboratories, 471 F. Supp. 546 (D. Conn. 1978); Dunkin v. Syntex Laboratories, Inc., 443 F. Supp. 121 (W.D. Tenn. 1977); Chambers v. G.D. Searle & Co., 441 F. Supp. 377 (D. Md. 1975), aff'd 567 F.2d 269 (4th Cir. 1977); Hamilton v. Hardy, 37 Colo. App. 375, 549 P.2d 1099 (1976); Mahr v. G. D. Searle & Co., 72 Ill. App. 3d 540, 390 N.E.2d 1214 (1979); Ortho Pharmaceutical v. Chapman, 180 Ind. App. 33; Leibowitz et ux. v. Ortho Pharm. Corp., 224 Pa. Super. 418, 307 A. 2d 449 (1973); McEwen v. Ortho Pharmaceutical, 270 Or. 375. These cases generally hold that even in the matter of oral contraceptives and IUD’s, which are available by prescription only, the physician exercises his or her medical judgment in balancing the benefits and risks and makes the ultimate decision on which method, if any, should be used by the patient. Allen v. G. D. Searle & Co., 708 F. Supp. 1142, 1147 (D. Or. 1989); Spychala v. G.D. Searle & Co., 705 F. Supp. 1024, 1032 (D.N.J. 1988).
In the present case, the Humes contend the learned intermediary rule has not been adopted in Kansas for IUD cases. We disagree. In Tetuan v. A. H. Robins Co., 241 Kan. 441, 738 P.2d 1210 (1987), we considered a personal injury case involving an IUD known as the “Daikon Shield.” We recognized IUD’s are available only through licensed medical care providers and held that manufacturers have a duty to warn the medical profession of dangerous side effects of their products. 241 Kan. at 463. We explicitly adopted the rationale for such a rule as stated in Terhune v. A. H. Robins Co., 90 Wash. 2d at 14-15. The Terhune court stated:
“The reasons for this rule should be obvious. Where a product is available only on prescription or through the services of a physician, the physician acts as a ‘learned intermediary’ between the manufacturer or seller and the patient. It is his duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise an independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon that judgment. The physician decides what facts should be told to the patient. Thus, if the product is properly labeled and carries the necessary instructions and warnings to flilly apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient. It has also been suggested that the rule is made necessary by the fact that it is ordinarily difficult for the manufacturer to communicate directly with the consumer.
“While recognizing the efficacy of this rule as applied to prescription drugs, the plaintiffs question its applicability to devices such as the Daikon Shield. In advising upon the selection of a contraceptive, they say, the physician is not attempting to cure a malady and does not ’rely upon his many years of education and experience’ to select an appropriate medication. We do not see this as a significant distinction. The physician does not confine his practice to the curing of maladies. He is concerned with the total health and physical well-being of his patients and appropriately gives advice upon preventive measures. Certainly the insertion of the Daikon Shield requires a physician’s services, his knowledge and his skill. While the physician does not make the final choice but leaves that to the patient, he advises the patient with respect to the advantages and disadvantages of various choices, as was done in this case, and it is he who supplies and inserts the device.
“The fact that the patient makes the final choice among suggested contraceptives (or decides not to use any at all) does not constitute a distinction which makes the general rule inapplicable. We can readily conceive of situations in which a physician gives the patient a choice of courses to follow. There is, for example, a patient’s choice between continuing to endure a physical ailment or submitting to surgery or some other course of treatment; an obese person’s choice among diets suggested by the doctor; and a surgery patient’s choice of anesthesia where, in the doctor’s opinion, a choice is permissible.
“In any such situation which may come to mind, the patient is expected to look to the physician for guidance and not to the manufacturer of the products which he may use or prescribe in the course of treatment.”
Thus, it is clear we have adopted the learned intermediary rule, which relieves the manufacturers of the duty to warn consumers directly, in IUD cases.
The Humes next contend we indicated in Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, a willingness to follow the holding of Lukaszewicz v. Ortho Pharmaceutical Corp., 510 F. Supp. 961 (E.D. Wis. 1981). In Wooderson, we considered the issue of when a drug manufacturer’s duty to warn arises and concluded that a manufacturer of oral contraceptives has a duty to warn the prescribing physician of dangerous side effects when a risk is known or should have been known. 235 Kan. at 409. In arriving at this decision, the court reviewed Scott, Products Liability, 1982 N.Y.U. Ann. Surv. Am. L. 709, 720-24, in which the author concluded, inter alia, that Lukaszewicz was correctly decided. 235 Kan. at 406-08. Let us examine the Lukaszewicz opinion.
In Lukaszewicz, a user of oral contraceptives brought a products liability action against the drug manufacturer alleging the manufacturer had a duty to warn her directly of possible side effects. 510 F. Supp. at 962. The court determined that Wisconsin had adopted the theory of negligence per se in that violation of a state or federal statute or administrative regulation constituted negligence per se where the statute or regulation was designed to protect a class of persons from a particular kind of harm. 510 F. Supp. at 964. The court examined 21 C.F.R. § 310.501 (1989), a federal regulation governing oral contraceptives, and determined the reason for requiring patient labels was to make patients more sensitive to possible side effects of the drug. 510 F. Supp. at 965 (citing Pharmaceutical Mfrs. v. Food & Drug Admin., 484 F. Supp. 1179 [D. Del. 1980]). Therefore, since 21 C.F.R. § 310.501 was enacted to protect persons like the plaintiff by warning them of possible side effects, the manufacturer’s failure to warn plaintiff constituted negligence per se. 510 F. Supp. at 965.
ALZA contends Lukaszewicz is not support for imposing a duty to directly warn patients in IUD cases. First, ALZA asserts the federal regulations do not require the manufacturer of IUD’s to provide direct warning to patients as in oral contraceptive cases. 42 Fed. Reg. 23,775 (1977) provides:
“The primary purposes of IUD labeling are to provide physicians and patients with adequate information so that patients can make an informed choice whether to use an IUD, and so that IUD’s can be used in a safe and effective manner. The final regulation accomplishes this by requiring detailed information about IUD’s to accompany every IUD, and also by requiring physicians to give patients time to read IUD information so they can make a more informed judgment about IUD use.”
Additionally, 21 C.F.R. § 310.502 (1989) provides the following precaution:
“1. Patient counseling. Prior to insertion the physician, nurse, or other trained health professional must provide the patient with the Patient Brochure. The patient should be given the opportunity to read the brochure and discuss fully any questions she may have concerning the IUD as well as other methods of contraception.”
21 C.F.R. § 310.502(b)(2) also states:
“Labeling, in sufficient quantities to be available to patients who express interest in IUD’s, shall accompany each drug IUD (packaged separately from the sterile packaging), be made available to the patient, and contain the following information . . . .”
Comparatively, 21 C.F.R. § 310.501 states:
“(a) Oral Contraceptives. (1) The Commissioner of Food and Drugs concludes that the safe and effective use of oral contraceptive drug products requires that patients be fully informed of the benefits and risks involved in the use of these drugs. Information in lay language concerning effectiveness, contraindication, warnings, precautions, and adverse reactions shall be furnished to each patient receiving oral contraceptives. This information shall be given to the patient by the dispenser in the form of a brief summary of certain essential information included in each package dispensed to each patient . . . .”
A comparison of the oral contraceptive regulations and IUD regulations reveals a similar purpose, to inform patients of the benefits and risks involved in the drug’s usage. The regulations achieve this goal by requiring the manufacturer of oral contraceptives and IUD’s to include such information in each package of oral contraceptives and IUD’s and by requiring the IUD manufacturer to supply the physician with sufficient amounts of patient information sheets to dispense to interested patients.
In Spychala v. C. D. Searle & Co., 705 F. Supp. 1024, plaintiff s physician pro\ ided plaintiff with the defendant’s patient brochure, but plaint/F alleged the drug manufacturer failed to adequately warn her of the risks associated with its Copper-7 (Cu-7) IUD. 705 F. Supp. at 1026-27. Defendant drug manufacturer argued it had no duty to warn plaintiff directly of the risks associated with its Cu 7 IUD. 705 F. Supp. at 1031.
The Spychala court ruled that the 21 C.F.R. § 310.502 mandate to manufacturers to supply physicians with uniform labeling with each IUD in order to aid the physician in communicating with his or her patient did not establish a voluntary duty on manufacturers to warn the patient directly. 705 F. Supp. at 1033 (citing Polley v. Ciba-Geigy Corp., 658 F. Supp. at 421). Thus, since the defendant did not violate federal regulations and did provide adequate warning to the physician, under the learned intermediary rule the defendant had satisfied its duty by warning the physician but not the patient. 705 F. Supp. at 1033. A similar ruling was expressed in Allen v. G. D. Searle & Co., 708 F. Supp. 1142.
After a careful examination of the above cases, we adopt the ruling of Spychala and other similar cases. The majority viewpoint is that under the learned intermediary rule drug manufacturers are not liable for failure to directly warn patients of risks and side effects. We adopted the learned intermediary rule in Tetuan v. A. H. Robins Co., 241 Kan. at 463-64. Lukaszewicz v. Ortho Pharmaceutical Corp., 510 F. Supp. 961, upon which the Humes rely for support, is a minority view. ALZA provided Dr. Clinton with physician and patient information sheets, thereby satisfying its duty to warn mandated by federal regulations. Thus, under the learned intermediary rule, ALZA is not liable for failure to warn Brenda Humes directly of risks associated with use of its IUD.
This leaves unresolved only the question of whether ALZA’s physician information sheet adequately informed Dr. Clinton. The test to determine adequacy of a warning is whether the warning is “reasonable under the circumstances.” Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 404, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984).
ALZA’s physician information sheet directed that the physician “should” provide the patient with the patient brochure. 21 C.F.R. § 310.502 states that the physician “must” provide the patient with the patient brochure.
In Graham v. Wyeth Laboratories, 666 F. Supp. 1483 (D. Kan. 1987), the district court recognized that the adequacy of a warning was an issue for the jury and that the testimony of experts should be considered. 666 F. Supp. at 1499. In the present case, however, the Humes’ medical expert testified that ALZA’s physician warning concerning risk of pregnancy was adequate. Finally, we consider Dr. Clinton’s testimony that the physician brochure adequately informed him of the complications and risks of pregnancy associated with IPCS use, which he would have given to Brenda Humes had he known of the regulation.
In light of the expert medical testimony provided by the Humes, no genuine issue of fact exists regarding the adequacy of ALZA’s physician information sheet. We conclude, therefore, that the district court erred in denying ALZA’s motion for summary judgment.
The judgment of the trial court denying summary judgment to Dr. Clinton and ALZA Corporation for wrongful death of a nonviable fetus is reversed.
The judgment granting summary judgment to Dr. Clinton for Brenda Humes’ claim for damages from a previous abortion is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is a condemnation case. A.B. Hudson and Fairway Oil, Inc., (landowners) appeal an award for the taking of permanent and temporary easements. The City of Shawnee (City) cross-appeals the trial court’s pretrial ruling that the City acquired the right to deny access to the property during the entire two-year term of the temporary easement. This case again comes before us on a petition for rehearing. Landowners, in well-written briefs, seek modification of our recent decision Hudson v. City of Shawnee, 245 Kan. 221, 777 P.2d 800 (1989). The two grounds sought for the modification of our original opinion are issues urged originally. However, these issues were presented eloquently enough in the motion for rehearing to persuade this court to give them further consideration. The issues to be reconsidered are the uncompensated closing of the east entrance of the landowners’ property on 75th Street under the police power during the pendency of the condemnation action, and the division of the 1-35 highway improvement project and the 75th Street widening project into two projects, making the effect of the 1-35 construction on traffic flow admissible evidence in the 75fh Street case. This opinion repeats our original opinion with modifications on the issues reheard. The judgment of the district court is again affirmed.
The landowners own property in Shawnee, Kansas, upon which they operate a service station. The property is in the southwest quadrant of the intersection of 75th and Switzer Streets. Originally there were two driveways to 75th Street from the north of the station and one driveway to the east onto Switzer.
The City filed a petition in eminent domain to acquire a five-foot-wide permanent easement along 75th to widen the street from a two-lane to a four-lane street. The City also requested a temporary construction easement ten feet wide along 75th and thirty feet wide along Switzer. The temporary easement encompassed the three driveways to the station.
The City’s construction project was planned to occur at the same time as the Kansas Department of Transportation’s project to widen 75th Street at the 1-35 interchange and reconstruct the interchange so it would go over 1-35 rather than under it. Both projects were designed to improve traffic flow; the City project was necessary to eliminate a bottleneck which would otherwise exist after the completion of the state project.
The construction plans with the condemnation petition revealed the City intended to permanently close the east 75th Street driveway to the station. The landowners therefore moved for a pretrial finding on whether the permanent closing of the east 75th Street driveway could be considered in arriving at the compensation award.
At the evidentiary hearing on the matter, evidence was presented that 75th Street could not be suitably widened without closing the east 75th Street driveway. The entrance had been unsafe to begin with because it was only 10 feet from the intersection. Cars using the driveway to go east on 75th join the traffic at the intersection and may not be able to align themselves properly and see the traffic signals. Cars traveling west on 75th Street and attempting to turn into the driveway block the intersection while waiting for eastbound traffic to clear. After construction, the driveway would be more dangerous because of increased traffic and because sidewalks to be constructed across 75th Street west of Switzer would cross into the driveway. Although there had been no plans to close the driveway for safety reasons before plans for construction began, it was decided in the final planning stages of construction it was necessary to close the east driveway for safety reasons. The evidence showed the remaining two driveways provided adequate ingress and egress to the station for traffic from any direction.
The trial court ruled evidence of damages as a result of closure inadmissible. It found the permanent closing of the east driveway on 75th Street to be a proper exercise of the police power which did not substantially interfere with access.
In response to a motion in limine by the City to determine the rights the City acquired by its petition for a temporary easement, the court ruled the City acquired the right to close all driveways to the station for two years. The court denied a later motion in limine by the landowners to prohibit testimony concerning the construction of an overpass at 75th Street and 1-35, the closure of 75th Street at that intersection, and its effect in reducing traffic to the landowners’ property. The City thus introduced at trial newspaper articles to demonstrate public knowledge on the date of taking of the proposed construction work on 75th and 1-35. The City’s real estate expert estimated public knowledge would cause 75% of the normal 75th Street traffic to divert elsewhere. He thus concluded damages due to the temporary easement should be reduced by 75%.
Evidence of damages ranged from $18,000 to $58,240. The experts testified the damages to be totally or primarily due to the two-year temporary easement. They based their damages for the temporary easement on the fact that the driveways to the property could be blocked for two years from the filing of the appraisers’ report. The permanent easement was not considered to cause significant damage to the property in its use as a service station. The jury found total damages to be $27,500.
The landowners appeal after the denial of their motion for a new trial. The City cross-appeals.
Since this issue overlaps into all others, let us first consider the City’s cross-appeal. The issue is whether the trial court erred in ruling as a matter of law that the City by its petition acquired the right to deny all access to and from the landowners’ property for two years under the temporary construction easement.
The City’s petition defined the taking as follows:
“a temporary easement for the purpose of surveying, excavating, filling, grading and all other purposes incidental to the construction of a street or sidewalk on the permanent right of way adjacent thereto substantially as shown on the ‘Plans for Street Improvement, 75th Street, City of Shawnee, Kansas’, . . . filed with the City Clerk of the City of Shawnee. All areas disturbed are to be restored by replacement of sod or pavement to a condition as good as or better than before. No trees or improvements are to be damaged or removed excepting those indicated on the plans aforedescribed. No part of any building or structure, including any eaves, awnings or other overhanging attachment, either within or partly within said temporary easement, shall be damaged or removed unless indicated on the plans aforedescribed. Said temporary easement shall expire two (2) years from the date of the filing of the Appraisers’ Report herein or ninety (90) days after completion and acceptance of the project by the City, whichever occurs first. The owners, tenants, lienholders and easement holders, their heirs and assigns, may cultivate and fully use and enjoy the land within the construction easement, provided such use shall not interfere with the construction of the street.” (Emphasis supplied.)
The petition gives the City the right to use the temporary easement for two years from the filing of the appraisers’ report. The alternate termination date is dependent upon a subjective decision by the City and thus provides no termination at all. The appraisers’ report adopted this definition of the temporary easement.
The property rights taken by the condemnor are to be determined by the language in the petition for eminent domain and the report of the appraisers. Sutton v. Frazier, 183 Kan. 33, 325 P.2d 338 (1958). The legal requirements for the content of the petition are simple, as provided by K.S.A. 26-502:
“A petition shall include allegations of (1) the authority for and the purpose of the taking; (2) a description of each lot, parcel or tract of land and the nature of the interest to be taken; (3) insofar as their interests are to be taken (a) the name of any owner and all lienholders of record, and (b) the name of any party in possession. Such petition shall be verified by affidavit. Upon the filing of such petition the court by order shall fix the time when the same will be taken up. No defect in form which does not impair substantial rights of the parties shall invalidate any proceeding.”
In determining damages for the taking of the interest in property, consideration is to be given to the fifteen factors listed in K.S.A. 26-513, including access.
As noted earlier, the temporary easement encompassed all three driveways to the property. The trial court held the language of the petition gave the City the right to deny all access to the property for the entire two-year term of the easement. It thus held the landowners were entitled to compensation based on this right. The City argues compensation should be less because at least one driveway to the station remained open during the entire term of the easement.
The law is clear that landowners are entitled to full compensation for the actual rights acquired by the condemnor, not the rights actually used. Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P.2d 315 (1959); Barcus v. City of Kansas City, 8 Kan. App. 2d 506, 661 P.2d 806 (1983). It is also clear that a property owner’s right to access to and from his property, and to have that access available to his customers, may not be taken from him in condemnation proceedings without the payment of just compensation. Riddle v. State Highway Commission, 184 Kan. 603, 610, 339 P.2d 301 (1959).
The City argues it did not acquire the right to block off all access to the property because the petition did not specifically claim such a right. The condemnor bears the burden of drafting its petition for condemnation to make clear that a landowner retains access where an easement covers driveways. In Roberts v. Upper Verdigris Watershed, 193 Kan. 151, 158-59, 392 P.2d 914 (1964), we held the trial court erred in allowing evidence that the condemnor’s intended use was less than the fullest use permitted under the language of the easement. The condemnor argued payment for complete use of the easement would be impracticable since the easement would in reality be used infrequently. We rejected the argument, stating, “The suggestion has no merit. If the condemner desires only an infrequent limited use of the easement condemned it need only make certain that the limited use is properly stated in the petition.” A Rhode Island case is directly on point. In Kentucky Fried Chicken of Warren v. Flanders, 461 A. 2d 927 (R.I. 1983), the Supreme Court of Rhode Island upheld the trial court’s decision that the landowner be compensated for full deprivation of access for the two years of a temporary easement covering the driveways. The Supreme Court stated:
“An examination of the language of the condemnation documents discloses no written assurance on the part of the state that access to the owner would be provided during the two-year period. . . . [I]t is not what the condemning authority may subjectively intend to do but what such authority has seized within the four comers of the documents of condemnation which controls the measure of damages of the time of the taking.” (Emphasis supplied.)
The City nevertheless argues it could not take complete access without specifically claiming this right because property located adjacent to an existing street has a common-law right of access to that thoroughfare. Riddle, 184 Kan. at 610. The City cites Sutton v. Frazier, 183 Kan. 33, in support. In Sutton, the issue was whether property initially condemned for a sewage disposal plant also conveyed mineral rights to the condemnor. We held the statutory authority for the condemnor contemplated only the acquisition of an easement for a sewage plant, rather than acquisition of fee simple title, and held the public use of a sewage plant does not include mineral rights. The landowner retains the right to use condemned property for any purpose not inconsistent with the public right. Kansas Gas & Electric Co. v. Winn, 227 Kan. 101, 605 P.2d 125 (1980); Harvey v. Railroad Co., 111 Kan. 371, 372, 207 Pac. 761 (1922). While the acquisition of oil and gas would not normally be consistent with the construction of a sewage plant, the right to impair access to property during construction of an adjacent street is highly consistent. The petition stated the easement was for “surveying, excavating, filling, grading and all other purposes incidental to the construction of a street or sidewalk on the permanent right of way adjacent thereto.” (Emphasis supplied.) Sutton does not stand for the proposition that every common-law right of property owners must be specifically listed in a condemnation petition in order to be taken.
The City also argues its right to block the driveways was restricted by the construction plans, which were incorporated into the petition for eminent domain. The plans showed the driveways were to be resurfaced and graded — the City argues no reasonable person would expect this to take two years. However, the plans do not limit the City’s right to block access to the period of time necessary to resurface and grade. The City had the right to block the driveways “for the purpose of surveying, excavating, filling, grading and all other purposes incidental to construction of a street or sidewalk." Such a broad taking certainly could encompass closing all driveways to facilitate the construction if the condemnor so desired.
We hold the district court’s ruling on the cross-appeal was correct and it is affirmed.
Let us now turn to the issues raised on appeal by the landowners. The first issue is one of those reheard and presents the question of whether a condemnor may restrict access under the exercise of the police power without compensating the property owner where the issue of public safety was not raised until after an eminent domain proceeding was in progress. We modify our opinion as follows: While this issue is sometimes treated differently in other jurisdictions, we have followed 2A Nichols on Eminent Domain § 6.37[4] (3d ed. rev. 1987), which states: “Concurrent with a compensable taking in a condemnation proceeding, the State may validly exercise the police power for traffic control and public safety, for which there can be no compensation, even if it affects the method of ingress and egress.”
Initially we must recognize that a regulation under the police power is not a taking. A reasonable regulation imposed to protect the public is not a “taking in the constitutional sense because the public use is paramount and public safety is the desideratium.” Ray v. State Highway Commission, 196 Kan. 13, 23, 410 P.2d 278, cert. denied 385 U.S. 820 (1966). See Mugler v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S. Ct. 273 (1887). Police power is an inherent power of the sovereign and is essential to protect members of the community from injury. It rests upon the fundamental principle that all property is owned subject to the limitation that its use may be regulated for the safety, health, morals, and general welfare of the community in which it is located. Ray v. State Highway Commission, 196 Kan. at 22-23. See Panhandle Co. v. Highway Commission, 294 U.S. 613, 622, 79 L. Ed. 1090, 55 S. Ct. 563 (1935).
The question of whether the regulation of access to Hudson’s property was a compensable taking is a question of law. The closing of all access to property is an unreasonable regulation. The trial court ruled that under the facts of this case the regulation under the police power was reasonable and therefore not compensable. We agree.
The question then remaining is whether the failure on the part of the City to raise the issue of a noncompensable regulation under the police power until the eminent domain proceeding was in progress affects the City’s police power regulation. We hold it does not. So long as the police power regulation is reasonable it may be administratively asserted at any time by the City, and the timing of its assertion does not affect the substantive issue. The landowners have the right to challenge the reasonableness thereof in an implied contract action against the City. However, where a condemnation action is pending involving the. property, a part of which is the subject of police power regulation, the unreasonableness of the police power regulation may be tried in the condemnation action. The burden of proof is upon the one asserting unreasonableness. If it is determined that the regulation is unreasonable, it then becomes a taking and is compensable. Under the facts of this case, where landowners have two remaining entrances, one on 75th Street and one on Switzer, we hold the closing of the east entrance on 75th Street is a reasonable exercise of the City’s police power for the safety of the public for which landowners are not entitled to compensation.
The next issue is whether the trial court erred in refusing to strike the testimony of the City’s design engineer, James Scherzberg, when the City’s attorney stated on cross-examination that the engineer was not the City’s agent. The landowners argue this qualified as an admission the engineer could not testify as to the City’s reasoning for closing the driveway. They argue his testimony on the safety of the entrance was thus speculative and should have been stricken under In re Central Kansas Electric Coop., Inc., 224 Kan. 308, 582 P.2d 228 (1978). In re Central involved testimony from a mechanical engineer that the electrical field beneath transmission lines might endanger the health of pigs. We held the opinion should have been stricken as speculative because the engineer had no experience concerning the effects of electrical fields on animals. His opinion instead was based on studies which were, at best, inconclusive on the question. In the instant case, Scherzberg was retained by the City to design the construction project. He participated in the decision to close the driveway. He therefore had direct knowledge of why the City closed the entrance. His testimony was not based on conjecture and was correctly admitted. This issue is without merit.
The next issue is whether the trial court erred in not striking as speculative the testimony of the traffic engineer. The landowners argue the engineer’s testimony is speculative under In re Central because he testified he did not know why the City closed the driveway and because there was no evidence the City relied on his opinion in closing the driveway. The testimony was not sought on the question of why the City closed the entrance, however, but on whether the driveway was safe prior to construction and whether convenient access to the property remained after construction. Since we find the issue of safety relevant, the engineer’s testimony was admissible on that point. The question of whether convenient access remains is always relevant in a condemnation proceeding.
The landowners cite Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 490 P.2d 619 (1971), in support of their farther contention there was insufficient foundation, without physical examination of the property, for the traffic engineer’s opinion on safety and access. In Staudinger, we held a surgeon could not answer an abstract question concerning the effects of alcohol without the foundation of the facts in the case. We noted the facts could have been, but were not, placed in evidence. We held an expert witness must base his opinions on facts within his personal knowledge or observation, or made known to him at the hearing. Staudinger, 208 Kan. at 104. In the instant case, the engineer’s opinion was based upon his examination of the engineering plans for the construction project. The plans were properly in evidence and clearly depicted the significant features of the property before and after construction. There is no evidence the trial court abused its discretion in allowing the witness’ testimony.
The next issue is whether the trial court erred in allowing into evidence excerpts and standards from books relied upon by street design engineers showing minimal distances which should be allowed between entrances and intersections. The landowners also argue the trial court erred in receiving evidence that 75th Street had been declared a controlled access facility ten years earlier. The landowners argue these documents were irrelevant as there was no evidence the information they contained was relied upon by the City in its decision to close the entrance. We find this evidence relevant and properly admitted to show justification for use of the City’s police power.
The landowners also object to the introduction of documentary evidence of projections of traffic famished to the design engineer by the Kansas Department of Transportation in reply to a request by the engineer’s firm. The trial court overruled the landowners’ objections of hearsay and lack of foundation, citing the business records exception contained in K.S.A. 1988 Supp. 60-460(m). The landowners argue the documents were inadmissible pursuant to State v. Guhl, 3 Kan. App. 2d 59, 588 P.2d 957, rev. denied 225 Kan. 846 (1979). However, in State v. Cremer, 234 Kan. 594, 676 P.2d 59 (1984), we held the Court of Appeals erred in relying on Guhl to hold that bank statements made in the regular course of business could not be admitted because no representative of the bank testified as to their preparation. We held the policy of K.S.A. 1988 Supp. 60-460(m) is to rely on the sound discretion of the trial court to determine whether the evidence is trustworthy. We find no abuse of discretion here.
Next, let us consider the other issue reheard, whether the trial court erred in allowing evidence concerning the effect of construction work on 75th Street and 1-35 on the value of the landowners’ property. Newspaper articles were admitted to demonstrate public knowledge of the closure of 75th Street at I-35. The City’s real estate expert estimated public knowledge would result in a 75% reduction in traffic by the landowners’ property, and thus discounted the landowners’ damages due to the City’s condemnation by 75%. We modify our original opinion on this issue in only two small particulars.
The general rule is that enhancement or depressing of value due to anticipated improvements by the project for which condemnation is sought is excluded in determining fair market value. 4 Nichols on Eminent Domain § 12.3151 (3d ed. rev. 1985). The City argues the general rule does not apply in the instant case because the effect on market value is caused by a separate construction project. A loss in value caused by an unrelated project may be considered in determining fair market value. 4 Nichols on Eminent Domain § 12.3151[3] at 12-470. The party asserting that two or more projects should be considered as one for valuation purposes has the burden of proving the projects are related. See United States ex rel. T. V. A. v. 137 Acres of Land, Etc., 406 F.2d 1283, 1287 (6th Cir. 1969); State v. Alaska Continental Development Corp., 630 P.2d 977, 984 (Alaska 1980).
The landowners argue the state project should not be considered a separate project from the City’s because the City’s project was clearly designed in conjunction with the construction on 75th and 1-35. Both projects were approved and developed at the same time, designed within the same time frame, and constructed concurrently. Both were intended to improve traffic along 75th Street. The widening of 75th near the landowners’ property was deemed necessary as a result of the state’s construction at 75th and 1-35, so that the increased traffic would not bottleneck.
However, the City’s design engineer testified the projects were separate, not dependent on each other, and capable of being separately constructed. The Kansas Department of Transportation was in charge of the 75th and 1-35 project and received federal funding from the Interstate Highway Improvement Project. It had a separate project identity and is located in a different city, Merriam. Johnson County and the City of Shawnee were in charge of the project to widen 75th Street adjacent to the landowners’ property and received federal funding from a different program. The interchange project was not contingent upon the widening of 75th near the landowners’ property, and the design engineer testified it would have been “desirable” to widen 75th at that point regardless of the interchange project. In the absence of evidence of bad faith or collusion, we hold the two projects were separate and that evidence of reduced traffic as the result of the 1-35 construction is admissible to prove reduced damages to the landowners in the widening of 75th Street.
This brings us to the landowners’ argument that the newspaper articles should not have been admitted because they were hearsay. We hold the argument is without merit. The articles were not introduced to show the truth of the matter asserted in the articles — that construction would take place — but to show that the public would reroute their driving. Newspaper articles are generally admissible to show public knowledge. Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855 (1964); Annot., 20 A.L.R.3d 648. The landowners’ further objection that no foundation was provided that public knowledge of construction at 75th and 1-35 would lessen traffic and, thus, their damages, is also without merit. An expert witness is allowed to present his opinion that knowledge in the market place will have an impact on market value without other evidence of such impact. “[0]nce a witness has qualified as an expert, a court cannot regulate the factors he uses or the mental process by which he arrives at his conclusion. These matters can only be challenged by cross-examination testing the witness’ credibility.” City of Bonner Springs v. Coleman, 206 Kan. 689, 695, 481 P.2d 950 (1971). See Willsey v. Kansas City Power & Light Co., 6 Kan. App. 2d 599, 602-03, 631 P.2d 268, rev. denied 230 Kan. 819 (1981).
The landowners next object that the real estate expert’s figure of 75% traffic diversion, with a resulting 75% reduction in damages during construction, has “no foundation in fact or theory.” The trial court held, in overruling the landowners’ objection, that: “[F]rankly, the percentages that Mr. Fern used seemed to be no more speculative than some of the other numbers that the experts used for various types of things, and I just think it goes to the weight, not the admissibility.” Fern qualified as an expert, giving him authority to testify as to his opinion. He exercised that authority after qualifying. We find no abuse of discretion in admitting his testimony.
Let us now turn to whether the trial court erred in permitting the real estate expert to use a comparable sale concluded six years before the date of taking in determining the value of the landowners’ property. The expert used four comparable sales in arriving at his opinion of value. Two sales occurred on 75th Street a few blocks away from the landowners’ property, on dates close to the time of taking. One property sold for $7.05 a square foot and the other $6.90 a square foot. Another property was off 75th Street, and therefore its price had to be adjusted upwards. The landowners objected to the expert’s use of a sale of property along 75th Street that occurred six years earlier, at a price of $4.48 a square foot. The trial court overruled the objection, holding the remoteness of the fourth sale went to weight and credibility rather than admissibility. Whether a prior sale is too remote to be received in evidence is a question to be left to the discretion of the trial court. Willsey, 6 Kan. App. 2d at 615. Fern finally determined the landowners’ property to be worth $7.25 a square foot, as discussed earlier. There is no evidence the trial court abused its discretion. See Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983).
The landowners next argue the trial court erred in instructing the jury as follows:
“INSTRUCTION NO. 5
“In this case the condemnor has taken a right-of-way easement for the purpose of constructing and maintaining a public street. This easement will be permanent.
“The condemnor has also taken a temporary construction easement which is defined in the condemnors petition as follows:
“(b) ‘Temporary construction easement’ means a temporary easement for the purpose of surveying, excavating, filling, grading and all other purposes incidental to the construction of a street or sidewalk on the permanent right-of-way adjacent thereto substantially as shown on the ‘Plans for Street Improvement, 75th Street, City of Shawnee, Kansas,’ prepared by Howard, Needles, Tammen & Bergendoff and identified as Project No. 46-U-0571-01-M-2760 (003) and consisting of sheets numbered 1 through 9, a copy of which is marked ‘Exhibit A’ and filed with the City Clerk of the City of Shawnee. All areas disturbed are to be restored by replacement of sod or pavement to a condition as good as or better than before. No trees or improvements are to be damaged or removed excepting those indicated on the plans aforedescribed. No part of any building or structure, including any eaves, awnings or other overhanging attachment, either within or partly within said temporary easement, shall be damaged or removed unless indicated on the plans aforedescribed. Said temporary easement shall expire two (2) years from the date of the filing of the Appraisers Report herein or ninety (90) days after completion and acceptance of the project by the City, whichever occurs first. The owners, tenants, lienholders and easement holders, their heirs and assigns, may cultivate and fully use and enjoy the land within the construction easement, provided such use shall not interfere with the construction of the street.
“This easement was temporary, and expired on October 29, 1987, two years after the taking.”
The landowners object to the emphasized portion of the instruction because it refers to the appraisers’ report. The landowners argue that, because the jurors were thus informed that court-appointed appraisers had previously considered the case, the de novo characteristics of a jury trial were destroyed. The jury may not be told the amount of an award made by court-appointed appraisers or be told that an expert who testifies as to value was a court-appointed appraiser. McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 401, 524 P.2d 1165 (1974); Searcy v. State Highway Comm., 145 Kan. 709, 67 P.2d 534 (1937). Otherwise, the jury could conclude the court-appointed appraisers’ testimony is entitled to more credence that the other witnesses’ testimony. However, there is no rule prohibiting the mere mention of the “appraisers’ report,” without disclosure of the award or identity of the appraisers. The only possible prejudice from the instruction is the implication that the temporary easement might have lasted less than two years. As the landowners point out themselves, the court removed the possibility of confusion on this point by the. last sentence in the instruction, stating the easement ended two years after the taking. This issue is without merit.
The next issue is whether the trial court erred in allowing the landowners’ representative to be asked whether he sought assurances of access to the property during the period of the temporary easement. Because he had not, the landowners argue this allowed the implication they failed to mitigate their damages.
The trial court ruled as a matter of law prior to trial that the condemnor had the right to prohibit access during the entire two years of the temporary easement. The trial court had therefore, earlier in the trial, prohibited the landowners’ representative from testifying that the language of the petition did not assure access. The point had been won, and such testimony would be irrelevant. It was therefore, absent other circumstances, also irrelevant whether the landowners had sought assurances of access from the condemnor.
However, the trial court did not err in allowing the question, because the landowners had introduced the topic of assurances of access. See Dewey v. Funk, 211 Kan. 54, 56-57, 505 P.2d 722 (1973). The question was asked only after the landowners introduced evidence of comparable sales on 75th Street. The landowners’ witness stated some of the sales which occurred after the construction began were for higher amounts than the landowners would receive because the owners of these other properties had been assured of access. The witness testified this factor made it possible for him to estimate the value of the landowners’ property before the taking. Any prejudice was cured by the trial court’s instruction to the jury to compensate the landowners as if all access to their property was blocked for two years. The jury received no instruction on mitigation.
The final issue is whether the trial court erred in refusing to strike comments made by the City’s attorney in closing argument. The relevant portion of the transcript reads as follows:
“[City’s Attorney]: First of all, traffic was going to be disrupted in the area because of the 75th Street and 1-35 interchange removal. Now, access across this easement isn’t very important if there aren’t any cars on the street. “[Landowners’ Attorney]: Your Honor, I am going to object to that; that assumes facts which are not in evidence. There’s no evidence there weren’t going to be cars going by this property.
“[The Court]: Overruled. It’s argument.”
The landowners’ primary objections to these comments relate back to their earlier arguments that there was insufficient foundation for the real estate expert’s testimony that traffic would be greatly reduced by the state’s construction. Having found no error in the testimony itself, we find no error in commenting on the testimony in closing argument. True, there was no previous evidence there would be no traffic by the landowners’ property, as the City’s attorney acknowledged when he continued his argument after landowners’ objection: “I say if. Obviously, there were cars going by the property.”
In State v. Potts, 205 Kan. 47, 53-54, 468 P.2d 78 (1970), we stated:
“ ‘In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it in which he may use illustrations and appeal to the jury with all the power and persuasiveness which his learning, skill and experience enable him to use.’ ”
We recognized in Skelly Oil Co. v. Urban Renewal Agency, 211 Kan. 804, 807, 508 P.2d 954 (1973), that the “latitude permitted counsel in closing argument lies largely within the discretion of the trial court.” The trial court did not abuse its discretion.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This is an “island annexation” case which addresses the issue of standing. The land to be annexed does not adjoin any city. We call upon statutory construction concepts in dealing with this issue of first impression: the interpretation of K.S.A. 12-520c.
The case is before us on a petition for review from the Court of Appeals decision in Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs, 13 Kan. App. 2d 734, 779 P.2d 463 (1989). Plaintiffs Cedar Creek Properties, Inc., Ash Grove Cement Company, and R. J. Anderson (adjoining landowners) petitioned this court to review the decision of the Court of Appeals that determined that adjoining landowners had no standing to appeal the decision of the Johnson County Board of County Commissioners (the Board) that annexation will not hinder or prevent proper growth or development of the area. A divided Court of Appeals held:
“In cases of a proposed annexation of land not adjoining the city, an adjoining owner of the property to be annexed who contests the anticipated use of the property annexed is not aggrieved by the annexation order and, therefore, has no standing pursuant to K.S.A. 12-520c(c) to challenge the proposed annexation. The adjoining owner’s remedy lies instead with a challenge of the issuance of the special use permit which must be obtained by the owner of the property annexed prior to commencing the contested use.” 13 Kan. App. 2d 734, Syl. ¶ I.
We granted review to consider the standing issue.
Facts
The facts are not in dispute. They are summarized as follows:
The property which is the subject of the annexation is located adjacent to Highway K-10 in Johnson County and is within the area covered by a 1983 agreement between the cities of Lenexa and Olathe as to future annexation by the two cities. Under the agreement, the property is designated for annexation by Lenexa. In September 1987, Holland Corporation, the owner of the acreage to be annexed, requested a special use permit from Lenexa to operate a rock quarry on the site. Public hearings on the request began in November 1987. While the request was being considered, Lenexa’s extra-territorial zoning authority over the parcel was questioned.
Holland then requested Lenexa to annex the property pursuant to K.S.A. 12-520c, which authorizes a city to annex land not adjoining the city limits upon petition or by consent of the owner of the land. The Lenexa City Commission approved Holland’s request and, pursuant to the statute, sent the request to the Board for approval. Counsel for the adjoining landowners ap peared and opposed the proposed annexation. The adjoining landowners argued the proposed use of the annexed property was relevant in determining what effect the annexation would have on the surrounding property. The Board authorized the annexation by a unanimous vote. In the Board’s view, the proposed use of the acreage was a consideration for Lenexa’s planning commission and city commission in deciding whether to grant a special use permit and should not be considered by the Board in deciding the annexation request.
The adjoining landowners filed petitions for judicial review of the Board’s decision and the cases were consolidated. The Board filed a motion to dismiss the petition, alleging the adjoining landowners lacked standing to appeal the Board’s decision. The City of Lenexa, intervening in the action, also filed a motion to dismiss based on the adjoining landowners’ lack of standing. The district court granted the motions to dismiss.
The district court stated it was granting the Board’s motion to dismiss primarily on a determination that the adjoining landowners lacked standing. Secondarily, the district court noted that it appeared the Board had no zoning jurisdiction. The Board was not obliged to consider such matters.
We need not address those comments here as the zoning issue was not presented in the motion to dismiss granted by the district court.
Standing
The issue is whether the adjoining landowners have standing under K.S.A. 12-520c(c) to appeal a determination by the Board that the proposed “island annexation” will not hinder or prevent the proper growth and development of the area.
The adjoining landowners’ arguments that they have standing are as follows:
(1) They are “owners” as defined by K.S.A. 1989 Supp. 12-519(c), and K.S.A. 12-520c(c) unambiguously says “any” owner aggrieved can appeal.
(2) They are “aggrieved” under the definition of aggrieved party in Linsea v. Board of Chase County Comm’rs, 12 Kan. App. 2d 657, 661, 753 P.2d 1292 (1988). Linsea noted that a party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. They argue there will be an adverse pecuniary effect upon their land because of the annexation. In addition, the Board refused to consider the proposed use of the land to be annexed and the effect of the annexation upon the proper growth and development in the “area.” Because the effect of the annexation on the “area” is a matter which the Board must, but did not, consider, the adjoining landowners are thereby automatically aggrieved.
(3) If the adjoining landowners do not have standing, K.S.A. 12-520c(c) is meaningless because an owner of land who requested annexation is never going to appeal a finding that the annexation is proper. The court needs to interpret the statute to make it meaningful, and it is only meaningful if the adjoining landowners (and others similarly situated) have standing to appeal. Rules of statutory construction would establish that the legislature intended the adjoining landowners to have standing because the legislature is deemed to pass meaningful laws.
The Board and the City of Lenexa contend that the adjoining landowners do not have standing because:
(1) The adjoining landowners are not “owners.” The annexation statutes clearly contemplate that “owners” are owners of land that is subject to annexation thereunder and the adjoining landowners do not own property within the annexed area.
(2) The adjoining landowners are not “aggrieved” by the annexation because the adjoining landowners suffer no harm from the annexation itself. Their harm is nothing more than anticipated harm from the eventual “use” of the annexed property, which can be attacked in the special use permit request proceedings. The adjoining landowners also are not “aggrieved” by the Board’s failure to consider the proposed “use” of the annexed property. Under K.S.A. 12-520c(a)(3), the Board has to determine “that the annexation of such land will not hinder or prevent the proper growth and development of the area.” Proper “growth” refers to uniform, timely, and directional city expansion. It does not mean proper “use.”
(3) The judicial review portion of K.S.A. 12-520c(c) is not meaningless. There are at least two instances when such appeals might be taken: (a) when the requesting landowner is denied a right of annexation by the Board of County Commissioners and appeals that decision in order to achieve annexation; or (b) when the landowner initially consents to such annexation, then later determines that it can no longer accept annexation as proposed and moves to appeal the decision of the Board granting such annexation.
Whether adjoining landowners have standing to appeal under K.S.A. 12-520c(c) is an issue of first impression.
K.S.A. 12-520c(a) states:
“The governing body of any city may by ordinance annex land not adjoining the city if the following conditions exist:
“(1) The land is located within the same county as such city;
“(2) The owner or owners of the land petition for or consent in writing to the annexation of such land; and
“(3) The board of county commissioners of the county find and determine that the annexation of such land will not hinder or prevent the proper growth and development of the area or that of any other incorporated city located within such county.” (Emphasis added.)
The relevant portion of K.S.A. 12-520c(c) states: “Any owner or city aggrieved by the decision of the board of county commissioners may appeal from the decision of such board to the district court of the same county in the manner and method set forth in K.S.A. 19-223.” (Emphasis added.)
K.S.A. 19-223 states:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
In the present case the adjoining landowners contend they are aggrieved because their property values and development potential will be adversely affected if the annexed property is used for a rock quarry.
K.S.A. 12-520c(a)(3) requires the Board to find and determine that the annexation will not “hinder or prevent the proper growth and development of the area." (Emphasis added.) K.S.A. 12-520c(a)(3) presents one of the few times the word “area” is used without modification in the annexation statutes. The adjoining landowners argue that the K.S.A. 12-520c(a)(3) requirement, that the Board find that the proposed annexation will not be detrimental to the area, is indicative of a legislative intent to allow appeals from owners outside the land to be annexed. The adjoining landowners also argue they are “owners” authorized by the statute to appeal because they own land and K.S.A. 12-520c(c) speaks of “any owner . . . aggrieved.” We agree.
The purpose and intent of the legislature governs when the intent can be ascertained from the statute. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, Syl. ¶ 1, 734 P.2d 1083 (1987). Words in common usage should be given their natural and ordinary meaning in construing a statute. City of Lenexa v. City of Olathe, 233 Kan. 159, 165, 660 P.2d 1368 (1983).
“Any owner aggrieved” means any owner aggrieved not something else; the language is unambiguous.
Because K.S.A. 12-520c(a)(3) requires a determination of the effect of annexation upon the “area,” and not upon the “area to be annexed” or words of similar limitation, we hold “area” means more than the area proposed to be annexed. The legislature has granted any aggrieved owner in the area of the land proposed to be annexed standing to appeal. The adjoining landowners’ property is within “the area” that is subject to the Board’s determination as to proper growth and development; consequently, they have standing to seek review of the annexation decision of the Board. To hold otherwise would render the language “any owner aggrieved may appeal” meaningless. There would never be an occasion when an “owner” of the land to be annexed pursuant to K.S.A. 12-520c would be aggrieved by the granting of the annexation.
In 1973, the annexation statutes were reviewed by a special committee of the legislature which made numerous proposals for amendments to those statutes. The proposals were ultimately enacted and became chapter 56 of the 1974 session laws. The committee concluded:
“[T]he Kansas annexation law needs revision. The Committee is of the opinion that the rights of individual property holders should be enhanced in order to bring about more of a balance between the public and private interests. . . .
“For these reasons the Committee submits proposed House bill No. 1623 for consideration and favorable action by the 1974 Legislature. The bill would . . . amend K.S.A. 1973 Supp. 12-519 et seq., in the following ways.
“(4) Provides for the annexation of non-contiguous property if the owners of such land petition for such annexation and if the board of county commissioners approve such annexation. Non-contiguous annexations are not to be used as a base for further annexations, however, until such time as they become part of the city proper.” Kansas Report on Legislative Interim Studies, Part II, Proposal No. 92-Annexation pp. 92-4 through 92-5 (1974).
This concern that noncontiguous annexations should not be used as a base for further annexations until such time as they become a part of the city proper reflects legislative concern for the area outside the boundaries of the proposed island annexation. The concern was enacted into law and became K.S.A. 12-520c(b). We believe K.S.A. 12-520c(b) reflects legislative intent, with regard to island annexations, that the language “proper growth and development of the area” is not limited to the area which is the subject of the proposed annexation.
We, therefore, conclude that the adjoining landowners have standing under K.S.A. 12-520c to appeal the decision by the Board of County Commissioners.
The decision of the Court of Appeals affirming the district court is reversed. The judgment of the district court is reversed, and the case is remanded to the district court for further proceedings. | [
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The opinion of the court was delivered by
Miller, C. J.:
Hypnotically refreshed testimony of the defendant, William T. Butterworth, was admitted by the trial court over the State’s objection during Butterworth’s trial on three counts of first-degree murder and one count of felony theft. The jury returned a verdict of acquittal. The State reserved the question of the propriety of the admission of Butterworth’s testimony and appeals. K.S.A. 22-3602(b)(3). We deny the State’s appeal.
The sole question before us is whether the trial court erred in admitting into evidence defendant Butterworth’s posthypnotic recollections. We limit the issue in this case to whether the testimony of a criminal defendant who has undergone hypnosis to refresh his or her recollection is admissible and, if so, under what circumstances.
Melvin P. Fager and his daughters, Sherri and Kelli, were found dead at their Wichita home on December 31, 1987. The Fagers’ car was missing; also missing was William T. Butterworth, who had been working on a solarium for the Fagers. Three days later, Butterworth called his wife from Florida. She told him the police were looking for him; he then called the police and was arrested and charged with killing the Fagers. Butterworth repeatedly told the police he could remember nothing of what happened during the relevant time period of the murders. He remembered preparing for work on the morning of December 30. The next thing he remembered was hearing a news broadcast on the radio about the Fager murders after which he called his wife.
When Butterworth still had not recovered his lost memory a month after being charged, he told his appointed defense counsel, public defender Richard Ney, that he wished to see a psychologist to see if that would help his recall. After consulting another doctor, Ney obtained a reference to Dr. Robert Pace, a licensed clinical psychologist experienced in the use of hypnosis. This was Ney’s first contact with Dr. Pace, who was not regularly employed by defense counsel or the State. Butterworth attended twenty sessions with Dr. Pace in the doctor’s office over a four-month period; during ten of those sessions, Butterworth was hypnotized.
Dr. Pace made extensive notes of each session; these were furnished to the court and to counsel at trial. None of the sessions were tape-recorded and none were videotaped. The following description of the sessions is summarized from Dr. Pace’s notes and his testimony.
SESSIONS WITH THE PSYCHOLOGIST
Ney was present during the first session on February 15, 1988, during which he talked to Dr. Pace regarding fees and explained that Butterworth had no memory of the crimes with which he was charged. Dr. Pace introduced Butterworth to hypnosis techniques and induced a light trance, but did not attempt to regain Butterworth’s lost memory. He also directed Butterworth to prepare a written statement of his memories immediately prior to and after his memory lapse.
Dr. Pace talked to Ney alone at the beginning of the second session on February 18. Dr. Pace was somewhat uneasy and had some concern about seeing Butterworth alone. Ney gave Dr. Pace some background information on the Fager family, but gave him no details about the crimes charged. This was the last session that Ney attended. No one but Dr. Pace and Butterworth was present at the rest of the sessions, except when Mrs. Butterworth came in and talked to the doctor after the seventeenth session was terminated.
During the second session, Butterworth discussed the stress his arrest and lack of memory had caused him and his family. Dr. Pace determined that his anxiety was too great for hypnosis at that time and that some of Butterworth’s emotional problems must be treated first. At the third and fourth sessions, on February 20 and 27, no hypnosis was attempted.
At the fifth session on March 3, Butterworth was hypnotized; no recall was attempted. Butterworth simply practiced relaxation techniques and visual imaging. Dr. Pace noted the physical indicia of a hypnotized state were present.
During his next session on March 19, Butterworth talked about the stress he and his family were under and how difficult he found it to relax and try to bring back his memory of the lost four days. He said, “Mr. Ney says he’s done all he can until something happens here.” Using an accepted technique, Dr. Pace hypnotized Butterworth and regressed him to earlier positive experiences in his life. He then regressed Butterworth to an earlier unpleasant experience. This technique prepares the patient to recover potentially unpleasant memories and enhances the patient’s feeling of self-control. It also minimizes bias that might occur if the therapist attempted to direct and rush memory recall.
After a seventh session on March 26 devoted entirely to treatment of anxiety, Dr. Pace hypnotized Butterworth during the eighth session on April 1 and had him continue a series of “successive approximations.” This is a technique where the patient is asked to come closer to the feared memory by facing other unpleasant memories. Dr. Pace asked Butterworth, without recalling the time of the murders, to regress to memories of prior adversity and punishment from an authority figure.
On April 9, another session was devoted entirely to treating anxiety. Butterworth talked about viewing pictures of the crime scene the day before. Butterworth was hypnotized during the tenth session on April 12 and visualized the Fagers’ home. He also remembered it was cold the morning of the 30th and that he ate lunch at a fast-food restaurant different from the one he usually patronized. During hypnosis in the eleventh session on April 19, Butterworth remembered stopping for coffee on his way to work on the 30th. He also remembered details of his morning’s work at the Fagers’ home.
Butterworth was not hypnotized during the twelfth session on April 26, but was hypnotized during a two-hour session on April 30. He remembered talking to Mr. Fager before leaving for lunch on the 30th about the work he was doing. He remembered eating lunch and noting when he returned that Mr. Fager had either left or put his car in the garage. He remembered starting work and then thinking someone was in the spa in the solarium because of the smell of chlorine and the condensation on the glass. He thought it might be Kelli Fager and her boyfriend. He felt uncomfortable and decided to leave until they were done so he could work without disturbing them. He then decided to go to the mall to see if there were any after-Christmas sales. He remembered buying some new clothes.
Butterworth was not hypnotized during the fourteenth session on May 2, but was hypnotized during the fifteenth session the next day. He recalled seeing acquaintances while he was at the mall, one of whom was William Dotts, a retired police captain. Butterworth thought it was about 4:30 p.m. when he left the mall; it was getting dark when he returned to the Fagers’ home. There were no lights on in the solarium; he remembered getting his key to open the door.
Butterworth appeared depressed and frightened at the sixteenth session on May 5 and did not wish to be hypnotized. He was hypnotized during a two-hour session on May 7. He recalled seeing the Fagers’ car as he returned from the mall. He cried as he recalled opening the solarium door and seeing Sherri Fager face up in the spa. He started to pull her out and realized she was dead. He went into the house and saw Mr. Fager lying dead on the floor. He knelt beside him, saw some keys beside him, and picked them up. He went to his van and tried to leave, but the keys would not work. He started hitting the steering wheel and then realized he was using Fager’s keys. He grabbed the sack of new clothes from the van and drove away in the Fagers’ car. He said he felt afraid and cowardly for running away. At this point, Butterworth appeared extremely upset. Dr. Pace ended hypnosis and, for the first and only time, allowed Butterworth’s wife to come in to comfort him. Dr. Pace, in front of Butterworth, told Butterworth’s wife he believed Butterworth to be innocent but suffering from guilt and self-condemnation. Dr. Pace notified Ney that Butterworth had recovered some memory but warned him not to push him very hard.
During the subsequent sessions on May 9 and 11, no hypnosis took place, while Butterworth and Dr. Pace tried to discover why Butterworth had such deep feelings of shame and cowardice. Butterworth noted at the May 9 session that jury selection began that day. He also said that, although Kelli had been found with Sherri, he had only remembered seeing Sherri. He said the spa was not so large that he could have missed seeing Kelli if she had been in the spa.
During the last session on May 14, 1988, Dr. Pace hypnotized Butterworth and asked him to return in his thoughts to the Fager house. Butterworth recalled that he entered the house after finding Sherri in order to call for help. He then saw Mr. Fager and knelt beside him trying to get him to move. He remembered being cold and wet from trying to get Sherri out of the spa. He picked up the keys beside Fager and started to get up when he thought he heard something.
Dr. Pace asked, “What does it sound like?” Butterworth replied, “A bump or something.” Dr. Pace noted Butterworth’s breathing became more rapid and he told Butterworth to continue. Butterworth said he thought it might be the Fagers’ dog, and he started toward the basement stairs where he thought the sound came from. Dr. Pace observed tension throughout Butterworth’s body and that he began to cry more heavily. Butter-worth said, “It wasn’t the dog ... I thought it was that there was somebody down there. . . I’m so scared. I turn around and step over to the front door. I just had to get out of there.” Dr. Pace asked, “Is there something else you haven’t told me?” Butterworth replied, “Just the noise.” Butterworth said it sounded “[l]ike somebody trying to cry or scream and I couldn’t . . . . ” He said he saw the Fagers’ car when he could not start his van and drove away in it. He said, “I wanted to go home but I couldn’t.” He said he could not face his wife. After some time, during which he cried, he asked, “What if it had been my kid?”
Dr. Pace noted “[a]t this point he cries harder than he ever had and had a great deal of body tension. Yet he continued to try to choke the tears back. I observe that his face was so flushed, the pulse is evidenced by the artery in his neck and by the muscle tension that he was extremely emotional.” Butterworth finally said, “I keep thinking it could have been my kids and I just ran away.” Butterworth then remembered drawing some money from an automatic teller machine and driving past his house, wanting to go in. Instead, he drove to Florida. At this point Dr. Pace ended the hypnosis while Butterworth cried. Dr. Pace asked, “Are you thinking Kelly [sic] was still down there and alive?” Butterworth shook his head yes and said, “It sounded like it.” Butterworth then talked about how, if he had not been cowardly, Kelli might not have been killed. He said he feared he might abandon his own children in such a situation.
TRIAL
Trial commenced on Monday, May 9, 1988. A jury was impaneled and sworn. Counsel for the State and the defendant made opening statements. The State first learned of the hypnotic sessions, and of the defense’s intention to present Butterworth’s testimony based, in part, on his posthypnotic recall, during Mr. Ney’s opening statement for the defense. The State objected to the introduction of such evidence. The court excused the jury and heard arguments of counsel on the admissibility of the proposed testimony.
The State contended it should have been informed prior to trial of the use of hypnosis. The State had been granted reciprocal discovery pursuant to K.S.A. 22-3212(3) during pretrial proceedings. Ney explained he did not plan to call Dr. Pace as a witness at trial, but simply to allow Butterworth to testify. Ney also stated that he had no reports concerning the therapy sessions, which were still ongoing, and that Butterworth’s recall occurred only a few days prior to trial. He argued that the hypnosis had been carried out in a reliable manner as suggested in Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987), and that Butterworth’s recollections were admissible because of an accused’s constitutional right to testify in his own defense. The judge continued the trial until Wednesday, May 18, pending an evidentiary hearing on the admissibility of the posthypnotic recall. The court required Dr. Pace to turn over his records on Butterworth for an in camera inspection. Dr. Pace’s notes were given to both counsel prior to the hearing.
THE ADMISSIBILITY HEARING
After considering Rock and other recent cases concerning posthypnotic testimony, the judge set forth the safeguards he would look for in deciding the admissibility of Butterworth’s posthypnotic recollections. These were as follows:
1. The hypnotic sessions should be conducted by a licensed psychiatrist or psychologist trained in the use of hypnosis.
2. The hypnotist should be independent of and not responsible to the prosecution or the defense.
3. Information received by the hypnotist prior to the hypnosis concerning the event in question should be in written form so that it may subsequently be determined to what extent the subject received information or suggestions from the hypnotist.
4. The hypnotist should obtain a detailed description of the event as the subject remembered it during hypnosis, carefully avoiding influencing the description by asking structured questions or adding new details.
5. All contact between the hypnotist and the subject should be recorded to establish that the subject has not received any undue suggestions or new information.
6. Only the hypnotist and the subject should be present during the hypnosis and related sessions.
The admissibility hearing commenced on May 16, 1988. Dr. Pace testified it was his opinion Butterworth had been suffering from suppression after being exposed to something terrifying. He said that Butterworth’s manner of recovery was similar to his other trauma patients such as incest victims and Viet Nam veterans. He found a consistency of behavior within and between sessions which he believed supported his conclusions. He testified that, although he could not know whether Butterworth was lying under hypnosis, he did not believe Butterworth feigned his trances. He observed that the physical signs of a trance, such as heavy breathing and rolling back of the eyes, were present.
Dr. Pace testified he had no significant knowledge of the charges against Butterworth. He received no information from the police; Ney provided him with some information about the Fager family during the first session. He said he had written down in his notes all information received from outside sources. He made no suggestions to Butterworth during hypnosis. He also testified that his notes were, as far as possible, verbatim and that no significant sessions or portions of sessions were omitted. He had extensive training in hypnosis and had used it extensively in his practice for over fifteen years. The State’s cross-examination of Dr. Pace cover over 100 pages of the record.
The State called Dr. Richard L. Ault, a special agent of the Federal Bureau of Investigation, who holds a Ph.D. in counseling, and who has supervised hundreds of cases where hypnosis has been used in law enforcement. He has conducted only about 25 hypnotic sessions himself, as these are normally conducted by a psychiatrist or psychologist. He testified concerning the unreliability of posthypnotic recall, unless it is corroborated. He also stated that some of the people who were the subject of hypnotic sessions which he supervised had later testified in court as to their posthypnotic recollections. His entire testimony extends over approximately 25 pages of the record.
The trial court ruled the sessions had been substantially safeguarded. Quoting Rock, it stated, “Such guidelines do not guarantee the accuracy of the testimony, because they cannot control the subject’s own motivations or any tendency to confabulate, but they do provide a means of controlling overt suggestions.” 483 U.S. at 60-61. The court specifically found:
1. The hypnotic sessions were conducted by a licensed psychologist.
2. The psychologist was not influenced by any party to a degree that tainted the sessions.
3. The psychologist’s prior knowledge of the case was not written down.
4. A written, detailed, prehypnotic memory was recorded by the defendant prior to any memory recovery due to hypnosis.
5. The doctor’s notes were a sufficient record of the hypnotic sessions, although a complete audio and video record is preferred.
6. No one but the hypnotist and the subject were present during all but the first hypnosis session. The first session was not meaningful as it related to Mr. Butterworth’s posthypnotic memory.
The court found the failure of safeguards which had occurred was not significant enough to deny admissibility of Butterworth’s testimony. It thus found the testimony admissible, subject to examination as to the weight to be given the testimony. The court found the defendant’s expert, Dr. Pace, more qualified than the State’s, Special Agent Ault, who had a Ph.D. in counseling but was not a licensed psychologist. The court noted that Dr. Pace believed that no outside factors influenced his conduct or Butterworth’s posthypnotic memory. It also noted that the State presented no evidence to rebut this testimony. The State reserved the issue of the admissibility of the testimony for appeal.
TRIAL CONCLUDED
Trial resumed on May 18. The State presented its evidence and rested. Butterworth testified in his own behalf and recalled the events surrounding the murders as he had under hypnosis. Dr. Pace also testified as to Butterworth’s recollection under hypnosis. The State’s expert rebutted defense evidence by tes tifying that Dr. Pace’s sessions did not meet the established safeguards for insuring the reliability of posthypnotic recollections. The jury acquitted Butterworth of all charges.
PRIOR CASE LAW
The first Kansas appellate case concerning the use of hypnosis is State v. Conley, 6 Kan. App. 2d 280, 627 P.2d 1174, rev. denied 229 Kan. 671 (1981). The defendant claimed error in the trial court’s exclusion of the testimony of his doctor concerning statements the defendant made while hypnotized. A unanimous panel of the Court of Appeals held “that testimony obtained from an accused under hypnosis that is offered to prove the truth of the matters asserted by the accused is analagous to testimony obtained by truth serum and lie detector tests and, in the absence of a binding agreement to admit the evidence, is not admissible.” 6 Kan. App. 2d at 285.
Four years later, this court considered the issue of posthypnotic recollection in State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985). Haislip appealed his murder conviction, claiming the trial court erred in failing to suppress the testimony of two prosecution witnesses who had been hypnotized. This court held:
“Given the problems inherent in the hypnotic process, such as the enhanced suggestibility of the subject, the tendency to confabulate when there are gaps in recollection, and the increased confidence in the truthfulness and accuracy of post hypnotic recall which may preclude effective cross-examination, hypnotically refreshed testimony is simply too unreliable to be used as evidence in a judicial setting. We hold that hypnosis has not reached a level of scientific acceptance which justifies its use for courtroom purposes, and, according to the Frye test [see Frye v. United States, 293 F. 1013 (D.C.Cir. 1923)], events recalled subsequent to hypnosis are not admissible. We further conclude that no set of procedural safeguards can adequately remedy this unreliability.
“Our rule of inadmissibility does not, however, render all. testimony of a previously hypnotized witness inadmissible. A person who has been hypnotized may testify to facts which he related before the hypnotic session.” 237 Kan. at 482.
We further held that, prior to admitting any testimony from a witness who had undergone hypnosis, the trial court must conduct a pretrial hearing in order to determine the extent of the witness’ prehypnotic recollection and whether the hypnosis was so impermissibly suggestive as to require exclusion of in-court testimony with respect to such prehypnotic recollection. 237 Kan. at 483. We affirmed Haislip’s conviction because the evidence showed the witnesses’ testimony was not based on facts revealed for the first time under hypnosis, and the trial court’s pretrial hearing on the matter supported the court’s implicit finding that the hypnosis procedure was not improperly suggestive.
Rock v. Arkansas
Our state pronouncements on the subject were followed in 1987 by Rock v. Arkansas, 483 U.S. 44. Rock was charged with manslaughter in the shooting death of her husband. She remembered grabbing a gun because her husband began choking her during a fight. Because she could not remember the precise details of the shooting, she underwent hypnosis. After hypnosis, she remembered she had not held her finger on the trigger of the gun, which had discharged when her husband grabbed her arm. This recollection led to an expert inspection of the gun, which revealed the gun was defective and prone to fire when hit, without the trigger being pulled.
At trial the court limited Rock’s testimony to memories stated before hypnosis, and she was convicted of manslaughter. The Arkansas Supreme Court affirmed, following the approach taken by a number of states, including Kansas, that recollections due to hypnosis are inadmissible per se. See 483 U.S. at 57.
The United States Supreme Court held that a per se rule prohibiting the admission at trial of an accused’s hypnotically refreshed testimony violates the accused’s constitutional right to testify on his own behalf as guaranteed by the Fifth Amendment privilege against self-incrimination, the right to compulsory process and to conduct one’s own defense as guaranteed by the Sixth Amendment, and the right to due process as guaranteed by the Fourteenth Amendment.
The court found the Arkansas per se rule limiting an accused’s testimony to matters he can prove were remembered before hypnosis operated “to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced.” 483 U.S. at 56.
The court noted that “[h]ypnosis by trained physicians or psychologists has been recognized as a valid therapeutic technique since 1958, although there is no generally accepted theory to explain the phenomenon, or even a consensus on a single definition of hypnosis.” 483 U.S. at 58-59. The court’s research led it to conclude that the most common response to hypnosis is an increase in both correct and incorrect memories:
“Three general characteristics of hypnosis may lead to the introduction of inaccurate memories: the subject becomes ‘suggestible’ and may try to please the hypnotist with answers the subject thinks will be met with approval; the subject is likely to ‘confabulate,’ that is, to fill in details from the imagination in order to make an answer more coherent and complete; and, the subject experiences ‘memory hardening,’ which gives him great confidence in both true and false memories, making effective cross-examination more difficult.” 483 U.S. at 59-60.
The court was not prepared to endorse without qualification the use of hypnosis, observing that “scientific understanding of the phenomenon and of the means to control the effects of hypnosis is still in its infancy.” 483 U.S. at 61. The court suggested a state “would be well within its powers if it established guidelines to aid trial courts in the evaluation of posthypnosis testimony.” 483 U.S. at 61.
The court held, however, that a state is not justified in a per se rule excluding all of a defendant’s testimony that the defendant is unable to prove to be the product of prehypnosis memory: “A State’s legitimate interest in barring unreliable evidence does not extend to per se exclusions that may be reliable in an individual case.” 483 U.S. at 61. The court held hypnosis has not been shown to be “always so untrustworthy and so immune to the traditional means of evaluating credibility” that it should always disable an accused from presenting his version of the events for which he is tried. 483 U.S. at 61.
SUBSEQUENT CASES
Louisiana and Texas are the only states thus far which have decided appeals subsequent to Rock concerning the hypnotically refreshed testimony of a criminal defendant. Louisiana now allows hypnotically refreshed testimony of a criminal defendant subject to strict safeguards. See State v. Holden, 554 So. 2d 121 (La. App. 1989); State v. Woodfin, 539 So. 2d 645 (La. App. 1989). Texas allows hypnotically refreshed testimony of a criminal defendant if the trial court finds the testimony trustworthy under the totality of the circumstances. See Tumlinson v. State, 757 S.W.2d 440 (Tex. Crim. 1988); Zani v. State, 758 S.W.2d 233 (Tex. Crim. 1988).
In Tumlinson, the trial court had rejected an audiotape recording of hypnotically induced testimony and the testimony of his hypnotist. The Texas Court of Appeals affirmed, for several reasons: The hypnotist was not qualified as a psychologist or psychiatrist. Defense counsel was present in the room during hypnosis. No videotape was made of the session, only an audio recording. There was no record of the information given to or known by the hypnotist concerning the case prior to hypnosis. Finally, there was no record of the facts as the defendant remembered them prior to undergoing hypnosis.
In Tumlinson, the Texas Court of Criminal Appeals cited and relied upon Zani, which is the lead case in an extensive annotation, Admissibility of Hypnotically Refreshed or Enhanced Testimony, 77 A.L.R.4th 927. The annotation includes a discussion of cases decided both before and after Rock. Other insightful discussions of the subject are: Fox and Fox, Reciprocal Hypnosis: A New Standard for the Admission of Posthypnotic Testimony, 20 Pacific L.J. 815 (1989); Note, Hypnosis and the Right to Testify: An Evidentiary and Constitutional Dilemma for Connecticut, 9 Bridgeport L.R. 359 (1988); and Note, Fifth, Sixth, and Fourteenth Amendments — A Constitutional Paradigm for Determining the Admissibility of Hypnotically Refreshed Testimony, 78 J. Crim. L. & Criminology 853 (1988).
PROCEDURAL GUIDELINES
The Supreme Court of New Jersey, in State v. Hurd, 86 N.J. 525, 432 A. 2d 86 (1981), adopted procedural requirements similar to those followed by the trial court. The New Jersey court emphasized that none of the enumerated factors “should be considered absolute prerequisites to admissibility, nor are they exclusive.” 86 N.J. at 545. We find these factors or guidelines to be helpful and instructive and adopt them for use in the Kansas courts. As set forth in the opinion in Hurd, they are as follows:
“First, a psychiatrist or psychologist experienced in the use of hypnosis must conduct the session. This professional should also be able to qualify as an expert in order to aid the court in evaluating the procedures followed. Although we recognize that there are many other people trained to administer hypnosis and skilled in its use for investigative purposes, we believe that a professional must administer hypnosis if the testimony revealed is to be used in a criminal trial. In this way, the court will be able to obtain vital information concerning the pathological reason for memory loss and the hypnotizability of the witness. Furthermore, the expert will be able to conduct the interrogation in a manner most likely to yield accurate recall.
“Second, the professional conducting the hypnotic session should be independent of and not regularly employed by the prosecutor, investigator or defense. [Of course, the hypnotist may collect a fee from the party who engaged his services.] This condition will safeguard against any bias on the part of the hypnotist that might translate into leading questions, unintentional cues, or other suggestive conduct.
“Third, any information given to the hypnotist by law enforcement personnel or the defense prior to the hypnotic session must be recorded, either in writing or another suitable form. This requirement will help the court determine the extent of information the hypnotist could have communicated to the witness either directly or through suggestion.
“Fourth, before inducing hypnosis the hypnotist should obtain from the subject a detailed description of the facts as the subject remembers them. The hypnotist should carefully avoid influencing the description by asking structured questions or adding new details.
“Fifth, all contacts between the hypnotist and the subject must be recorded. This will establish a record of the pre-induction interview, the hypnotic session, and the posthypnotic period, enabling a court to determine what information or suggestions a witness may have received during the session and what recall was first elicited through hypnosis. The use of videotape, the only effective record of visual cues, is strongly encouraged but not mandatory.
“Sixth, only the hypnotist and subject should be present during any phase of the hypnotic session, including the pre-hypnotic testing and the posthypnotic interview. Although it may be easier for a person familiar with the investigation to conduct some of the questioning, the risk of undetectable, inadvertent suggestion is too great .... Likewise, the mere presence of such a person may influence the response of the subject.” 86 N.J. at 545-46.
We adopt these procedural requirements for use in Kansas courts with one addition:
Seventh. If possible, the hypnosis should be conducted in a neutral setting such as the expert’s office. The use of offices or locations controlled by the prosecution or the defense should be avoided.
SUBSTANTIAL COMPLIANCE ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
The State contends that the trial court erred in not requiring strict compliance with the procedural safeguards it set out. The trial court, of course, was dealing with an issue without precedent in this state. Some jurisdictions require strict compliance, others require substantial compliance. In People v. Romero, 745 P.2d 1003, 1016 (Colo. 1987), cert. denied 485 U.S. 990 (1988), the Supreme Court of Colorado held the proponent of testimony from a previously hypnotized witness should bear the burden of establishing its reliability by a preponderance of the evidence. The court noted that some courts have imposed a clear and convincing standard of proof, but noted:
“The preponderance of evidence standard has often been referred to as the ‘orthodox view,’ since it is in keeping with the traditional burden applicable to the resolution of most preliminary questions of admissibility. See E. Cleary, McCormick on Evidence § 53, at 136 n. 8 (3d ed. 1984); 1 J. Wigmore, Evidence § 17, at 771 n. 20 (Tillers rev. 1983). Indeed, it has been cogently observed that the preponderance of evidence standard ’is appropriate for resolving most preliminary fact questions, even in a criminal case, and even when the reliability of the ultimate verdict is arguably affected by the decision on the preliminary issue.’ Saltzburg, Standards of Proof and Preliminary Questions of Fact, 27 Stan. L. Rev. 271, 291 (1975), cited with approval in 1 D. Louisell and C. Mueller, Federal Evidence § 35, at 266 (1977).” 745 P.2d at 1016.
The court noted that:
“The United States Supreme Court has held that the preponderance standard is applicable in determining the constitutional admissibility of a confession. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972). Other federal courts have expressly found a preponderance standard to be sufficient for purposes of resolving other preliminary questions of admissibility. E.g., United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977) (proof of conspiracy as precondition for admitting statement of co-conspirator); In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983) (foundation for business records exception).” 745 P.2d at 1016 n. 10.
At stake here, as the United States Supreme Court noted in Rock, is the constitutional right of an accused to testify in his or her behalf at a criminal trial. We conclude that substantial compliance with the procedural safeguards should be required since these safeguards are not exclusive and none are absolute prerequisites to admissibility. Whether any deviation from the safe guards is sufficient cause to reject the testimony is left to the sound judicial discretion of the trial court.
PRETRIAL HEARING
When posthypnotic testimony of the accused is to be offered, a hearing should be held before trial or outside of the hearing of the jury to determine the admissibility of the testimony. The defendant bears the burden of establishing, by a preponderance of the evidence, that substantial safeguards were utilized. That burden was met here. The trial court in this case followed the correct procedures and did not abuse its discretion in ruling that the sessions had been substantially safeguarded. It thus did not err in admitting defendant’s testimony.
NOTICE
Finally, in order that the State may be prepared to adequately cross-examine the defendant and to secure its own expert witnesses, the defense must notify the prosecution as early as possible when it is anticipated that hypnotically refreshed testimony of the defendant will be offered in his or her own behalf. In the case at hand, defense counsel did not know until the time of trial whether posthypnotic recollections would be offered in evidence. The defense should have alerted the State to that possibility at an early date. However, the lengthy recess taken by the trial court afforded the State an adequate opportunity to secure an expert and to prepare its cross-examination, and there was no prejudice.
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The opinion of the court was delivered by
McFarland, J.:
This is an action by two area landowners challenging the issuance by the Butler County Board of County Commissioners (Board) of a special use permit allowing construction of a state-owned prison facility. The State of Kansas intervened in the action. The State filed a motion for summary judgment, contending it was immune from county zoning regulations. The district court granted partial summary judgment to the State. Specifically, the court held that the State had immunity from zoning regulations, but that its immunity was not absolute. The burden was placed on the landowners to show the conduct of the State was arbitrary. Thereupon, the landowners stated they did not intend to litigate the reasonableness of the State’s decision to build the prison on the land involved herein and filed their notice of appeal.
For their first issue, the appellant landowners contend it was improper to permit the State to raise the immunity question based upon compelling state interest. They contend the State is precluded from raising this defense in the district court by virtue of not having raised the issue before the controversy reached the district court.
In early 1989, the owners of the real estate on which the State plans to build the prison filed an application for the issuance of a special use permit to authorize such usage. The property was zoned “A-2”, agricultural transition.
On March 9, 1989, the Butler County Planning Board met in special session to conduct a public hearing on the application. Following a hearing in which citizens spoke in favor of and against the special use application, the planning board voted 4-3 in favor of the application.
On March 27, 1989, the Butler County Board of County Commissioners unanimously adopted Resolution No. 89-833, which granted the special use permit for the construction of the prison facility.
On April 26, 1989, plaintiffs filed this action against the Board, alleging: (1) that the Board’s decision was unreasonable, arbitrary, and capricious; (2) that the use permitted (construction of a prison) was not an eligible use for a special use permit under an “A-2” zoning classification; and (3) that before the public hearing on the application, the Board predetermined it would issue the permit.
The Board answered that the Butler County zoning regulations authorized a special use permit within an A-2 zoning district for “public buildings erected [on] land used by any agency of a city or the county or state government.” The Board further contended that the proposed use of the land rendered the property exempt from local zoning regulations.
Prior to suit being filed the matters in controversy had been the pros and cons of issuing the special use permit and the Board’s authority to issue such a permit.
On May 18, 1989, House Bill 2548 (L. 1989, ch. 31, § 1-11) was signed by the governor. Said bill provided funding for the new prison and stated, in pertinent part:
“Sec. 4. The legislature finds and hereby declares that the prompt and expeditious initiation and completion of the capital improvement projects for a new correctional facility and a mental health facility or facilities is a matter of compelling public interest and is necessary to protect the public safety of the residents of Kansas because of the large and increasing inmate population in the custody of the secretary of corrections and because of the actions mandated by the orders of the United States District Court of Kansas in Arney, et al. vs. Hayden, et al., Case No. 77-3045.”
Four days later, on May 22, 1989, the State’s motion to intervene was filed. The motion stated as its grounds for intervention that there was a compelling public and state interest in the construction of the prison, and that such interests could not be adequately represented by defendant Board.
Intervention of right is controlled by K.S.A. 60-224(a)(2), which provides:
“(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
K.S.A. 60-224(a) should be liberally construed in favor of intervention. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 11, 687 P.2d 603 (1984); Campbell American Legion v. Wade, 210 Kan. 537, Syl. ¶ 1, 502 P.2d 773 (1972). The right to intervene in an action is dependent on the occurrence of three factors: (1) timely application; (2) substantial interest in the subject matter; and (3) inadequate representation of the applicant-intervenor’s interest. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. at 11; Hukle v. City of Kansas City, 212 Kan. 627, 630, 512 P.2d 457 (1973). A motion to intervene is a matter addressed to the court’s discretion. American States Ins. Co. v. Hartford Accident & Indemnity Co., 218 Kan. 563, 573, 545 P.2d 399 (1976).
Here, clearly, all three factors authorizing intervention were met. The State moved with rather amazing speed (four days) after the construction of the prison was given the green light and declared to be a matter of compelling state and public interest. The motion was filed less than a month after the petition herein was filed. Further, the legislature itself declared the compelling interest. Also, the Board, defending primarily on the merits of issuance of the special use permit, was not in the position to adequately represent the State. Certainly, the arrival of the State onto the scene greatly altered the nature of the litigation, but that is no cause to deny intervention under the circumstances herein. We find no abuse of discretion in the district court’s granting of the motion to intervene and permitting the State to assert the immunity claim based upon a compelling public and state interest.
For their next issue, the appellant landowners challenge the entry of partial summary judgment in favor of the State. Their arguments in this regard are askew as they treat the summary judgment as being considerably broader than it was. The district court held that the State was immune from zoning regulations where a compelling state interest was involved such as building a prison under a federal mandate. The immunity was not unlimited, however, as the State could not act in an arbitrary manner. Whether or not the landowners could show the State was acting arbitrarily in its decision to build the prison on this particular site was to be resolved by trial. The landowners then advised the Court they were conceding the State had acted reasonably. This concession cleared the way for their appeal herein as a matter of right from a final judgment as opposed to seeking an interlocutory appeal on a partial summary judgment. However, appellant landowners herein seek to challenge the partial summary judgment on the basis the district court improperly granted summary judgment because the State did not present adequate evidence that there was a compelling state interest to construct the prison on this particular site. The trial court entered no summary judgment on this aspect of the litigation as it contemplated a trial would be held to determine whether or not the State’s decision to construct the prison on this site was arbitrary. When the appellant landowners conceded that the State was acting reasonably in its determination that the prison be built on this site, they effectively removed any district court determination of the reasonableness of the State’s actions as to this particular site or appellate review relative thereto. All we have before us is a question of law relative to whether or not the district court erred in holding the State has immunity from zoning regulations subject to judicial review for arbitrary usage of the immunity. We turn now to that limited issue.
In making its decision, the district court relied upon Brown v. Kansas Forestry, Fish and Game Commission, 2 Kan. App. 2d 102, 576 P.2d 230 (1978). In Brown, the defendant Commission had purchased land in a residential area for construction of a parking lot and toilet facilities for usage of patrons utilizing the adjacent Big Blue recreation facility. Some area landowners objected to the construction and brought the action challenging the Commission’s authority to proceed with a construction program contrary to the zoning regulations in effect.
The Court of Appeals, in Brown, noted that this was an issue of first impression in Kansas but that courts in a number of other jurisdictions had resolved similar issues on a variety of rationales. The Court of Appeals’ scholarly discussion of the issue is sound and little would be gained from including the same herein in toto. To summarize the Court of Appeals’ opinion, it held that the common thread in these decisions was that the State had at least some degree of immunity from local zoning regulations, but that the exercise of that immunity was not absolute. Some type of judicial review was necessary to assure the State did not act arbitrarily. The Court of Appeals then adopted the “balancing of interests” test first enunciated in Rutgers v. Pituso, 60 N.J. 142, 150-54, 286 A.2d 697 (1972), citing therefrom as follows:
“ ‘The question of what governmental units or instrumentalities are immune from municipal land use regulations, and to what extent, is not one properly susceptible of absolute or ritualistic answer. Courts have, however, frequently resolved such conflicts in perhaps too simplistic terms and by the use of labels rather than through reasoned adjudication of the critical question of which governmental interest should prevail in the particular relationship or factual situation. . . .’
“ ‘The rationale which runs through our cases and which we are convinced should furnish the true test of immunity in the first instance, albeit a somewhat nebulous one, is the legislative intent in this regard with respect to the particular agency or function involved. That intent, rarely specifically expressed, is to be divined from a consideration of many factors, with a value judgment reached on an overall evaluation. All possible factors cannot be abstractly catalogued. The most obvious and common ones include [I] the nature and scope of the instrumentality seeking immunity, [2] the kind of function or land use involved, [3] the extent of the public interest to be served thereby, [4] the effect local land use regulation would have upon the enterprise concerned and [5] the impact upon legitimate local interests. ... In some instances one factor will be more influential than another or may be so significant as to completely overshadow all others. No one, such as the granting or withholding of the power of eminent domain, is to be thought of as ritualistically required or controlling. And there will undoubtedly be cases, as there have been in the past, where the broader public interest is so important that immunity must be granted even though the local interests may be great. The point is that there is no precise formula or set of criteria which will determine every case mechanically and automatically. ’
“ ‘It is, however, most important to stress that such immunity in any situation is not completely unbridled. Even where it is found to exist, it must not, as this court said in Washington Township v. Village of Ridgewood, supra (26 N.J. at 584-586, 141 A.2d 308), be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests. This rule must apply to the state and its instrumentalities as well as to lesser governmental entities entitled to immunity. For example, it would be arbitrary, if the state proposed to erect an office building in the crowded business district of a city where provision for off-street parking was required, for the state not to make some reasonable provision in that respect. And, at the very least, even if the proposed action of the immune governmental instrumentality does not reach the unreasonable stage for any sufficient reason, the instrumentality ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions in order to minimize the conflict as much as possible. . . .’ ” 2 Kan. App. 2d at 106-07.
The Court of Appeals then applied the balancing of interests test and held the construction of a recreational convenience facility should be determined through regular zoning procedures.
We agree that the balancing of interests test is an appropriate means of resolving questions of a state’s immunity from zoning regulations.
In its memorandum decision the district court reasoned as follows:
“In Brown the state agency was attempting to build a parking lot and restroom facilities in a residential area near Manhattan — hardly a matter of statewide concern. In the present case the state agency desires to build a large correctional facility in order to comply with a federal court order or face the consequences of the release of approximately 1000 prison inmates and the likelihood that a Special Master would be appointed to operate the state’s correctional system. The proposed construction site is on 600 acres of upland pasture approximately one mile east of El Dorado.
“Applying the ‘balancing of interests’ test it would be difficult to find more compelling reasons for granting immunity to the state than those established by the facts of this case. (1) The instrumentality seeking immunity is the state, and, as is stated in Brown, its judgment is entitled to considerable deference. (2) The general function performed is of statewide concern. In a rather unusual provision the legislature, in H.B. 2548, stated:
‘Sec. 4. The legislature finds and hereby declares that the prompt and expeditious initiation and completion of the capital improvement projects for a new correctional facility and a mental health facility or facilities is a matter of compelling public interest and is necessary to protect the public safety of the residents of Kansas because of the large and increasing inmate population in the custody of the secretary of corrections and because of the actions mandated by the orders of the United States District Court of Kansas in Arney, et al. vs. Hayden, et al. Case No. 77-3045.
(3) There is statewide public interest in the construction of a new prison. The mandate of Judge Rogers in Arney v. Hayden leaves no doubt that the state must construct additional prison facilities or release numbers of prison inmates in order to relieve the overcrowded conditions in existing facilities.
(4) Local regulation could conceivably result in the state being required to build a prison in another location, such as Concordia or Russell, with no certainty that similar legal issues would not be raised in those communities. Delays in construction will be costly to the state and may result in the federal court taking control of the state’s correctional facilities. (5) It appears from the evidence presented to the Planning Board that the construction of a prison on the proposed site would not have a significant adverse [effect] on legitimate local interests. To the contrary there was much support for the construction project as it would provide a considerable economic benefit to the citizens of El Dorado, Butler County, and the surrounding area.
“For the reasons herein stated the Court finds that the evidence presented by the state establishes its right to immunity from the zoning regulations of Butler County. The grant of immunity is not absolute; it places the burden on the landowners to prove that the conduct of the state was arbitrary. Had the grant of immunity been denied the burden would have been placed on the state to follow the local regulations for rezoning.”
We agree with the district court that it would be difficult to create a scenario demonstrating a greater compelling state or public interest than that shown herein. Construction of a prison is, by itself, a major project of compelling state interest. Here the action is made even more compelling by a federal judge snapping at the State’s heels to require the new construction or face a court-ordered release of a large number of felons, many of whom would pose a significant threat to Kansas citizens. Additionally, we have a legislative enactment declaring the construction of the prison to be a matter of compelling public interest and necessary to protect the public safety. The following proposed amendment to House Bill 2548 should also be noted:
“ ‘Sec. 4. Before any new correctional facility is constructed in any county, the State or a public or private entity proposing to construct the facility shall publish a public notice of intent to construct the facility in the county. The public notice shall contain a complete description of the proposed construction project, the location of the proposed facility, the maximum number of inmates to be confined in the facility and other information relating to the proposed facility as necessary to comply with the public notice requirements of this section. The public notice shall be published once a week for two consecutive weeks in a newspaper having general circulation in the county in which such building or facility is proposed to be located. If within 30 days after the last date of publication of the public notice a petition in opposition to the proposed facility, signed by not less than 10% of the electors of the county in which such building or facility is proposed to be located, is filed with the county election officer, the board of county commissioners shall submit the question to the voters of the county at an election called for that purpose. No construction contract shall be let or approved by the public or private entity for construction of such proposed building or facility until after the expiration of the protest period provided under this section; or, if an election is called under this section, until after the results of such election are known. If an election is called and the majority of the voters at such election vote against the location of such building or facility in the county, then.such proposed building or facility shall not be constructed in the county.’; and by renumbering sections accordingly.” Sen. J. 1989, p. 752.
The amendment was defeated, which could be construed to reflect a legislative intent that local opposition to construction of the prison should not delay or prevent such construction.
We conclude the district court properly applied the balancing of interests test in holding that the State was immune from local zoning regulations. As previously stated, inasmuch as the appellant landowners have conceded the State’s actions were reasonable, no issue remains as to whether or not the State’s decision to build the prison on this particular site was arbitrary.
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The opinion of the court was delivered by
Lockett, J.:
Dennis McKessor was convicted by a jury of two counts of aggravated robbery (K.S.A. 21-3427) and three counts of kidnapping (K.S.A. 21-3420). On appeal, McKessor claims the following errors: (1) the handgun found in his motel room should have been suppressed; (2) a victim’s pretrial and in-court identifications of him should have been suppressed; (3) his kidnapping convictions were multiplicitous with his convictions for aggravated robbery; (4) the jury instruction on kidnapping was inadequate; (5) he should have been allowed to make a closing argument since he was allowed to represent himself at trial as co-counsel; and (6) certain remarks made during closing argument were so prejudicial as to warrant a new trial.
FACTS:
This case stems from two armed robberies which occurred in Johnson County on August 7, 1986. At approximately 3:00 p.m., a man entered the Leawood Cleaners, produced a chrome-plated handgun, and demanded money from Mary Headley, the clerk. While Ms. Headley was gathering money from the cash register, Lulu Karlson entered the building to drop off some cleaning. Once Ms. Karlson was inside, the armed robber ordered her to move behind the counter. After taking the money, the robber moved both women to the back of the building, forced them to lie face down on the floor, and told them to remain there because he would be back. When they were sure the robber had left, the women called the police.
In addition to giving the police a statement, Ms. Karlson helped to create a composite drawing of the robber. She was not satisfied with this drawing. Ms. Karlson also informed the police that she had observed a late model, red Ford Mustang parked in front of the cleaners. She stated that a man in this car appeared to be watching traffic and had watched her as she entered the cleaners. Ms. Karlson felt that he was also involved in the robbery.
Later that night, at approximately 8:30 p.m., a man entered Singleton’s Liquor Store in Overland Park, produced a chrome-plated handgun, and demanded money from Jose Mendoza, the store clerk. After the robber removed money from the cash register, he moved Mr. Mendoza into a lavatory at the rear of the store and told him to remain there for 15 minutes or his partner would blow his head off. After the robber had departed, Mr. Mendoza waited a few minutes, then returned to the front of the store and called the police. On August 8, from a photo lineup, Mr. Mendoza identified McKessor as the man who had robbed the liquor store.
At 11:20 p.m. on August 10, a Lenexa police officer informed detectives that a Ford Mustang which matched the description given by Ms. Karlson was in a motel parking lot. After Detective Smith arrived at the motel and determined that the license plate which was on the Mustang was stolen, he showed a photograph of McKessor to the desk clerk. The clerk indicated that the man in the photograph had registered as Dennis Davis and was in room 345. Because McKessor was thought to be armed and the adjoining rooms were occupied, Smith was ordered to place the room under surveillance and wait for McKessor to leave. Other officers began the process of obtaining a search warrant for room 345.
At 8:03 the following morning, Detective Smith observed McKessor leave his room and smoke a cigarette on the public breezeway. Smith decided to immediately arrest McKessor and proceeded, with other officers, to the room. After McKessor had reentered the room but before he had completely closed the door, officers forced their way into the room. Smith ordered McKessor to his knees and asked him if anyone else was in the room and for the location of the gun. McKessor indicated that another man was in the bathroom and the gun was under the dresser. The gun was seized and McKessor and Robert Grist, the man in the bathroom, were arrested. McKessor was charged with the liquor store robbery.
Later on August 11, when Ms. Karlson was shown a photo lineup, she thought she recognized McKessor’s and Grist’s photographs and asked to see them in person. On August 20 at an in-person lineup, Ms. Karlson identified McKessor as the man who had robbed the cleaners and Grist as the man she had seen sitting in the Mustang. The defendant was later charged with the robbery of the cleaners. At trial, McKessor was positively identified by Ms. Headley, Ms. Karlson, and Mr. Mendoza.
The Admissibility of the Gun
McKessor claims the trial court erred in denying his motion to suppress the pistol found in his motel room. He first argues that the weapon was seized as the result of an illegal, warrantless arrest. McKessor claims there was no exigency since: (1) his room had been under surveillance for several hours; (2) the evidence would not have been lost if the officers had obtained a search warrant prior to entering the room; and (3) the police had intentionally allowed him to return to the room before arresting him. The State argues that the warrantless arrest w;as proper on two grounds: (1) Detective Smith had probable cause to believe that a warrant had been issued for McKessor’s arrest; and (2) exigent circumstances justified the arrest.
A law enforcement officer may arrest a person if the officer has probable cause to believe that a warrant for the person’s arrest has been issued in this state or in another jurisdiction for a felony committed therein. K.S.A. 22-2401 (b). The seizure of an individual occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of the person. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Generally, a search of a detained person which is conducted without the benefit of a search warrant is illegal. However, there are exceptions to this general rule. State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984). The Fourth Amendment to the United States Constitution protects the person and the person’s home from unreasonable police intrusion. For Fourth Amendment purposes, a person’s motel room is treated the same as his home. United States v. Jeffers, 342 U.S. 48, 51-52, 96 L. Ed. 59, 72 S. Ct. 93 (1951).
At the suppression hearing, officers testified that prior to arresting the defendant they had been informed by other officers that a warrant for McKessor’s arrest had been issued in Overland Park. The detective who had obtained the warrant for the defendant’s arrest did not testify at the suppression hearing. In denying McKessor’s motion to suppress the gun, the trial court correctly noted there was no evidence to contradict the arresting officer’s belief that a warrant for McKessor’s arrest had been issued in this state.
The State claims the present case is also analogous to United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976). In Santana, an undercover narcotics officer arranged to buy heroin from McCafferty and waited while she obtained the drugs from “Mom Santana.” McCafferty returned with the heroin and was arrested. Moments later, officers observed Santana standing in the doorway of her home, holding a bag which contained packets of heroin. As the officers approached the house and identified themselves, Santana retreated into her vestibule. The police followed her into the house and arrested her. Santana was subsequently convicted for possession of heroin with intent to distribute.
In affirming Santana’s conviction, the Court first held that she had no reasonable expectation of privacy while standing in her doorway. Since the officers had probable cause to believe that she had committed a felony, there was no Fourth Amendment violation when they attempted to arrest her without a warrant. The Court further held that Santana’s retreat into her house could not thwart an otherwise proper arrest:
“The fact that the pursuit here ended almost as soon as it began did not render it any the less a ‘hot pursuit’ sufficient to justify the warrantless entry into Santana’s house. Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction of evidence.” 427 U.S. at 43.
As the Tenth Circuit noted in U.S. v. Aquino, 836 F.2d 1268, 1271 (1988), Santana is the “only case in which the Supreme Court has held the exigent circumstances exception sufficient to justify warrantless entry into a suspect’s home.”
Though McKessor was not fleeing from the police when he reentered his motel room, the officers who arrested him knew that he was dangerous and armed, and that an accomplice might be in the room. In addition, the officers feared that if McKessor was able to reenter the motel room, the occupants of adjoining rooms would be in danger. The State’s reliance on Santana and the exigent circumstances exception is not misplaced.
McKessor further argues that, even if his arrest was valid, the police ascertained the location of the gun by violating his right against self-incrimination. There is no question that the police asked McKessor for the location of the gun prior to reading him the Miranda warning. The State argues that this conduct was constitutionally permissible because it met the public safety exception contained in New York v. Quarles, 467 U.S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984).
In Quarles, a woman stopped a patrol car and told the officers that she had been raped by an armed man who had just run into a nearby grocery store. The officers entered the store, saw a man who fit the description given by the woman, and chased him into a back room. With four officers present, the defendant was searched and handcuffed. Without first reading him the Miranda warning, the officers asked for and the defendant revealed the location of his pistol. The defendant’s pre-Miranda statement and the gun were excluded by the trial court, as were defendant’s later statements which were found to be tainted by the Miranda violation. In reversing the trial court’s exclusion of evidence, the Court said:
“We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination. We decline to place officers ... in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.” 467 U.S. at 657-58.
The public safety exception outlined in Quarles is applicable to this case. The officers had reason to believe that McKessor was armed and they knew that some of the adjoining motel rooms were occupied. Because McKessor indicated that there was another man in the bathroom, the police acted in the interest of public safety by determining, without delay, the location of weapons in the room. See State v. Roadenbaugh, 234 Kan. 474, 480, 673 P.2d 1166 (1983).
The State also argues that the gun was admissible since it would have inevitably been discovered. The inevitable discovery doctrine was set out in Nix v. Williams, 467 U.S. 431, 444, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984): “If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . the evidence should be received.” Here, the arrest and questioning took place shortly after 8:03 a.m.; a search warrant for the room was issued at 10:15 a.m. If the gun had not been recovered prior to the issuance of the search warrant, it would have been properly and inevitably discovered during the execution of the warrant. See State v. Brown, 245 Kan. 604, 783 P.2d 1278 (1989) (inevitable discovery rule applied when defendant consented to a search while police were in process of obtaining a warrant).
The Identifications by Ms. Karlson
McKessor claims the police violated his Sixth Amendment right to counsel when they allowed Ms. Karlson to view him in a lineup on August 20. McKessor had been charged with the crimes at the liquor store on August 11; he was not charged with the crimes at the cleaners until after Ms. Karlson identified him during the lineup.
In denying McKessor’s motion to suppress the identifications, the trial court noted: “The Sixth Amendment guarantees attach only after the initiation of judicial criminal proceedings against an individual. At the time of the physical lineup in question, it is beyond dispute that Defendant was not under arrest on charges [relating to Ms. Karlson].”
McKessor claims that, because both robberies were tried together, his right to counsel for the robbery of the dry cleaners attached on August 11 when he was appointed counsel for the liquor store robbery. He argues that Ms. Karlson’s pretrial and in-court identifications were improper since they reinforced Mr. Mendoza’s identification during the trial.
McKessor relies on Maine v. Moulton, 474 U.S. 159, 180, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985), and Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988, as authority. In Moulton, incriminating statements by the accused pertaining to pending charges were inadmissible at the trial of those charges, notwithstanding the fact that the police were also investigating other crimes. Under Roberson, if the State violates the Sixth Amendment by knowingly circumventing the accused’s right to the assistance of counsel, incriminating statements by the accused pertaining to the pending charges and crimes under investigation may be suppressed.
McKessor equates identification of the accused and statements obtained from a witness to crimes that have not yet been charged to statements obtained from the accused who has been appointed an attorney to represent him in a separate crime. Such reasoning is an unwarranted expansion of Moultons and Robersons prohibition of admitting into evidence statements of the accused to include identification of the accused by witnesses.
A suspect in a criminal case has no right to have counsel at a lineup conducted prior to the filing of formal criminal charges against him. This is not a critical stage of the proceeding which gives rise to a right to counsel. The Sixth Amendment guarantees attach only after the initiation of judicial criminal proceedings against an individual. State v. Estes, 216 Kan. 382, 385-86, 532 P.2d 1283 (1975) (citing Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 [1972]). At the time of both the photo lineup and the physical lineup, McKessor had not been charged with the robbery at the cleaners; therefore, his Sixth Amendment right to counsel was not violated.
In addition, during the trial, Ms. Karlson testified that her identification of the defendant as the person who had robbed the Leawood Cleaners with a gun was based only upon her observations at the time of the robbery. Pretrial identifications made in violation of the Sixth Amendment will not preclude in-court identifications if the prosecution can establish by clear and convincing evidence that the in-court identifications were based on observations of the suspect other than the lineup identification. United States v. Wade, 388 U.S. 218, 240, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). Even if McKessor had had a right to counsel at the lineups as to all charges, Ms. Karlson’s in-court identification of McKessor was still properly allowed.
The Kidnapping Convictions
One of the methods of committing the act of kidnapping is the taking or confining of any person, accomplished by force, threat, or deception, with the intent to hold such person to facilitate flight or the commission of any crime. K.S.A. 21-3420(b).
During the Leawood Cleaners robbery, McKessor forced Ms. Headley and Ms. Karlson at gunpoint to the rear of the building and ordered them to remain there while he made his escape. He similarly forced Mr. Mendoza into a lavatory at the rear of the liquor store and told him to remain there or his partner would blow Mendoza’s head off. McKessor was convicted of kidnapping each of these individuals.
In State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976), we discussed the taking and confinement required for K.S.A. 21-3420(b) kidnapping:
“[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
Here, moving the victims to the rear of the stores and threatening them substantially lessened McKessor’s risk of detection and aided his escape.
McKessor concedes that all three confinements met the Buggs standard for kidnapping. In addition, he points out that all robberies committed with a gun confine the person being robbed. He claims, however, that this court’s holding in Buggs violated the doctrine of strict construction. McKessor contends that Buggs should be overruled and that the legislature should decide how to resolve the multiplicity problem created under a strict construction of K.S.A. 21-3420(b).
It is well established that the interpretation of statutes is a function of the judiciary. State, ex rel., v. Moore, 154 Kan. 193, 197-98, 117 P.2d 598 (1941). The legislature, of course, could overrule our interpretation in Buggs at any time by amending K.S.A. 21-3420(b). Since the legislature has taken no action to overturn our interpretation of the statute in 13 years, it is clear that this court’s definition of confinement in Buggs accurately reflects the intent of the legislature.
The Kidnapping Instruction
McKessor requested the following jury instruction on kidnapping:
“The defendant is charged with the crime of kidnapping. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant took [the three people] by force;
2. That it was done with intent to hold such person[s] to facilitate flight;
3. That ‘facilitate means more than just to make more convenient;
4. That ‘to facilitate’, must have some significant bearing on making the commission of the crime easier;
5. That the taking:
(a) must not be slight, inconsequential and merely incidental to the other crime;
(b) must not be of the kind inherent in the nature of the other crime;
(c) must have some significance independent of the aggravated robbery in that it substantially lessens the risk of detection; and
6. That this act occurred on or about the 7th day of August, 1986, in Johnson County, Kansas.”
The trial court rejected the proposed instruction and, instead, used PIK Crim. 2d 56.24, which does not include the italicized words, but otherwise is identical.
Essentially, McKessor argues that Buggs added an additional element to 21-3420(b) kidnapping and that, “[a]bsent a Buggstype of instruction, the jury may literally convict for kidnapping at any time it convicts for robbery, rape or other crimes.” Since his defense to the kidnapping charges was based on “non-substantial facilitation,” McKessor argues that the court’s instruction denied him the opportunity to present his theory of the case to the jury. The State points out that defense counsel referred to the Buggs test and argued “non-substantial facilitation” in his closing remarks.
In State v. Nelson, 223 Kan. 572, 573-74, 575 P.2d 547 (1978), this court approved the use of the pattern instruction under similar circumstances. The policy question for this court is whether our holding in Nelson should be overruled. This we decline to do.
McKessor’s Right to Self-Representation
At trial, McKessor sought to introduce evidence that Benny Garrett had confessed to the crimes for which he was charged. When his attorney refused to offer this evidence, the trial court allowed McKessor to act as his own counsel for the purpose of examining Garrett and one other witness, Neil Jones. At the instructions conference, McKessor’s counsel requested that McKessor be allowed to make the following statement during closing argument:
“I would like to say to the jury that the testimony that Benny Ray Garrett gave should prove to the jury I did not do the robbery he is not charged with nor the kidnapping. Also the testimony that Neil Jones gave, ladies and gentlemen, should prove to the jury that I did not do the robberies I am charged with. And I would like to say that I did not rob or kidnap anyone on August 7, 1986 in Johnson County, Kansas.”
The trial court denied this request.
McKessor concedes that the district court was under no obligation to allow him to act as co-counsel and to examine witnesses in his own defense. However, since the court allowed him to do so, McKessor argues that he acquired the “right to argue the merit of the evidence to the jury.”
McKessor was represented by an attorney throughout this case. During closing argument, McKessor’s counsel made the following statement:
“You must consider all of the evidence submitted, that includes the evidence and testimony of Benny Garrett, Neil Jones. You have a number of exhibits, confessions, statements to review. And you should consider all that evidence in making your decision.
“You have heard Mr. Garrett and Mr. Jones testify. You must keep an open mind until you walk into that jury room and discuss the case. Consider all of the evidence submitted to you.”
This argument substantially incorporated the statement McKessor wanted to make.
While a party has the right to represent himself or be represented by counsel, he does not have the right to a hybrid representation. Further, the defendant who accepts counsel has no right to conduct his own trial or dictate the procedural course of his representation by counsel. State v. Martin, 241 Kan. 732, 737, 740 P.2d 577 (1987). The trial court did not err by refusing to allow both McKessor and his attorney to argue the case to the jury.
The State’s Closing Remarks
The following was said during closing argument:
. “[PROSECUTOR]: I find it very strange that [defense counsel] can argue that Mrs. Karlson wants so badly to pick out the person and to solve this crime. . . .
“I also find it pretty incredible—
“[DEFENSE COUNSEL]: Your Honor, I object. This is a personal opinion. I don’t think that is proper closing argument, what she finds.
“THE COURT: Overruled.
“[PROSECUTOR]: . . . Mrs. Karlson, who identified the defendant on a couple of occasions as well, you heard her testimony. When she thought she was going to die, she thought it was an awful way for her mother to lose one of her daughters.
“And Mr. Mendoza, who stated when he looked at that person face to face, with the old Mexican saying, mano-mano, man to man before you meet your maker.
“[DEFENSE COUNSEL]: Your Honor, I object. I think this is arguing—
“THE COURT: Overruled, counsel. Please don’t interrupt the argument, counsel. That is perfectly legitimate argument, you know it is.”
As for these remarks, McKessor complains: (1) the prosecutor’s use of the phrase “I find” improperly interjected her personal opinion into the argument; (2) her use of the word “find” was improper since it is the function of the jury, not the prosecutor, to find the facts; (3) her reference to Mr. Mendoza’s “maker” improperly interjected religion into the trial; (4) the prosecutor’s remarks were unduly intended to arouse sympathy for the victims; and (5) the trial court’s admonition in overruling defense counsel’s last objection was improper. McKessor argues that these factors, when viewed together, violated his right to due process of law and warrant a new trial.
McKessor is correct in that “[a] prosecutor should not inject his personal opinion into the [closing] argument.” State v. Williams, 228 Kan. 723, 732, 621 P.2d 423 (1980). In State v. Chism, 243 Kan. 484, 493, 759 P.2d 105 (1988), this court set out the applicable standard of review: “Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial.” Here, the statements by the prosecutor and the court were not so gross and flagrant as to prejudice the jury against the defendant and deny him a fair trial. McKessor’s rights were not substantially violated by the remarks made during closing argument.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
MILLER, C.J.:
This is an appeal by the State from an order of a judge pro tem in Johnson County District Court sentencing Daniel T. Harpool to a term of 180 days in the county jail and fining him the sum of $100 upon his third conviction of driving with a suspended license, a Class E felony. K.S.A. 1989 Supp. 8-262.
The facts are undisputed. Harpool was convicted a third time of driving with a suspended license contrary to K.S.A. 1989 Supp. 8-262, which provides in part:
“(a)(1) Any person who drives a motor vehicle on any highway of this state at a time when such person’s privilege so to do is canceled, suspended or revoked shall be guilty of a class B misdemeanor on the first conviction . . . and for third and subsequent convictions shall be guilty of a class E felony.
“(3) [E]very person convicted under this section shall be sentenced to at least five days’ imprisonment and fined at least $100 and upon a second or subsequent conviction shall not be eligible for parole until completion of five days’ imprisonment.”
K.S.A. 21-4501 fixes the terms of imprisonment authorized for each class of felony. For Class E felonies, the statute reads:
“(e) Class E, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be one year and the maximum of which shall be fixed by the court at not less than two years nor more than five years.”
K.S.A. 21-4503 also authorizes the imposition of a fine of not more than $10,000 upon persons convicted of Class E felonies, which fine may be in addition to or instead of the imprisonment.
Before turning to the issues, we consider the matter of jurisdiction. The State appealed this case to the Court of Appeals pursuant to K.S.A. 1989 Supp. 22-3601(a) and K.S.A. 22-3603 as an interlocutory appeal. This is not properly an interlocutory appeal but is clearly meant to be an appeal on a question reserved by the State, K.S.A. 22-3602(b)(3), as stated orally by the prosecutor in argument at the sentencing hearing. We transferred the case to this court pursuant to K.S.A. 20-3018(c), and we have jurisdiction to hear the case as a question reserved. See State v. Martin, 232 Kan. 778, 779, 658 P.2d 1024 (1983).
We turn now to the primary issue: Did the trial court err in sentencing Harpool to serve 180 days in the county jail? We conclude that it did. The offense was a felony and the minimum term of confinement which could be imposed was one year. K.S.A. 21-4501(e). When a defendant is sentenced to confinement upon conviction of a felony, he or she may only be committed to the custody of the Secretary of Corrections. See K.S.A. 1989 Supp. 21-4603(2)(a); State v. Fowler, 238 Kan. 326, Syl. ¶ 1, 710 P.2d 1268 (1985). Under K.S.A. 1989 Supp. 21-4603(2)(a), a sentence of confinement in the county jail is possible only where the term of confinement is for less than one year.
The sentencing judge pro tem acknowledged that K.S.A. 1989 Supp. 8-262(a)(l) states that a person with a third or subsequent conviction under the statute is guilty of a Class E felony. The court also observed that if sentence were imposed under K.S.A. 21-4501(e) the presumptive sentencing statute, K.S.A. 1989 Supp. 21-4606a, would apply. That statute fixes the presumptive sentence for a defendant who has never before been convicted of a felony at probation. That would presumably require probation on the entire sentence, in clear contradiction of the intent of 8-262(a)(3) to require incarceration of at least five days for second or subsequent convictions. The court found that 8-262, by re quiring the completion of five days’ imprisonment, made the crime an unclassified felony under K.S.A. 21-4501(f). We do not agree.
A court’s paramount concern in statutory construction is to give effect to the intent of the legislature. State v. Keeley, 236 Kan. 555, 559, 694 P.2d 422 (1985). Legislative intent is to be determined from a general consideration of all provisions as a whole. We must attempt to reconcile different provisions of the statutes to make the whole consistent and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Where such reconciliation is not possible, a specific statute controls over a general statute, unless it appears the legislature intends otherwise. State v. Wilcox, 245 Kan. 76, 775 P.2d 1787 (1989).
K.S.A. 21-4501(f) fixes the punishment for unclassified felonies. It reads:
“Unclassified felonies, which shall include all crimes declared to be felonies without specification as to class, the sentence for which shall be in accordance with the sentence specified in the statute that defines the crime. If no sentence is provided in the statute, the offender shall be sentenced as for a class E felony.”
Crimes are classified in Kansas as felonies, misdemeanors, and traffic infractions. A felony is defined by statute as a crime punishable by death or by imprisonment in a state penal institution. K.S.A. 21-3105. A traffic infraction is a violation of any of the statutory provisions listed in K.S.A. 1989 Supp. 8-2118(c) and is punishable only by the imposition of a fine. Driving while one’s license is suspended, 8-262, is not one of those violations enumerated in 8-2118(c). All other offenses are misdemeanors.
A first violation of 8-262 is a class B misdemeanor. It is clear that the legislature regarded subsequent violations of that statute as more serious offenses. It made a second conviction a Class A misdemeanor and third and subsequent violations Class E felonies. Reading the statutes together, it is clear the legislature intended by the language of 8-262(a)(3) to prohibit probation or parole of any person convicted of either a second, third, or subsequent violation of the section, before the person has served a minimum of five days’ imprisonment. Thus, the minimum sentence which could be imposed upon Harpool, upon his third conviction of a violation of 8-262, was imprisonment for not less than one nor more than two years. K.S.A. 21-4501(e). Also, he could not be released on probation or parole until he had been imprisoned for a minimum of five days.
A court normally is not required to impose a sentence of imprisonment; under K.S.A. 1989 Supp. 21-4603, it may instead impose a fine, assign the defendant to a community correctional services program, release the defendant on probabion, suspend the imposition of sentence, or impose any other combination of punishments listed in 21-4603(2). See State v. Keeley, 236 Kan. at 559. A court is, however, required to impose a sentence of imprisonment when the violated statute itself prescribes such a sentence. One example of such a statute is K.S.A. 1989 Supp. 21-4618, which requires mandatory imprisonment when a firearm has been used in committing certain crimes. See 236 Kan. at 560. K.S.A. 1989 Supp. 8-262(3) is also such a statute with its minimum requirement of at least five days’ imprisonment for second or subsequent convictions.
K.S.A. 1989 Supp. 8-262(a)(3), being a specific statute which requires short-term imprisonment before parole, controls over the presumptive sentence statute, K.S.A. 1989 Supp. 21-4606a, a statute of general application. We find nothing to indicate that the legislature intended otherwise.
The sentence imposed was clearly illegal. The final point for determination is whether the case should be remanded to the trial court for imposition of the proper sentence. K.S.A. 22-3504 provides that “[t]he court may correct an illegal sentence at any time. The defendant shall receive lull credit for time spent in custody under the sentence prior to correction.” Case law from our court and other jurisdictions, including the United States Supreme Court, clearly supports a literal interpretation of such statutes. Bozza v. United States, 330 U.S. 160, 91 L. Ed. 818, 67 S. Ct. 645 (1947); State v. Osbey, 238 Kan. 280, 287-88, 710 P.2d 676 (1985).
Harpool has served much of the original sentence imposed upon him. He is entitled to full credit for time served. However, that sentence was improper, and we conclude the case must be remanded to the trial court in order that the lawful sentence may be imposed. The trial court may or may not place Harpool on probation for the balance of his legal sentence; we leave that determination to the sound discretion of that court.
We have considered all points not specifically discussed herein and find no merit in them.
The judgment of the district court is reversed, and the case is remanded for imposition of a lawful sentence upon the defendant. | [
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The opinion of the court was delivered by
Paul E. Miller,
District Judge, assigned: This case is a priority battle between the Bank of Kansas (Bank), which has a perfected security interest in Hutchinson Health Services, Inc.’s (HHS) accounts receivable, and the Kansas Department of Human Resources (DHR), which claims a right to set off HHS’ delinquent unemployment contributions against funds owed to the debtor by the Kansas Department of Social and Rehabilitation Services (SRS) for Medicaid cost reimbursements.
The Bank made three separate loans to HHS totaling $281,384.58. The loans were secured by a perfected security interest in HHS’ accounts receivable, including Medicaid reimbursement funds owed to HHS by SRS. HHS defaulted on the loans. On November 19, 1984, the Bank filed its amended petition against HHS and SRS, seeking judgment against HHS on the promissory notes for $186,141.51 and seeking an order requiring SRS to pay the Bank all previously withheld Medicaid payments.
Central State Bank intervened in the action. On November 6, 1984, HHS had deposited a check in the amount of $100,864 for Medicaid cost reimbursements from the State of Kansas into its checking account at Central State Bank. On November 19, Central State Bank declared itself insecure and set off the $26,229 that was remaining in HHS’ account against debts owed to Central State by HHS. The trial court held that Central State’s right of setoff was superior to the Bank’s security interest and certified that judgment pursuant to K.S.A. 1988 Supp. 60-254(b). On appeal, the Court of Appeals reversed, holding that Article 9 of the UCC governed the priority as between a perfected security interest and a right of setoff and that the Bank had priority over Central State Bank. Bank of Kansas v. Hutchinson Health Services, Inc., 12 Kan. App. 2d 87, 735 P.2d 256, rev. denied 241 Kan. 838 (1987).
DHR also intervened, alleging that HHS owed $14,916.42 in delinquent unemployment contributions and that DHR was entitled to set off this amount against any funds owed to HHS by SRS. On March 15, 1985, the Bank and DHR entered into an agreement regarding these funds, which provided:
“1. Both parties recognize that Intervenor State of Kansas Department of Human Resources has acquired by setoff $14,916.42 from the funds held by State of Kansas Department of Social and Rehabilitation Services on behalf of Defendant Hutchinson Health Services, Inc.
“2. The proper priority to these funds shall be determined by the court at a later date.
“3. The Plaintiff and State of Kansas Department of Human Resources reserve the right to challenge the priority of these funds.”
SRS subsequently paid $105,607.79, representing the remaining accounts receivable of HHS being held by SRS, to the Clerk of the District Court for Reno County. Those funds were subsequently distributed to the Bank in partial satisfaction of its claim against HHS. On May 16, 1985, the trial court granted judgment for the Bank against HHS in the amount of $197,812.42 plus interest.
Both the Bank and DHR moved for summary judgment as to the remaining $14,916.42. The district court originally granted summary judgment in favor of DHR on December 2, 1986, finding that 42 U.S.C. § 1396a(a) (1982) prohibits assignment of payments under a state plan for medical assistance and, therefore, the Bank could have no perfected security interest in the accounts receivable from SRS. No journal entry was ever filed. On January 13, 1988, the Bank filed a motion to reconsider the judgment, citing the Court of Appeals’ holding in Bank of Kansas, 12 Kan. App. 2d 87, Syl. ¶ 1:
“42 U.S.C. § 1396a(a)(32) (1982), which requires a state medicaid plan to provide that no medicaid reimbursement payment shall be made under an assignment to anyone other than the individual providing medical care, does not prohibit a medical care provider from using medical reimbursement payments as collateral for bank loans.”
The district court then found in favor of the Bank on February 4, 1988, and a journal entry to that effect was filed on March 1, 1988. The district court subsequently denied DHR’s motion to alter or amend and DHR filed a timely notice of appeal.
On appeal, DHR argued that, pursuant to K.S.A. 84-9-104(i), Article 9 of the UCC does not apply to rights of setoff and, therefore, the Bank of Kansas decision should be reversed or should be limited on its facts. DHR also asserted that its right of setoff was superior to the rights of the Bank and that it had a “super priority” pursuant to either K.S.A. 75-6201 et seq. or K.S.A. 44-717. The Bank argued that Article 9 should be applied to determine priority between DHR and the Bank; that DHR does not have a common-law right of setoff; that DHR does not have a right of setoff under K.S.A. 75-6201 et seq.; and that K.S.A. 44-717 does not give DHR lien rights superior to the perfected security interest of the Bank.
The Court of Appeals first reiterated its holding in the earlier Bank of Kansas case that, while a creditor who is seeking to exercise the right of setoff need not comply with the requirements of Article 9, the priority as between the right of setoff and a perfected security interest is governed by Article 9. Bank of Kansas v. Hutchinson Health Services, Inc., 13 Kan. App. 2d 421, 423, 773 P.2d 660 (1989) (citing Bank of Kansas, 12 Kan. App. 2d at 87.). The court further found that DHR was not provided with a super-priority under K.S.A. 44-717(c). 13 Kan. App. 2d at 425.
The resolution of two issues will determine the outcome of this appeal. Those issues are: (1) whether DHR had a right to set off the funds owed to HHS by SRS, and (2) which party has priority in its claim to the funds in question.
DHR argues that K.S.A. 75-6201 et seq. gives it a right of setoff. K.S.A. 75-6201 states: “The purpose of this act is to establish as policy that state agencies shall cooperate in identifying debtors who owe money to the state and that procedures be established for setting off against debtors the sum of any debt owed to the state.” The article goes on to establish the circumstances under which the right to set off is granted and the procedures to be followed by the state agencies to exercise that right. Pursuant to K.S.A. 75-6204, where a debt is owed to the State of Kansas or any state agency, the Director of the Division of Accounts and Reports of the Department of Administration may set off the debt against money owed to the debtor by the state or any state agency. According to DHR, HHS owed it $14,916.42 in unemployment taxes for the third and fourth quarters of 1984. DHR made two separate requests for setoff to the Division of Accounts and Reports, the first on December 7, 1984, for the third quarter taxes due, and the second on January 11, 1985, for fourth quarter taxes due. The record does not document that the Division of Accounts and Reports did, in fact, set off all of the claimed funds, but, as stated above, the Bank and DHR stipulated that such setoff had taken place.
The Bank argues that DHR and the Division of Accounts and Reports had not complied with the procedural requirements of the statute. It argues that DHR failed to properly certify the amounts due to the Director of Accounts and Reports and further that only the director may provide the statutorily required notices to the debtor. The Bank claims that, since all correspondence relating to the setoff was between DHR and the staff of Accounting Systems and Procedures of the Division of Accounts and Reports, the setoff must fail because the procedural requirements specify that any action must be taken by the director.
The Court of Appeals held that the Bank’s argument failed for two reasons. First, it found that the Bank had implicitly recognized compliance with the procedures when it stipulated that DHR had acquired the funds by setoff. Second, it found that the Bank, not having raised the issue in the trial court, could not raise the issue on appeal. Bank of Kansas v. Hutchinson Health Services, Inc., 13 Kan. App. 2d at 425.
We disagree. Our view of the stipulation entered by the Bank and DHR is not that the Bank conceded that the setoff was properly accomplished, but rather only that it had been accomplished. Further, the stipulation provided that the priority of claims to the funds remained in issue. We believe this stipulation to be sufficient to allow the Bank to contest alleged procedural irregularities.
That having been decided, however, we cannot accept the Bank’s argument that the director himself must be personally involved in every setoff transaction that arises under K.S.A. 75-6201 et seq. K.S.A. 75-3727a created the Division of Accounts and Reports as part of the Department of Administration. The statute provides that the director shall be the “head” of the division with the duty to administer the division. Clearly, the statute contemplates the hiring of employees and the delegation of duties thereto in order to carry out the functions of the division. We hold, therefore, that the director himself need not personally attend to all duties of the division. Rather, he or she has authority to delegate such duties as are necessary to fulfill the division’s statutory obligations. We further hold that DHR has the statutory right to set off the funds owed HHS by SRS so long as procedures are complied with.
Such holding is not, however, determinative of the question of which party is entitled to the funds. The Bank claims entitle ment based upon its security interest in the accounts receivable of HHS, which security interest predates the claims of DHR for taxes due. DHR, on the other hand, claims it has a “super-priority” to the funds by virtue of K.S.A. 44-717(c). That statute reads in pertinent part:
“In the event of any distribution of employer’s assets pursuant to an order of any court under the laws of this state, including but not limited to any probate proceeding, interpleader, receivership, assignment for benefit of creditors, adjudicated insolvency, composition or similar proceedings, contributions or payments in lieu of contributions then or thereafter due shall be paid in full from the moneys which shall first come into the estate, prior to all other claims, except claims for wages of not more than $250 to each claimant, earned within six months of the commencement of the proceedings.”
DHR claims this section is to be read independent of K.S.A. 44-717(e)(l), which reads in part:
“If any employer or person who is liable to pay contributions, payments in lieu of contributions or benefit cost payments neglects or refuses to pay the same after demand, the amount, including interest and penalty, shall be a lien in favor of the state of Kansas, secretary of human resources, upon all property and rights to property, whether real or personal, belonging to such employer or person. Such lien shall not be valid as against any mortgagee, pledgee, purchaser or judgment creditor until notice thereof has been filed by the secretary of human resources in the office of register of deeds in any county in the state of Kansas, in which such property is located, and when so filed shall be notice to all persons claiming an interest in the property of the employer or person against whom filed.”
The Bank argues that the two subsections must be read together and that, in order for DHR to be paid first from the distribution of an employer s assets, the notice requirements of subsection (e) must be complied with. The Bank goes on to claim that, since DHR failed to comply with the notice requirements, it has no lien on the funds in question.
In John Deere Co. v. Butler County Implement, Inc., 232 Kan. 273, 655 P.2d 124 (1982), this court held that K.S.A. 44-717(c) did not apply to interpleader actions. In response to John Deere, the legislature amended the statute to specifically include inter-pleader actions (the statute appears as amended above). Because the John Deere court had found that the statute did not apply to interpleader actions, this court did not have to address any other issues as to the applicability of the statute. This court, however, commented:
“It appears highly appropriate for the trial court to consider both sections of the statute. The contention of Human Resources that K.S.A. 44-717(c) afforded it a preemptive priority over even secured creditors without regard to any time sequence is quite inconsistent with K.S.A. 44-717(e) which requires Human Resources to comply with rather complex procedures before it may assert a lien that only takes priority as to subsequently perfected liens.” 232 Kan. at 278.
In John Deere, writing for a unanimous court, Justice McFarland stated:
“We therefore conclude an interpleader action is not ejusdem generis with, i.e., does not belong to the same general class as, proceedings contemplating the winding up of affairs of a business such as distributions in receiverships, assignments for benefit of creditors, adjudicated insolvency, composition, and similar proceedings referred to in K.S.A. 44-717(c). K.S.A. 44-717(c) is therefore held to be inapplicable to interpleader actions.” 232 Kan. at 277.
The rules for statutory construction were discussed in Trego WaKeeney State Bank v. Maier, 214 Kan. 169, Syl. ¶ 4, 519 P.2d 743 (1974):
“The rule of ejusdem generis is a well known maxim of construction to aid in ascertaining the meaning of a statute or other written instrument which is ambiguous. Under the maxim, where enumeration of specific things is followed by a more general word or phrase, such general word or phrase is held to refer to things of the same kind, or things that fall within the classification of the specific terms.”
See Stephens v. Van Arsdale, 227 Kan. 676, 684, 608 P.2d 972 (1980).
The instant case was brought by the Bank to collect on a secured note. It does not “belong to the same general class as,” and thus is not “ejusdem generis“ with those types of actions contemplated by K.S.A. 44-717(c). Thus the priority granted to DHR under that statute has no applicability here. We, therefore, need not reach the issue of whether K.S.A. 44-717(e)(l) must be read in conjunction with or independently of K.S.A. 44-717(c).
Turning now to the issue of priority, we review the decision of the Court of Appeals. The Court of Appeals resolved the dispute by applying a theory which had not been advanced by either party. The court cited the 1983 Kansas Comment to K.S.A. 84-9-318: “A financing assignee also takes subject to the account debtor’s right of setoff from defenses or claims arising out of other contracts, under subsection (l)(b), so long as the right of setoff accrues before the account debtor receives notification of the assignment. ”
The Court of Appeals found that the State was an “account debtor” of HHS by virtue of the Medicaid payments due from SRS, and, therefore, K.S.A. 84-9-318(l)(b) applies to this case. An account debtor is “the person who is obligated on an account, chattel paper or general intangible.” K.S.A. 84-9-105(l)(a).
Having determined that the State was an account debtor by virtue of the funds owed the Bank by SRS, the court found that the State through DHR could offset its claim for delinquent unemployment contributions against the funds owed to the Bank by SRS. The Court of Appeals reasoned that resolution of the case depended on when DHR’s claims against HHS accrued. The court adopted the view that a setoff accrues when the obligation is actually due and payable or when a cause of action exists. 13 Kan. App. 2d at 428. The court concluded that the Bank had given notice of its assignment to DHR on November 19, 1984, the day that the Bank filed its amended petition, naming SRS as a defendant. While we disagree that filing suit against one state agency automatically imparts notice to another, we have determined that the timing of DHR’s receipt of notice of the Bank’s security interest makes no difference, as will hereafter be explained.
The court then concluded that HHS’ obligation for unemployment taxes for the third quarter of 1984 (approximately $10,122.36) accrued on October 25, 1984, and its obligation for unemployment taxes for the fourth quarter (approximately $4,678.72) of 1984 accrued on January 25, 1985. See K.A.R. 50-2-3(b). Therefore, the court found that DHR had priority as to $10,122.36 and the Bank had priority as to $4,678.72. That the exact timing of DHR’s notice of the Bank’s security interest does not affect the outcome of this case is seen by the fact that DHR’s claim for third quarter taxes had accrued prior to filing of the original petition on November 16.
K.S.A. 84-9-318(1) provides:
“Unless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale as provided in section 84-9-206 the rights of an assignee are subject to
“a) all the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom; and
“b) any other defense or claim of the account debtor against the assignor which accrues before the account debtor receives notification of the assignment.”
There is no showing in the record on appeal that DHR had notice of the Bank’s security interest prior to October 25. Further, there is no showing in the record that DHR complied with the requirements of K.S.A. 75-6206 with regard to the fourth quarter taxes which accrued on January 25, 1985. In fact, DHR filed its answer on January 24, one day prior to the fourth quarter taxes becoming due.
In Central State Bank v. State, 73 Misc. 2d 128, 341 N.Y.S.2d 322 (N.Y. Ct. Cl. 1973), a bus company had a contract with the New York State Park Commission to provide bus service between points in Brooklyn and Manhattan to several state parks. Central State Bank had a security interest in the bus company’s accounts receivable and contract rights. The bank, as assignee of the bus company’s contract rights, sued the State for money owed under the contract. The State asserted a setoff for uncollected withholding taxes due from the bus company.
The Court of Claims of New York held:
“The circumstances presented here do not give rise to an issue of priority of liens. This is not a situation where two creditors with perfected interests are competing to subordinate the other’s right to attach proceeds belonging to and held by the debtor. [Citation omitted.] Neither do the facts disclose an effort by the State to attach proceeds in the hands of a third party. Rather, the State holds the fund against which it desires to debit a sum the assignor concededly owes the State.
“The State, as an ’account debtor,’ may lawfully assert in this proceeding any claim or defense it has against the assignor which accrued before it received notice of the assignment. [U.C.C. § 9-318(l)(b).] The rights acquired by claimant pursuant to its assignment are no greater than those of its assignor. [Citation omitted.]
“Since the State’s claim arose when the taxes became due it would be patently unfair to require the State, in order to perfect its claim against a fund it now holds, to first file a warrant. Therefore, for the purposes of ascertaining the amount of the setoff, the period in which these taxes became due will control.
“In view of the fact the right to taxes accrued before the State had notice of the assignment and the aggregate amount of these taxes is greater than the proceeds upon which claimant seeks judgment, claimant’s motion for summary judgment must be denied.” 73 Misc. 2d at 129-30.
We believe the logic of Central State Bank to be sound, and we conclude that the Court of Appeals was correct in its analysis of this case. DHR is entitled to those funds which represent third quarter 1984 taxes, and the Bank is entitled to those funds which represent fourth quarter 1984 taxes.
The judgment of the Court of Appeals is affirmed; the judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the trial court with instructions to compute and distribute the amounts held by it which are due each party.
Six, J., not participating. | [
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The opinion of the court was delivered by:
Holmes, J.:
Theodore Gibson appeals his conviction of one count of rape (K.S.A. 21-3502) and the ten- to twenty-five-year sentence imposed by the trial court. We affirm.
The events leading to the defendant’s conviction occurred during the early morning hours of May 21, 1988. About 3:00 o’clock a.m., the victim, T.W., awoke to find the defendant standing in her bedroom. The defendant, who had entered through an un locked window, threatened T.W., choked her, and subsequently raped her. At the time, T.W.’s boyfriend, Steve, was asleep on a couch in another room of the residence. The defense was consent. Additional facts will be set forth as necessary to consider the issues on appeal.
Defendant first contends that the trial court erred in refusing to give an instruction on aggravated sexual battery (K.S.A. 21-3518) as a lesser included offense of rape.
The statutes pertinent to defendant’s claim are K.S.A. 21-3502(l)(a) and K.S.A. 21-3518(l)(a). K.S.A. 21-3502(l)(a) provides:
“(1) Rape is sexual intercourse with a person who does not consent to the sexual intercourse, under any of the following circumstances: (a) When the victim is overcome by force or fear.”
K.S.A. 21-3518(l)(a) provides:
“(1) Aggravated sexual battery is:
(a) The unlawful, intentional application of force to the person of another who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.”
Defendant recognizes that the statutory elements are different in that aggravated sexual battery requires proof of a nonspousal relationship and proof of an intentional application of force with the intent to arouse or satisfy the sexual desires of the offender or another, neither of which are required to prove rape. However, defendant contends that under our decision in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), the instruction was required because the State did prove an intentional application of force with the intent to arouse upon proving the act of sexual intercourse and also proved a nonspousal relationship.
In Fike, the court stated the test for lesser included crimes under K.S.A. 21-3107(2)(d) as follows:
“In determining whether a lesser crime is a lesser included crime or offense under K.S.A. 1987 Supp. 21-3107(2)(d), a two-step analysis or two-pronged test has been adopted. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of the test, even if the statutory elements of the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime under K.S.A. 1987 Supp. 21-3107(2)(d) if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime.” 243 Kan. 365, Syl. ¶ 1. (Emphasis added.)
Defendant’s reliance on Fike is misplaced. He has confused what the State may have actually proved in its evidence establishing that a rape occurred with what the State was required to prove to establish the crime charged. The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense under K.S.A. 21-3107(2)(d). Neither the factual allegations of the rape charge nor the evidence the State was required to adduce at trial includes an intent to arouse or a nonspousal relationship. Defendant fails to distinguish between what the State may prove and what the State must prove at trial.
The trial court, in refusing to instruct the jury on aggravated sexual battery as a lesser included offense, stated:
“I submit to you that you can prove the crime of rape without proving the victim is not the spouse. So it is not the case that the evidence required to be adduced at trial in order to prove rape would also necessarily prove aggravated sexual battery.”
We agree with the trial court’s analysis.
Although not argued to the trial court and not cited in the brief, defense counsel at oral argument contended that Patterson v. State, 12 Kan. App. 2d 731, 754 P.2d 1207 (1988), is also controlling on the issue. In that case the Court of Appeals held that, under the facts of the case, aggravated sexual battery was a lesser included crime of rape. In Patterson, the defendant was charged with rape. The defendant requested an instruction on aggravated sexual battery as a lesser included offense and the court, over the objections of the prosecution, granted the request. Defendant was convicted of the lesser charge. The instruction was not an issue on the defendant’s direct appeal where the conviction was affirmed in an unpublished opinion. State v. Patterson, No. 57,940, 10 Kan. App. 2d xlv. Thereafter, the defendant filed a motion pursuant to K.S.A. 60-1507 in which he asserted aggravated sexual battery was not a lesser included offense of rape and that the court was without jurisdiction to convict him of the lesser crime. The Court of Appeals found that aggra vated sexual battery was a lesser included offense of rape as “a lesser degree of the same crime” under K.S.A. 21-3107(2)(a). In doing so, the Court of Appeals relied upon the statutory definition of an “unlawful sexual act” contained in K.S.A. 21-3501(4), which reads:
“(4) ‘Unlawful sexual act’ means any rape, indecent liberties with a child, aggravated indecent liberties with a child, criminal sodomy, aggravated criminal sodomy, lewd and lascivious behavior, sexual battery or aggravated sexual battery, as defined in this code.”
The enumerated crimes of rape, aggravated indecent liberties with a child, criminal sodomy, and aggravated criminal sodomy are all Class B felonies; indecent liberties with a child is a Class C felony; aggravated sexual battery is a Class D felony; sexual battery is a Class A misdemeanor, and lewd and lascivious behavior is a Class B misdemeanor.
The Court of Appeals reasoned:
“For the purposes of K.S.A. 1987 Supp. 21-3107(2)(a), it has been held that theft is a lesser degree of larceny than robbery (State v. Long, 234 Kan. at 592) and that manslaughter is a lesser degree of homicide than murder (State v. Gregory, 218 Kan. 180, 183, 542 P.2d 1051 [1975]). The ‘same crime,’ as that term appears in K.S.A. 1987 Supp. 21-3107(2)(a), was held to be larceny in Long and homicide in Gregory. Larceny and homicide were determined to be generic crimes. Long held robbery and theft to be embraced within ‘the same crime’ as different degrees of larceny. Gregory held murder and manslaughter to be embraced within ‘the same crime’ as different degrees of homicide.
“Long and Gregory teach that inquiry for the existence of a K.S.A. 1987 Supp. 21-3107(2)(a) ‘same crime’ is not restricted to the statutorily defined crimes appearing in Part II of our criminal code (K.S.A. 21-3301 et seq.).
“With respect to whether there is a ‘same crime’ of which rape and aggravated sexual battery may be lesser degrees on the adduced evidence, we find that rape and aggravated sexual battery are explicitly embraced within the statutory definition of ‘unlawful sexual act’ (K.S.A. 1987 Supp. 21-3501[4]). By reason thereof, we are persuaded that for the purposes of K.S.A. 1987 Supp. 21-3107(2)(a), it correctly may be held that aggravated sexual battery is a lesser degree of ‘unlawful sexual act’ than is rape.
“Accordingly, we hold that on the adduced evidence in this case it was correct to submit to the jury the crime of aggravated sexual battery as a ‘lesser included crime’ and that the trial court had jurisdiction to enter a judgment of conviction for aggravated sexual battery upon the jury’s verdicts of not guilty of rape and guilty of aggravated sexual battery.” 12 Kan. App. 2d at 733-34.
We agree with the Court of Appeals that there was no jurisdictional infirmity in Patterson but we do not agree that, in defining “unlawful sexual act” in K.S.A. 21-3501(4), the legislature created a generic “same crime” which includes rape and aggravated sexual battery. Rather, the legislature, in adopting K.S.A. 21-3501(4), appears merely to have classified eight separate offenses under the broad category “unlawful sexual act” to avoid the necessity of repeating all eight offenses in the definition of other crimes. K.S.A. 21-3509 (enticement of a child), 21-3510 (indecent solicitation of a child), and 21-3511 (aggravated indecent solicitation of a child) are examples of specific crimes which refer to an “unlawful sexual act” in setting forth the elements of each specific crime. Long and Gregory, relied upon by the Court of Appeals, involved well-recognized generic crimes which had traditionally been part of the common law. We have found no common-law generic crime generally recognized as “unlawful sexual act.” We conclude that K.S.A. 21-3501(4) did not create a new generic class of crimes but merely established a definitional term which could be utilized in describing the elements of certain statutory offenses. To the extent that Patterson v. State, 12 Kan. App. 2d 731, 754 P.2d 1207 (1988), holds otherwise, the decision in that case is disapproved.
We hold that aggravated sexual battery is not a lesser degree of the crime of rape.
Defendant’s next issue is that the trial court erred in not granting a mistrial when the defendant objected to an additional instruction the court proposed to give in response to a question from the jury. Part of the defendant’s defense was that he was intoxicated from alcohol and sniffing gasoline fumes, and he sought an instruction on intoxication. The court gave an instruction on voluntary intoxication patterned after PIK Crim. 2d 54.12. During deliberations the jury made a written request asking, “May we have further clarification on voluntary intoxication as pertains to necessary intent or state of mind as it relates to the rape charge.”
In the ensuing discussion with counsel and the defendant, the court’s first reaction was to respond that the instruction given on voluntary intoxication “does not refer to the rape count.” Defense counsel vigorously opposed the proposed response and stated the defendant would request a mistrial if the court were to give such an instruction. After considerable discussion, which covers fifteen pages in the transcript, the court gave a supplemental instruction approved by the defendant, and defense counsel specifically stated he had no objection to any portion of the instruction. Defense counsel never made a motion for mistrial, and the instruction approved by the defendant was actually submitted to the jury. Appellate counsel has simply misread the record on appeal. The point has no merit.
Defendant’s next point is that there was insufficient evidence to support the conviction. “When the sufficiency of the evidence is challenged, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Smith, 245 Kan. 381, Syl. ¶ 5, 781 P.2d 666 (1989).
The victim testified that she had not invited defendant to her home, that defendant had choked her and threatened her, that defendant penetrated her vagina with his finger and penis, that she pushed defendant away, that she told defendant “don’t” several times, and that she did not consent to any of the sexual acts perpetrated upon her. Her testimony was corroborated to some extent by Steve, who awoke while the assault was taking place, and by a neighbor to whose house the victim fled while Steve and the defendant were fighting.
While the defendant asserts insufficient evidence, what he is really contending is a lack of credibility on the part of the victim.
“It is a jury’s prerogative to determine the weight to be given to the evidence, the reasonable inferences to be drawn from the evidence, and the credibility of the witnesses. It is not our function to determine the credibility of witnesses even if there is evidence which could have caused the jury not to believe the witness.” State v. Hammon, 245 Kan. 450, Syl. ¶ 3, 781 P.2d 1063 (1989).
We have consistently held that a conviction of rape may be upheld based solely upon the testimony of the victim without any corroboration. State v. Sanders, 227 Kan. 892, Syl. ¶ 2, 610 P.2d 633 (1980); State v. Robinson, 219 Kan. 218, 220, 547 P.2d 335 (1976). Here there was sufficient credible evidence. While the defendant contended the sexual activity was consensual, the victim testified to the contrary. Unfortunately for the defendant, the jury believed the victim.
Finally, the defendant asserts the trial court abused its discretion in imposing a sentence of ten to twenty-five years.
“A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law and the realm of trial court discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989).
The trial court carefully considered the statutory factors contained in K. S.A. 21-4601 and K.S.A. 21-4606 and specifically considered their application to the facts of this case. No abuse of discretion by the trial court in imposing the sentence has been shown.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Dane Griffin was charged with possession of cocaine (K.S.A. 1989 Supp. 65-4127a, K.S.A. 1989 Supp. 65-4107[5]) (Count 1); sale of cocaine (K.S.A. 1989 Supp. 65-4127a, K.S.A. 1989 Supp. 65-4107[5]) (Count 2); and failure to affix a drug tax stamp to the cocaine he had sold (K.S.A. 79-5201[c], K.S.A. 1989 Supp. 65-4107[5], K.S.A. 79-5204) (Count 3). At the preliminary examination, the district court refused to admit certain evidence, dismissed the possession charge (Count 1), and then bound Griffin over for arraignment on the remaining charges. The State took an interlocutory appeal pursuant to K.S.A. 22-3603, claiming the judge’s suppression of the evidence had substantially impaired its ability to proceed with the remainder of the case. The State’s action stays the proceeding against the defendant until the interlocutory appeal is determined.
The complaint is based on the following allegations: On March 23, 1989, law enforcement officers arranged for Dusty Wilson, an informant, to purchase cocaine from Dane Griffin. Later that day, Griffin agreed to meet Wilson near 9th and Iowa Streets in Lawrence for the purpose of selling him cocaine. The meeting took place at 7:00 p.m., and Griffin sold Wilson seven packets of cocaine for $300 in marked, official funds.
The packets, containing a total of 3V2 grams of cocaine, were made out of yellow lined paper. After Wilson turned the drugs over to police, officers arrested Griffin in a parking lot near 9th and Iowa. Griffin’s car was impounded and he was taken to police headquarters.
After the police had unsuccessfully searched Griffin and his car for the “buy money,” an officer was sent to the parking lot where the defendant had been arrested to search for the money. The officer, who began his search at least 45 minutes after Griffin had been removed from the area, found 45 packets of cocaine in the parking lot. These packets contained a total of 22.5 grams of cocaine and were also made out of yellow lined paper. The “buy money” was later found stuffed under a chair in an interview room where Griffin had been held.
Griffin was charged with possession of the cocaine found in the parking lot, sale of cocaine, and violation of the drug tax stamp law. At his preliminary examination, the district court refused to admit into evidence the 45 packets found in the parking lot and a KBI forensic report which indicated that those packets contained cocaine. At the conclusion of the preliminary examination, the court dismissed the possession charge and bound Griffin over for arraignment on the remaining charges. The State appeals the dismissal of the possession charge, claiming: (1) K.S.A. 22-3603 provides jurisdiction for this court to hear the appeal; and (2) the district court erred in excluding the evidence and dismissing the possession charge. Other facts are provided as necessary.
At common law, appeals by the State in a criminal case were unknown. By statute, a number of states now permit prosecution appeals in specified circumstances. The purpose of allowing prosecution appeals is to insure that lower court rulings do not restrict proper police conduct and to correct inconsistent trial court rulings. Permitting the State to take an interlocutory appeal from pretrial rulings does not violate a defendant’s double jeopardy protection, since jeopardy does not attach until the jury is sworn or, in a trial to the court, when the first witness for the prosecution is sworn.
There are two statutory options available in the Kansas Criminal Code for the State to test the dismissal of the possession charge prior to trial: K.S.A. 22-3602 and 22-3603. K.S.A. 22-3602 is more restrictive than its federal counterpart, 18 U.S.C. § 3731 (1988), which allows the United States to appeal an order of a district court dismissing part of an indictment or information. See Sanabria v. United States, 437 U.S. 54, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978). K.S.A. 22-3602 allows the prosecution to appeal an order dismissing a complaint at the conclusion of a preliminary examination. The statute does not allow the prosecution to appeal the dismissal of some, but not all, of the counts of a multiple-count complaint after a preliminary examination. That procedure would create concurrent jurisdiction, with some counts of the complaint pending in the district court while review of the counts dismissed are being resolved in the appellate courts. See State v. Freeman, 234 Kan. 278, 282, 670 P.2d 1365 (1983).
The State cites State v. Jones, 233 Kan. 170, 660 P.2d 965 (1983), as authority for this court to reverse the trial court’s decision to discharge the defendant on the possession count of the complaint. In Jones, there was conflicting testimony during the preliminary examination as to whether the defendant had acted in self-defense. This court said:
“The defendant should not be discharged where evidence conflicts or raises a reasonable doubt as to the guilt of the defendant. Where there is a conflict in testimony, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution.” 233 Kan. at 174.
The State’s reliance on Jones would be correct if there was conflicting testimony and the State had chosen 22-3602 as the vehicle for its appeal. Instead, the State has appealed pursuant to K.S.A. 22-3603, which provides:
“When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order . . . suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order.” (Emphasis added).
Originally, Kansas appellate courts interpreted the term “suppressing evidence,” as used in the statute, to mean constitutional suppression of evidence illegally obtained by the government. State v. Boling, 5 Kan. App. 2d 371, 617 P.2d 102 (1980). Boling questioned whether the trial court’s exclusion of evidence of other crimes committed by the defendant was an order “suppressing evidence” under 22-3603. To define “suppressing evidence,” the Court of Appeals looked to the Code of Criminal Procedure and found that term used in two places: K.S.A. 22-3215 authorizes a pretrial motion to suppress a confession or admission; K.S.A. 22-3216 authorizes a pretrial motion to suppress illegally seized evidence. Finding that the two statutes, together with K.S.A. 22-3603, provide an integrated statutory scheme for dealing with essential evidentiary rulings on issues of constitutional dimensions, the Court of Appeals limited appeals under 22-3603 to evidence suppressed under 22-3215 and 22-3216.
In 1984, this court departed from Bolings bright line rule, finding that the term “suppressing evidence,” as used in K.S.A. 22-3603, has a broader meaning than the suppression of evidence which is illegally obtained. State v. Newman, 235 Kan. 29, 680 P.2d 257 (1984). The term was held to include not only “constitutional suppression” but also rulings of a trial court which exclude the State’s evidence so as to substantially impair the State’s ability to prosecute the case. 235 Kan. at 34. This interpretation expanded the State’s right to appeal under 22-3603 from evidence suppressed so as to coincide with the United States’ right to appeal from a district court’s order suppressing or excluding evidence under 18 U.S.C. § 3731.
We have applied the Newman standard in four cases: State v. Huninghake, 238 Kan. 155, 156-57, 708 P.2d 529 (1985) (suppression of blood alcohol test, given the statutory presumption of intoxication based on the test, substantially impaired State’s ability to prosecute DUI case); State v. Jones, 236 Kan. 427, 428, 691 P.2d 35 (1984) (suppression of testimony by highway patrolman regarding defendant’s refusal to complete one phase of field sobriety test did not substantially impair State’s ability to prosecute DUI case); State v. Wanttaja, 236 Kan. 323, 325, 691 P.2d 8 (1984) (suppression of blood alcohol test substantially impaired State’s ability to prosecute DUI case); and State v. Galloway, 235 Kan. 70, 73-74, 680 P.2d 268 (1984) (suppression of composite drawing and victim’s identification of her assailant at photographic lineup substantially impaired State’s ability to prosecute rape case).
The State claims it should be allowed to proceed under 22-3603 because its case has been substantially impaired, since the 45 packets of cocaine, if admitted into evidence, would: (1) strongly indicate Griffin’s intent to sell cocaine; (2) help defeat anticipated entrapment and procuring agent defenses; and (3) be needed to invoke the presumption of incarceration set out in K.S.A. 1989 Supp. 65-4127b(d). Griffin argues that the dismissal of one count in a three count complaint does not substantially impair the State’s ability to proceed with the remainder of its case.
The argument that the evidence suppressed must substantially impair the prosecution of the case arises from the Judicial Council’s statement in the annotation to 22-3603 and this court’s decision in State v. Newman, 235 Kan. 29, Syl. ¶ 1: “Under K.S.A. 22-3603, pretrial orders of the district court [that] exclude the State’s evidence so as to substantially impair the State’s ability to prosecute the case may be appealed by the State by interlocutory appeal.” It should be noted that the italicized language does not appear in 22-3603. The statute merely states that an interlocutory appeal may be taken by the prosecution from a pretrial order suppressing evidence or suppressing a confession or admission. In State v. Huninghake, 238 Kan. at 157, we stated: “Suppression rulings which seriously impede, although they do not technically foreclose, prosecution can be appealed under K.S.A. 22-3603.” Like 18 U.S.C. § 3731, K.S.A. 22-3603 permits the State to appeal a district court order that suppresses or excludes evidence so as to substantially impair the State’s ability to prosecute the case.
The State claims that the district court abused its discretion by refusing to admit relevant evidence. “ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). The State points out that the 45 packets of cocaine were: (1) wrapped identically to those which Griffin allegedly sold to Wilson; and (2) found in the same small parking lot (12 stalls) where Griffin had been arrested.
Griffin argues that, although relevant, the circumstances surrounding the discovery of the 45 packets of cocaine render that evidence inadmissible due to remoteness. Griffin points out that (1) the police did not notice these packets when they arrested him, even though they had him under constant observation from the time he entered the parking lot; (2) there was no evidence to indicate that the packets were found in the same place where he had parked his car; (3) the packets were found in a public parking lot at least 45 minutes after he had been arrested; and (4) at least six other cars had been in that lot during the relevant time period.
In refusing to admit this evidence, the court said:
“Well, I’m not going to admit Exhibits 3 [the 45 packets of cocaine] and 5 [the KBI report]. Number one, the connection with this defendant is pretty vague. It’s found in an area that apparently he occupied maybe an hour before. There’s paper similar to the paper that you found on him, and that’s certainly a factor to consider, but in terms of using that to show that nothing has happened to it, in terms of showing that there was cocaine in it, I don’t find that the chain of custody is sufficiently complete to admit that exhibit, because it was obviously there with nobody around for a great period of time. So I will not admit those two exhibits.”
In dismissing the possession charge, the court said:
“Mr. Griffin, with regard to [the possession charge], I find that you should not be bound over on that count. It’s too remote to tie you into those particular items. They could have belonged to somebody else. I can speculate that they were probably yours, but I’m not supposed to be sitting up here speculating.”.
The State urges that the remoteness of the physical evidence is a question of fact which should be reserved for the jury. We disagree. Black’s Law Dictionary 1164 (5th ed. 1979) provides the following definition for remoteness of evidence: “When the fact or facts proposed to be established as a foundation from which indirect evidence may be drawn, by way of inference, have not a visible, plain, or necessary connection with the proposition eventually to be proved, such evidence is rejected for ‘remoteness.’ ” The question of whether to admit or exclude evidence for remoteness is a question of law for the trial judge to determine; the weight to be given the evidence when admitted is for the trier of fact to determine. Adrian v. Elmer, 178 Kan. 242, 247, 284 P.2d 599 (1955).
Though the term “suppressing evidence” has a broader meaning than illegally seized evidence, the appellate courts of Kansas will not take jurisdiction of the prosecution’s interlocutory appeal from every run-of-the-mill, pretrial evidentiary ruling of a district court, especially in those situations where trial court discretion is involved. State v. Newman, 235 Kan. at 35.
The question of whether evidence is too remote to be relevant is left to the discretion of the trial judge, whose decision will not be disturbed unless a clear abuse of discretion has been demonstrated. State v. Betts, 214 Kan. 271, 276, 519 P.2d 655 (1974); Tucker v. Lower, 200 Kan. 1, 6, 434 P.2d 320 (1967).
Discretion may be defined as the freedom to act according to one’s judgment. Judicial discretion implies the liberty to apply the rules and analogies of the law to the facts found after weighing and examining the evidence. It is well settled that the appellant must establish a clear abuse of judicial discretion before an appellate court will overturn the exercise of a trial court’s discretion. See Reedy v. Reedy, 175 Kan. 438, 440, 264 P.2d 913 (1953).
“The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). We cannot say that no reasonable person would agree with the trial court’s determination that the discovery of the 45 packets of cocaine was too remote to be admitted into evidence; therefore, we cannot disturb the trial court’s decision to exclude the evidence.
The State also argues that the district court erroneously found an inadequate chain of custody regarding the 45 packets and the KBI report. The witness who was attempting to identify the KBI report testified that he had nothing to do with the evidence-gathering process involving the cocaine tested in that report. Although the court’s ruling is somewhat confusing, the chain of custody question is moot because we affirm the exclusion of the packets of cocaine found in the parking lot.
The decision of the trial court is affirmed, and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
McFarland, J.:
In this consolidated appeal, two suppliers of materials to a second tier or “sub-subcontractor” seek to recover against the general contractor’s public works bond issued pursuant to K.S.A. 60-1111. The trial court entered summary judgment in favor of the general contractor and the issuer of the bond on the basis that a K.S.A. 60-1111 public works bond afforded no protection to the suppliers herein. The suppliers appealed. The Court of Appeals reversed the trial court, holding that the suppliers were not so remote as to be precluded from protection under the statute (Wichita Sheet Metal Supply, Inc. v. Dahlstrom & Ferrell Constr. Co., 14 Kan. App. 2d 111, 783 P.2d 353 [1989]). The matter is before us on petition for review.
The relevant facts may be summarized as follows.
In 1986 the City of Leavenworth entered into a contract with Dahlstrom & Ferrell Construction Company, Inc., (D&F) for the construction of a community center. D&F provided a public works bond as required by K.S.A. 60-1111. This bond was secured through United States Fidelity and Guaranty Company, Inc. (USF&G).
In 1987 D&F subcontracted with High Tech Construction, Inc., (HTC) for certain mechanical work on the project. HTC, in turn, subcontracted with ACI, Inc., for this same work. ACI ordered supplies from Wichita Sheet Metal Supply, Inc., (WSM) and Air Moving Equipment, Inc., (AME) which were allegedly delivered to and incorporated into the project.
In 1988, ACI filed a bankruptcy petition. WSM and AME had not been paid for the materials provided and, separately, filed actions seeking recovery under the public works bond in effect herein. Summary judgment was granted in each action in favor of D&F and USF&G. The cases were consolidated on appeal.
K.S.A. 60-llll(a) and (b) provide:
“(a) Except as provided in subsection (c), whenever any public official, . under the laws of the state, enters into contract in any sum exceeding $10,000 with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take, from the party contracted with, a bond to the state of Kansas with good and sufficient sureties in a sum not less than1 the sum total in the contract, conditioned that such contractor or the subcontractor of such contractor shall pay all indebtedness incurred for labor furnished, materials, equipment or supplies, used or consumed in connection with or in or about the construction of such public building or in making such public improvements.
“(b) The bond required under subsection (a) shall be approved by and filed with the clerk of the district court of the county in which such public improvement is to be made. When such bond is filed, no lien shall attach under this article, and if when such bond is filed liens have already been filed, such liens shall be discharged. Any person to whom there is due any sum for labor or material furnished, as stated in the preceding section, or such person’s assigns, may bring an action on such bond for the recovery of such indebtedness but no action shall be brought on such bond after six months from the completion of said public improvements or public buildings.”
K.S.A. 60-1101 provides:
“Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a lien upon the property for the labor, equipment, material or supplies furnished, and for the cost of transporting the same. The lien shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the lien. When two or more such contracts are entered into applicable to the same improvement, the liens of all claimants shall be similarly preferred to the date of the earliest unsatisfied lien of any of them.”
K.S.A. 1989 Supp. 60-1103(a) provides:
“Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to the same extent as the original contractor . . . .”
The trial court held that under K.S.A. 60-1101 and K.S.A. 1989 Supp. 60-1103(a) lien protection is afforded to those in privity with the owner, contractor, or subcontractor to the contractor. The trial court further held that only those having lien rights had protection under a K.S.A. 60-1111 public works bond. As neither WSM nor AME were within such classification, they had no claim under the public works bond. The trial court’s judgment relies upon and is consistent with our holdings in J. W. Thompson Co. v. Welles Products Corp., 243 Kan. 503, 758 P.2d 738 (1988).
The Court of Appeals reversed the trial court. In so doing, it held:
1. Privity with the owner, contractor, or first-tier subcontractor is not required for protection under a public works bond. There is language in Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, 662 P.2d 1195 (1983), supportive of this conclusion. The protection is not extended ad infinitum but only to those who are not too remote. A supplier to a second tier or sub-subcontractor is not too remote to be protected. What is “too remote” is not defined.
2. Summary judgment was inappropriate as a material fact remained in dispute.
Before proceeding to the main issue, it should, perhaps, be noted that D&F’s bond limited liability thereto to those in privity with D&F or a subcontractor of D&F. It specifically stated that only those having mechanics’ lien rights were protected by the bond. In its contract D&F stated that each subcontractor would be required to post a public works bond. This provision was not enforced as to HTC but that fact has no bearing on this litigation. The Court of Appeals correctly held:
“When a statute requires a bond to be given, the statutory terms and conditions will be read into the bond and conditions not required by statute will be stricken from the bond as surplusage. Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 78, 415 P.2d 236 (1966).” 14 Kan. App. 2d at 116.
If privity with the contractor or a subcontractor of the contractor is a requisite to protection under the public works bond statute, then the bond herein was in proper form. If the protection afforded is extended to a broader class by the statute, then such broader class cannot be denied protection by restrictive language in the bond. This result is consistent with what we said about similar provisions contained in the public works bond involved in Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241. The language used in the bond is, accordingly, not controlling herein.
One further point needs to be made. The protection required by the statute controls over the language of the bond only where the bond contains language purporting to provide less than the statutorily mandated protection. If the bond provides greater protection than is required by the statue, then the language of the bond is controlling. Put another way, the statute sets forth the minimum protection required to be provided in a public works bond.
We turn now to the conflict between J. W. Thompson Co. v. Welles Products Corp., 243 Kan. 503 (relied on by the trial court), and Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241 (relied on by the Court of Appeals).
In Thompson, Penta Construction Company, Inc., (Penta) had a contract with the City of Wichita to construct a large sewage treatment container called a “digester.” Penta signed a purchase order with Welles whereby Welles was to provide the floating cover for the digester which was to be built to order at Welles’ facility and delivered to the site for installation. Welles ordered certain components for the floating cover from J. W. Thompson Co. Welles was required to provide an inspector at the job site to check Penta’s installation of the cover. Thompson was only partially paid by Welles for the components it supplied. The crucial issue was whether Welles was a subcontractor or a supplier. If Welles was a subcontractor, then Thompson was a supplier of materials to a subcontractor and protected by the public works bond. If Welles was a supplier of materials then Thompson was a supplier to a supplier and not protected by the bond. We held that Welles was a supplier.
Specifically, we held:
“In Kansas, contractors’ bonds on public works projects filed pursuant to K.S.A. 60-1111 are substitutes for mechanics’ liens. Contractors’ bonds are for the use of all persons in whose favor liens might accrue.”
“In general, it is appropriate to analogize rules applicable to mechanics’ liens to contractors’ public works bonds.”
“Suppliers of equipment and material to contractors and subcontractors come within the purview of the protection afforded by mechanics’ liens and contractors’ public works bonds. Suppliers to suppliers (remote suppliers) are not within the purview of such statutes.” 234 Kan. 503, Syl. §§ 2-4.
The clear holding of Thompson is that, in order to claim protection under a public works bond, the claimant must first establish that it is within a class in whose favor liens might accrue. The public works bond operates as a substitute for mechanics’ liens and does not broaden the class entitled to protection.
Thompson is in conflict with some language contained in Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, as previously stated. The relevant facts in Arrowhead may be summarized as follows. The City of Lakin contracted with Essex Corporation for the latter to build some low-income housing units. Essex entered into a subcontract with Heritage Construction Management Company which, in turn, entered into a subcontract with Arrowhead Construction Company. Arrowhead then contracted with Frank Crotts and Glenn Henley to perform some of the carpentry work (on a contract basis and not as employees). During the course of construction, Heritage became dissatisfied with Arrowhead’s performance and replaced the firm with another for job completion. Arrowhead, Crotts, and Henley each filed mechanics’ liens. The liens were discharged by stipulation and the claimants pursued payment from the bond of Essex. They had the legal status of third-tier subcontractors — having a contract with a second tier or sub-subcontractor. The trial court held Crotts and Henley could recover on the bond. The facts of the case skew some of its holdings as the trial court was ultimately affirmed on the basis of estoppel — this arising from some stipulations relative to the nature of the bond whose inclusion herein would only add confusion.
In any event, this court held in Syl. ¶ 1:
“A statutory public works bond, in accordance with K.S.A. 60-1111, applies to ‘all indebtedness’ incurred in making public improvements. Such a bond acts to discharge all liens filed in connection with the construction of public improvements.”
The corresponding portion of the opinion states:
“A statutory public works bond has two characteristics which are important to a discussion of this issue. First, such a bond applies to ‘all indebtedness’ incurred in making public improvements. Thus, no privity with the general contractor is required. Second, such a bond, properly filed, acts to discharge all liens filed in connection with the construction.” 233 Kan. at 246.
The bulk of the opinion is devoted to the stipulation and its legal effect and whether or not there was a valid contract between Arrowhead and the claimants Crotts and Henley. The Court of Appeals, in its opinion in the case before us, leapt upon the quoted language concerning there being no requirement for privity with the general contractor and that the bond applies to “all indebtedness.” It made some modifications, however, “all indebtedness” was construed to be limited to some undefined “not so remote” test. Privity was not wholly abandoned but construed to include a subcontract with other than the general contractor or the first-tier subcontractor as long as it was “not so remote.”
The amicus curiae brief filed herein by The Associated General Contractors of Kansas, Inc., points out some serious problems that will arise if the Court of Appeals opinion is affirmed. They are summarized as follows:
1. Present bond rates are set on the basis of exposure, which has heretofore been limited to those having lien rights — that is, they are in privity with the owner, contractor, or a subcontractor of the contractor.
2. A public works bond is not like an insurance policy in that the bond purchaser agrees to indemnify the bond issuer for all claims paid.
3. Bonding capacity is an important aspect of a contractor’s business. The owner of such a business is usually required to sign a personal indemnity agreement. Expanding the list of classifications covered by the bond will reduce the bonding capacity of the business and eliminate many companies from bidding on public works projects.
4. It will be impossible for a general contractor and its subcontractor to protect themselves as they have no means of determining who potential claimants are.
As long ago as 1896 this court stated that mechanics’ lien rights could not be judicially expanded and recognized the hazards of indefinite extension. Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236 (1896). The hazards are far greater today with our society’s ever increasing specialization in the manufacturing of products and the performance of services.
Generally, a business extends credit based upon its evaluation of its customer’s ability to pay. It may decline to extend credit, require advance payment, deliver on a C.O.D. basis, require the ultimate consumer to issue a two-party check, or take other appropriate steps to protect itself. The protection afforded by mechanics’ liens is legislatively granted to those within a well-defined area — those in privity with the owner, contractor, or subcontractor to the contractor. If this area of protection is to be extended it is a matter of legislative rather than judicial action, as a number of competing public interests are involved. This is at least as true in the area of public works bonds which are substitutes for mechanics’ liens.
After careful consideration, we adhere to our decision in J. W. Thompson Co. v. Welles Products Corp., 243 Kan. 503. Public works bonds provide protection to only those individuals or businesses in whose favor lien rights might accrue. The two claimants herein are suppliers of materials to a sub-subcontractor. As such they are not in privity with the owner, contractor, or subcontractor to the contractor and have no lien rights. They, therefore, are afforded no protection under the public works bond herein. Any language contained in Arrowhead Constr. Co. v. Essex Corp., 233 Kan. 241, which is inconsistent or contrary to this opinion is disapproved.
We turn now to the remaining issue. The Court of Appeals further held that summary judgment was inappropriate as to the claim of AME as it was a controverted material fact whether or not an oral contract existed between AME and the general contractor (D&F) by virtue of the usage of trade. We do not agree.
The president of AME filed an affidavit in which he stated, inter alia, that ACI (the sub-subcontractor) ordered goods from it which were sent directly to the job site and that he had answered some unspecified questions about those goods propounded by some unspecified person from High Tech Construction, Inc. (the subcontractor). The Court of Appeals held that whether this constituted the formation of an oral contract between AME and the general contractor (D&F) had to be determined under the usage of trade concept.
K.S.A. 84-1-205(2) provides:
“A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. If it is established that such a usage is embodied in a written trade code or similar writing the interpretation of the writing is for the court.”
The Official UCC Comment on the usage of trade provision states:
“4. This Act deals with ‘usage of trade’ as a factor in reaching the commercial meaning of the agreement which the parties have made. The language used is to be interpreted as meaning what it may fairly be expected to mean to parties involved in the particular commercial transaction in a given locality or in a given vocation or trade. By adopting in this context the term ‘usage of trade’ this Act expresses its intent to reject those cases which see evidence of ‘custom’ as representing an effort to displace or negate ‘established rules of law.’ A distinction is to be drawn between mandatory rules of law such as the Statute of Frauds provisions of Article 2 on Sales whose very office is to control and restrict the actions of the parties, and which cannot be abrogated by agreement, or by a usage of trade, and those rules of law (such as those in Part 3 of Article 2 on Sales) which fill in points which the parties have not considered and in fact agreed upon. The latter rules hold ‘unless otherwise agreed’ but yield to the contrary agreement of the parties. Part of the agreement of the parties to which such rules yield is to be sought for in the usages of trade which furnish the background and give particular meaning to the language used, and are the framework of common understanding controlling any general rules of law which hold only when there is no such understanding.” (Emphasis supplied.)
Clearly, usage of trade is limited to explaining language used in an existing contract or filling in some gap in the contract. It cannot be used to create a contract where none previously existed. AME, by its own admission, sold its goods to ACI. There is no claim that usage of trade is needed to determine the rights and obligations between AME and ACI. AME is attempting to create some new ex post facto contract with another party through usage of trade. There is nothing before us to warrant such a novel application of usage of trade.
Before closing, we wish to compliment the trial court on its thorough and well-reasoned opinion.
The judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Chief Judge Earl E. O’Connor of the United States District Court for the District of Kansas has certified the following question for resolution pursuant to K.S.A. 60-3201: Does K.S.A. 1987 Supp. 60-19a01 violate the Kansas Constitution, including §§ 5 and 18 of the Kansas Bill of Rights?
The majority of our legislature voted to limit the traditional role of the jury to determine the monetary value for loss of the quality of life in Kansas by setting a limit on the recovery of noneconomic damages. The majority of this court recognizes that the legislature’s decision to modify the common law, by setting a limit on noneconomic damages, is a legislative decision that does not violate our state constitution.
Prior to discussing the certified question, however, we will review some of the findings contained in the following report: Report of the Kansas Citizens Committee to Review Legal Liability Problems in Kansas as They Affect Insurance and Other Matters: Recommendations in the Area of Liability Insurance (Oct. 17, 1986) (a report to Fletcher Bell, Kansas Commissioner of Insurance) (hereinafter Citizens Committee Report). This report provides important insights into the stormy controversy which currently surrounds the liability insurance and tort systems.
A great change in tort doctrine has taken place over the past century. The primary function of damages is no longer seen as deterrence or retribution for harm caused; damages are now seen as compensation. In large part, this shift has been caused by the modem availability of affordable liability insurance, the purchase of which has occasionally been required by legislation. See, e.g., K.S.A. 40-3401 et seq. (the Health Care Provider Insurance Availability Act guarantees the availability of insurance to all Kansas physicians).
It is the availability of liability insurance which critics warn is threatened by the present tort system. If insurance goes, so will compensation to many plaintiffs, no matter how favorable the laws are in their favor. In reality, “[j]ustice is not achieved when deserved compensation is granted by a court; it is achieved when that compensation is paid to the plaintiff.” Citizens Committee Report 52 (quoting Report of the Governor’s Advisory Commission on Liability Insurance for the State of New York 121-29 [Apr. 1986]).
Insurance companies derive profits from two sources: underwriting revenues and investment income. Investment income fluctuations play an enormous part in premium cycles. “However, never before did interest rates have such a profound influence upon premiums as during the latest cycle when double digit interest rates provided insurance companies with a substantial pool of funds available to use to increase market share by reducing premiums.” Citizens Committee Report 33-34.
The insurance crisis of the 1970s, referred to in the Citizens Committee Report, was partially caused by the industry’s increased market at lower premiums due to its remarkably high rate of return on investments. The crisis was especially hard-felt in the malpractice insurance area. In response to this crisis and to ensure the continued availability of medical liability insurance, every state enacted some type of tort reform; the statutes number over 300. Comment, Caps, “Crisis”, and Constitutionality — Evaluating the 1986 Kansas Medical Malpractice Legislation, 35 Kan. L. Rev. 763, 765 n.18 (1987).
The Kansas Legislature and Governor took the following actions: In 1976, the Health Care Provider Insurance Availability Act, which created the Health Care Stabilization Fund, was enacted (K.S.A. 40-3401 et seq.); medical malpractice screening panels were established (K.S.A. 65-4901 et seq.); the statute of limitations was shortened as to medical malpractice actions (K.S.A. 60-513); and the collateral source rule was modified as to medical malpractice actions (K.S.A. 60-471). We upheld the modification to the statute of limitations in Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 631 P.2d 222 (1981). In Wentling v. Medical Anesthesia Services, 237 Kan. 503, 518, 701 P.2d 939 (1985), we invalidated the modification to the collateral source rule as a violation of the equal protection guarantee of our state constitution. In its 1985 session, the legislature took note of Wentling and repealed K.S.A. 60-471 by enacting L. 1985, ch. 197, § 5.
Some insurance industry observers correctly predicted that a new crisis would develop in the early 1980s as interest rates fell and insurance companies’ investment returns decreased. See Comment, 35 Kan. L. Rev. at 770. The crisis of the 1980s is the burgeoning price of medical malpractice insurance.
Because the legislation of the 1970s had failed to halt the increasing cost of medical malpractice insurance and in response to the new crisis of the 1980s, the Kansas Legislature took the following actions in 1985: (1) a cap was placed on punitive damages in medical malpractice actions, and (2) another attempt was made at modifying the collateral source rule in medical malpractice actions (K.S.A. 1985 Supp. 60-3403). In Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), we found this modification of the collateral source rule to be a violation of equal protection.
When its prior efforts failed to check the rising cost of medical malpractice insurance premiums as promised, the 1986 legislature went further, taking the following actions: medical malpractice screening panel decisions were made admissible at trial (K.S.A. 1986 Supp. 65-4904[c]); the Health Care Stabilization Fund’s liability was restricted (K.S.A. 40-3403); the award of attorney fees was made contingent on approval after an evidentiary hearing (K.S.A. 1986 Supp. 7-121b[a]); the Internal Risk Management Program was created (K.S.A. 1986 Supp. 65-4922); and limitations were placed on the qualifications of expert witnesses in medical malpractice actions (K.S.A. 1986 Supp. 60-3412). Finally, the legislature attempted to limit the liability of health care providers in medical malpractice actions by capping recovery for noneconomic losses at $250,000 and by placing a total cap on all losses, both economic and noneconomic, at $1,000,000 (K.S.A. 1986 Supp. 60-3407). We invalidated this last measure as a violation of §§ 5 and 18 of the Kansas Bill of Rights in Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988) (Malpractice Victims).
The great majority of states have also enacted statutes to deal with the new crisis. See Comment, 35 Kan. L. Rev. at 771 n.53. And, many of these statutes provide for caps on noneconomic losses. See Brantingham, Civil Justice Reform: The Continuing Search for Balance, 10 Hamline L. Rev. 387, 399-402 (1987); see Annot., 80 A.L.R.3d 583; Lewis, The Case Against Caps, 75 Ill. B. J. 164 (1986). Many of these statutes are so recent they have not yet been challenged on appeal. As for those which have been challenged, the outcomes vary according to the arguments raised and the state constitutional provisions upon which those arguments were based.
In Fein v. Permanente Medical Group, 38 Cal. 3d 137, 211 Cal. Rptr. 368, 695 P.2d 665 (1985), the California Supreme Court upheld the constitutionality of a statute which limited noneconomic damage awards in medical malpractice suits to $250,000. The provisions of the California Constitution applicable in Fein are similar to the constitutional provisions involved in this case. Applying a rational basis standard of review, the court rejected the plaintiffs equal protection and due process claims. The court also rejected Fein’s argument that the legislature had limited the potential recovery of medical malpractice victims without providing an adequate quid pro quo, holding that (1) a plaintiff has no vested property right in a particular measure of damages, and (2) the legislature has broad authority in modifying the scope and nature of damages. 38 Cal. 3d at 157.
In reviewing similar cases from other jurisdictions, the Fein majority noted that the statutes challenged in those cases, with one exception, involved caps which limited both economic and noneconomic damages. 38 Cal. 3d at 161. The Fein dissent cited many of the same cases, emphasizing that a majority of those courts had invalidated the challenged caps regardless of the type of limitation imposed by the legislature. 38 Cal. 3d at 170.
The United States Supreme Court dismissed the subsequent appeal of Fein for want of a substantial federal question. 474 U.S. 892, 88 L. Ed. 2d 215, 106 S. Ct. 214 (1985). Justice White dissented as to the dismissal, noting that a majority of state courts had so far invalidated such damage caps, including those caps which were limited to noneconomic damages. 474 U.S. at 893. Justice White would have granted the appeal to consider the following question left unanswered by Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978): whether federal due process requires a quid pro quo when a state replaces a common-law remedy with a legislatively enacted compensation scheme.
The Supreme Court’s treatment of the Fein appeal was acknowledged in Ferguson v. Garmon, 643 F. Supp. 335, 340 (D. Kan. 1986). Chief Judge O’Connor noted that the dismissal of Fein is most safely construed, in the absence of doctrinal developments indicating otherwise, as a ruling on the merits that a statute capping recovery of noneconomic loss presents no substantial issue under the federal constitution. See Hicks v. Miranda, 422 U.S. 332, 344, 45 L. Ed. 2d 223, 95 S. Ct. 2281 (1975).
In Duren v. Suburban Community Hosp., 24 Ohio Misc. 2d 25, 495 N.E.2d 51 (1985), the Court of Common Pleas of Ohio, a trial court of general jurisdiction, let stand a $1,000,000 award for pain and suffering by invalidating an Ohio statute which set a general cap of $200,000 on medical malpractice awards. Central to the court’s decision was the legislature’s failure to distinguish between general damages, those which “necessarily result from the injury complained of,” and noneconomic damages. 24 Ohio Mise. 2d at 28. Recause the parties settled, no appeal was taken from this decision. (In Malpractice Victims, 243 Kan. 333, we found unconstitutional a similar set of statutes that capped the total recovery of all damages, both economic and noneconomic, at $1,000,000.)
In Smith v. Department of Ins., 507 So. 2d 1080, 1088-89 (Fla. 1987), the Supreme Court of Florida held a $450,000 cap on noneconomic damages violative of the right to a jury trial as guaranteed by the Florida Constitution. The court stated that a cap on such damages would be constitutional only if the legislature provided a quid pro quo or found that there was no other alternative in meeting an overpowering public necessity.
In Lucas v. U.S., 757 S.W.2d 687 (Tex. 1988), the Texas Supreme Court held that a $150,000 cap on damages in medical malpractice actions violated a state constitutional provision which guarantees “remedy by due course of law.” 757 S.W.2d at 690. The only damages exempted from the cap were those to compensate for past and future expenses of necessary medical, hospital, and custodial care. The court found that when the legislature set the cap, it had failed to provide an adequate substitute to obtain redress for injuries (a quid pro quo), as was done in the state’s Workers Compensation Act. Following the rationale applied by the Florida court in Smith, the Texas court held that citizens of that state are entitled to have damages in civil actions assessed by a jury. 757 S.W.2d at 692. (Our rationale in Malpractice Victims is similar to the rationale of the Florida Supreme court in Smith and the Texas Supreme Court in Lucas.)
In Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986) reconsideration denied, 672 F. Supp. 915 (W.D. Va. 1987), rev'd 877 F.2d 1191 (4th Cir. 1989), a case brought under diversity jurisdiction, the federal district court held that a Virginia statute which limits total damages in medical malpractice actions to $1 million violates the right to a jury trial as guaranteed by the 7th Amendment to the United States Constitution and by the Virginia Con stitution. The federal court stated that the assessment of damages was clearly a jury function under the common law and that the 7th Amendment was intended as a check on both the judiciary and the legislature. As for the Virginia Constitution, the federal district court found the state guarantee of a jury trial to be at least as strong as that provided in the federal constitution.
Without mentioning the federal district court’s decision in Boyd, the Supreme Court of Virginia held that the statutory cap at issue in that earlier case did not violate the state constitution’s guarantee of a jury trial. Etheridge v. Medical Center Hospitals, 237 Va. 87, 376 S.E.2d 525 (1989) (three justices dissenting). While the Virginia court agreed that a plaintiff is entitled to a jury determination of actual damages under the state constitution, it held that the legislature may limit actual recovery since full recovery was never guaranteed at common law. 237 Va. at 96. (Using a different rationale when reviewing workers compensation, we reached a similar result in Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251 [1983]).
In Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989), the Court of Appeals reversed the district court’s earlier judgment and upheld the constitutionality of Virginia’s cap on medical malpractice damages. The court found the Virginia Supreme Court’s holding in Etheridge dispositive of challenges made under the state constitution. 877 F.2d at 1195. As for the federal constitution, the court found no 7th Amendment violation: “If a legislature may completely abolish a cause of action without violating the right of trial by jury, we think it permissibly may limit damages recoverable for a cause of action as well.” 877 F.2d at 1196. The court also found no violation of due process or equal protection since the cap was reasonably related to the legitimate goal of ensuring adequate health care services. 877 F.2d at 1196-97.
In Franklin v. Mazda Motor Corp., 705 F. Supp. 1325 (D. Md. 1989), the United States District Court for the District of Maryland held a $350,000 cap on noneconomic damages in personal injury awards did not violate the federal or state constitutions. First, the Maryland court noted an individual has no vested interest in any rule of common law; therefore, the cap did not violate the right to a jury trial under the Maryland Constitution. Article 23 of the Maryland Declaration of Rights reads: “The right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five hundred dollars, shall be inviolably preserved.” The court distinguished the role of a jury as a part “of the dispute resolution apparatus between parties” and the role of the legislature in making “rules in advance of disputes.” 705 F. Supp. at 1331. The court noted that the legislature has the power to “terminate an entire valid and provable claim through a statute of limitations,” and found that a remedy, as opposed to a finding of liability, is a matter of law rather than of fact. 705 F. Supp. at 1333.
The cap on noneconomic damages also withstood Franklin’s second challenge based on Article 19 of the Maryland Declaration of Rights, which provides: “[E]very man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.” The court had previously determined that Article 19 gave the same due process rights as the 14th Amendment of the United States Constitution. Access to the courts of Maryland is determined under a test of reasonableness, with no requirement of heightened scrutiny. The court held the cap bore a reasonable relation to a valid legislative purpose, but acknowledged that some states, such as Kansas, find “more protection in their state due process clauses.” 705 F. Supp. at 1337 (citing Malpractice Victims, 243 Kan. 333). The court also acknowledged that “some state constitutions treat full recovery in tort as a fundamental right.” 705 F. Supp. at 1337 (citing Barrio v. San Manuel, 143 Ariz. 101, 692 P.2d 280 [1984]).
In Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711 (1989), the Washington Supreme Court held a statutory limitation on noneconomic damages unconstitutional. The damage limitation operated on a formula based upon the age of the injured plaintiff. The court, without addressing the equal protection claim, found that the statute’s limitation on noneconomic damages in medical malpractice actions interferes with the jury’s traditional function of determining damages.
In Meech v. Hillhaven West, Inc., 776 P.2d 488 (Mont. 1989), a group of employees brought action in the United States District Court for the District of Montana claiming damages for their wrongful termination from employment, breach of implied covenant of good faith and fair dealing, and intentional or negligent infliction of emotional distress. The United States District Court certified the following question: Did the Montana Wrongful Discharge From Employment Act (1) unconstitutionally deprive workers under the Act of their right to “full legal redress,” and (2) wrongfully prohibit the recovery of noneconomic damages and limit the recovery of punitive damages?
The Montana Supreme Court recognized that no one has a vested right to any rule of common law. The legislature, under its plenary power to act for the general welfare, may alter common-law causes of action if it provides an adequate quid pro quo. 776 P.2d at 494. In this case, since the legislature had provided adequate substitutes for causes of actions abrogated by the Act, the Montana Supreme Court found the Act to be constitutional. 776 P.2d at 506.
In Davis v. Omitowoju, 883 F.2d 1155 (3d Cir. 1989), plaintiff sued her physician for having negligently performed a knee surgery to which she had not consented. The jury awarded plaintiff $640,000, which the trial court reduced to $403,294.92 pursuant to a Virgin Islands statute which caps noneconomic damages in such cases at $250,000. On appeal, the third circuit cited Boyd v. Bulala, 877 F.2d 1191, and summarily dismissed plaintiffs arguments that the cap violated federal guarantees of equal protection and due process. The court further held that the statute did not violate plaintiffs right to a jury trial: “Where it is the legislature which has made a rational policy decision in the public interest, as contrasted with a judicial decision which affects only the parties before it, it cannot be said that such a legislative enactment offends either the terms, the policy or the purpose of the Seventh Amendment.” 883 F.2d at 1165.
In the case before this court, the question certified by the United States District Court for the District of Kansas arises out of a personal injury action wherein the plaintiff, Douglas Samsel, claims that one of the defendants, Don Hilgenfeld, negligently caused an automobile accident by driving left of the center line. Samsel was rendered a quadriplegic as a result of this accident. Other defendants are Wheeler Transport Services, Inc., Hilgen feld’s employer, and Great West Casualty Co., Wheeler’s insurance company. Douglas Samsel is a resident of Kansas; Hilgenfeld of Nebraska. Wheeler has its principal place of business in Nebraska and Great West is organized under Nebraska law. The case was filed in federal court based on diversity of citizenship pursuant to 28 U.S.C. § 1332 (1982).
When the accident occurred on May 16, 1988, K.S.A. 1987 Supp. 60-19a01 was in effect. This statute caps damages in personal injury actions for pain and suffering at $250,000. When Chief Judge O’Connor certified the present question on October 27, 1988, K.S.A. 1988 Supp. 60-19a01 and -19a02 were in effect. The 1987 and 1988 versions of 6Q-19a01 are identical, except that the 1988 amendment adds language which limits its application to causes of action which accrue before July 1, 1988. K.S.A. 1988 Supp. 60-19a02, which applies to causes of action accruing on or after July 1, 1988, differs from 60-19a01 in that medical malpractice liability actions are no longer exempted and the term “pain and suffering” was replaced by “noneconomic loss.”
K.S.A. 1988 Supp. 60-19a02 is set out below. Diagonals indicate language from 60-19a01 which was not included in -19a02; italics indicate new language that did not appear in -19a01.
“(a) As used in this section, ‘personal injury action’ means any action for damages for personal injury or death except for medical malpractice liability actions.
“(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for pain and suffering noneconomic loss shall not exceed a sum total of $250,000.
“(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for pain and suffering noneconomic loss.
“(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for pain and suffering noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $250,000 for all the party’s claims for pain end suffering noneconomic loss. Such entry of judgment by the court shall occur after consideration of comparative negligence principles in K.S.A. 60-258a and amendments thereto.
“(e) The provisions of this section shall not be construed to repeal or modify the limitation provided by K.S.A. 60-1903 and amendments thereto in wrongful death actions.
“(f) The provisions of this section shall apply only to personal injury actions which are based on causes of action accruing -en er after July 4; 1987; on or after July 1, 1988."
Our resolution of the issue presented by the certified question — whether K.S.A. 1987 Supp. 60-19a01 violates the Kansas Constitution — applies equally to K.S.A. 1988 Supp. 60-19a02 since that statute gives rise to no additional issues. Although a plaintiff in Samsel’s position after July 1, 1988, would be bound by K.S.A. 1988 Supp. 60-19a02, no purpose would be served by requiring him or her to argue the same issues resolved in this case. See Manzanares v. Bell, 214 Kan. 589, 593-95, 522 P.2d 1291 (1974); Dairy Belle v. Freeland, 175 Kan. 344, 345, 264 P.2d 894 (1953).
The certified question limits our review to an analysis of the Kansas Constitution. The federal court will decide whether the contested statute offends the federal constitution. See 17A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4248, p. 174 (1988). Specifically, plaintiff argues that the statutory cap violates §§ 5 and 18 of the Bill of Rights in the Kansas Constitution. Section 5 states: “The right of trial by jury shall be inviolate.” Section 18 is almost as succinct: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
We have previously said that § 18 protects the right to “reparation for injury, ordered by a tribunal having jurisdiction, in due course of procedure and after a fair hearing.” Ernest v. Faler, 237 Kan. 125, 131, 697 P.2d 870 (1985) (quoting Hanson v. Krehbiel, 68 Kan. 670, Syl. ¶ 2, 75 Pac. 1041 [1904]). Though the amicus curiae argues that § 18 protects the remedy itself and that the procedural mechanisms of due process are protected by § 1 of the Kansas Bill of Rights, that argument does not change our decision.
The certified question requires us to review our state constitution, the role of the common law, legislative and judicial power vis-a-vis the common law, and the separation of powers doctrine. It is also essential that we analyze the doctrine of stare decisis and the consequences of our prior decisions.
Our constitution is a written charter enacted by the direct action of the citizens of Kansas. It is a compilation of the fundamental laws of the state and embodies the principles upon which the state government was founded. The object of our constitution is to provide a government of law and not of men, while insuring the protection of life, liberty, and property.
The state constitution establishes the form of our government. Like the Constitution of the United States, the Constitution of Kansas contains no express provision requiring the separation of governmental powers, but all decisions of this court have taken for granted the constitutional doctrine of separation of powers between the three branches of the state government — legislative, executive, and judicial. Absolute and complete separation of powers of government is impracticable and was not intended. State v. Railway Co., 76 Kan. 467, 474, 92 Pac. 606 (1907). All governmental sovereign power is vested in the legislature, except such as is granted to the other branches of government or expressly withheld from the legislature by constitutional restrictions. Leek v. Theis, 217 Kan. 784, Syl. ¶ 7, 539 P.2d 304 (1975). It is the primary duty of the courts to safeguard the declaration of rights and remedies guaranteed by constitutional provisions. Brown v. Wichita State University, 217 Kan. 279, Syl. ¶ 18, 540 P.2d 66 (1975).
Our constitution does not make this court the critic of the legislature; rather, this court is the guardian of the constitution and every legislative act comes before us with a presumption of constitutionality. A statute will not be declared unconstitutional unless its infringement on the superior law of the constitution is clear, beyond substantial doubt. State ex rel. Crawford v. Robinson, 1 Kan. 17, 27 (1862). The interpretation of constitutional principles is an important responsibility for both state and federal courts. In determining whether a statute is constitutional, courts must guard against substituting their views on economic or social policy for those of the legislature. Courts are only concerned with the legislative power to enact statutes, not with the wisdom behind those enactments. When a legislative act is appropriately challenged as not conforming to a constitutional mandate, the function of the court is to lay the constitutional provision invoked beside the challenged statute and decide whether the latter squares with the former — that is to say, the function of the court is merely to ascertain and declare whether legislation was enacted in accordance with or in contravention of the constitution — and not to approve or condemn the underlying policy.
The common law can be determined only from decisions in former cases bearing upon the subject under inquiry. As distinguished from statutory or written law, the common law embraces that great body of unwritten law founded upon general custom, usage, or common consent, and based upon natural justice or reason. It may otherwise be defined as custom long acquiesced in or sanctioned by immemorial usage and judicial decision. 15A Am. Jur. 2d, Common Law § 1.
In a broader sense, the common law is the system of rules and declarations of principles from which our judicial ideas and legal definitions are continually derived. See generally Steele v. Latimer, 214 Kan. 329, 332, 521 P.2d 304 (1974). It is not a codification of exact or inflexible rules for human conduct, the redress of injuries, or protection against wrongs; rather, it is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men. 15A Am. Jur. 2d, Common Law § 1.
The common law became effective in Kansas when the organic act passed. “By law of 1855 (Statutes, p. 469,) the common law of England and all statutes prior to 4 James I. not local to that kingdom, and of a general nature, except statutes for the punishment of crimes and misdemeanors, were adopted ‘as the rule of action and decision in the territory.’ This adopted the common law as to rights of action and forms of remedy so far as it was consistent with the constitution and laws of the United States and the statutes of Kansas.” Sattig v. Small, 1 Kan. 170, 175 (1862). The original act stated that the legislature had the power to enact statutes contrary to any rule of action and decision in the territory, or any law, custom, or usage. In 1868 the original act was repealed and an expanded use of the common law was adopted by the legislature. G.S. 1868, Ch. 119, Art. I, § 3 stated:
“The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state; but all such statutes shall be liberally construed to promote their object.”
This wording remains in effect today. K.S.A. 77-109.
The first question which must be addressed is whether the right to a jury trial in civil cases under the common law included the right to have the jury determine damages. Since there is no authority which precisely lays out the rules of common law, courts often look to English practice in order to discover the “common law” in existence during a relevant period. See Moore, The Jury 144 (1988). Historical research does not provide a clear-cut answer to the first question.
The United States Supreme Court recently stated that its research showed there to be no substantive right under the common law to a jury determination of damages. In Tull v. United States, 481 U.S. 412, 95 L. Ed. 2d 365, 107 S. Ct. 1831 (1987), the Court addressed the scope of the right to trial by jury under the 7th Amendment to the United States Constitution. While the Court held that liability under the Clean Water Act could only be determined by a jury, it went on to hold that there is no constitutionally protected right to a jury determination of damages in the event that liability is imposed. The Court stated:
“The 7th Amendment is silent on the question whether a jury must determine the remedy in a trial in which it must determine liability. The answer must depend on whether the jury must shoulder this responsibility as necessary to preserve the ‘substance of the common-law right of trial by jury.’ [Citation omitted.] Is a jury role necessary for that purpose? We do not think so. ‘Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.’ [Citations omitted.] The assessment of a civil penalty is not one of the ‘most fundamental elements.’ ” 481 U.S. at 425.
The footnote appended to the quoted text explained:
“Nothing in the Amendment’s language suggests that the right to a jury trial extends to the remedy phase of a civil trial. Instead, the language ‘defines the kind of cases for which jury trial is preserved, namely “suits at common law.” ’ [Citation omitted.] Although ‘ “[w]e have almost no direct evidence concerning the intention of the framers of the seventh amendment itself,” the historical setting in which the Seventh Amendment was adopted highlighted a controversy that was generated ... by fear that the civil jury itself would be abolished.’ [Citation omitted.] We have been presented with no evidence that the Framers meant to extend the right to a jury to the remedy phase of a civil trial.” 481 U.S. at 426 n.9.
On the other hand, Blackstone reported the following in a discussion concerning interlocutory judgments:
“But the interlocutory judgments, most usually spoken of, are those incomplete judgments, whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained; which is a matter that cannot be done without the intervention of a jury. As by the old Gothic constitution the cause was not completely finished, till the nembda or jurors were called in ‘ad executionem decretorum judicii, ad aestimationem predi, damni, lucri, ire.’ [before the decree of judgment was rendered, to make a valuation of costs, damages, gain, etc.] .... [W]here damages are to be recovered, a jury must be called in to assess them; unless the defendant, to save charges, will confess the whole damages laid in the declaration.” 3 Blackstone, Commentaries *397-98.
The United States Supreme Court has determined that the guarantee of a jury trial under the 7th Amendment is limited and does not extend to the remedy phase of a civil trial. We have interpreted our constitution as granting broader rights to the citizens of this state. The state constitution and the Kansas common law recognize that the right to a jury trial includes the right to have the jury determine damages. See Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 342-43, 757 P.2d 251 (1988) (Malpractice Victims). This is not an unlimited right and the limitations on the right to a jury determination of damages will be discussed later.
The next question is whether damages for pain and suffering, or other noneconomic damages, are awarded under the common law. The first recorded case in which a court explicitly recognized pain and suffering was the “squib” case in which the plaintiff lost both eyes and “underwent and suffered great excruciating pain and torment for a long time [to wit] for the space of six months.” Scott v. Sheperd, 95 Eng. Rep. 1124 (K.B. 1773) (cited in O’Connell & Carpenter, Payment for Pain and Suffering Through History, 50 Ins. Counsel J. 411, 412 [1983]). In the 1822 case of Pippin v. Sheppard, 25 Rev. Rep. 746 (Ex. 1822) (cited in 50 Ins. Counsel J. at 412) the court explicitly stated that the judgment included damages for pain and suffering. Formbooks of the time, including Wentworth’s A Complete System of Pleading (1798), provided for the routine pleading of pain and suffering damages in personal injury actions. If American courts had not allowed damages for pain and suffering before, it is clear that they began to do so after Pippin. See 50 Ins. Counsel J. at 412-13 for discussion of Verril v. Minot, 31 Me. 299 (1850); Morse v. Auburn & Syracuse R.R., 10 Barb. 621 (N.Y. Sup. Ct. 1851); Ransom v. New York and E.R.R., 15 N.Y. 415 (1857). By 1861, when the Kansas Constitution was adopted, “legal precedent clearly supported compensation for pain and suffering.” 50 Ins. Counsel J. at 413.
Section 18 of the Kansas Bill of Rights mandates the awarding of damages to the injured party based on the theory of compensation for loss suffered. See McGrew v. Investment Co., 106 Kan. 348, 351, 187 Pac. 887 (1920). Under the common law, the purpose of awarding damages is to make a party whole by restoring that party to the position he was in prior to the injury. State ex rel. Stephan v. Wolfenbarger & McCulley, P.A., 236 Kan. 183, 189, 690 P.2d 380 (1984). Damages to restore a person to his prior position are divided into economic and noneconomic damages. Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and other such losses. Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents. Malpractice Victims, 243 Kan. at 337.
Are noneconomic damages recoverable in personal injury actions under the Kansas common law? In 1870, we stated that, in the absence of malice or fraud, the jury should consider the following when determining compensation in a personal injury action: the pecuniary loss; suffering; loss of time; actual expenses incurred; the character of the injury, as to whether it is permanent or temporary in its consequences; and the condition or circumstance of the injured party. Tefft v. Wilcox, 6 Kan. 46, 57 (1870). We therefore conclude that in personal injury actions, noneconomic damages, such as pain and suffering, are elements of Kansas common-law damages for the jury to consider.
Because of the nature of noneconomic damages, there is no clear method for measuring the loss and determining the amount of compensation due. The standard of evaluation by which an award for noneconomic damages is measured is such amount as a reasonable person estimates to be fair compensation when that amount appears to be in harmony with the evidence as arrived at without passion or prejudice. Fudge v. City of Kansas City, 239 Kan. 369, Syl. ¶ 6, 720 P.2d 1093 (1986).
The difficulty in determining the amount a reasonable person would award an injured party for his or her noneconomic loss has been recognized by both this court and the legislature. When instructing juries on how to assess damages for pain and suffering, our trial courts acknowledge: “For such items as pain, suffering, disability and mental anguish there is no unit value and no mathematical formula the Court can give you. You should award such sum as will fairly and adequately compensate him. The amount to be awarded rests within your sound discretion.” PIK Civ. 2d 9.01. The lack of any precise guide for measuring noneconomic loss is also a problem for reviewing courts which must decide whether such jury awards are either excessive or inadequate.
The legislature’s enactment of K.S.A. 1987 Supp. 60-19a01 was influenced by the Citizens Committee Report. The Citizens Committee found that the unpredictability of awards for pain and suffering “makes it very difficult to write insurance or to self-insure at appropriate premium or cost levels, and also sometimes results in pain and suffering awards that are so high they result in unreasonable premium increases. In many instances, these increases reach the level of unaffordability.” Citizens Committee Report 64. The committee recommended a cap on noneconomic damages to limit uncertainty in this area. Citizens Committee Report 63-64 (Recommendation 11).
Although we have determined that an injured party has a constitutional right to be made whole and a right to damages for economic and noneconomic losses suffered, it is clear that recovery for noneconomic loss suffered is not really compensation to make an injured party whole. Such damages are actually compensation to the injured party for loss of the quality of life, i.e., disability, pain, and suffering.
Defendants complain that by our prior decisions we have created a specially protected category of people, i.e. personal injury plaintiffs and, by doing so, we have violated § 2 of the Kansas Rill of Rights, which provides:
“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
In Stephens v. Snyder Clinic Ass’n, 230 Kan. 115, 128, 631 P.2d 222 (1981), we refused to apply § 2 when the plaintiff challenged, on constitutional grounds, the statute of limitations which had been shortened for negligence actions against health care providers. We held the issue involved the equal rights guarantee of § 1 of the Kansas Bill of Rights rather than § 2 because the political powers and privileges reserved by the people in § 2 do not apply to the personal or property rights of an individual. We cited cases wherein we had construed § 2 as applying solely to political privileges. See, e.g., State ex rel. v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 439, 296 P.2d 656 (1956).
Defendants also cite Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974), and argue that we used § 2 in that case to find the automobile guest statute unconstitutional. While we cited § 2 in Henry, our decision was based upon the equal protection guarantee of § 1. It is true that we have often cited § 2 along with § 1 in cases involving equal protection challenges, but we have never held that § 2 protects property rights in the way that defendants would now like to argue.
Defendants also complain that we have been “inconsistent” in our analyses of various tort reform measures — that it is unforeseeable whether we will use §§ 1, 2, 5, 18, or “some other” rationale to “strike down” any legislation which is beneficial to defendants. Such a simplistic statement fails to recognize the jurisdictional limitations of appellate courts and the restraint traditionally exercised by such courts in limiting the scope of their decisions to the issues raised by the parties on appeal. Our decisions would undoubtedly be more “consistent” if we, rather than the parties, framed the issues we are asked to decide.
Defendants assert that this court has granted greater constitutional protection to persons who are injured than to those whose negligence caused the injury. They cite Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987) as support, claiming that a heightened level of scrutiny was improperly created and then applied in an equal protection challenge to a statute which abolished the collateral source rule in medical malpractice cases. This analysis is incorrect for two reasons. First, only Justice Herd, the author of the opinion, and then Chief Justice Prager applied the heightened scrutiny analysis. Two justices, Justices Lockett and Allegrucci, concurred in the result but disagreed with the application of the heightened scrutiny test and applied the rational basis test. Both agreed that equal protection requires that all who are injured by another’s negligent act have an equal right to compensation from the negligent tortfeasor, regardless of any classification that the legislature has attempted to impose. If the legislature wishes to change the rules of evidence by abrogating the collateral source rule, it may do so if applied equally to all who are injured by the negligent act of another. The three dissenting justices also applied the rational basis test. Secondly, the case is not applicable as the plaintiff here does not challenge the statute on equal protection grounds. (Elsewhere in their briefs, defendants erroneously claim we applied a strict scrutiny test in Malpractice Victims, even though there was no equal protection claim decided.)
Individuals who perceive an inconsistency between our denial of the legislature’s attempt to place caps on damages in Malpractice Victims and our acquiescence to legislative caps in other instances, such as wrongful death and the Kansas Automobile Injury Reparations Act should reread Chief Justice Prager’s analysis in Malpractice Victims. First, the remedy for wrongful death is a creation of statute and not a remedy existing under the common law. Thus, both the remedy and the limitations on damages were created by the legislature.
Second, there is no inconsistency in our prior decisions. In Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251 (1983), this court upheld the Workers Compensation Act. In Manzanares v. Bell, 214 Kan. 589, 602-608, 522 P.2d 1291 (1974), we upheld the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq., since the legislative acts bore a rational relationship to the legislative objective and were not arbitrary or unreasonable because the legislature had provided a sufficient quid pro quo for the limitations imposed. In Malpractice Victims, 243 Kan. 333, we invalidated the legislative caps placed on the recovery of losses in medical malpractice actions because the legislature had failed to provide a sufficient quid pro quo for the loss of the injured party’s right for the jury to determine the amount of damages. These cases reflect a majority of this court’s adherence to the doctrine of stare decisis.
When answering the federal district court’s question, we arrive at the decision based upon a background of precedent, tradition, and institutional constraints that limit or channel changes. It is recognized under the doctrine of stare decisis that, once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised. Stare decisis operates to promote system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court. While an unconstitutional exercise of power by either the executive or legislative branches may be checked by the judicial branch, the only check upon our own exercise of power is our own sense of self-restraint. See United States v. Butler, 297 U.S. 1, 78, 80 L. Ed. 477, 56 S. Ct. 312 (1935) (Stone, J., dissenting). The application of stare decisis ensures stability and continuity — demonstrating a continuing legitimacy of judicial review. Judicial adherence to constitutional precedent ensures that all branches of government, including the judicial branch, are bound by law.
This court is reluctant to treat as still open a question which it has once definitely passed upon. The general American doctrine as applied to courts of last resort is that a court is not inexorably bound by its own precedents but will follow the rule of law which it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent. See Helvering v. Hallock, 309 U.S. 106, 84 L. Ed. 1104, 60 S. Ct. 746 (1939). The distinction between decisions construing statutes and those construing the constitution is that if the people are dissatisfied with the construction of a statute, the frequently recurring sessions of the legislature afford easy opportunity to repeal, alter, or modify the statute. The constitution, on the other hand, is organic and intended to be enduring until changing conditions of society demand more strin gent or less restrictive regulations. If a decision construes the constitution in a manner not acceptable to the people, the opportunity of changing the organic law is remote.
We previously found the Workers Compensation Act constitutional, even though the worker is not entitled to a trial by jury on any issue and the Act provides no compensation for pain and suffering. In fact, in some cases, the Act provides less compensation for economic loss than has actually been suffered by the injured worker. In addition, workers compensation claimants may not maintain a civil damage action against a fellow employee for any injury for which compensation is recoverable. But in return for the loss of these substantive rights, injured workers are relieved of the burden of proving fault on the part of the employer prior to establishing their right for compensation and receive more certain and speedy payment. We held those compensations are a sufficient quid pro quo to validate the Act. We stated that once the Kansas Legislature has determined the better public policy, it is not the prerogative of this court to modify such legislative determination. Rajala v. Doresky, 233 Kan. at 442.
When determining a similar issue to the question submitted by the federal district court in Manzanares v. Bell, 214 Kan. 589, we found that although the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq., does not affect an injured party’s right to a jury trial or limit the recovery of economic losses, it does prohibit recovery for pain and suffering or other nonpecuniary loss except in the event of certain types of personal injury, or where the injury requires medical treatment of a value of at least $2,000. K.S.A. 40-3117. We held, nevertheless, that the mandatory availability of no-fault insurance, even though purchased by the injured party, is a sufficient quid pro quo for the limitation on the recovery for noneconomic damages. 214 Kan. at 599. Therefore, the Act did not violate § 18 of the Kansas Bill of Rights. We again recognized it was not within the province of this court to weigh the desirability of social or economic policy underlying a statute, or to weigh the beneficial results flowing from any particular legislative policy. 214 Kan. at 603.
In Malpractice Victims, 243 Kan. 333, we declared a comprehensive set of statutes which: (1) limited the amount of recovery for noneconomic loss to $250,000; (2) capped the total recovery of all damages, both economic and noneconomic, at $1,000,000; and (3) required an annuity for payment of future economic loss in all medical malpractice actions violative of §§ 5 and 18 of the Bill of Rights of the Kansas Constitution.
Our constitution provides that the common-law right to a jury trial includes the right to have the jury determine the amount of the damages in personal injury actions. An individual does not, however, have a vested right in the common-law rules governing negligence actions. The legislature can modify the right to a jury trial and the right of a jury determination of the amount of damages through its power to change the common law, but the legislature’s right is not absolute. Statutory modification of the common law must meet due process requirements and be reasonably necessary in the public interest to promote the general welfare of the people of the state. Due process requires that the legislature substitute the viable statutory remedy of quid pro quo (this for that) to replace the loss of the right. See generally Note, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Pro Quo” Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143 (1981).
The majority of this court in Malpractice Victims, 243 Kan. 333, asserted that the legislature’s modification of the common law, by placing caps on the amount of damages an injured plaintiff could recover in medical malpractice actions, without substituting a sufficient quid pro quo, violated the right to have a jury determine damages under §§ 5 and 18. In addition, a statutory scheme of compulsory liability insurance (though purchased by the defendant) was not a quid pro quo for caps on damages suffered by the injured plaintiff, since the liability insurance had been mandated by the legislature prior to the passage of the caps legislation. Justice Holmes and Justice McFarland each dissented.
In Malpractice Victims, we determined that damages are a jury issue under § 5 of the Kansas Bill of Rights and our prior holdings. We held that by enacting the statutes which limited a plaintiffs common-law remedy without providing an adequate substitute remedy, the legislature violated § 18 of the Kansas Bill of Rights. Though mentioned in the opinion, we did not explore the potential for frustration of the right of the jury to determine damages by the court’s common-law power to exercise its discretion to reduce a jury’s award by remittitur. The question of whether the statute’s mandatory language which prohibits the court from modifying a jury’s award of noneconomic losses of $250,000 or less provides a sufficient quid pro quo was left unanswered.
Section 5 of the Kansas Bill of Rights protects the right to jury trial as it existed under common law at the time the constitution was adopted. Malpractice Victims, 243 Kan. at 342. Under the common law, jury verdicts have always been subject to the concurrence of the trial judge and the trial judge’s power to grant a new trial. The right of the trial court and the appellate court to grant a remittitur or a new trial does not violate the individual’s right to a jury trial guaranteed by the United States Constitution. See Capital Traction Co. v. Hof, 174 U.S. 1, 43 L. Ed. 873, 19 S. Ct. 580 (1899).
A court may refuse to accept a jury’s finding of damages in a personal injury case if, in the light of the evidence, the amount is either so high or so low as to shock the conscience of the court. Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 299-300, 672 P.2d 1083 (1983); Smith v. Newell, 210 Kan. 114, 117, 499 P.2d 1112 (1972). The court, in such a case, may offer the affected party the opportunity to accept a damage verdict more in line with the evidence. If the party consents to the altered verdict, the party loses the right to appeal as to the amount of damages. If the party refuses to accept the altered verdict, the court may order a new trial, in which the party again faces the court’s discretion to refuse to order damages in the amount found by the jury. See Thurman v. Cundiff 2 Kan. App. 2d 406, 580 P.2d 893 (1978), for a discussion of the court’s power.
The court’s right to refuse to accept a jury’s finding of damages in a personal injury case is not unlimited. By enacting 1901 General Statutes § 4755 the legislature exercised its power to divest the court’s common-law authority to grant a new trial when the court deemed a jury’s verdict inadequate. The repeal of that provision in the 1904 version of the code was interpreted by this court as recognition by the legislature that the question of inadequacy of a jury’s verdict is a proper ground for the courts to grant a new trial. Sundgren v. Stevens, 86 Kan. 154, 119 Pac. 322 (1911). We have held that a jury verdict on damages, which is deemed to be grossly inadequate by the trial court, may constitute a basis for the granting of a new trial in the absence of a statute to the contrary. Levy v. Jabara, 193 Kan. 595, Syl. ¶ 1, 396 P.2d 339 (1964); Henderson v. Kansas Power & Light Co., 188, Kan. 283, 362 P.2d 60 (1961). In both cases we acknowledged the right of the legislature to exercise its power. We recognized that these legislative rules may be hard, and in some cases may produce injustice, but that is a consideration to be addressed to the lawmakers and not to the law interpreters. See Railway Co. v. O’Neill, 68 Kan. 252, 256-57, 74 Pac. 1105 (1904).
From 1923 until 1964, issues of remittitur were decided under G.S. 1949, 60-3004, which read, “In cases tried by a jury the court, with the consent of the prevailing party, may reduce the verdict by such part as is not warranted by the evidence and render judgment for the residue, or grant a new trial when justice requires it.” The statute precluded remittitur without the plaintiffs consent. Lacking consent, the court’s authority was limited to the granting of a new trial. See McAlister v. McNown, 174 Kan. 608, 611-12, 258 P.2d 309 (1953).
When the new code of civil procedure became effective on January 1, 1964, there was no statute corresponding to G.S. 1949, 60-3004 expressly granting the authority of remittitur to the Kansas courts, and contrary to our pronouncement in McAlister, we exercised our power to directly reduce a jury award of damages without giving the affected party the opportunity to elect a new trial. See Rooks v. Brunch, 202 Kan. 441, 449 P.2d 580 (1969). In 1976, however, we held that substitution of the judgment of the court for that of the jury on damages without the consent of the affected party violates the 7th Amendment to the United States Constitution. See Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 276, 553 P.2d 254 (1976) (disapproving Rooks v. Brunch, 202 Kan. 441).
Both jury awards for noneconomic loss and the question of whether a court will exercise its power to grant a remittitur are unpredictable. Because of their nature, it is difficult to foresee the amount of noneconomic or punitive damages which will be awarded by a jury or remitted by a court.
In Smith v. Newell, 210 Kan. at 117-18, we commented on the disparity in views on proper damages between liberal and conservative judges as one reason that the jury, with its greater likelihood of reaching a community consensus, should be upheld in its determination of damages in all but the most exceptional cases. Setting a cap on the maximum award of noneconomic damages would do away with variations in the award of damages above a certain level and meet the desired objective of limiting variations from court to court. The mandatory language of 60-19a01 and -19a02, while protecting defendants from liberal juries and judges, also protects plaintiffs from conservative trial judges.
Equal protection requires that those who are injured by another’s negligent act have an equal right to compensation regardless of any classification the legislature attempts to impose. Farley v. Engelken, 241 Kan. at 680 (Lockett, J., concurring). The right is not unlimited. The legislature may deprive a class of individuals of their right to a jury trial, the right to recover noneconomic loss, and the right to recover full compensation for injuries suffered if the injured class is relieved of the burden of proving fault on the part of the wrongdoer and receives a more certain and speedy recovery. See Rajala v. Doresky, 233 Kan. 440. Without altering the individual’s right to a jury trial, the legislature may limit recovery of noneconomic losses by providing a sufficient quid pro quo for the limitation. Manzanares v. Bell, 214 Kan. at 599. The legislature cannot restrict the jury’s right to determine the loss or place a statutory limitation on the recovery of economic and noneconomic loss only on the victims of malpractice. Malpractice Victims, 243 Kan. 333.
If the Kansas Constitution prohibits the legislature from modifying an injured party’s right to a jury trial and from limiting recovery for economic or noneconomic losses when deciding Malpractice Victims, this court would have been required to declare the Workers Compensation Act and the Kansas Automobile Injury Reparations Act unconstitutional. We did not. Because we did not, we must now adhere to the doctrine of stare decisis. In the past, we have recognized that the legislature, under its power to act for the general welfare, may alter common-law causes of action and constitutional rights if it provides an adequate quid pro quo. If that determination of the legislature’s power is wrong, substantial justice is better promoted by adhering to that erro neous decision than by overthrowing the rule established. See Weaver v. Bank, 76 Kan. 540, 540-45, 94 Pac. 273 (1907).
Neither K.S.A 1988 Supp. 60-19a01 nor -19a02 alter the right of the plaintiff to a civil jury trial or deprive the injured party of the right to a jury to determine and award all economic damages required to return the injured party to the party’s prior economic status. K.S.A 1988 Supp. 60-19a01 and -19a02, while taking away a plaintiffs right to receive noneconomic losses in excess of $250,000, also insure the injured plaintiff that the court will not exercise its discretion to award less than $250,000 when higher damages are awarded by the jury. The statutes do provide a quid pro quo to the individual whose jury awards damages for pain and suffering or noneconomic loss that exceed the cap.
The statute is a cap only on noneconomic damages and does not limit the court’s power to reduce any other portion of the award it deems excessive. The duty of a court to protect parties from unjust verdicts arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any other violation of their lawful rights in the conduct of the trial is still maintained. Pleasants v. Fant, 89 U.S. 116, 121, 22 L. Ed. 780 (1875).
Denying those with the greatest pain and suffering a full remedy in order to ease insurance rates for those who cause injury was considered and approved by a majority of the legislature. The legislature is aware that the cap on noneconomic loss will affect the right to recover by those most severely injured in Kansas. See testimony of Legislative Chairman of the Kansas Bar Association to the House Judiciary Committee, Mar. 3, 1987. Laws that restrict those who suffer the greatest pain, mental anguish, and disfigurement from a case-by-case determination of individual damages by jury are harsh. However, our determination is that, under proper circumstances, the legislature may limit recovery of noneconomic losses of those individuals whose quality of life has been most affected.
To be consistent with our prior decisions in Rajala v. Doresky, 233 Kan. 440 (upholding the Workers Compensation Act); Manzanares v. Bell, 214 Kan. 589 (upholding the Kansas Automobile Injury Reparation Act, K.S.A. 1988 Supp. 40-3117); and Malpractice Victims, 243 Kan. 333 (invalidating the legislative caps placed on the recovery of losses in medical malpractice actions), the answer to the certified question is that K.S.A. 1987 Supp. and 1988 Supp. 60-19a01 and K.S.A. 1988 Supp. 60-19a02 do not violate § 5 (right to a jury) or § 18 (right to due course of law for injuries suffered) of the Kansas Bill of Rights. | [
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The opinion of the court was delivered by
Six, J.:
The issue in this criminal appeal is whether the State breached its plea agreement with defendant Tyrone Crawford.
We hold that no breach occurred and affirm the sentence imposed.
Facts
The facts are not in dispute. Crawford was originally charged with one count of aggravated kidnapping, two counts of rape, one count of aggravated robbery, and one count of aggravated burglary. The charges stemmed from an incident in which two men broke into the home of an elderly Topeka woman, stole her purse and jewelry, and forced her at gunpoint into her car. The woman was raped once in the car by one of the intruders, whom she later identified as Crawford. After a long drive, the woman was taken to a basement. Her arms, legs, and mouth were taped with duct tape. The woman was held in the basement for approximately 20 hours, during which time the same man, whom she again identified as Crawford, raped her a second time. The following evening, the two men placed her in the trunk of her car, drove to a remote location near Clements, Kansas, and left the woman along a country road. Her car was later recovered in Wichita.
The basement in which the woman was held was later identified through a Crime Stoppers tip. Crawford was linked to the crime through the identification of the basement and an interview with the people who rented the house where the basement was located. Although the woman was not wearing her glasses when the two men abducted her and her head was covered with a towel during most of her ordeal, she testified at the preliminary hearing that she was able to see the man who held the gun to her head and raped her on different occasions. She positively identified that man as Crawford.
Crawford was bound over for trial and subsequently entered into plea negotiations with the State. At the plea hearing the prosecutor described the plea agreement that had been reached:
“As a result of our negotiations, the State would move to dismiss all charges except Counts 1 and 4, Count 1 is Aggravated Burglary, a C felony, Count 4 is Rape, a B felony. It is my understanding the defendant will enter a plea to Counts 1 and 4 of the Complaint. In addition to that, the State will not request imposition of the Habitual Criminal Act, and we would note for the Court that the provisions of the Mandatory Handgun or Firearm Sentencing statute would not apply in this case. The State will not oppose these two sentences running concurrently internal, one with the other, in regard to the minimum and maximum ends of the sentencing spectrum. Of course, I have provided the Court with a note on that earlier in regard to the top end or maximum end of the sentences in each of these cases. The State would not request over twenty years on the top end of the sentencing. In regard to the minimum end of the spectrum, the State would not request a set time in regard to the minimum end of the sentencing spectrum. In addition to which the State would reserve the right to present comment concerning the factors under the sentencing statute, K.S.A. 21-4606.” (Emphasis added.)
Crawford pled no contest to the aggravated burglary and rape charges. He agreed that the evidence presented at the preliminary hearing was sufficient to establish a factual basis for the crimes charged. The court advised Crawford of his right to a jury trial, his privilege against self-incrimination, and his right to confront the witnesses against him. The court also advised that, by pleading no contest, Crawford was giving up these rights. Crawford was informed by the court of the minimum and maximum sentences for each of the charges and that these sentences were subject to the court’s discretion. Regarding the maximum sentence for the rape charge, the court made the following comment: “The State will not request more than twenty, but it is still up to the Court. That’s what you are saying on the sentencing because this is merely a recommendation.”
At the sentencing hearing defense counsel made the following remarks on Crawford’s behalf:
“The District Attorney offered a plea agreement which he [Crawford] felt [was] in his best interests. He [Crawford] has Your Honor, never admitted to me that he ever committed these offenses which makes it very, very difficult to argue in the sentencing and in the fact that his co-defendant went to trial on basically the same facts and was found not guilty. The other individual that was involved in this received a plea agreement and is now roaming free. Mr. Crawford for his own personal reasons simply did not want to run the risk of having to spend the rest of his life in the jail so he entered into this plea agreement with the criteria for imposing minimum sentences.”
The State commented that, although it was not opposing concurrent sentences and was not requesting a maximum sentence over 20 years, the court should examine the defendant’s prior history, the extent of harm, and whether the defendant intended to harm. Counsel invited the court to look at the sentencing factors in K.S.A. 21-4606(2)(a), (b), and (c). The court made the following statement prior to imposing sentence:
“I’ve never known of a rape that wasn’t brutal and I’ll be quite blunt with you, it is the worst — it is the most terrible crime that I’ve seen based on the affidavit and the statements of the victim in relationship to the testimony given at the preliminary hearing. I have examined the criteria set out in 21-4606 and I understand the defendant’s continual denial in relationship to this act. This was not just an act, this was a series of acts over an extended period of time from the point of being taken by gun point, being put in — to being raped in an automobile, to being put in a trunk, being left 18 hours to be raped again, and then being discarded like a dirty shirt in a field somewhere. The Court was literally outraged by this kind of conduct, it just cannot be. And after careful consideration of all of the factors, review of the presentence report, considering the criteria, understanding the plea negotiations and weighing those which I do consider carefully . . . .”
The court sentenced Crawford to the maximum sentence of 5 to 20 years for aggravated burglary and the maximum sentence of 15 years to life for rape and ordered the sentences to run consecutively.
Breach of the Plea Agreement
Crawford asserts that the State breached its agreement to recommend a maximum controlling term of 20 years and to recommend concurrent sentences on the two charges. The State contends that, because Crawford did not raise this issue before the trial court, it is not properly before this court on appeal. At sentencing, the court asked Crawford if he understood that the court is not bound by the plea bargain and Crawford replied affirmatively.
Neither Crawford nor his attorney objected to the remarks made by the prosecutor at the sentencing. “The defendant cannot raise points on appeal which were not presented to the trial court.” State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986). However, “one who pleads guilty or nolo contendere is not precluded by K.S.A. 22-3602 from taking a direct appeal from the sentence imposed.” State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986).
The scope of review where a defendant appeals from the sentence imposed was stated in State v. Doile, 244 Kan. 493, 503-04, 769 P.2d 666 (1989):
“A sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression, or corrupt motive.”
Crawford argues that the State nullified its own recommendation pursuant to the plea bargain by the prosecutor’s remarks to the court concerning the K.S.A. 21-4606 factors. The State specifically reserved the right to comment on those factors in the plea bargain. At the sentencing hearing the prosecutor made the following remarks:
“Your Honor, in regard to comment by the State, as the Court knows from the record in this case we are not requesting that the Court impose the habitual criminal act. We are further not requesting that the Court impose the mandatory firearms time under the requisite statute because the gun is not applicable in this particular case as we cannot prove which one of those gentlemen who was involved in this was in fact holding a gun as required by statute and case law. Further, we’re not opposing the concurrent sentences and in regard to the maximum end in this case we’re not re questing that the Court impose over 20 years. I think it is however for the Court to look at the factors in K.S.A. 21-4606 including: the prior history and record of the defendant; the extent of harm that the defendant caused in this particular case, which I’m sure the Court can tell from the affidavit was more than substantial; whether the defendant intended that his conduct would cause harm to the victim and society, and certainly there can be no argument that that harm was not intended. The Court should also consider the degree of the defendant’s provocation; the substantial grounds to excuse or justify the defendant’s conduct, whether the victim induced or facilitated the crime’s commission; and whether the defendant can compensate the victim. All those are factors that the Court by statute and by case law ought to look at. I think it’s quite clear the factors d), e), f), and g) under the statute simply have no relevance under our particular set of circumstances here. I think the Court should look at factors a), b), and c): the defendant’s prior history, the extent of harm, and whether the defendant intended to harm. And certainly b) and c) under our circumstances here are the most significant.
“THE COURT: Is there any mitigating circumstances that the State is aware of, and I’ll have Mr. Bandy [defense counsel] give his arguments, that indicate maximum of 20 years or is this just a plea bargain?
“MR. HENDERSHOT [counsel for the State]: That was a plea bargain situation, Your Honor. Those are negotiations. The State is aware of no mitigating circumstances.”
The State fulfilled all of its promises pursuant to the plea bargain. At the plea hearing, the court asked Crawford if the State had correctly represented the contents of the plea bargain or had made any other promise to him. He responded that the contents of the plea bargain were correctly stated and that no other promises had been made to him. Crawford was also informed at both the plea hearing and the sentencing hearing that the court was not bound by the State’s recommendation.
Crawford argues that the State breached its promises to recommend concurrent sentences and a maximum sentence of 20 years by the manner in which the prosecutor commented on the factors set forth in K.S.A. 21-4606 and upon Crawford’s conduct. Crawford cites Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). In Santobello, the defendant was charged with two felony counts. He agreed to plead guilty to a lesser included offense. The prosecutor agreed to drop the two original charges and make no recommendation regarding the sentence to be imposed. By the time the sentencing hearing was held, however, a different prosecutor was assigned to the case. The new prosecutor recommended the maximum one-year sentence. Santobello is distinguishable from the case at bar. The State in Santobello clearly breached one of its promises to the defendant.
In United States v. Benchimol, 471 U.S. 453, 85 L. Ed. 2d 462, 105 S. Ct. 2103 (1985), Renchimol pled guilty to one count of mail fraud. Pursuant to a plea bargain, the government agreed to recommend probation on the condition that restitution be made. Although the government stated the bargained-for recommendation, it “ ‘made no effort to explain its reasons for agreeing to recommend a lenient sentence but rather left an impression with the court of less-than-enthusiastic support for leniency.’ ” 471 U.S. at 455 (quoting the Court of Appeals opinion, 738 F.2d 1001, 1002 [9th Cir. 1984]). The Supreme Court held that it is not necessary for the government to make its recommendation with a certain amount of enthusiasm, nor is it necessary for the government to give its reasons for its recommendation as long as the recommendation agreed upon is given.
The Court in Benchimol distinguished United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977), as a situation in which the prosecutor actually expressed reservations about the recommendation to which the government had agreed. In Grandinetti, the defendant was on probation from a drug-related conviction when he was arrested for counterfeiting. Plea negotiations ensued and Grandinetti agreed to plead guilty to one count, with two other counts being dropped. The prosecutor also promised to recommend five years on the counterfeiting charge, and five years on the violation of probation charge, to run concurrently. Grandinetti was subsequently sentenced to five years for counterfeiting.
At the time of the probation revocation hearing, the government was represented by an attorney other than the one who had negotiated the plea bargain. Upon reviewing the plea agreement, the new government attorney expressed his reservations about the concurrent sentence recommendation to the court. The court ordered the defendant to serve the balance of his previous sentence consecutive to the sentence for counterfeiting. The Court of Appeals said, “The government’s attorney in the case before us was not only an unpersuasive advocate for the plea agreement, but, in effect, argued against it.” 564 F.2d at 727. The court also noted that “[w]hether the prosecutor’s halfheartedness in presenting the recommendation was a factor in the district court’s imposing a sentence more severe than that ‘recommended’ is a matter into which we need not inquire.” 564 F. 2d at 726 (citing Santobello). The Court of Appeals remanded the case for a new revocation hearing before a different district judge.
While principles of contract law cannot be blindly incorporated into the area of plea bargaining, they provide a useful analytical framework. U.S. v. Giorgi, 840 F.2d 1022, 1025 (1st Cir. 1988); United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980), cert. denied 451 U.S. 984 (1981); State v. Smith, 244 Kan. 283, 285, 767 P.2d 1302 (1989). In the case at bar, the State specifically reserved its right to comment on the K.S.A. 21-4606 factors. Crawford was aware that the trial court was not bound by the recommendation of the State. The State did, in fact, make the recommendation that it promised. The comments of the prosecutor did not reach the level of the comments made in Grandinetti. Although the sentences imposed by the trial court were the maximum sentences possible, they were within the statutory limits. The Habitual Criminal Act was not invoked. Crawford did not object to the State’s comments at the sentencing hearing regarding the K.S.A. 21-4606 factors.
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Per Curiam:
This is an original action in quo warranto filed by the State of Kansas (State or petitioner), on the relation of the Attorney General of Kansas, to enjoin and restrain Franklin Dee Williams (respondent) from engaging in the unauthorized practice of law.
The State filed its petition on May 19, 1989, and on the 8th day of June 1989 this court ordered Williams to respond to the petition on or before July 3, 1989. On July 3, 1989, Williams filed a voluminous document which purports to be an answer to the State’s petition and further attempts to assert claims for relief in quo warranto and mandamus and by way of a cross-claim and counterclaim.
On July 13, 1989, the court appointed the Hon. Frederick Woleslagel, district judge retired, as Commissioner to conduct evidentiary proceedings and to make findings of fact and conclusions of law. The order provides:
“NOW, THEREFORE, IT IS CONSIDERED, ORDERED AND ADJUDGED by the Court that Frederick Woleslagel, be and he is hereby appointed Commissioner in the above entitled case to hear and pass on motions, to take testimony, to hear and receive evidence, to make suggested findings of fact and conclusions of law, and to make his report to this Court for its final determination and judgment. And such Commissioner is hereby authorized and empowered to fix the time and place for hearings, to administer oaths, to issue subpoenas for witnesses, to compel the attendance of witnesses, to require the production of any pertinent papers, books, documents and testimony, to cause the depositions of witnesses to be taken if necessary, and to do any and all other things required, so a complete hearing may be had on all pertinent and relevant matters raised, or which may hereafter be raised, by the parties involved in such case; and to rule upon all legal questions presented in connection with any and all such matters.”
The petition of the State alleged that Williams had engaged in the unauthorized practice of law in several district court cases including North Central Kansas Production Credit Association v. Hansen, et al., 85-C-07, Republic County; The Farm Credit Bank of Wichita v. Linn, 88-C-20, Morris County; and Williams v. Postal Savings and Loan Association, 88-CV-528, Shawnee County. It is alleged that in most of his court appearances Williams claims to represent the Kansas Territorial Agricultural Society (KTAS or Society) as an attorney and counselor for the Society. Williams signed pleadings on behalf of the KTAS, issued unauthorized cease and desist orders, and in the Morris County proceedings, examined and cross-examined witnesses. Williams is no stranger to this court, and we can take judicial notice of the fact that he has appeared in various courts of this State purporting to be an attorney and purporting to represent the KTAS and others.
The respondent’s answer, like most of his pleadings, is for all practical purposes unintelligible. The task of the Commissioner, and of this court, was made extremely difficult due to Williams’ lack of any understanding or knowledge of basic legal principles, proper procedure, or the role of an attorney in the American legal system. The Commissioner and this court have been flooded with voluminous, maundering pleadings which defy comprehension and interpretation. The various pleadings of the respondent would appear to assert certain alleged defenses which are totally frivolous and have no basis in law. They include (1) a lack of jurisdiction for the Supreme Court to hear this matter; (2) that Williams is himself the Attorney General of Kansas; (3) that Robert T. Stephan, Attorney General of Kansas, was not properly elected to his office; (4) that Attorney General Stephan and the assistant attorneys general appearing in this case are not entitled to represent the State and are not authorized to practice law; and (5) that Williams is authorized by the charter of the KTAS to represent the Society and appear as an attorney on its behalf.
The Commissioner held a pretrial and discovery conference on September 25, 1989, and an evidentiary hearing on October 25, 1989. Following the October hearing, the parties were granted time in which to file proposed findings of fact and conclusions of law. Thereafter, on December 22, 1989, Commissioner Woleslagel filed his report consisting of findings of fact and conclusions of law and, on January 12, 1990, the respondent filed his exceptions to the Commissioner’s report. In April, the parties presented oral argument to this court and respondent filed a twelve-page written argument to supplement his oral remarks.
A review of the voluminous record reveals that the respondent does not deny that he has engaged in the practice of law without being authorized to do so by the Kansas Supreme Court. He asserts that he derives his authority to practice law and appear as an attorney from the KTAS, which was originally established by 1855 Kansas Territorial Laws, ch. 58, § 1 et seq. Respondent asserts § 1 of the said laws grants the KTAS authority to name persons as attorneys entitled to practice law on its behalf even though such persons are not admitted to practice law by the Kansas Supreme Court. In fact, the language respondent relies upon is found in the by-laws of the KTAS and not in the territorial laws.
Commissioner Woleslagefs report reads:
“FINDINGS OF FACT
“1. This is an original action in quo warranto brought by the State of Kansas (State) on relation of the attorney general alleging that Franklin Dee Williams (Williams) has engaged in the unauthorized practice of law within this state.
“The petition requests this court to issue its order enjoining him from the unauthorized practice of law within the state in appearing as counsel or filing papers for others in any courts thereof, or in so assisting any other unauthorized persons to appear as counsel or file papers for others.
“In its petition, and its petition as later amended, the State asked that the Kansas Territorial Agricultural Society (KTAS) be declared a non-entity and similarly enjoined. During the October 25 hearing, the State withdrew its requests for action against KTAS.
“In his answer consisting of 88 numbered paragraphs and many attachments Williams appeared to deny all or some allegations of the petition. He also gratuitously amended the caption of the case to show that he was ‘Contestee, and Cross-Claimant’ and added ‘ROBERT TAFT STEPHAN; and JOHN AND JANE DOES B to Z’ as third party defendants. No permission has been granted to add any third parties.
“Further, he denied that this court had jurisdiction; he asserted that the attorneys representing the State were not entitled to do so; he alleged that he was the attorney general of this state; he claimed KTAS authority for his action; he counterclaimed and cross-claimed for actual and punitive damages and asked for an order of mandamus against an unnamed ’lower Court Judge.’
“2. Williams started filing pleadings in the District Court of Morris County on March 23, 1989, in Case Number 88-C-20, The Federal Land Bank of Wichita v. J.A. Linn, et al, (the Morris County case) filing 31 pleadings by October 30.
“The nature of the papers filed by Williams is indicated by the following index copied without any editing and with filing dates;
.... [The detailed index of pleadings has been omitted.]
“There was also evidence introduced which suggested that Williams appeared in two other courts on behalf of others. In those instances, however, the evidence was not of sufficient quality to furnish a basis for a finding as to his activity and that evidence was disregarded.
“3. The pleadings were filed on behalf of KTAS or the purported directors or purported members thereof.
“In almost all of the papers filed, the pleader, as identified therein, is KTAS. As the volume of pleadings increased, so did the indicated pleaders. The common variation was to list KTAS and its directors or its members. In three pleadings Williams lists himself as pro se. In one pleading he lists the pleader as the ‘State of Kansas and Franklin Dee Williams by and through himself.’
“In yet another, the pleader became the ‘State of Kansas and the Board of Directors and the intervenors and cross-claimants.’ Notwithstanding the confusion as to the identity of the pleader, the pleadings all bear Williams’ signature and appear to be filed on behalf of KTAS or some of its purported members. When asked by the State during the October 25 hearing to either admit or deny that he prepared these papers, he responded, ‘I could admit to, Your Honor, that I assisted with that that he read.’ (Rec. Vol. 2, page 142.)
“4. In the Morris County case Williams, in the position of representing KTAS, engaged in oral arguments, presented exhibits, and engaged in direct and cross-examination of witnesses.
“At the October 25 hearing, when asked by the State if he had done so, he responded, ‘Yes, I think I can admit that, Your Honor.’ (Rec. Vol. 2, page 147.)
“5. Unless the KTAS has furnished Williams the right to practice law, he came forward with no license or other authorization to practice law in the Morris County Case.
“In response to the State’s questions if he had a license to practice law issued by any state or federal jurisdiction Williams responded, ‘Well, the Charter [of KTAS] issues the same license ...” When asked if he had any license ‘other than the Charter’ he said, T believe the answer to that is probably no.’ (Rec. Vol. 2, page 171.) In answer to other questions he admitted he was not a graduate of an accredited law school, was not a legal intern under Kansas Supreme Court Rule 709 [1989 Kan. Ct. R. Annot. 328], not in possession of any temporary authority, and never had any certificate to practice law issued by the Clerk of the Kansas Appellate Courts. (Rec. Vol. 2, pages 172-73.)
“CONCLUSIONS OF LAW
“A. Except for his claim of KTAS authorization to appear as counsel, his defenses to this action are frivolous.
“In the answer he filed in this case, Williams took the position that he had never engaged in the unauthorized practice of law. Except for his claim that he was authorized by the Charter of KTAS, he has failed to suggest any authorization to so practice. To the contrary, he attempts to defend this action by allegations noted earlier that: (1) The Supreme Court does not have quo warranto jurisdiction; (2) he is, himself, the Attorney General of Kansas and is denied his office space; (3) neither Steve. A. Schwarm nor Daniel P. Kolditz, counsel for the State in the September 25 and October 25 hearings, nor Robert T. Stephan nor John W. Campbell, whose names appear as signers of the petition herein, are entitled to act in this case because they are not ‘electors,’ and because Mr. Stephan was not elected attorney general; (4) he states that he counterclaims and cross-claims; and (5) he wants a mandamus order against an unnamed judge.
“Addressing this group of asserted defenses in reverse order, no facts are stated which would support a mandamus order against any judge, were he identified — which he is not — and were any judges parties to this action— which none are.
“The counterclaim was dismissed at the October 25 hearing because he stated no facts to support a claim against the State. At the same hearing, the cross-claim was dismissed because Williams is the only respondent. Additionally, he stated no facts to support a claim against anyone.
“As to his assertions relating to attorneys in the attorney general’s office, I take judicial notice of the records in the office of the clerk of this court and note that they are all licensed to practice law in this state. As to Mr. Stephan, individually, I take judicial notice of the records in the office of The Secretary of State and notice that he received the highest number of votes cast for the Office of Attorney General in the November 4, 1986, election for a 4-year term, which determination is supported by an Election Certificate issued by the State Board of Canvassers, together with judicial notice that the office of Clerk of the District Court of Shawnee County does not have any record of a contest of the election relative to the Office of Attorney General. I thus conclude that Mr. Stephan is attorney general.
“Turning now to Williams’ claim to that office, the Kansas Constitution, Article 1, Section 1, and K.S.A. 25-702 speak of only one attorney general. If Mr. Stephan is attorney general, Mr. Williams is not.
“Next, as to jurisdiction of this court in a quo warranto case, I believe that Williams’ progress in the Morris County case was not always smooth and at one point he countered a position being taken by the trial judge by claiming that the district court lacked jurisdiction of an issue because a quo warranto action [this action] had been filed in the Supreme Court of Kansas. However right or wrong that may have been, this court is granted original jurisdiction by Article 3, Section 3 of the Constitution of the State of Kansas and by K.S.A. 60-1202, a statute providing that quo warranto will lie when ‘any person shall . . . claim any franchise within the state . . .’(Emphasis added.)
“As early as 1953, this court held that an original action in the nature of quo warranto may be commenced therein ‘to determine if [individuals] have been exercising the privilege and franchise of practicing the learned profession of the law, and if so to oust and enjoin them therefrom.’ (Emphasis added.) State, ex rel. v. Schmitt, 174 Kan. 581, 582, 258 P.2d 228 (1953). Since the word ‘privilege’ was, on the same page, twice conjoined with the statutory word ‘franchise,’ it appears the joining was intended. Schmitt has not been overruled or modified. Jurisdiction exists.
“It follows that there is no merit in any of this group of claimed defenses, and it brings to mind a common legal phrase — common, at least, many years ago: ‘This case just bristles with defenses.’ To mind also comes the remembrance that the phrase was most often used when there were none.
B. Neither the Kansas Constitution, statutory law, Supreme Court Rules nor court decisions provide a defense for Williams.
“Turning, for the moment, to whether he had defenses he failed to assert, the answer is negative.
“The Kansas Supreme Court ‘has the inherent power to prescribe conditions for admission to the bar, and to define, supervise, regulate and control the practice of law’ under Article 3, Section 1 of the Kansas Constitution. State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 1036, 686 P.2d 171 (1984), citing Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960). While there are statutes that relate to legal practice (see e.g. K.S.A. 7-126, codification of rules relating to admission of attorneys; and K.S.A. 7-104 relating to out-of-state attorneys), the body of Kansas law applicable here comes from our Rules or from court decisions.
“For examples, State, ex rel. v. Hill, 223 Kan. 425, 573 P.2d 1078 (1978), was a case relating to the broad scope of what acts may be considered as unauthorized practice of law.
“In State ex rel. Stephan v. Adam, 243 Kan. 619, 623, 760 P.2d 683 (1988), the Kansas prerequisites for practicing law are (save for out-of-state attorneys) set forth. The categories are:
“The Supreme Court recognizes four categories of individuals who may appear in the courts of this State: (1) Members of the bar who have shown that they possess good moral character and a requisite general education and who have been examined by the Board of Law Examiners and issued their licenses to practice law; (2) individuals who have graduated from an accredited law school and have a temporary permit to practice law; (3) legal interns who are law students who are assigned to attorneys, agencies and public bodies who have requested their service and who agree to assign members of the bar to supervise and be responsible for the activities of the legal intern; and (4) non-lawyers, who may represent only themselves, and not others.’ (Emphasis added.)
Williams does not fall within any category.
C. KTAS provides nothing by way of defense for Williams’ actions.
“The claim that Williams repeatedly makes here (and which he repeatedly made in the Morris County case) is that he is authorized to act as counsel in the courts by the KTAS Charter. It seems that he has a belief that the KTAS Charter is grandfathered into and supersedes the Constitution of Kansas, statutes, court rules, and court decisions. There are, however, many reasons that he is mistaken in his opinion.
“The simplest reason he is misguided is the language he relies upon is not in the Charter. He understands that KTAS provided that counselors could perform their business either with, or without, a license. His mistake is that the provision is in the by-laws and not in the Charter. By-laws do not bind third parties such as the State of Kansas which did not assent to them. They bind only assenting members. Radio Station KFH Co. v. Musicians Ass’n Local No. 297, 169 Kan. 596, 602, 220 P.2d 199 (1950).
“KTAS was created by the Kansas Territorial Legislature by its Special Laws of 1855, Chapter 58, pages 834-36 as an aid to agriculture pursuits and was to have ‘perpetual succession.’ One legislature, however, cannot bind a later legislature. Board of Education v. Phillips, 67 Kan. 549, 552, 73 Pac. 97 (1903).
“In its same session, moreover, the territorial legislature passed General Laws of 1855, containing the provision in Section 1 of Chapter 11 that ‘no person shall practice as an attorney or counsellor at law, or solicitor in chancery, in any court of record, unless he be a free white male, and obtain a license from the supreme court or district court, or someone of the judges thereof, in vacation.’ Thus, the permissive by-law Williams relies upon was contrary to the law of the Territory of Kansas. Going a step further in time, except boundary laws, all acts passed before January 1, 1857, were repealed by the 1859 Territorial Legislature in its Territorial General Laws, Chapter 89, pages 544-46.
“In 1862, after Kansas was accepted into the Union, our state legislature created the State Agricultural Society whose scope of designated activity closely paralleled that of KTAS. As set out in The State of Kansas ex rel. v. Studt, 31 Kan. 245, 246, 1 Pac. 635 (1884), if it plainly shows that the new act was intended as a substitute for the first act, ‘it will operate as a repeal of that act.’ See e.g. Howard v. Hulbert, 63 Kan. 793, 66 Pac. 1041 (1901).
“If more is needed to show that the special act of the 1855 legislature was repealed, that is provided by Chapter 144 of our laws of 1923, which repealed statutes not referenced in the revised statute. The KTAS legislation was not referenced. This claim made by Williams, just as all of his other claims, has no merit.
“The State has proven Williams engaged in acts which constitute the unauthorized practice of law. I suggest that this court should issue its order enjoining Williams from any further unauthorized acts as requested by the State in its petition.
/s/ Frederick Woleslagel_
Frederick Woleslagel
Supreme Court Commissioner.”
We concur with and adopt Commissioner Woleslagel’s findings of fact, conclusions of law, and recommendation to permanently enjoin the respondent from the unauthorized practice of law in Kansas. In doing so, we deem it advisable to comment briefly on the facts and issues in this case.
In determining what constitutes the “practice of law” no precise, all-encompassing definition is advisable, even if it were possible. Every matter asserting the unauthorized practice of law must be considered on its own facts on a case-by-case basis. In State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974), we stated:
“Although it may sometimes be articulated more simply, one definition [of “practice of law”] has gained widespread acceptance, and has been adopted by this Court:
“A general definition of the term frequently quoted with approval is given in Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836, as follows:
‘As the term is generally understood, the practice of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.’ State, ex rel., v. Perkins, 138 Kan. 899, 907, 908, 28 P.2d 765 (1934).
The court, in Perkins, also pointed out that ‘[o]ne who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.’ 138 Kan. at 908. The quotation from the Eley case has been adopted as the general rule in 7 C.J.S., Attorney and Client, § 3g (1937).
“A more recent source defines the practice of law as ‘the rendition of services requiring the knowledge and application of legal principles and technique to serve the interests of another with his consent.’ R.J. Edwards, Inc. v. Hert, 504 P.2d 407, 416 (Okla., 1972).
“It is clearly the prerogative of the Supreme Court to define the practices of law:
It is unnecessary here to explore the limits of judicial power conferred by [Article 3, Sec. 1, of the Kansas Constitution], but suffice it to say that the practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to regulate the practice naturally and logically belongs to the judicial department of the government. (In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A.L.R.. 151.) Included in that power is the supreme court’s inherent right to prescribe conditions for admission to the Bar, to define, supervise, regulate and control the practice of law, whether in or out of court, and this is so notwithstanding acts of the legislature in the exercise of its police power to protect the public interest and welfare. (Martin v. Davis, 187 Kan. 473, 478-79, 357 P.2d 782 (1960.)
See, In re Hanson, 134 Kan. 165, 170, 5 P.2d 1088 (1931); State v. Rose, 74 Kan. 260, 85 Pac. 803 (1906); and State v. Blase, 208 Kan. 969, 494 P.2d 1224 (1972).” 214 Kan. at 9-10.
In State, ex rel., v. Perkins, 138 Kan, 899, 28 P.2d 765 (1934), the attorney general filed an original action in quo warranto to enjoin the defendant from the unauthorized practice of law in Kansas. We held:
“This court has constitutional, statutory and inherent jurisdiction to inquire by what authority one assumes to practice law in this state and to make appropriate orders relating thereto. A proceeding in the nature of quo warranto by the state on the relation of the attorney-general is appropriate for that purpose.” Syl. ¶ 2.
“In the interpretation of the laws and the administration of justice it is essential that there be members of the bar of ability, adequate learning and sound moral character. One of the important functions of this court is to admit only such persons to the practice of law, to suspend or expel those found unworthy, and to prevent the practice of law by unauthorized persons.” Syl. ¶ 3.
In the instant case, the respondent does not deny that he has signed pleadings in various lawsuits in the district courts of this state, that he has assisted others in preparing pleadings, that he has appeared on behalf of others at hearings in court, that he has examined witnesses, and that he has attempted to perform the services of an attorney. His explanation of his actions is that he is authorized to act as an attorney by the KTAS.
Whatever else may be said about the present status of the Kansas Territorial Agricultural Society, it is not a corporation or entity established by statute. We agree with Commissioner Woleslagel that whatever status was given the KTAS by the 1855 Territorial Statutes has long since been abolished by subsequent acts of the legislatures of the Territory of Kansas and the State of Kansas. The KTAS is not incorporated under the laws of the State of Kansas and has no legal existence as a corporate entity. At best, the KTAS, if it exists at all, is a voluntary unincorporated association of individuals without separate legal status. In any event, it can only be represented in Kansas courts by a duly licensed attorney admitted to the practice of law in Kansas by order of this court.
In Clean Air Transport Systems v. San Mateo County Transit Dist., 198 Cal. App. 3d 576, 243 Cal. Rptr. 799 (1988), the California court reasoned that “an unincorporated association resembles a corporation more than it does an individual” and thus the rule that a corporation cannot appear in court without a licensed attorney applies to unincorporated associations. 198 Cal. App. 3d at 578-79.
In State v. Settle, 129 N.H. 171, 523 A.2d 124 (1987), the New Hampshire court determined that a statute authorizing a party to appear “in his proper person” refers to self-representation and does not permit an individual to represent an incorporated or unincorporated association. 129 N.H. at 176. The court also referred to “centuries of historical precedent” and the “overwhelming weight of authority to this day” establishing that a corporation must be represented by an attorney and determined that the same rules apply to unincorporated associations. 129 N.H. at 176-77. See also James D. Pauls, Ltd., v. Pauls, 633 F. Supp. 34 (S.D. Fla. 1986), where the court held that the general partner of three limited partnerships, who was not an attorney, could not represent the partnerships.
The KTAS does not now have, and never has had, the power to authorize a nonattorney to practice law in Kansas. The authority to admit a person to the bar of Kansas and to authorize the practice of law in Kansas is vested solely in the Kansas Supreme Court.
While respondent may appear in court on his own behalf when he is a named party to pending litigation, he has no right, franchise, or authority to appear for or on behalf of any other person or entity. Nor does he have the right to give legal advice to any other person or entity not admitted to the practice of law, or to assist any such person or entity in any matter requiring legal knowledge and training. While we do not doubt the respondent’s sincerity in his beliefs, we cannot condone his actions in asserting his totally unfounded claims that he is authorized to practice law and that he is the Attorney General of Kansas.
The beliefs, allegations, and actions of the respondent might be considered inconsequential, or even comical, if not so serious in their results. Respondent has not only delayed and hindered the courts of this state in their efforts to properly administer the laws and conduct legal proceedings, he has also taken it upon himself to counsel and advise innocent citizens as to their legal rights with absolutely no understanding, training, or knowledge in the law or legal principles pertaining to their problems. Individuals and other entities, including the KTAS, may have been irreparably damaged by the loss of legal rights which might have otherwise been preserved except for reliance upon the legal advice and attempted legal representation of Williams. It is for these very reasons that the Supreme Court of Kansas and the courts of every state in the United States require every person who seeks to practice law to obtain proper training and education. We conclude that Williams has been actively engaged in the unauthorized practice of law and that the relief sought by the State of Kansas should be granted.
In closing, we wish to commend Commissioner Woleslagel for his patient, understanding, and professional handling of an extremely difficult task. He has gone to every extreme to assure that the respondent received all the safeguards of due process of law and has extended to respondent every opportunity and leeway to present evidence and propound his views under the most trying and frustrating circumstances.
One final matter remains. The respondent, in direct violation of prior orders of the Commissioner, prepared, signed, and filed frivolous pleadings, and the State has asked that we impose monetary sanctions against the respondent pursuant to K.S.A. 1989 Supp. 60-211. The Attorney General asserts that he and his staff were required to expend numerous hours in preparing a response to such pleadings and asks that the State of Kansas be reimbursed for such expense and time. While we are of the opinion that the imposition of sanctions in this case would certainly be justified, we decline to do so at this time due to our belief that Williams’ actions, while totally frivolous and contrary to law, were sincerely pursued by Williams through ignorance and misunderstanding of the laws of Kansas.
It Is Therefore Ordered that Franklin Dee Williams be and he is hereby permanently enjoined from the unauthorized practice of law in the State of Kansas including, but not limited to, the unauthorized practice of law in any and all judicial districts and courts in the State of Kansas; appearing in any representative capacity, counseling capacity, or other similar role to assist non members of the bar of the State of Kansas in the presentation of any matters in the courts of the State of Kansas; preparing or filing in any district or appellate court in this state, for or on behalf of another, any pleading or document; appearing for or representing another in any manner in any action or proceeding pending in any district or appellate court in this state; and counseling or advising any nonmember of the bar of the State of Kansas on any legal matter whatsoever.
It Is Further Ordered that the respondent, Franklin Dee Williams, shall forthwith pay the costs of this action to the Clerk of the Appellate Courts.
It Is Further Ordered that any violations of the orders of this court by Franklin Dee Williams shall constitute contempt of court and shall subject Franklin Dee Williams to the sanctions provided by law, and such sanctions may be imposed by any court in which such violations occur.
It Is Further Ordered that the Clerk of the Appellate Courts and the clerks of the district courts of the State of Kansas shall refuse to receive and file any pleadings signed or prepared by Franklin Dee Williams in any proceedings except when he is a named party and the pleading or document is submitted solely on his own behalf. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the City of Wichita (City) from the district court’s holding that an ordinance enacted by the City to regulate erotic dance studios was void because it was unconstitutionally vague.
The defendant, Bobbie L. Wallace, was found guilty in Wichita Municipal Court of operating an exotic dance studio between midnight and 6:00 a.m., in violation of Wichita, Kan., Code § 3.06.140 (1987). Defendant filed a timely notice of appeal to Sedgwick County District Court. The parties stipulated to the following facts, which were the basis for the district court’s decision:
“1. Bobbie L. Wallace, the Defendant, operates a business within the corporate limits of the City of Wichita, specifically located at 1021 Maple, Wichita, Sedgwick County, Kansas.
“2. A portion of the building described in No. 1 above is licensed by the Defendant as a ‘drinking establishment’ pursuant to the laws of the State of Kansas and Title 4 of the Code of the City of Wichita, Kansas.
“3. Another portion of the building described in No. 1 above occupies a ‘private club,’ or ‘pop shop,’ where live nude and/or topless dancing is offered for amusement.
“4. Membership in the ‘private club’ is open to any person or persons 21 years of age or older who do not identify themselves as a police officer and who pay a $1.00 lifetime membership fee.
“5. Customers of the drinking establishment are solicited to become members of the ‘private club’ by the Defendant and persons employed by the Defendant.
“6. The Defendant obtained a license from the City to operate an ‘erotic dance studio,’ pursuant to Chapter 3.06 of the Code of the City of Wichita, Kansas, at the location identified in No. 1 above, on or about December 31, 1987.
“7. The Defendant employs the individual entertainers in her drinking establishment as dancers in the ‘pop shop.’
“8. There is no limit to the number of members who can join the ‘private club.’ '
“9. During the solicitation for membership, customers are told that the ‘pop shop’ is a ‘part of the business.’
“10. Membership rules, if any, are established by the Defendant, Bobbie L. Wallace.
“11. Membership is granted by the issuance of a paid receipt with the Defendant’s name stamped on its face.
“12. Proof of age, the payment of the $1.00 fee, and a negative response to questions concerning whether the applicant is a police officer result in the immediate issuance of a membership receipt.”
The district court found that defendant had standing and that the business was open to the public. In addition, the court found that the City had the authority to enact an ordinance for the purposes set out therein, to set forth procedures to obtain a license, and to regulate the times such establishments could be open, requirements concerning tips, and placement of a stage. The court, however, found the ordinance unconstitutionally void for vagueness, stating:
“5. On its face, the language referring to the City Council, ‘if they approve the same, shall issue a license to the applicant’ appears to give unrestricted discretion to the City Council as to which individual shall receive a license. If that construction is given this ordinance is void on its face because no such power could exist in the City Council. If the ordinance were not otherwise infirm, the Court having an obligation to construe legislation in a constitutional fashion, if possible, could construe this language to mean that any applicant who met the qualification would receive a license. A decision on that issue is not reached because the ordinance does not inform the person subject to its penalties what conduct will be penalized. When persons of common understanding must guess what . . . conduct is prohibited the enactment is void for vagueness. When one refers to the conduct which is being licensed that is where the infirmity appears.”
The ordinance sought to regulate erotic dance studios by requiring such establishments to be licensed as follows:
“License Required. It is unlawful for any person, whether as principal, officer, agent, servant or employee:
“(a) To conduct business in or operate an erotic dance studio without having first obtained a license;
“(b) To fail to comply with all regulations provided in this chapter.” Wichita, Kan., Code § 3.06.020.
The license is to be issued for a particular premises and is valid for a period of one year. Wichita, Kan., Code § 3.06.020. To obtain a license, a person must apply, providing name and residence, place of business, name of the owner of the premises, and names and addresses of all persons having a financial interest in the place. Wichita, Kan., Code § 3.06.040. The application must be accompanied by a license fee as required by § 3.06.030 of the Code. The chief of police is required to investigate the applicant. Wichita, Kan., Code § 3.06.040. A photograph of the applicant must accompany the application. Wichita, Kan., Code § 3.06.050. Employees of such establishments are also licensed and must provide similar information. Wichita, Kan., Code § 3.06.160.
The city council reviews the application and makes a decision about whether to issue or deny the license as follows:
“If the application for a license is in proper form and accompanied by the license fee as provided in Section 3.06.030, the City Council members shall examine the application and, after examination of the application, the City Council members, if they approve the same, shall issue a license to the applicant . . . .” Wichita, Kan., Code § 3.06.060.
The ordinance then contains four limitations on the issuance of a license, which include provisions concerning prior convictions involving moral turpitude, and the requirements of copartnership, a corporation, or a manager/agent. Wichita, Kan., Code § 3.06.060(a) through (d). None of these four exceptions is discussed in the record and therefore do not appear to be applicable to the case at hand.
The first section of the ordinance defines words or terms used therein. Three of the four set out in the ordinance are relevant to a decision of the issues raised in this appeal, and provided as follows:
“ ‘EROTIC DANCE STUDIO’ means any place of business, or ‘pop shop’ open to the public, whether or not a cover charge is assessed, which emphasizes and presents live nude entertainment. Live entertainment includes but is not limited to, nude dancing and topless dancing.
“ ‘ENTERTAINMENT’ means any live exhibition, performance, display or dance of any type, removal of articles of clothing or appearing unclothed, pantomime, modeling or other personal service offered for amusement.
“ ‘NUDE’ means any state of undress in which the human genitals, pubic region, buttock or female breast at a point below the top of the areola, is less than completely and opaquely covered.”
There were three hearings conducted in this case. At the first hearing, the court noted that defendant had standing to object to the enforcement of the ordinance against her. The court also noted that the ordinance appears to give the City unrestricted discretion as to whether to grant the license, which would make the ordinance invalid. Recognizing the requirement to construe the ordinance constitutionally, if possible, the court construed the ordinance to require the City to issue a license to anyone who qualifies under the licensing provisions.
The court noted that the City has a right to zone and determine where businesses will be conducted, the authority to regulate hours of closing in certain businesses for the good of the peace and quiet of the neighborhood, and the authority to regulate the sale and consumption of alcoholic liquor. The court noted, however, that the regulation of entertainment conflicts with First Amendment rights of freedom of expression, which have been held to include nudity. The court then asked the attorneys to brief the question of whether the ordinance was void for vague ness because of the possibility that people would have to guess about whether their conduct would come under the provisions of the ordinance.
At the second hearing, the court noted that the failure of the ordinance to require the element of scienter contributed to the court’s concern that the ordinance was void for vagueness.
At the third and final hearing, the court expressed its concern that the definitions contained in the ordinance would apply to classical plays as well as performers in a musical play such as “Hair.” When the city attorney responded that if “Hair” was to be performed, the issue would be whether the theatrical presentation emphasized and presented live nude entertainment. The court responded that this play surely did involve nudity: “The whole cast is completely nude.” The court concluded that the ordinance did not contain language that informed licensed operators and licensed entertainers about what conduct they might or might not do, and found the ordinance void because it lacked a standard enabling the licensees to know whether their conduct was covered. The court dismissed the charges against defendant and the City appealed.
The issue on appeal is whether the ordinance enacted by the City of Wichita to regulate erotic dance studios is void because it is unconstitutionally vague. The City first argues that the trial court did not apply the appropriate standard in reviewing the constitutionality of this ordinance and directs this court’s attention to Moody v. Board of Shawnee County Comm’rs, 237 Kan. 67, 697 P.2d 1310 (1985). That case involved a declaratory judgment action to challenge the constitutionality of a Shawnee County resolution regulating “adult entertainment studios.” This court stated the principles and guidelines involved in determining the constitutionality of enactments, whether by statute, city ordinance, or county resolution, as follows:
“The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt. The propriety, wisdom, necessity and expediency of legislation are exclusively matters for legislative determination. Courts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute to be in the public interest; what the views of the members of the court may be upon the subject [are] wholly immaterial. It is not the province nor the right of courts to determine the wisdom of legislation touching the public interest, as that is a legislative function with which courts cannot interfere. See State v. Rose, 234 Kan. 1044, 1045, 677 P.2d 1011 (1984); State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983); and City of Baxter Springs v. Bryant, 226 Kan. 383, 385-86, 598 P.2d 1051 (1979).” 237 Kan. at 74-75.
The trial court here appreciated the need to construe the ordinance as constitutionally valid, if possible. After voicing its concern that the ordinance appeared to give the City unlimited discretion to grant or deny a license, which would violate due process, the court decided that the ordinance could be construed to require the City to issue a license to anyone who qualified under the ordinance. The court repeatedly recognized the legitimate purposes the City sought to achieve in enacting the ordinance, but concluded that the language used to specify the proscribed activities was not adequate to provide notice of the conduct being prohibited. The City has made no showing that the trial court ignored the principles and guidelines set out in Moody or applied an inappropriate standard.
The City next contends that the court erred in finding that the ordinance failed to adequately define the proscribed conduct. The trial court found that the City of Wichita ordinance enacted to regulate erotic dance studios was void for vagueness because it did not adequately inform persons subject to its penalties of the conduct that would be penalized. The void-for-vagueness analysis is based upon a due process requirement that a criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). The United States Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), stated:
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to’ “steer far wider of the unlawful zone” . . . than if the boundaries of the forbidden areas were clearly marked.’ ”
This court has also discussed the rules regarding vagueness, stating:
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.” State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
This court has recognized that the standards of certainty in a statute punishing criminal offenses are higher than those depending primarily upon civil sanction for enforcement. State ex rel. Murray v. Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 (1982). Furthermore, when First Amendment freedoms are at stake, the United States Supreme Court has “repeatedly emphasized that precision of drafting and clarity of purpose are essential.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975). Finally, this court has recognized that, in determining whether an ordinance is void for vagueness, the following two inquiries are appropriate: “(1) whether the ordinance gives fair warning to those persons potentially subject to it, and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.” Dunn, 233 Kan. at 418 (citing Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 [1980]).
The trial court found the definition of “erotic dance studio” contained within the ordinance vague because the language was not specific enough to enable an individual of ordinary intelligence to determine if conduct was prohibited. The City argues that the United States Supreme Court has held language similar to that used by the City of Wichita ordinance to define erotic dance studios was proper, citing Young v. American Mini Theatres, 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440, reh. denied 429 U.S. 873 (1976). We fail to see the similarity. The Detroit ordinance in Young regulated “adult motion picture theaters” that presented material “characterized by an emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities’ or ‘Specified Anatomical Areas.’ ” These quoted phrases were defined elsewhere in the regulation as follows:
“ ‘For the purpose of this Section, “Specified Sexual Activities” is defined as:
“ ‘1. Human Genitals in a state of sexual stimulation or arousal;
“ ‘2. Acts of human masturbation, sexual intercourse or sodomy;
“ ‘3. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast.
“ ‘And “Specified Anatomical Areas” is defined as:
“ ‘1. Less than completely and opaquely covered: (a) human genitals, pubic region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; and
“ ‘2. Human male genitals in a discemibly turgid state, even if completely and opaquely covered.’ ” 427 U.S. at 53 n.4.
We find no such definitions in the Wichita ordinance. Here, the City argues that the similarities between the phrase “which emphasizes and presents live nude entertainment” used in the Wichita ordinance and the language “distinguished or characterized by an emphasis on matter depicting, describing or relating to ‘Specified Sexual Activities’ or ‘Specified Anatomical Areas’ ” used in the Detroit ordinance show that the ordinance was not vague in defining erotic dance studios. We do not agree. First, these terms are specifically defined in the Detroit ordinance. Second, a basic difference arises between the adult movie theaters regulated in Young and the erotic dancing regulated by the Wichita ordinance. With adult movie theaters, the exhibitor can view the film prior to showing it in theaters to provide an opportunity to determine whether a film is borderline. 427 U.S. at 61. When dance is involved, the exhibitor cannot view the performance ahead of time and be certain that the same behavior will occur later. The word “dance” has many definitions but, for purposes of this issue, is perhaps best defined as
“rhythmic movement having as its aim the creation of visual designs by a series of poses and tracing of patterns through space in the course of measured units of time, the two components, static and kinetic, receiving varying emphasis (as in ballet, natya, and modern dance) and being executed by different parts of the body in accordance with temperament, artistic precepts, and purpose . . . .” Webster’s Third New International Dictionary 572 (1967).
Live entertainment, including nonobscene nude dancing, is recognized as a form of expression protected by the First and Fourteenth Amendments to the United States Constitution. Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). Because of the nature of expression sought to be controlled and regulated by the City of Wichita, the ordinance must specify with detail the conduct that will be prohibited in light of the spontaneous nature of the behavior being addressed. The Wichita ordinance failed to do so.
As further support for its argument that the ordinance is not void for vagueness, the City directs this court’s attention to two lower court decisions. In Dumas v. City of Dallas, 648 F. Supp. 1061 (N.D. Tex. 1986), the ordinance regulated several types of establishments, including arcades, bookstores, video stores, cabarets, motels, motion picture theaters, and adult theaters. 648 F. Supp. at 1078. The court rejected the challenge, in a declaratory judgment action, to various definitions and terms used in the ordinance, noting that all the terms were designed to give fair notice to persons of ordinary intelligence that contemplated conduct is forbidden. 648 F. Supp. at 1075 (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 [1972]). The court also noted that language for many of the provisions had been taken directly from ordinances that had been previously upheld by the United States Supreme Court as well as other courts. 648 F. Supp. at 1075.
The City also relies upon the holding in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986). In this action for injunctive and declaratory relief, an ordinance regulating erotic dance stu dios was found to be constitutional. The studio in question featured topless dancing and sold nonalcoholic beverages to adults for consumption on the premises. 793 F.2d at 1055. The court held that the section of the ordinance defining an erotic dance studio was not void for vagueness because it provided an adequate standard for enforcement and gave fair warning of the proscribed conduct to businesses it targeted. An erotic dance studio was defined as “ ‘a fixed place of business which emphasizes and seeks, through one or more dancers, to arouse or excite the patron’s sexual desires.’ ” 793 F.2d at 1057. In reviewing this definition, the court noted that erotic dance studios were classified by the ordinance according to the manifest intent of the operator of the studio. The court reasoned that one who exhibited erotic dancing intending to arouse the sexual desires of patrons would know that such a business would fall within the purview of the ordinance because of the intent requirement contained within the definition of erotic dance studio. The court reasoned that this intent requirement provided the adequate standard for law enforcement to know what behavior was regulated and for business proprietors to receive fair warning of the conduct targeted. 793 F.2d at 1057. In reaching its decision, the court cites two other cases, both relevant for the issue considered in this case.
In Boyce Motor Lines v. United States, 342 U.S. 337, 342, 96 L. Ed. 367, 72 S. Ct. 329 (1952), a statute required drivers transporting explosives to avoid crowded thoroughfares “so far as practicable.” The United States Supreme Court concluded that the statute, which was enacted following extensive participation by the trucking industry in a process of suggesting drafts of the legislation, was not void for vagueness because it required a knowing violation. Noting that the statute punished only those who knowingly violated its terms, the Court affirmed the conviction, reasoning as follows:
“This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid. That is evident from a consideration of the effect of the requirement in this case. To sustain a conviction, the Government not only must prove that petitioner could have taken another route which was both commercially practicable and appreciably safer (in its avoidance of crowded thoroughfares, etc.) than the one it did follow. It must also be shown that petitioner knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or that petitioner willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route.” 342 U.S. at 342.
Similarly, in United States v. Doyle, 786 F.2d 1440, 1443 (9th Cir. 1986), the United States Court of Appeals for the Ninth Circuit held that the presence of a scienter requirement in a statute prohibiting the sale, transportation, or receiving of wildlife without a permit issued by the state enabled the statute to withstand any challenge for vagueness. The court noted that, under Montana statutes, the illegal act must be committed knowingly to constitute a violation. Because substantial evidence indicated the defendant knew the falcons he obtained were wild and not bred and raised in captivity, the court concluded the scienter requirement was met and the vagueness challenge must fail.
Again we find no support for the City’s position in these two cases. The Wichita ordinance contained no scienter requirement applicable either to the licensees or the employees. The trial court concluded that the definition of an “erotic dance studio,” which applied to any place of business open to the public that emphasized and presented live nude entertainment, was void because the phrase “emphasizes and presents” was too unspecific to enable a licensee or employee to know whether conduct was covered by the statute. The trial court emphasized that nudity itself was a form of free expression that could not be precluded by the city regulation.
The trial court did not err in its decision that the use of the phrase “emphasizes and presents live nude entertainment” did not specifically describe the conduct that was to be regulated. The existence of a scienter requirement, such as the one in the Kitsap County ordinance, assists in specifying the regulated behavior. Since this case arose, the definition of “entertainment” in the Wichita ordinance has been amended to include a scienter element. It now regulates live performances “where one or more entertainers seek to arouse or excite the sexual desires of the entertainer, other entertainers or patrons.” Wichita, Kan., Code § 3.06.10 (1988). Prosecution of this defendant, however, occurred under an ordinance that did not adequately inform de fendant of the conduct prohibited. The trial court was correct in finding that the ordinance was void for vagueness.
Finally, the City contends that, although the defendant had general standing to challenge the constitutionality of the ordinance, she “did not have standing to challenge the ordinance on the issue of vagueness.”
We agree with the City that there is much confusion about “standing issues.” Much of that confusion occurs because “vagueness” and “overbreadth” are sometimes used interchangeably or a clear distinction is not made between the two terms. However, these terms are not synonymous. A statute or ordinance can be clear and unambiguous but may nevertheless be overbroad if it prohibits constitutionally protected conduct. Grayned v. City of Rockford, 408 U.S. at 114. In State ex rel. Murray v. Palmgren, 231 Kan. at 533, we said: “While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected.” (Citing State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 [1980]; State v. Stauffer Communications, Inc., 225 Kan. 540, 547, 592 P.2d 891 [1979]).”
The difference between the two doctrines is discussed at 16A Am. Jur. 2d, Constitutional Law § 460, pp. 247-48:
“The distinction between the doctrines of overbreadth and vagueness is that the overbreadth doctrine is applicable primarily in the First Amendment area and may render void legislation which is lacking neither in clarity nor precision, whereas the vagueness doctrine is rested on the due process clauses of the Fifth and Fourteenth Amendments and is applicable solely to legislation which is lacking in clarity and precision. In some cases, legislation has been voided on the grounds of both overbreadth and vagueness. However, the Supreme Court has not always made a clear distinction between the doctrines of overbreadth and vagueness. Before the Supreme Court recognized the doctrine of overbreadth as a distinct doctrine, some legislation which the court might under its modern view vitiate on that ground was held invalid on the ground of vagueness.”
The City argues that, under the analyses in Young v. American Mini Theatres, 427 U.S. 50, and Moody v. Board of Shawnee County Comm'rs, 237 Kan. 67, 697 P.2d 1310 (1985), defendant here has no standing to argue the constitutionality of the ordinance as it relates to third parties. The City’s reliance on Young is misplaced. Young was a declaratory judgment action in which respondents, who operated adult motion picture theaters, argued that the ordinances were void because one could not determine the amount of described activity permissible before the movie was “characterized by an emphasis” on the regulated conduct. The respondents did not take issue with the definitions of the activity to be regulated nor did they claim that their proposed activity was not included in the definitions. Respondents also argued the ordinances were vague in specifying adequate procedures to obtain waiver of the 1,000-foot restriction on location of the theaters. In rejecting these due process arguments the Court concluded that, because the ordinances clearly applied to their conduct, respondents could not object if some uncertainty existed about their application in other situations. The Court rejected respondents’ attempt to present an overbreadth argument on behalf of third parties.
“[T]he only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before the material can be said to be ‘characterized by an emphasis’ on such matter. For most films the question will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances are not ‘readily subject to a narrowing construction by the state courts.’ Since there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance, and since the limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court.” Young v. American Mini Theatres, 427 U.S. at 61.
In Moody, this court rejected a facial challenge to the Shawnee County resolution on overbreadth grounds. The court noted that the facts in the petition and record did not disclose how the resolution would affect plaintiff’s First Amendment rights and, therefore, a claim that the resolution would impinge upon these rights was without factual or legal support. Unlike the present case, the resolution in Moody was not aimed at nude dancing but, rather, sex for hire in adult entertainment studios. We said:
“Expression, either by words or by dancing, is not the target of this legislation. Plaintiff does not allege that he provides dancing, nude or otherwise, in his establishment. We agree with the district court that the Resolution does not contain any significant restraint on the exercise of plaintiff’s First Amendment rights.
“The Resolution is not one of broad general application. It does not apply to places other than licensed adult entertainment studios. It does not restrict or apply to dance studios, music stores or studios, Kansas ‘private clubs,’ taverns where cereal malt beverages are sold, or restaurants. It affects only licensed adult entertainment studios, as defined in the Resolution. The only persons affected are those similarly situated to the plaintiff. This Resolution will not have any different impact on third parties’ interests in First Amendment protected speech than it has on the interests of plaintiff. For this reason, we need not consider plaintiff’s facial challenge of the Resolution on overbreadth grounds. See City Council v. Taxpayers for Vincent, 466 U.S. 789, 80 L. Ed. 2d 772, 782, 783, 784, 104 S. Ct. 2118 (1984), and cases thére cited.” 237 Kan. at 75-76.
Drawing from the above language in Moody, the City argues that the Wichita ordinance is not of broad, general application and does not apply to places other than erotic dance studios. It “does not restrict or apply to dance studios, music stores or studios, Kansas ‘private clubs,’ taverns where cereal malt beverages are sold, or restaurants. . . . The only persons affected are those similarly situated to the [defendant].” 237 Kan. at 76. Since the defendant stipulated that she obtained a license pursuant to the ordinance, the City claims there is no question the ordinance applied to the defendant. Therefore, because defendant cannot show the ordinance will have a different impact on third-party protected speech than it has on defendant’s own interests, the City reasons defendant has no standing to attack the ordinance on the issue of vagueness. We do not agree. In Moody, the appellants argued that the ordinance was designed to ban nude dancing and therefore had the effect of prohibiting or regulating First Amendment protected activity. As we previously noted, the court found the resolution was not directed at nude dancing, and neither appellants’ nor third parties’ First Amendment rights were impaired. Therefore, respondents did not have standing to challenge the resolution as being overbroad. In the present case, the district court found the ordinance was void for vagueness because it violated due process by not clearly defining its prohibitions to inform an individual of ordinary intelligence of the conduct prohibited and to prevent arbitrary and discriminatory enforcement. Although the district court recognized the impact of the ordinance on activities protected under the First Amendment, its decision was not based upon the significant restraint to the defendant’s or third parties’ First Amendment rights.
The United States Supreme Court has recognized that, although an ordinance is not vague or overbroad as applied to a defendant, he or she may nevertheless be permitted to raise its vagueness or overbreadth as applied to the First Amendment protected rights of third parties. An exception to normal standing requirements is allowed because the mere existence of the statute could cause a person not before the Court to refrain from engaging in constitutionally protected speech or expression. Young v. American Mini Theatres, 427 U.S. 50, 60, 49 L. Ed. 2d 310, 96 S. Ct. 2440, reh. denied 429 U.S. 873 (1976) (citing Broadrick v. Oklahoma, 413 U.S. 601, 611-614, 37 L. Ed. 2d 830, 93 S. Ct. 2908 [1973]). This exception is justified by the importance of maintaining a free and open market for the exchange of ideas, but can be overridden if the deterrent effect on legitimate expression is not “ ‘both real and substantial,’ ” and if the statute is “ ‘readily subject to a narrowing construction by the state courts.’ ” Young, 427 U.S. at 60 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 45 L. Ed. 2d 125, 95 S. Ct. 2268 [1975]).
This exception was discussed in Schad v. Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981), where the appellants were convicted of violating a city zoning ordinance that prohibited live entertainment. The violation consisted of appellants’ permitting customers to view live nude dancers through a glass panel.' In reversing the convictions, Justice White, speaking for the majority, said:
“By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments. Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Schacht v. United States, 398 U.S. 58 (1970); Jenkins v. Georgia, 418 U.S. 153 (1974); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem. Inn, Inc., 422 U.S. 922 (1975). See also California v. LaRue, 409 U.S. 109, 118 (1972); Young v. American Mini Theatres, Inc., supra, at 61, 62. Nor may an entertainment program be prohibited solely because it displays the nude human figure. ‘[N]udity alone’ does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, supra, at 161; Southeastern Promotions, Ltd. v. Conrad, supra; Erznoznik v. City of Jacksonville, supra, at 211-212, 213. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation. Doran v. Salem Inn, Inc., supra; Southeastern Promotions, Ltd. v. Conrad, supra; California v. LaRue, supra.
“Whatever First Amendment protection should be extended to nude dancing, live or on film, however, the Mount Ephraim ordinance prohibits all live entertainment in the Borough: no property in the Borough may be principally used for the commercial production of plays, concerts, musicals, dance, or any other form of live entertainment. Because appellants’ claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own. ‘Because overbroad laws, like vague ones, deter privileged activities], our cases firmly establish appellant’s standing to raise an overbreadth challenge.’ Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).” 452 U.S. at 65-66.
Justice White pointed out that the Court’s decision in Young was not controlling, stating:
“Here, the Borough totally excludes all live entertainment, including non-obscene nude dancing that is otherwise protected by the First Amendment. As we have observed, Young v. American Mini Theatres, Inc., supra, did not purport to approve the total exclusion from the city of theaters showing adult, but not obscene, materials. It was carefully noted in that case that the number of regulated establishments was not limited and that ‘[t]he situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.’ 247 U.S. at 71, n.35.” 452 U.S. at 76.
In the present case, because of its vagueness the ordinance had the effect of precluding or severely restricting activities protected under the First Amendment. Clearly, both the defendant’s and third parties’ First Amendment rights are impacted by the ordinance, thus permitting the defendant to raise its unconstitutional overbreadth as applied to her as well as to others. Since the ordinance suffers from both vagueness and overbreadth as applied to the defendant, the district court correctly found that she had standing to challenge the constitutionality of the ordinance.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
The State of Kansas appeals from an order of the district court dismissing a complaint charging Kenneth Ray Noah with one count of indecent liberties with a child (K.S.A. 1985 Supp. 21-3503). The district court held the prosecution was barred by the two-year statute of limitations in effect at the time of the alleged offense. K.S.A. 21-3106(2) (Ensley 1981).
The defendant was originally charged in a complaint filed January 14, 1986. The acts constituting the offense occurred on November 23, 1985. On February 19, 1986, the defendant pled guilty to the charge and was subsequently sentenced on March 5, 1986. On May 14, 1987, defendant filed a motion pursuant to K.S.A. 60-1507 which was denied May 21, 1987. Following a denial of a motion for rehearing, the defendant appealed on June 10, 1987. In an unpublished opinion, No. 61,324, filed January 11, 1988, the Court of Appeals summarily reversed defendant’s conviction based upon a jurisdictional defect in the complaint. Thereafter, a new complaint was filed on September 19, 1988, again alleging that the crime occurred on November 23, 1985. Defendant does not deny that he committed the crime or that it took place on the stated date.
On November 2, 1988, defendant sought dismissal, contending that his prosecution was barred by the two-year statute of limitations in effect at the time he allegedly committed the offenses, K.S.A. 21-3106(2) (Ensley 1981). He contends that, as the crime occurred on November 23, 1985, more than two years had expired before the filing of the September 1988 complaint. The State responded that the five-year statute of limitations (K.S.A. 1986 Supp. 21-3106[2]), which became effective July 1, 1986, applied. The district court held that the statute of limitations was substantive, not procedural, and that the five-year statute could not be applied retroactively in this case.
The identical issue now before this court was decided adversely to the defendant in State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989). In Nunn, we held:
“Statutes of limitation are measures of public policy entirely subject to the will of the legislature.” Syl. ¶ 7.
“While it is a general rule of statutory construction that a statute will operate prospectively unless its language clearly indicates the contrary, the rule is modified where the statutory change is merely procedural or remedial in nature and does not affect the substantive rights of the parties.” Syl. ¶ 8.
“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is tried and punished.” Syl. ¶ 9.
“Criminal statutes of limitation are remedial or procedural, not substantive, and may be applied retroactively.” Syl. ¶ 10.
“Where a statute extends the period of limitation, the extension applies to offenses not barred on the effective date of the amendment so that a prosecution may be commenced at any time within the newly established period. Such an amendment, however, cannot operate to revive offenses that were barred at the time of its effective date, since that would make the statute ex post facto.” Syl. ¶ 11.
Defendant here raises additional arguments which were not asserted in Nunn and asks that we reverse Nunn. Defendant relies upon the comments of the Kansas Judicial Council and K.S.A. 21-3102(4) in asserting that it was the clear intention of the legislature that criminal statutes of limitation are substantive and prospective only in their application. K.S.A. 21-3102(4) provides:
“This code has no application to crimes committed prior to its effective date. A crime is committed prior to the effective date of the code if any essential elements of the crime as then defined occurred before that date. Prosecutions for prior crimes shall be governed, prosecuted, and punished under the laws existing at the time such crimes were committed.”
It is argued that the last sentence of the foregoing section of the statute applies to subsequent amendments to the criminal code as well as to the original adoption of the code in 1970. We do not agree. When the entire subsection is read in context it appears clear that it refers to crimes committed prior to July 1, 1970, the effective date of the criminal code. Whether subsequent amendments apply to crimes committed prior to the date of amendment depends upon the particular amendment and statute involved.
Next, défendant argues that the Judicial Council notes to K.S.A. 21-3106 clearly reveal the substantive nature of the statute. The notes provide:
“The former Kansas statutes of limitations were treated as procedural and were contained in Article V of Chapter 62. Since the former statutes effectively limit the conditions under which penal liability may be imposed, it seems appropriate to include them in the chapter defining substantive rights and liabilities. The practice in other codes is not uniform. The Model Penal Code, Illinois and New Mexico, include statutes of limitations in the substantive codes. Minnesota and Wisconsin do not.”
While it is true that the notes and comments of the Judicial Council may be one indication of legislative intent, they do not have the force and effect of law and are advisory only. The inclusion of the statutes of limitation in chapter 21, the Kansas Criminal Code, rather than in chapter 22, the Kansas Code of Criminal Procedure, is not conclusive on the substantive versus procedural nature of the statutes. The actual scope and effect of the statute is controlling rather than its location in the statute book. As we recognized in Nunn, there is a split of authority on the question of whether changes in the length of a criminal statute of limitations are procedural or substantive. We adhere to our decision in Nunn that in Kansas a criminal statute of limitations is procedural and an amendment of the statute may be applied to criminal acts occurring prior to the date of the amendment if the crimes charged have not been time barred prior to that date.
The rationale for the determination that criminal statutes of limitation are procedural rather than substantive was clearly stated in State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962), where the defendant claimed that he had a “substantial right” not “merely a procedural right” to have the statute of limitations at the time of the offense control. Thus, the Louisiana Supreme Court considered whether “the amendment of the statute of limitations increasing the time involved during which the prosecution may be instituted deprived the accused of a substantial right.” 243 La. at 425. The court found no such right and observed:
“[0]riginally at common law there was no time limitation barring criminal prosecutions. People v. Bailey, 103 Misc. 366, 171 N.Y.S. 394. However, statutory limitations generally prevail in most states today. They have been considered to be statutes of repose as in civil matters; as acts of grace of the sovereign surrendering its right to prosecute in criminal matters; as acts of amnesty declaring that the offender may cease to preserve his proof of innocence after the time limit has passed; or as recognition by the state that time gradually wears out evidence of innocence. People v. Ross, 325 Ill. 417, 156 N.E. 303; People v. Guariglia, 187 Misc. 843, 65 N.Y.S.2d 96; cf. dissent in State v. Gehlbach, 205 La. 340, 17 So. 2d 349. See Expose des Motifs No. 6, Louisiana State Law Institute, Code of Criminal Procedure Revision, ‘Title XVII, Time Limitations.’
“It has also been said in justification of such statutes that they curb the power of the state to hold over a person’s head the threat of prosecution for a long period of time. State v. Theard, 203 La. 1026, 14 So. 2d 824. The protection accorded the accused against being forced to trial for an offense has been called a valuable right. State v. Sullivan, 159 La. 589, 105 So. 631.
“In 22 C.J.S. Criminal Law, ¶ 224, it is said:
‘Since enactments limiting the time for the prosecution of offenses are measures of public policy only, and are entirely subject to the will of the legislature, they may be changed or repealed altogether in any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation; but where a complete defense has arisen under such a statute, it cannot be taken away by a subsequent repeal thereof.
‘So, too, where a statute extends a period of limitation, or provides for the tolling thereof, it applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period although the original period of limitation had then expired; and such a statute is not invalid.’
“As we understand this case the substantial rights of the accused had never vested, for the time limitation or prescription of the offense which was in effect at the date of the alleged commission of the offense had not fully run when the amendment became effective.
‘Until the fixed period has arrived, the statute is a mere regulation of the remedy, and like other regulations, subject to legislative control; but afterward it is a defense, not of grace, but of right; not contingent but absolute and vested; and like other defenses, not to be taken away by legislative enactment.’ Moore v. State, 43 N.J.L. 203, 39 Am. Rep. 558, 67 A.L.R. 306.
“The rights of the accused and the State here may be likened to that of a person holding possession of land without a legally valid title and with the hope, by his possession, of acquiring title after the lapse of time prescribed by law unless a suit be instituted against him by the lawful owner to dispossess him. The right of the owner to institute suit to dispossess the usurper exists at all times until the period for perfecting title by that possession has fully accrued. If a suit be instituted to dispossess the possessor prior to the time prescription has fully accrued, the law considers that he has lost nothing. And so the State in criminal matters reserves the right to change the prescription or period of limitation of criminal offenses until it has accrued to the benefit of the accused. Until it has accrued, it can be said, the rights of the accused have not become vested and are subject to regulation or change.
“No substantial right of the accused is affected by such a change, nor has the situation been changed to the disadvantage of the accused, for the time during which he may be prosecuted, not having run, deals only with the procedure attached to his conviction or acquittal. The penalty of the offense has not been changed to the disadvantage of the accused, the rules of evidence have not been amended, nor has the definition of the crime affecting the facts been altered in any way. What has been altered is a procedural right, and no undue disadvantage to the accused results thereform for he has acquired no advantage until the period of limitation has run.” 243 La. at 423-28.
Defendant also relies heavily upon Waters v. United States, 328 F.2d 739 (10th Cir. 1964), in asserting there is a clear distinction between civil and criminal statutes of limitation. Defendant relies upon the following passage from Waters:
“[I]f recognition of a distinction between the statute of repose in civil cases and the substantive bar in criminal cases is to have any meaning in the administration of criminal justice, the statute of limitations must be held to affect not only the remedy, but to operate as a jurisdictional limitation upon the power to prosecute and punish.” 328 F.2d at 743.
Defendant’s reliance on Waters is clearly misplaced. The case did not involve an amendment or change of the statute of limitations. In Waters the defendant was being prosecuted under a complaint filed after the existing statute of limitations had expired and the issue before the court was whether the assertion of the statute of limitations was an affirmative defense which must be raised by the defendant to avoid a waiver of the defense. The court, in Waters, found that the defendant’s failure to raise the statute of limitations during trial did not waive his right to assert the bar of the statute of limitations for the first time on appeal as a jurisdictional question. On the issue which was before the court in Waters, see Lowe v. State, 14 Kan. App. 2d 119, 783 P.2d 1313 (1989).
Even if we were to conclude that Waters was relevant to the present determination, we note that it is a distinct minority view in the federal courts. Most of the circuits have found that the statute of limitations is not a jurisdictional bar to punishment and instead is an affirmative defense that is waived if not raised at the trial court. See United States v. Karlin, 785 F.2d 90, 92-93 (3rd Cir. 1986), cert. denied 480 U.S. 907 (1987) (specifically recognizing Waters, 328 F.2d 739, as being in the minority); United States v. Meeker, 701 F.2d 685, 688 (7th Cir.), cert. denied 464 U.S. 826 (1983); United States v. Walsh, 700 F.2d 846, 855-56 (2d Cir.), cert. denied 464 U.S. 825 (1983); United States v. Williams, 684 F. 2d 296, 299 (4th Cir. 1982), cert. denied 459 U.S. 1110 (1983); United States v. Akmakjian, 647 F.2d 12, 14 (9th Cir.), cert. denied 454 U.S. 964 (1981); United States v. Wild, 551 F.2d 418, 422, 422-23 n.9 (D.C. Cir.), cert. denied 431 U.S. 916 (1977). Defense counsel, when questioned at oral argument, was unable to cite any other federal appellate court case or jurisdiction that has followed the Waters decision.
We conclude that our decision in Nunn was correct and is controlling of the issues in this case. We also pause to note that the trial judge did not have the benefit of our decision in Nunn at the time of his decision in this case.
The judgment is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Miller, C.J.:
The defendant, Randy L. Hughes, was charged in Sedgwick district court with promoting obscenity by selling two obscene devices contrary to K.S.A. 21-4301. The trial court found the provisions of K.S.A. 21-4301(1), (2), and (3)(c) to be unconstitutionally overbroad and dismissed the case. The State appeals pursuant to K.S.A. 1989 Supp. 22-3601(b)(2) and K.S.A. 22-3602(b)(l).
Hughes, the manager of an adult bookstore in Wichita, was arrested and charged with selling obscene devices: “The Sexplorer Pleasure System,” a vibrator kit with a dildo attachment, and “Miss World,” an inflatable doll with an artificial vagina, to undercover police officers. Defendant moved to dismiss. The trial court held an evidentiary hearing. Dr. Douglas Mould, a state- certified psychologist and sex therapist who was called by the defendant, was the only witness.
Dr. Mould practices psychology, including sex therapy, in Wichita. His main area of research and writing is devoted to the problem of women who do not reach orgasm during sexual intercourse. Dr. Mould testified that anorgasmic women may be particularly susceptible to pelvic inflammatory diseases, psychological problems, and difficulty in marital relationships.
Dr. Mould testified it is common in the treatment of anorgasmic women to recommend the use of a dildo-type vibrator. Such a vibrator is penis-shaped and used primarily for vaginal insertion. There are three reasons for this recommendation. First, some women may be less physiologically responsive than others. The vibrator is helpful for these women in the same manner as are the vibrators commonly used by physical therapists in the treatment of people with cerebral palsy. In treating cerebral palsy, the vibration has a specific effect on the sensory and motor enervation of the muscle. A vibrator is used in sex therapy to cause vibration to go through the pubic bone to the sensory endings called muscle spindles within the pelvic musculature. This helps lower the physiological threshold for initiating the spinal reflex.
According to Dr. Mould, the second reason for using a vibrator in dildo form is to lower a patient’s inhibitions and produce intense stimulation that is difficult to duplicate manually. This is especially helpful to women who have built up a history of non-orgasmic sexual experiences, which causes what is called orgasmic inhibition.
The final reason for use of a vibrator in dildo form, or a dildo alone, is for women who have relaxed pelvic muscles which cause the orgasmic response to be less intense than usual. These women are prescribed Kegel’s exercise, with a dildo or dildo-type vibrator inserted to provide resistance. This exercise is essential for women suffering urinary stress incontinence. Dr. Mould stated that many women suffer varying degrees of incontinence at some point in their lives. The condition is often caused by the stretching of the pelvic ligaments during childbirth, which causes the bladder to prolapse. Kegel’s exercise, in which the circumvaginal muscles are contracted and strengthened, is universally acknowledged as the most effective way of avoiding urinary stress incontinence, short of surgery.
Dr. Mould cited a study which estimated that 20% of all sexually active women have used a vibrator at some point during their lives and stated that he knew of no medical harm which could be caused by the use of a vibrator on the female genital organs. Dr. Mould testified that he often directs his patients to adult bookstores to find dildo vibrators suitable for their therapy treatment and that he has ordered or purchased such devices for his patients. He testified that the vibrator kit which defendant was arrested for selling was substantially identical to other vibrator kits he had recommended for use by his patients. It was his opinion that, if such kits were to become not readily available to the general public, anorgasmic women would be “substantially impacted.” He stated that unavailability “would put a very serious block in the way of effective treatment. ” He testified that effective vibrator kits functionally similar to the one sold by defendant could be obtained in adult bookstores, through mail-order establishments, and at some department stores.
Dr. Mould testified that he knew of no therapeutic purposes for an inflatable doll and believed such a device to be “more a novelty than any serious sex tool.” The inflatable doll was not the basis of the trial court’s determination of the issues of this case, and we will not discuss it further in this opinion.
The prosecutor contended that a dildo-type vibrator is obscene per se under the definition of the statute. The trial court inquired, “Is it your position that a device can be obscene even if the motivation for using the device is not obscene?” The prosecutor responded, “The legislature in their definition determined, at least in this case, that a device is obscene if it is designed and marketed or marketed primarily for the stimulation of the human genital organ.” The court then asked, “My point is, is it still obscene even though the motivation for the stimulation is not obscene but therapeutic?” The prosecutor responded, “The definitions under our law would make that finding.”
The trial court took the matter under advisement and later issued a carefully prepared and well-reasoned memorandum decision holding that the provisions of K.S.A. 21-4301(1), (2), and (3)(c) are unconstitutionally overbroad because they subject li censed physicians, psychologists, and sex therapists to possible criminal sanctions. The court made it clear that it did not render its decision on First Amendment grounds. As this case deals with devices rather than books or movies, it is different from the great majority of the published obscenity cases, which are typically argued and decided under the First Amendment’s guarantee of freedom of speech. The court decided the case, instead, on the grounds that the statute infringes on the right to perform or receive recognized, legitimate medical treatment because it invades the right of privacy, and because it declares all devices encompassed by the statute obscene without requiring a determination of obscenity by constitutional standards.
The court severed the provisions of K.S.A. 21-4301 as they pertained to obscene devices, finding such could be done without affecting the enforcement of the other provisions of the statute. See Kansas Retail Trade Co-op v. Stephan, 522 F. Supp. 632, 643 (D. Kan. 1981), aff'd in part, revd in part 695 F.2d 1343 (10th Cir. 1982). This procedure was proper under the severance clause of K.S.A. 21-4301b.
Two issues are raised on appeal by the State: whether the defendant had standing to challenge the constitutionality of the. statute, and whether the trial court erred in finding the statute overbroad. It will be helpful to our discussion to begin with the provisions and history of the challenged statute, which provides as follows:
“21-4301. Promoting obscenity. (1) Promoting obscenity is knowingly or recklessly:
“(a) Manufacturing, issuing, selling, giving, providing, lending, mailing, delivering, transmitting, publishing, distributing, circulating, disseminating, presenting, exhibiting or advertising any obscene material or obscene device; or
“(b) possessing any obscene material or obscene device with intent to issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise such material or device; or
“(c) offering or agreeing to manufacture, issue, sell, give, provide, lend, mail, deliver, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise any obscene material or obscene device; or
“(d) producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity.
“(2) Evidence that materials or devices were promoted to emphasize their prurient appeal or sexually provocative aspect shall be relevant in determining the question of the obscenity of such materials or devices. There shall be a presumption that a person promoting obscene materials or obscene devices did so knowingly or recklessly if:
“(a) The materials or devices were promoted to emphasize their prurient appeal or sexually provocative aspect; or
“(b) the person is not a wholesaler and promotes the materials or devices in the course of the persons business.
“(3)(a) Any material or performance is ‘obscene’ if:
“(i) The average person applying contemporary community standards would find that the material or performance, taken as a whole, appeals to the prurient interest;
“(ii) the average person applying contemporary community standards would find that the material or performance has patently offensive representations or descriptions of (A) ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse or sodomy, or (B) masturbation, excretory functions, sadomasochistic abuse or lewd exhibition of the genitals; and
“(iii) taken as a whole, a reasonable person would find that the material or performance lacks serious literary, educational, artistic, political or scientific value.
“(b) ‘Material’ means any tangible thing which is capable of being used or adapted to arouse interest, whether through the medium of reading, observation, sound or other manner.
“(c) ‘Obscene device’ means a device, including a dildo or artifical vagina, designed or marketed as useful primarily for the stimulation of human genital organs.
“(d) ‘Performance’ means any play, motion picture, dance or other exhibition perfomed before an audience.
“(e) ‘Sexual intercourse’ and ‘sodomy’ have the meanings provided by K.S.A. 21-3501 and amendments thereto.
“(f) ‘Wholesaler’ means a person who sells, distributes or offers for sale or distribution obscene materials or devices only for resale and not to the consumer and who does not manufacture, publish or produce such materials or devices.
“(4) It is a defense to a prosecution for obscenity that:
“(a) The persons to whom the allegedly obscene material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational or governmental justification for possessing or viewing the same;
“(b) the defendant is an officer, director, trustee or employee of a public library and the allegedly obscene material was acquired by such library and was disseminated in accordance with regular library policies approved by its governing body; or
“(c) the allegedly obscene material or obscene device was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school as part of or incident to an approved course or program of instruction at such school.
“(5) The provisions of this section and the provisions of ordinances of any city prescribing a criminal penalty for exhibit of any obscene motion picture shown in a commercial showing to the general public shall not apply to a projectionist, or assistant projectionist, if such projectionist or assistant projectionist has no financial interest in the show or in its place of presentation other than regular employment as a projectionist or assistant projectionist and no personal knowledge of the contents of the motion picture. The provisions of this section shall not exempt any projectionist or assistant projectionist from criminal liability for any act unrelated to projection of motion pictures in commercial showings to the general public.
“(6) Promoting obscenity is a class A misdemeanor on conviction of a first offense and a class E felony on conviction of a second or subsequent offense. Conviction of a violation of a municipal ordinance prohibiting acts which constitute promoting obscenity shall be considered a conviction of promoting obscenity for the purpose of determining the number of prior convictions and the classification of the crime under this section.
“(7) Upon any conviction of promoting obscenity, the court may require, in addition to any fine or imprisonment imposed, that the defendant enter into a reasonable recognizance with good and sufficient surety, in such sum as the court may direct, but not to exceed $50,000, conditioned that, in the event the defendant is convicted of a subsequent offense of promoting obscenity within two years after such conviction, the defendant shall forfeit the recognizance.” (Emphasis supplied.)
This statute was enacted as a part of the State’s new criminal code in 1969. See L. 1969, ch. 180, § 21-4301. Prior to that date, the laws regulating obscenity in this state were contained in many different statutes. See Comment, Kansas Criminal Code: Obscenity, 19 Kan. L. Rev. 789, 789 (1971). In its first enactment, K.S.A. 21-4301 allowed dissemination of obscene materials to “persons or institutions having scientific, educational, governmental or other similar justification for possessing or viewing the same.” L. 1969, ch. 180, § 21-4301(3). In State v. Next Door Cinema Corp., 225 Kan. 112, 118, 587 P.2d 326 (1978), the defendant did not argue the obscenity of the movie, but claimed the term “other similar justification” was unconstitutionally vague. We agreed, but found the term to be mere surplusage which could be severed from the remainder of the act without affecting its constitutionality. We therefore affirmed the defendant’s conviction under the statute for commercially exhibiting an obscene movie.
Those portions of K.S.A. 21-4301 relating to obscene devices were not included within the statute until 1986. See L. 1986, ch. 121, § 3. We have not before determined the constitutionality of the present statute as it pertains to devices, but similar statutes have been examined by courts of other jurisdictions.
In a Texas case, Yorko v. State, 690 S.W.2d 260 (Tex. Crim. 1985), the defendant was found guilty of possession with intent to sell a dildo, a device specified as obscene in a statute quite similar to ours. The appellate court, with three judges dissenting in separate opinions, held that the statute did not violate a fundamental right of privacy and that the right to possess such a device in one’s home did not imply a right of acquisition. The defendant did not raise the therapy or overbreadth arguments.
Two Georgia cases are in agreement with the Texas court. In the first, Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977), the defendant, an operator of an adult bookstore, was found guilty of selling an artificial vagina and an obscene magazine to an undercover officer. Several other unspecified sexual devices were also seized. The appellate court rejected without much discussion the defendant’s arguments that the statute, also similar to ours, was overbroad or that it erred in defining the material and devices as obscene as a matter of law.
In the second Georgia case, Simpson v. State, 144 Ga. App. 657, 242 S.E.2d 265 (1978), the defendant operator of an adult bookstore was convicted of three counts of distributing obscene materials after selling two obscene magazines to an undercover officer. The court noted that a box of unspecified “sexually related paraphernalia” was seized. 144 Ga. at 658. The court, in a brief opinion, again rejected defense arguments that the obscenity statute was overbroad and that the seized items could not be declared obscene as a matter of law.
We have found only one other case with similar facts to ours. It is this case the trial court found persuasive. In People v. Seven Thirty-five East Colfax, Inc., 697 P.2d 348 (Colo. 1985), the court consolidated three obscenity cases. The statute involved in these cases was very similar to ours. In the first case, People v. Seven Thirty-five East Colfax, Inc., the State instituted a civil action for injunctive relief against an adult bookstore, seeking to have certain items declared obscene under the statute. In the second case, People v. Mizell, ten defendants were charged with promotion and possession with intent to promote obscene materials and obscene devices. The trial court found the obscenity act to be unconstitutional and stayed the effect of its ruling pending the State’s appeal. In the third case, Adult Literary Guild v. Beacom, the Adult Literary Guild sought an injunction against the enforcement of the obscenity act. The trial court permanently enjoined enforcement of the act, finding, inter alia, that the prohibition against the promotion of obscene devices violated the right to privacy.
The Colorado Supreme Court opinion is detailed and comprehensive; only that portion relating to obscene devices will be summarized. The court found the Adult Literary Guild had third-party standing because the consumers’ privacy right in the use of the devices was inextricably bound with the vendors’ supply of the devices. It further found standing because vendors are forced to choose between the economic injury suffered by conformance to the statute or possible criminal prosecution through disobedience. 697 P.2d at 368. The court analogized its standing analysis to that in Carey v. Population Services International, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977), in which the United States Supreme Court held a vendor of contraceptive devices had standing to assert the constitutional rights of its customers because of the danger that these third parties’ rights would be diluted or adversely affected should the vendor’s challenge fail. Carey noted that a vendor’s standing “to assert the rights of potential purchasers of his product is even more compelling [where] . . . the rights involved fall within the sensitive area of personal privacy.” 431 U.S. at 684 n.4. This is in part because, where personal privacy is involved, potential purchasers may hesitate to assert their own rights because of a desire to protect that privacy from the publicity caused by a legal action. 431 U.S. at 684 n.4, (citing Singleton v. Wulff, 428 U.S. 106, 117, 49 L. Ed. 2d 826, 96 S. Ct. 2868 [1976]).
The Colorado court in Seven Thirty-Five found overbroad that section of the obscenity act which provides that a person is guilty of a misdemeanor if he “ ‘[pjromotes or possesses with intent to promote any . . . obscene device,’ ” such device being defined as “ ‘a device including a dildo or artifical vagina, designed or marketed as useful primarily for the stimulation of human genital organs.’ ” 697 P.2d at 369. The court found the “blanket proscription” of all devices “designed or marketed as useful primarily for the stimulation of human genital organs” impermissibly burdened the right of privacy of those seeking legitimate medical or therapeutic use of such devices and impermissibly equated sex with obscenity. 697 P.2d at 370. It quoted Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65, 37 L. Ed. 2d 446, 93 S. Ct. 2628, reh. denied 414 U.S. 881 (1973), in its characterization of the right to privacy protecting “ ‘the personal intimacies of the home.’ ” 697 P.2d at 348. The court found the State had demonstrated no interest in the broad prohibition of the devices sufficiently compelling to justify this infringement on the right to privacy. It cited United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 127 n.4, 37 L. Ed. 2d 500, 93 S. Ct. 2665 (1973), in support of its finding of “a sphere of constitutionally protected privacy which encompasses the intimate medical problems associated with sexual activity.” 697 P.2d at 369 n.26.
The first issue to be decided here is whether the trial court erred in finding the defendant had standing to challenge the statute on the grounds that it impermissibly infringes upon the rights of persons other than himself. Although this is not a First Amendment case where a relaxed test for standing may be applied to protect freedom of association or speech, we nevertheless hold that the defendant has standing as a vendor of the devices.
We cite in support not only Carey, 431 U.S. 678, noted in our discussion of Seven Thirty-Five, 697 P.2d 348, but also Craig v. Boren, 429 U.S. 190, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976), reh. denied 429 U.S. 1124 (1977), in which the United States Supreme Court found that a tavern owner had standing to challenge a statute which permitted sale of beer to females 18 years of age and older, but not to males until they turned 21. The Court held that compliance with the law created an injury not only to the males but also to tavern owners. It stated that “vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as ad vocates for the rights of third parties who seek access to their market or function.” 429 U.S. at 195. Like the tavern owner in that case, defendant here is in the business of selling merchandise. Dr. Mould and persons with similar therapeutic purposes cannot lawfully purchase vibrator dildos under the statute, just as males under 21 years of age could not purchase beer from the tavern owner. We agree with the trial court’s finding that enforcement of the statute by criminal proceedings would “materially impair the ability of women with legitimate sexual dysfunction or other similar problems to obtain devices prescribed by their doctors and therapists because the distribution of the devices is prohibited in all respects.” Following the reasoning in Boren, Carey, and Seven Thirty-Five, we conclude that defendant has standing to challenge the statute on the grounds that it infringes not only his rights but the rights of third persons.
The remaining issue is whether the trial court erred in finding the statute overbroad. As Dr. Mould was the only witness at the hearing on the defendant’s motion to dismiss, the only evidence in the record is that the dildo vibrator is effective and is commonly prescribed in the treatment of both anorgasmic and incontinent women.
Bearing this in mind, let us outline the perimeters of our review. A statute is overbroad when its language criminalizes constitutionally protected conduct. In matters relating to conduct rather than pure speech, the overbreadth must be substantial, judged in the light of the legitimacy of the statute in its entirety. Broadrick v. Oklahoma, 413 U.S. 601, 615, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). The overbreadth doctrine generally has been held to apply only in First Amendment contexts. See Schall v. Martin, 467 U.S. 253, 268 n.18, 81 L. Ed. 2d 207, 104 S. Ct. 2403 (1984). In Hearn v. City of Overland Park, 244 Kan. 638, 645, 772 P.2d 758, cert. denied _ U.S. _, 107 L. Ed. 2d 503 (1989), we held a city ordinance regulating ownership of pit bull dogs could not be attacked as overbroad because the owners’ rights did not fall under the First Amendment.
Nevertheless, the overbreadth doctrine has been applied by the United States Supreme Court where the operation of a statute infringes on freedoms guaranteed by the Bill of Rights, where those freedoms involve privacy rights and medical matters. In Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972), a lecturer was convicted of giving a woman a package of contraceptive foam in violation of a Massachusetts statute prohibiting distribution of contraceptives to unmarried persons. The United States Supreme Court granted the defendant standing to assert the privacy and equal protection rights of unmarried persons. It held the statute overbroad as a health measure in its language prohibiting all contraceptives, regardless of their safety, to all unmarried persons. The Court found the statute violated the equal protection clause of the Fourteenth Amendment and affirmed the order of the United States Court of Appeals for the First Circuit discharging the defendant.
The trial court’s decision was made on privacy and medical treatment grounds. The United States Supreme Court has found that a constitutionally protected zone of privacy exists under the First, Third, Fourth, Fifth, and Ninth Amendments to the United States Constitution. Griswold v. Connecticut, 381 U.S. 479, 484-86, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). The Court has stressed that individuals have a fundamental “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” Stanley v. Georgia, 394 U.S. 557, 564, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969). This liberty interest in privacy was held protected by the Fourteenth Amendment’s restriction on state action against personal liberty in Roe v. Wade, 410 U.S. 113, 152-53, 35 L. Ed. 2d 147, 93 S. Ct. 705, reh denied 410 U.S. 959 (1973). We agree with the opinion in Seven Thirty-Five that a statute is impermissibly overbroad when it impinges without justification on the sphere of constitutionally protected privacy which encompasses therapy for medical and psychological disorders.
We thus find the trial court’s analysis of the statute persuasive, except for one argument, which we will discuss.
The trial court found K.S.A. 21-4301 overbroad because it does not restrict its scope to distribution of devices for obscene purposes, noting the legislature cannot make a device automatically obscene merely through the use of labels. See N.A.A.C.P. v. Button, 371 U.S. 415, 429, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). The trial court in the instant case found the statute must incorporate a requirement that the device is obscene under the stand ards set forth in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, reh. denied 414 U.S. 881 (1973). Here, we disagree. The Miller standards are:
“(a) [W]hether ‘the average person, applying contemporary community standards,’ would find the work, taken as a whole, appeals to the prurient interest, [citations omitted];
“(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and “(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24.
These standards were set forth under the general assumption, which still prevails, that the obscene item will be a book, movie, or play, rather than a device. This standard is implemented in K.S.A. 21-4301(3)(a) in regard to material or performances, but not as to devices, to which the Miller standards do not apply. Instead, the legislature attempted to avoid a per se definition of obscene devices through its language in K.S.A. 21-4301(2), which states that “[e]vidence that materials or devices were promoted to emphasize their prurient appeal or sexually provocative aspect shall be relevant in determining the question of the obscenity of such materials or devices.” (Emphasis supplied.) We agree with the trial court’s finding that the term “sexually provocative aspect” impermissibly equates sexuality with obscenity. The legislature may not declare a device obscene merely because it relates to human sexual activity. Roth v. United States, 354 U.S. 476, 487-88, 1 L. Ed. 2d 1498, 77 S. Ct. 1304, reh. denied 355 U.S. 852 (1957).
We share the trial court’s concern that a vendor could be held in violation of the statute regardless of the advertising, packaging, or proposed use of a dildo-type vibrator because K.S.A. 21-4301(3)(c) defines an obscene device as “a device, including a dildo . . . , designed or marketed as useful primarily for the stimulation of human genital organs.” The Food and Drug Administration has promulgated regulations concerning “powered vaginal muscle stimulators” and “genital vibrators” for the treatment of sexual dysfunction or as an adjunct to Kegel’s exercise. 21 C.F.R. §§ 884.5940 and 884.5960 (1989). Such regulations indicate that the federal government recognizes a legitimate need for the availability of such devices.
A therapist or a third person purchasing such a device for a woman at her request would nevertheless be subject to criminal prosecution because it is a violation of the statute to give, provide, or lend such a device, irrespective of its use, unless the “obscene device was purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and . . . was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school as part of or incident to an approved course or program of instruction at such school.” K.S.A. 21-4301(4)(c). Thus, under the statute, a doctor, psychologist, or sex therapist on the faculty of a school could lecture about these devices and distribute them to the class, but would not be allowed, under the statute, to exhibit or provide such a device to a patient for therapy.
The statute thus impermissibly infringes on the constitutional right to privacy in one’s home and in one’s doctor’s or therapist’s office. See City of Junction City v. White, 2 Kan. App. 2d 403, 404, 580 P.2d 891 (1978) (citing Paris Adult Theatre I v. Slaton, 413 U.S. at 66 n.13). We note the statute also restricts a doctor’s freedom to exercise his or her medical judgment in providing medical services. See State ex rel. Stephan v. Harder, 230 Kan. 573, 588, 641 P.2d 366 (1982) (quoting Minnesota Medical Ass’n v. State, 274 N.W.2d 84 [Minn. 1978]). We further note that it is presumed under K.S.A. 21-4301(2)(b) that a person knowingly and recklessly promoted obscene devices merely because he or she promoted the devices in the course of a business. This impermissibly criminalizes a therapist who recommends the use of a sexual device to a patient.
When a state chooses to regulate matters involving sensitive rights of its citizens, it is obligated to do so in a manner that bears a real and substantial relationship to the objective sought (Nebbia v. New York, 291 U.S. 502, 525, 78 L. Ed. 940, 54 S. Ct. 505 [1934]) and is narrowly drawn to express only those objectives (Carey v. Population Services International, 431 U.S. at 686). We hold the dissemination and promotion of such devices for purposes of medical and psychological therapy to be a constitutionally protected activity. As the legislature made no provision for such acts, those sections dealing with obscene devices were properly found to be overbroad and unconstitutional. The State has demonstrated no interest in the broad prohibition of distributing the devices in question sufficiently compelling to justify the infringement of the rights of those seeking to use them in legitimate ways.
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The opinion of the court was delivered by
Six, J.:
Defendant, Michael F. Osby, appeals from his jury conviction of one count of aggravated kidnapping, K.S.A. 21-3421; one count of kidnapping, K.S.A. 21-3420; and one count of unlawful possession of a firearm, K.S.A. 21-4204. Osby asks that his convictions be reversed because of trial court error in
(1) limiting his voir dire of the jury panel;
(2) instructing the jury on the issue of drug use;
(3) limiting cross-examination as to the victim/witness’ drug use;
(4) excluding certain evidence relating to a different crime; and
(5) allowing the State to introduce testimony by two witnesses that was given at prior separate proceedings in which Osby was neither a party nor present.
We find no trial error requiring reversal and affirm.
FACTS
The crimes charged against Osby occurred on January 14, 1987. They stem from the efforts of the friends and relatives of Earl Ray to find and punish the person who shot and stabbed Ray. Ray was on life-support systems at a Wichita hospital on that date. He died of his injuries the following day.
On the afternoon of January 14, 1987, Terry Brown drove Michael and Monique Johnson to a house at 2849 N. Vassar Street, in Wichita. The Johnsons went to the house to collect a debt owed them by Earl Ray. Brown waited outside of the house for 20 to 30 minutes before the Johnsons returned. They were unable to collect the money they previously had given to Earl Ray. Brown took Michael and Monique back to their house.
Later that day, Brown again took the Johnsons to the house on Vassar, apparently to try again to collect the money. Monique went into the house while Brown and Michael waited in the car. Five to ten minutes later, Osby and Robert Taylor approached the car and asked them to come into the house. When Brown expressed his reluctance, the men told Brown that Monique would be in the house for a while and that they should come into the house. When Brown got out of the car, he saw that one of the men had a gun.
The men took Brown and Michael into the back bedroom of the house. There were several people in the bedroom, and each had a gun. Michael and Monique were searched, and Earl Ray’s gun was found on Michael. Osby swung a gun at Michael and hit him in the head. The gun went off, and Michael fell into the corner. Michael had a gash in his forehead and was bleeding.
At that point, the people in the bedroom tied up Brown and the Johnsons. Osby hit Monique on the back of her head with a gun. Some of those in the room discussed taking Brown and the Johnsons out into the country and killing them.
Four or five of the people in the room took Brown and the Johnsons to the front of the house and then out to Brown’s car. Once they were in the car they managed to escape and then drove to the police station and reported the incident.
Osby was charged with aggravated kidnapping of Monique Johnson, kidnapping of Terry Brown, and unlawful possession of a firearm as a result of the incidents at the house that day.
The Voir Dire
Osby apparently was not allowed to ask the members of the jury panel during voir dire whether they had any special knowledge regarding the effect of drug usage.
Osby asserts, without explanation, that the trial court impaired his ability to utilize his peremptory challenges in a meaningful manner by stopping his juror inquiry. Osby intended to inquire whether the panel had any special knowledge with respect to drug use.
We do not have a record of the voir dire proceedings. The only indication of what happened during voir dire is the statement of Osby’s attorney which was made after the jury was selected:
“The only thing I wanted to do is proffer to the Court on voir dire when I was attempting to question the panel as to any special knowledge they might have regarding the effect of drug usage, that one of the witnesses in this case will testify on the day of the alleged kidnapping Monique Johnson consumed cocaine, became very agitated, paranoid, fearful, because of the drug consumption.”
The extent of examination of jurors during voir dire is within the discretion of the trial court. We will not interfere unless an abuse of discretion is clearly shown. State v. Guffey, 205 Kan. 9, 13, 468 P.2d 254 (1970). There is no record of the voir dire proceedings; consequently, we cannot consider Osby’s contention that the trial court abused its discretion in limiting his voir dire examination. See State v. Wright, 219 Kan. 808, 812, 549 P.2d 958 (1976).
The Anticipatory Rulings
Osby also claims that the trial court embarked on a series of comments and anticipatory rulings regarding the admissibility of drug-use evidence. In support of his assertion, Osby apparently refers to the following statement by the trial court:
“We are bound by the rule of the Supreme Court of Kansas that ingestion of drugs has nothing to do with credibility, period. That’s the Kansas rule. If it comes in as part of the transaction that was occurring at the time of these events, so be it. That has nothing to do with the rule announced, but right now the ruling is in conformity with the law of Kansas that you can’t affect credibility by asking people about drug usage.”
We have held that credibility of a witness cannot be impeached by admitting evidence of the use of drugs unless it is shown “the witness was under their influence at the time of the occurrences as to which he testifies, or at the time of the trial, or that his mind or memory or powers of observation were affected by the habit.” State v. Belote, 213 Kan. 291, Syl. ¶ 4, 516 P.2d 159 (1973). Since the trial court’s statement was generally consistent with Kansas law regarding the admissibility of evidence of drug use, Osby was not prejudiced.
Instructions
Osby asserts that the jury instruction given by the trial court regarding whether a person’s credibility could be impeached by the fact the person was under the influence of drugs was confusing and contradictory. The instruction read:
“Evidence that a witness is a user of drugs is not admissible for the purpose of affecting the witness’ credibility.
“Evidence that a witness was under the influence of drugs at the time of the occurrence about which the witness testified may be considered by you along with all the other evidence in the case and be given such weight as you determine.”
Osby did not object to this instruction. The instruction is not confusing or contradictory.
Prior to the time the trial court proposed giving the instruction, Osby requested the following instruction:
“Evidence showing that a witness is a user of drugs is not admissible for the purpose of discrediting the witness, nor to show the effect of the use of such drugs, unless it is shown that the witness was under their influence at the time of the occurrences to which he/she testified, or that his/her mind or memory or powers of observation were affected by the habit.”
The requested instruction is essentially in accord with State v. Belote, 213 Kan. 291, Syl. ¶ 4.
Osby did not object to the instruction given by the trial court. K.S.A. 22-3414(3). He cannot now raise this issue on appeal. Further, it cannot be said the trial court’s failure to give the requested instruction was clearly erroneous because it is unlikely the jury would have returned a different verdict had the requested instruction been given. State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
Cross-Examination as to Drug Use
Osby further asserts his right to effective cross-examination and confrontation was infringed, if not denied outright. He objects to the limits the trial court placed on his attorney in eliciting testimony regarding Monique’s drug use shortly before she perceived the events in question. During the course of the trial, the court told Osby’s attorney that evidence of Monique’s drug use was not admissible to impeach her credibility. The trial court subsequently told Osby’s attorney that if he wanted to admit evidence of her drug use to attack her perception he would first have to establish that something was wrong with her perception.
On cross-examination, Osby’s counsel asked Robert Taylor, who had been a participant in the Vassar Street incident, “Was Monique Johnson smoking dope in the hoúse that day?” Taylor responded, “Yes, she was.” In response to the State’s objection, the trial court stated:
“Here is the situation, folks. It’s improper for credibility to be attacked because someone has ingested drugs. ... If something happened somewhere as a part of the transaction, that’s just part of the transaction to be testified to, if it did happen. But you can’t, it’s improper and our Supreme Court has specifically ruled and that is a general rule of law that you can’t attack someone’s credibility by asking if they were smoking dope because it does not affect credibility because our laws — well, that’s the way our law is.
“It’s not a crime of dishonesty or false statement. So you heard [the defendant’s attorney] trying to bring out the consumption of dope as it was characterized here, and you have heard the prosecutor trying to keep it out and I have ruled, and we have had four hearings on this now. And I think you are mature people and you can follow the rules of law and the rules of evidence. You can’t take into account credibility from the consumption of whatever this is characterized as, but if that’s something that you believed happened, then you believe that’s something happened.
“Is that too hard a problem?
“(REPORTER’S NOTE: Several jurors shake heads negatively.)”
Osby did not object to the trial court’s statement; thus, he cannot now contend it was erroneous. Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 551-52, 731 P.2d 273 (1987). Osby’s attorney then asked Taylor, “Was there any change in Monique’s behavior after she smoked cocaine on the 14th of January there at the house?” The trial court prohibited the inquiry, stating, “We have had four hearings, we have had specific rulings, and there is no question about what the rulings are.” Osby’s attorney then asked Taylor, “What kind of substance was Monique consuming that day?” Taylor responded, “Cocaine.” The State’s objection was sustained.
For purposes of discrediting a witness, drug-use evidence is admissible to the extent it shows the witness was under the influence of drugs at the time of the occurrence as to which the witness testifies or at the time of trial. It is also admissible to the extent that it shows the witness’ mind, memory, or powers of observation were affected by the habit. State v. Coe, 223 Kan. 153, 162, 574 P.2d 929 (1977); State v. Belote, 213 Kan. 291.
Taylor was asked about the substance Monique was “consuming that day.” The inquiry was proper. Coe controls.
Later in the trial, the jury was presented with a full report of Monique’s association with cocaine. Near the end of the trial, after the State read a portion of the prior testimony of Matthew Isaac, another participant in the Vassar Street incident, into the record, Osby’s attorney read into the record, in the presence of the jury, Isaac’s prior testimony about how Monique’s drug use affected her. Isaac’s prior testimony indicated that, when Monique went to the house on Vassar the first time, she smoked cocaine. During the four to six months that Isaac had known Monique, he had seen her under the influence of cocaine. On January 14, 1987, Isaac saw Monique smoking cocaine for fifteen to twenty minutes and testified that she became extremely paranoid, that she could look at the wall and “freak out,” and that she was frightened of things. Isaac’s prior testimony further indicated that after Monique smoked cocaine on January 14, 1987, “She became very nervous. She would walk around the room and kind of, like be in a daze at everything. She was afraid of anybody coming in the room while she was smoking, no matter who it was. She just — that was how she was when she smoked cocaine.”
Finally, Isaac’s prior testimony indicated that Monique had a reputation for being aggressive and “physical when the situation in her opinion [called] for it.” Further, testimony indicated Monique was acting that way toward Linda Williams and Edward Dixon, who were present in the Vassar Street house on January 14, 1987.
Although Monique’s drug use was presented to the jury through Osby’s use of Isaac’s prior testimony, it was improper for the trial court to have limited the cross-examination of Monique. In view of the abundant testimony concerning Monique’s drug use, the error was harmless. See Coe, 223 Kan. at 164.
The Murder of Earl Ray
Osby claims the trial court erred in excluding evidence about the facts, circumstances, and charges involved in another crime, the murder of Earl Ray. Osby planned to use that evidence to attack the credibility of those prosecution witnesses who had entered into plea bargains or had been granted immunity. Osby wanted to show the jury the criminal involvement of those witnesses (Linda Williams, Monique Johnson, Robert Taylor, and Matthew Isaac) in the death of Earl Ray or in the crimes charged against Osby. He also wished to show the full details and value of the plea bargain concessions made to these witnesses for testifying against him. Because the trial court excluded this evidence, Osby asserts his right to confrontation and cross-examination was denied.
In State v. Davis, 237 Kan. 155, 697 P.2d 1321 (1985), defense counsel attempted to question a witness who had been a code fendant, but who entered into a plea agreement with the State, about the negotiations and the penalty provisions of both the original and the reduced charges. The trial court prohibited the inquiry into the penalty provisions because “ ‘allowing [the defendant] to make a big deal about the reduction and what all the possible consequences and ramifications of that plea are, it takes away from the question in this case, and that is the innocence or guilt of [the defendant] . . . .’ ” 237 Kan. at 157. This court determined that the trial court did not abuse its discretion in limiting the defendant’s examination of the witness because “defense counsel was afforded the opportunity to inquire whether or not [the witness] had made any such ‘deal’ with the State.” 237 Kan. at 158. We further stated, “[I]t lies within the sound discretion of the trial court to determine the propriety and scope of the examination and, absent a showing of a clear abuse of the exercise of the power of discretion, there is no prejudicial error.” 237 Kan. at 158.
The trial court originally reasoned it could not rule on the admissibility of the evidence concerning Earl Ray’s murder because it did not know how the evidence might be relevant. During Osby’s cross-examination of Monique, he attempted to establish that she testified about the same events at the house on Vassar in another trial pursuant to a grant of immunity. After the State objected, Osby’s attorney was unable to tell the trial court specifically to what Monique had previously testified or to explain how the facts and circumstances of Earl Ray’s murder were relevant.
Nevertheless, Osby’s attorney was permitted to cross-examine witnesses regarding the fact that they entered into plea agreements with the State as required by State v. Davis, 237 Kan. at 158. In addition, the trial court permitted Osby to elicit information beyond that which was required by Davis.
Matthew Isaac testified that he had pled guilty to attempted kidnapping, assault, and possession of cocaine in this matter involving the kidnapping of Monique and Michael Johnson and Terry Brown.
Monique Johnson stated she had received a grant of immunity for testifying in two other trials.
Robert Taylor, in addition to stating he had worked out a deal with the State which “saved [him] 80 years, 93 years” in the state prison, stated that he had pled guilty to kidnapping in exchange for the State’s recommendation of a 5- to 20-year sentence.
Linda Williams testified on cross-examination that she had entered into a plea agreement. She stated that two cases were dismissed and that she was serving a five-year probation on'the other two cases. Williams further testified she had a count of aggravated kidnapping and an unlawful possession of a firearm charge pending against her at one time and that she knew the penalty for aggravated kidnapping was 15 years in the state prison. The State objected when Osby’s attorney asked Williams if she was originally charged with aggravated kidnapping, possession of cocaine, aggravated assault, unlawful possession of a firearm, and aggravated intimidation of a witness, because there were several cases involved. When the trial court instructed Osby’s counsel to ask about the cases separately, he stated, “I will come back to that in a moment. I have asked my paralegal to get the court files.” The defendant’s attorney never “came back” to this point.
The record indicates that Osby’s attorney could not state how the evidence regarding the death of Earl Ray might be relevant to this case. In addition, he was able to elicit more information regarding the plea agreements of the witnesses than that required by State v. Davis, 237 Kan. at 158. In fact, the testimony of Isaac, Taylor, and Williams did show the jury the “true value” of their plea agreements.
The trial court did not err in excluding testimony regarding the facts, circumstances, and charges involved in the murder of Earl Ray.
The Use of Prior Testimony
Osby argues that the trial court erred in allowing the prosecution to introduce the transcripts of a portion of the testimony of Robert Taylor and Matthew Isaac from the trials of other defendants who were charged with crimes stemming from the events at the house on Vassar. Neither Osby nor his attorney were present and able to confront and cross-examine those witnesses.
Osby contends: (1) The trial court did not make a specific inquiry as to whether there was a reasonable indicia of reliability of the prior testimony of Isaac and Taylor as required by State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987); (2) even if the prior testimony is admissible under K.S.A. 60-422, it can only be used to examine the witness, and it is not independently admissible once the witness leaves the witness stand; and (3) while use of prior testimony is authorized under the hearsay statute, K.S.A. 1989 Supp. 60-460(c), its use is not allowed where it comes from a trial in which Osby was not a party.
In our analysis of Osby’s argument, we note that Taylor testified that he was under oath and swore to tell the truth before giving the testimony in the prior proceeding. In addition, the transcript of Taylor’s testimony was certified by the court reporter as a true and accurate copy of his testimony. At trial, Isaac stated he agreed to testify truthfully at the prior proceeding. Further, the transcript of Isaac’s prior testimony was also certified as a true and accurate copy of his testimony. Finally, the prior testimony of Taylor and Isaac was consistent with the trial testimony of Terry Brown and Linda Williams. Thus, the evidence was sufficient for the trial court to determine the prior testimony of Taylor and Isaac was, in fact, reliable.
Osby also contends that, under K.S.A. 60-422, the evidence may have been admissible to examine Taylor and Isaac, but was not otherwise independently admissible after they left the witness stand because Osby then did not have the opportunity for face-to-face confrontation.
Robert Taylor was unable to remember how many people in the house on Vassar had guns because two years had elapsed since the incident occurred. At Osby’s trial, the State unsuccessfully attempted to refresh his recollection by reading from a transcript of his prior testimony.
Matthew Isaac could not remember who was at the house on Vassar or his prior testimony regarding the matter. As with Taylor, the State’s attempts to refresh Isaac’s recollection by reading from a transcript of his prior testimony proved futile. Osby did have an opportunity while Taylor and Isaac were testifying, after the State had attempted to refresh their recollection, to cross-examine them and to ask them to identify, explain, or deny the prior testimony.
K.S.A. 60-422 provides:
“As affecting the credibility of a witness . . . (b) extrinsic evidence of prior contradictory statements, whether oral or written, made by the witness, may in the discretion of the judge be excluded unless the witness was so examined while testifying as to give him or her an opportunity to identify, explain or deny the statements.”
When a witness’ testimony contradicts his prior testimony, extrinsic evidence of that prior testimony may be admitted. In addition, the extent of cross-examination for purposes of impeachment lies within the sound discretion of the trial court and, absent proof of clear abuse, the exercise of that discretion will not constitute prejudicial error. State v. Brown, 235 Kan. 688, 689, 681 P.2d 1071 (1984).
Here, Taylor and Isaac testified that they could not remember some of the details of the events of January 14, 1987; however, at a different trial they were able to recall those details. When the State attempted to refresh their recollections regarding the events, they still could not remember what had happened. Thus, Taylor and Isaac’s testimony in this case was contradictory to their prior testimony; therefore, the prior testimony was admissible as a matter of judicial discretion pursuant to K.S.A. 60-422(b).
Osby asserts that, even if the evidence was admissible under K.S.A. 60-422, the State must have shown an indicia of trustworthiness under State v. Cathey, 241 Kan. 715. Cathey held that if a witness is unavailable, the confrontation clause requires that the otherwise admissible hearsay statements must be shown to have an adequate indicia of reliability. 241 Kan. at 729. There was sufficient evidence from which the trial court could have concluded the prior testimony was reliable.
K.S.A. 1989 Supp. 60-460(a) contains an exception to the hearsay rule for a statement previously made by a person who is present at the hearing and available for cross-examination with respect to the subject matter, provided the statement would be admissible if made by the declarant while testifying.
In State v. Lomax & Williams, 227 Kan. 651, 658-62, 608 P.2d 959 (1980), this court held that, where a witness (Bagby) testified at a codefendant’s preliminary hearing but could not remember what happened at the defendant’s trial, the witness was not available for cross-examination under K.S.A. 60-460(a). Bagby’s prior testimony was not admissible under that statute.
However, in State v. Hobson, 234 Kan. 133, 146-47, 671 P.2d 1365 (1983), we determined that where the witness’ testimony was affirmative, contradictory, and adverse to the party calling him, the trial court did not abuse its discretion in declaring the witness hostile, and evidence of the witness’ prior inconsistent statements was admissible as substantive evidence under K.S.A. 60-460(a), as well as for purposes of impeachment. We stated that, because the witness was cross-examined by the State and defendant prior to the introduction of the extrinsic evidence, the evidence was admissible under K.S.A. 60-460. 234 Kan. at 148-49.
At Osby’s trial, Matthew Isaac recalled that: He went to 2849 N. Vassar on January 14, 1987; he testified in a previous matter about these same events; he saw Monique at the house; Ed Dixon was at the house; Mike Osby was at the house; Michael Johnson was at the house; Mark Ray was there; and Linda Williams was there. Isaac did not recall: Who else was at the house; saying Taylor and Osby brought Michael Johnson into the room; saying Osby hit Michael; and most of what he had previously been asked and had previously answered. Isaac could not identify Osby in the courtroom.
Robert Taylor, at Osby’s trial, remembered saying “Mike” had a gun. He did not remember saying: Osby hit Monique; Osby hit Michael Johnson; Ed Dixon asked Osby for a gun; Osby fired the gun in the bedroom; or Osby tried to prevent them from leaving.
On cross-examination, Taylor said that when he was talking at the previous trial about Michael Osby doing things, firing a gun, “stuff like that,” it was another man he thought was Osby; Osby was not the man who hit Monique in the back of the head. Taylor also said Michael Johnson, the only other Michael present, did not hit anybody.
The prior testimony of Taylor and Isaac was admissible under K.S.A. 1989 Supp. 60-460(a). The facts of the instant case dictate the application of our ruling in Hobson rather than Lomax & Williams. Isaac testified Osby was at the house on Vassar Street on the critical date. Taylor also testified Osby was there. At Osby’s trial, their memories were selective. They did not “refuse to testify” as did the witness Bagby in Lomax & Williams. Bagby had stated she was not going to testify because she could not remember anything that had occurred. When on the stand, her response to all questions as to what had occurred on the critical day was that she did not remember. Lomax 6- Williams, 227 Kan. at 656.
Isaac and Taylor were available for cross-examination within the purview of K.S.A. 1989 Supp. 60-460(a).
The trial court did not violate Osby’s right to confrontation and cross-examination by permitting the State to introduce a portion of Taylor’s and Isaac’s testimony from separate proceedings on a limited basis.
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The opinion of the court was delivered by
Lockett, J.:
The district court denied as untimely defendant
Tyrone Bradley’s motion for a new trial based on newly discovered evidence. Bradley appeals, claiming: (1) the two-year period of limitation contained in K.S.A. 22-3501(1) is discretionary; and (2) the district court abused its discretion in denying the motion. We disagree and affirm the district court.
On October 2, 1981, Tyrone Bradley was convicted in two separate cases of four counts of aggravated robbery (K.S.A. 21-3427) and one count of aiding and abetting attempted aggravated robbery (K.S.A. 21-3301, -3427). On October 27, 1981, Bradley was sentenced under the Habitual Criminal Act to a controlling term of 45 years to life imprisonment.
Approximately four years later, in 1985, Henry Holliday, an acquaintance of Bradley’s and a prisoner at Lansing, gave a handwritten statement to prison officials which purported to exonerate Bradley of the crimes for which he had been convicted. Bradley, also a prisoner at Lansing, claims he discovered this statement in December 1988 and immediately secured counsel. On December 30, 1988, Bradley’s lawyer took a statement from Holliday which, if true, would exonerate Bradley.
On April 25, 1989, pursuant to K.S.A. 22-3501, Bradley filed a motion for new trial based on Holliday’s statement, claiming he had moved for a new trial as soon as possible after learning of Holliday’s statement. At a hearing on May 22, 1989, the district court found the motion was filed after the two-year limitation for a new trial based on newly discovered evidence.
At common law, there was no limitation of time for prosecuting a criminal offense. Limitations are set by the legislature. Statutes of limitation in a criminal case are considered an act of grace by the legislature. Though limitations are usually placed upon the power of the sovereign to act, the legislature may also limit an accused or an individual convicted of a crime the right to a remedy.
K.S.A. 22-3501(1) limits the right of a person convicted of a crime, providing:
“The court on motion of a defendant may grant a new trial to him if required in the interest of justice. ... A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after the verdict or finding of guilty or within such further time as the court may fix during the 10-day period.”
Bradley filed the present motion almost seven years after his convictions were affirmed on appeal. See State v. Bradley, No. 53,850, unpublished opinion filed July 16, 1982. Bradley argues that the word “may” in the statute renders the two-year limitation “discretionary and advisory” and that it was error for the court to deny his motion as untimely.
Our appellate courts have never defined the nature of the two-year period of limitation contained in 22-3501(1). However, this statute was modeled after Fed. R. Crim. Proc. 33, which provides: “A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment.” (Emphasis added.) The italicized words do not appear in K.S.A. 22-3501(1).
In United States v. White, 557 F.2d 1249 (8th Cir.), cert. denied 434 U.S. 870 (1977), the court of appeals affirmed the district court’s denial of a motion for new trial based on newly discovered evidence. In doing so, the court said:
“We conclude that White’s new trial motion, filed more than three years after the termination of his direct appeal, was untimely. The purpose behind the two-year limitation embodied in Rule 33 is to cut off claims concerning the question of guilt or innocence at a certain time after trial.” 557 F.2d at 1251.
Like Rule 33, K.S.A. 22-3501(1) also provides: “The court on motion of a defendant may grant a new trial to him if required in the interest of justice.” This provision in our statute is modified by subsequent language which sets the two-year period of limitation. The intent of the two-year limitation for a new trial based on newly discovered evidence is to terminate questions of the guilt or innocence at a specific time after trial. Under the facts of this case, the limitation imposed by 22-3501 was final and the district court properly found that the 22-3501 motion was time-barred.
When time-barred by Federal Rule 33’s two-year limitation for a new trial based on newly discovered evidence, federal prisoners may seek a new trial under 28 U.S.C. § 2255 (1982), a separate civil procedure, which is similar to K.S.A. 60-1507. K.S.A. 60-1507 allows a prisoner in custody under sentence of a court of general jurisdiction to claim that he or she should be released because: (1) the sentence was imposed in violation of the constitutions or laws of the United States or the state of Kansas; (2) the court was without jurisdiction- to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Under 60-1507, the prisoner has the right to move the court which imposed the sentence to vacate, set aside, or correct the sentence at any time.
K.S.A. 60-1507, like 28 U.S.C. § 2255, provides the method for a prisoner to request that his or her sentence be set aside and the prisoner be granted a new trial for newly discovered evidence after the two-year limitation of 22-3501 has expired. See Van Bebber v. State, 220 Kan 3, 551 P.2d 878 (1976) (over five years after he pled guilty, defendant sought relief pursuant to 60-1507 based upon affidavits which purported to prove his innocence; relief denied).
After the district court ruled that the two-year limitation had expired, it considered Bradley’s motion for a new trial. Following a review of the affidavits, the district judge denied Bradley’s motion for a new trial stating: “[T]his Court knows and remembers Tyrone Bradley and Henry Fletcher Holliday and does not believe the testimony of either to be reliable or creditable.” Bradley also appeals this ruling. As in the past, for judicial economy and the interest of justice, we are converting Bradley’s 22-3501(1) motion for a new trial to a 60-1507 motion.
The granting of a new trial for newly discovered evidence is in the trial court’s discretion. The same rules governing abuse of discretion for a trial court’s refusal to grant a defendant’s 22-3501(1) motion for a new trial for newly discovered evidence apply to appellate review of a denial to grant a new trial under 60-1507. A new trial should not be granted on the ground of newly discovered evidence unless the evidence is of such materiality that it would likely produce a different result upon retrial. The credibility of the evidence offered in support of the motion is for the trial court’s consideration. The appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. Baker v. State, 243 Kan. 1, 11, 755 P.2d 493 (1988). The test of the judge’s abuse of discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987).
The district court knew both affiants from past experience and found them to be unreliable and lacking in credibility. Under the circumstances of this case, the district court did not abuse its discretion in denying Bradley a new trial based on newly discovered evidence.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
Darrell Stallings appeals from jury convictions of two counts of second-degree murder, K.S.A. 21-3402, and two counts of aggravated battery, K.S.A. 21-3414. Stallings was sentenced to concurrent terms of 15 years to life on each count of second-degree murder and concurrent terms of 5 to 20 years on each count of aggravated battery. The murder sentences run consecutive to the aggravated battery sentences.
Darrell Stallings sold drugs for his nephew Damon Huff. On the morning of January 14, 1988, Stallings received a phone call from Michael Mills, who wanted to talk with Huff about a prior drug deal. Previously, Huff had loaned drugs to Mills and held Mills’ automobile as security for the loan. Stallings, Huff, and Jessie Jones drove to the residence of Donna Barrett, Mills’ girlfriend, to force Mills to hand over title to the automobile.
Stallings and Huff entered the house without Jones and found Frank Morris and Julia Dawn there with Mills and Barrett. Morris testified that Stallings opened the door for a third man carrying a shotgun. Morris stated he also saw guns in both Stallings’ and Huffs pants. Morris, Barrett, and Mills were seated on the couch with Jones in front of Morris, Stallings standing over Mills, and Huff standing over Barrett. Morris heard a shotgun blast and several other gunshots before passing out. Morris received extensive injuries to his forearm, forehead, wrist, and eye.
Julia Dawn testified she was in a sitting room behind a curtain when Huff sent her into the living room with the others. Dawn stated she saw Huff holding a gun before Jones came in with a shotgun. Dawn received gunshot wounds to the head.
Pursuant to a plea bargain, Damon Huff testified against Stallings. Huff stated he did not have a gun when he entered the house with Stallings and that Stallings opened the door for Jones, who carried a shotgun. Huff further testified that Stallings and Mills were arguing and that Huff pushed Mills down onto the couch and turned around. Huff heard a gunshot and turned around to see Stallings with a gun in his hand. Finally, Huff stated Stallings also shot Barrett and Morris, and Jones shot Morris with a shotgun.
Stallings testified in his own defense. He stated Huff hit both Mills and Barrett in the head with a hammer and ordered Jones to shoot Morris. Stallings stated Huff pulled a gun out of his pants and shot both Mills and Barrett in the head with a .38 revolver. Huff then pulled Dawn out of the sitting room, threw her on the floor, and shot her in the head.
Barrett and Mills each died from gunshot wounds to the head. Huff was arrested soon after the incident and pled guilty to second-degree murder and aggravated battery. Jones was convicted of first-degree murder and aggravated battery. State v. Jones, 246 Kan. 214, 787 P.2d 726 (1990). Stallings fled the state. On August 20, 1988, Stallings was arrested in Las Vegas, Nevada, where he gave a voluntary statement. He was charged with two counts of first-degree murder and two counts of aggravated battery. A jury convicted Stallings of second-degree murder and aggravated battery. This appeal followed.
Stallings first contends the trial court abused its discretion when it dismissed a juror and replaced him with an alternate. After the trial and during jury deliberations, the court received a note from an individual juror which stated, “Can a person be excused from the jury if they feel they cannot pass judgment?” In a different ink the note also stated, “Is because of religious belief.”
The following private discussion ensued between the trial judge and the juror:
“The Court: Mr. Prince?
“Mr. Prince: Yes, sir.
“The Court: Why don’t you tell me where we are at or what’s taking place. “Mr. Prince: Well, everybody’s deciding on—
“The Court: Don’t tell me about everybody else. I’m talking about you personally.
“Mr. Prince: I’m — it’s been revealed to me that he’s not guilty.
“The Court: Now, you say, revealed to you. The question I got is you don’t feel like you can make a judgment because of religious belief. Is that correct?
“Mr. Prince: Yes, to an extent; yes.
“The Court: What religion are you?
“Mr. Prince: Baptist.
“The Court: And does your personal religion make you think you shouldn’t judge other people?
“Mr. Prince: Yes.
“The Court: Do you remember the attorneys asking you on Monday morning if there is anyone who because of religious or conscience or other reasons couldn’t pass judgment on somebody else?
“Mr. Prince: Yes, I remember them saying that.
“The Court: Any reason you didn’t answer or say anything at that time?
“Mr. Prince: Because 1 hadn’t heard all the facts or the evidence, witnesses.
“The Court: But now because of the facts and witnesses, you don’t think your religion will let you pass judgment?
“Mr. Prince: No, sir; I don’t.
“The Court: You don’t believe you can discuss this with the other jurors and make a verdict just on the evidence in the case, setting aside your religious beliefs?
“Mr. Prince: No, sir, I don’t believe 1 could go along. I think they are wrong.
“The Court: I’m talking about — take aside religion.
“Mr. Prince: You mean forgetting my religion and my belief and going through—
“The Court: Let me restate that. I don’t want you to forget your religion or your belief in God, but what I am — if I hear you correctly, you are telling me because of your religious beliefs you don’t think you can work as a juror on this case.
“Mr. Prince: No, sir.
“The Court: Okay.
“Mr. Prince:' I don’t think I can. As far as what I have already learned about it, I don’t think I can.
“The Court: You don’t think you can?
“Mr. Prince: No. I’m sorry that I didn’t find out before now.
“The Court: Well, I can understand that. You’ve got two buttons. One says ‘Jesus Christ Lives’; and one says “Jesus—
“Mr. Prince: '. . . is the reason for the season.’
“The Court: Just sit for a minute and let me go back out in the courtroom and — anything else you want to tell me or anything you want to ask me?
“Mr. Prince: Well, no, sir. Just like to say Jesus Christ loves you.
“The Court: Okay. Thank you very much.” (Emphasis added.)
After finding the juror had religious scruples against making a decision in this case, the trial court removed the juror from the panel and substituted an alternate juror with instructions to begin deliberations anew.
Stallings contends the trial court erred in substituting an alternate juror rather than declaring a mistrial. He argues the discussion with the trial judge shows that the juror believed him innocent after hearing the evidence and relied upon religious convictions as an excuse to get out of deliberations. Therefore, Stallings argues, the trial court should have informed the juror of his duty to return to deliberations if he believed Stallings was innocent. Stallings contends the result of deliberations with the original juror would have been an inability to reach a verdict, and under K.S.A. 22-3423(d) the trial judge would have been required to declare a mistrial.
The decision to declare a mistrial, discharge a juror, or select alternate jurors lies within the sound discretion of the trial court. The defendant has a burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court. State v. Helms, 242 Kan. 511, 517-18, 748 P.2d 425 (1988).
In State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985), we considered a case similar to the one at hand. In Haislip, a juror sent a note to the court on the second day of deliberations requesting that she be excused as a juror. The juror’s note stated that the murder case bothered her from the beginning, that she was not the deciding vote, and that she wanted to be removed. Without a hearing, the trial judge excused the juror for incapacity due to stress and replaced her with an alternate juror. Haislip argued he was prejudiced by the decision because a hung jury would have resulted if the original juror had remained on the panel. 237 Kan. at 466-67.
We found Haislip’s claim of prejudice, based on a speculated loss of a mistrial due to a hung jury, was without merit. 237 Kan. at 468-69. K.S.A. 22-3412(3) allows for substitution of an alternate juror after deliberations have begun as long as the alternate juror has not been discharged. Thus, this court concluded a defendant has no right to the original twelve jurors. 237 Kan. at 468.
Similarly, Stallings’ argument that he was prejudiced by the court’s refusal to declare a mistrial is without merit. Since Stallings does not hold a right to the original panel of jurors selected, he was not prejudiced simply by the substitution of an alternate juror.
Next, we consider whether Stallings was prejudiced by an abuse of discretion in dismissing one juror and replacing him with an alternate. In Haislip, the court adopted the federal standard of “reasonable cause” to determine whether a trial court erred in dismissing and substituting a juror after deliberations had begun. 237 Kan. at 469; see State v. Folkerts, 229 Kan. 608, 616, 629 P.2d 173, cert. denied 454 U.S. 1125 (1981). During voir dire of the Haislip trial, the juror stated she felt pressured by the case, and in her note to the court she stated the murder bothered her. From these statements, the trial court determined the juror was mentally incapacitated and dismissed her. We concluded there was reasonable cause to dismiss the juror and found no abuse of discretion by the trial court. 237 Kan. at 469-71.
In comparison, the juror in the present case did not express his religious concerns during voir dire, although counsel specifically addressed the issue. Furthermore, the juror indicated to the trial judge that he was the deciding vote in jury deliberations. However, the juror also stated that he could not make a judgment because of his religious beliefs. Altogether, the juror s statements indicate he may have sought his dismissal from the jury panel because of his belief in Stallings’ innocence. Nevertheless, the note and personal statements reveal a concern due to religious convictions.
In State v. Miller, 11 Kan. App. 2d 410, 722 P.2d 1131, rev. denied 240 Kan. 805 (1986), a juror notified the court at the end of the first trial day that she had not heard some testimony. The appellate court found that a juror’s specific factual statement about her ability to hear should control over a judge’s opinion regarding her ability to hear. The court concluded the juror should have been discharged for cause and a mistrial declared and found the refusal to sustain a motion for mistrial an abuse of discretion. 11 Kan. App. 2d at 411-13.
Miller is distinguishable from the present case in that it involved a juror’s physical handicap which prevented her from evaluating the testimony. In this case, the juror was impaired by his religious convictions. The Miller court dealt with the trial court’s failure to dismiss a juror and should not stand for the proposition that a mistrial must be declared when a juror is found physically incompetent.
Under the facts of this case, we find the court had reasonable cause to dismiss the juror and replace him with an alternate. Stallings failed to show substantial prejudice and we therefore find no abuse of discretion in the trial court’s ruling.
Stallings next contends the trial court erred in refusing to instruct on the lesser included offense of voluntary manslaughter. A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. K.S.A. 21-3107(3). Voluntary manslaughter K.S.A. 21-3403, the intentional killing of a human being without malice and in the heat of passion, is a lesser included offense of second-degree murder. State v. Ritchey, 223 Kan. 99, 100, 573 P.2d 973 (1977). An instruction on a lesser included offense must be given even though the evidence supporting the lesser offense may not be strong or extensive. However, the instruction need not be given if there is insufficient evidence by which a rational factfinder might find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Hill, 242 Kan. 68, 73-74, 744 P.2d 1228 (1987).
Stallings maintains evidence was presented which supports his claim that the killings were committed in the heat of passion so as to justify the giving of an instruction on voluntary manslaughter. Stallings relies on testimony that he and Mills had pulled guns on each other prior to the January 14 shooting spree, thus showing bad blood existed between the two. Stallings also argues that Huff s testimony provided evidence that Stallings killed Mills in the heat of passion. Huff stated that Mills and Stallings were arguing face-to-face, and that he told Stallings to “cool down” and pushed Mills down onto the couch. When Huff turned around, he heard a gunshot and saw Stallings with a gun.
In State v. Guebara, 236 Kan. 791, 696 P.2d 381 (1985), this court summarized the general principles of law governing voluntary manslaughter: (1) Voluntary manslaughter is the intentional killing in the heat of passion as a result of severe provocation; (2) heat of passion is any vehement emotional excitement prompting violent and aggressive actions, and such emotional state of mind must be of such a degree as would cause an ordinary person to act on impulse without reflection; (3) defendant’s emotional state of mind must have existed at the time of the act and it must have arisen from circumstances constituting sufficient provocation, i.e., provocation calculated to deprive a reasonable person of self-control and cause him or her to act out of passion rather than reason; (4) the test of sufficiency of provocation is objective; and (5) mere words or gestures, however insulting, do not constitute sufficient provocation. 236 Kan. at 796-97.
The defendant in Guebara killed his wife in a fit of anger over her inability to dismiss criminal charges against him that had been initiated by her. 236 Kan. at 792. The Guebara court found the defendant killed his wife in the heat of passion, but ruled that his emotional state did not arise from circumstances constituting sufficient provocation. No evidence was presented that showed the victim had been quarrelsome, had committed aggressive acts, or had attempted to interfere with the defendant’s movements. Thus, this court found no error in the trial court’s refusal to give a voluntary manslaughter instruction at trial. 236 Kan. at 797-99.
In the present case, we find no error in the trial court’s refusal to instruct on voluntary manslaughter. Huffs testimony that Mills and Stallings argued face-to-face is insufficient to warrant a voluntary manslaughter instruction. Although Mills and Stallings argued, there is no evidence that Mills committed aggressive acts or made physical threats to Stallings (see State v. Guebara, 236 Kan. at 797), nor is there any evidence of physical assault by Mills together with abusive and insulting language. See State v. Hill, 242 Kan. at 74-76 (evidence of physical assault and abusive language directed toward defendant constitutes sufficient provocation to require a voluntary manslaughter instruction). Evidence that Stallings and Mills pulled guns on one another at a prior time is not relevant to whether there was sufficient provocation to reduce the killing to voluntary manslaughter. See State v. Guebara, 236 Kan. at 796. We conclude the evidence presented failed to show sufficient provocation necessary to support a voluntary manslaughter conviction and thus find no error in refusing to give a voluntary manslaughter instruction.
Stallings’ final contention is that the trial court abused its discretion by imposing disparate sentences for comparable offenses. Stallings was sentenced to two concurrent terms of 15 years to life for the second-degree murder convictions and to concurrent terms of 5-20 years for each aggravated battery conviction. The trial court ordered the murder sentences to run consecutive to the aggravated battery terms. Huff pled guilty to two counts of second-degree murder and two counts of aggravated battery; however, all his sentences run concurrently.
It is well established that this court will not disturb a sentence imposed by a trial court on the ground it is excessive, provided it is within the statutory limits and within the realm of the trial court’s discretion and not the result of partiality, prejudice, oppression, or corrupt motive. State v. Coberly, 233 Kan. 100, 110, 661 P.2d 383 (1983).
Stallings does not contend the sentences imposed exceed the statutory limitation or that they are the result of partiality or prejudice. Rather, Stallings disputes the disparity of his sentence compared to Huffs and assigns error in his argument that Huff is the more culpable defendant. We do not agree.
K.S.A. 21-4601 mandates that defendants shall be sentenced in accordance with their individual characteristics, circumstances, needs, and potentialities. Further, K.S.A. 21-4606 sets forth specific criteria a trial court must consider before sentencing a defendant. The record before us reflects the trial court’s consideration of these factors and the reasons for the sentence imposed. The court considered the extent of harm caused by Stallings’ actions in that two people were dead and two others seriously maimed. The trial court noted that Stallings entered the house with a handgun, thereby intending to cause or threaten serious harm. The court found no justification for Stallings’ criminal actions and recognized that he fled from the state to escape arrest and imprisonment. Most importantly, the trial court reviewed Stallings’ history of prior criminal conduct and found juvenile vandalism, aggravated assault and battery, and a violation of group home placement.
This case is distinguishable from State v. Goering, 225 Kan. 755, 594 P.2d 194 (1979), and Cochrane v. State, 4 Kan. App. 2d 721, 610 P.2d 649 (1980), where trial court sentences imposed upon codefendants were deemed unacceptably disparate. In Goering, the defendant with the disproportionate sentence had the least culpable conduct in that she was merely the driver of the getaway car which transported two other more culpable codefendants from the crime scene. 225 Kan. at 762. In Cochrane, the Court of Appeals found no justification for imposing a minimum sentence upon Cochrane which was 15 times greater than that imposed upon a codefendant; Cochrane had not been offered similar plea bargaining possibilities as had his codefendants, who had received lower sentences, and Cochrane had had no prior felony convictions or incarcerations. 4 Kan. App. 2d at 726-27.
In light of Stallings’ prior criminal history and other individual characteristics, we find the trial court was justified in imposing a longer sentence for Stallings than for Huff.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the plaintiff, Shirley Germann, from an order of the district court which denied her motion for a new trial based upon the inadequacy of the jury verdict. In an unpublished opinion, Germann v. Blatchford, No. 62,680, filed November 9, 1989, the Court of Appeals reversed the judgment and remanded the case for a new trial on the issue of damages only. We granted petitions for review filed by both defendants, Bonnie Blatchford and Ernest E. Germann. We affirm the decision reached by the Court of Appeals.
On May 10, 1985, Shirley Germann was a passenger in the front seat of a station wagon driven by her husband, Ernest E. Germann, when their vehicle was involved in a head-on collision with a pickup truck driven by Bonnie Blatchford. The Germanns’ daughter, Christy, was a passenger in the back seat. Plaintiff sued her husband and Bonnie Blatchford, claiming each was negligent in operating their respective vehicles. Plaintiff also sued Coffey County, alleging the county was negligent in maintaining and signing the road. The claims against the county were settled before trial and all parties stipulated to the county’s dismissal from the case with prejudice. At trial the district court ruled as a matter of law that there was no fault on the part of the plaintiff which contributed to the accident and the issue of fault was limited to that of the two individual defendants.
The jury, utilizing a verdict form prepared in compliance With K.S.A. 1989 Supp. 60-249a, found each defendant 50% at fault and awarded damages as follows:
“3. Without considering the percentage of fault found in question 2, what total amount of damages do you find was sustained by Shirley Germann for each of the following items:
“A. Pain and suffering, disability or disfigurement and any accompanying mental anguish from the accident in question to date: $ -0-
“10 of the 12 of us agreed on the above answer.
“B. Pain and suffering, disability or disfigurement and any accompanying mental anguish reasonably certain to be sustained in the future: $ -0-
“12 of the 12 of us agreed on the above answer.
“C. Reasonable expenses of necessary medical care, hospitalization and treatment received from the accident in question to date: $5,500.00
“11 of the 12 of us agreed on the above answer.
“D. Reasonable expenses of necessary medical care, hospitalization and treatment reasonably certain to be sustained in the future: $ -0-
“12 of the 12 of us agreed on the above answer.
“E. Loss of time or income from the accident in question to date: $ -0-
“12 of the 12 of us agreed on the above answer.
“F. Loss of time or income reasonably certain to lose in the future: $ -0-
“11 of the 12 of us agreed on the above answer.
“G. Loss and impairment of her ability to perform services as a wife to her husband to date: $1,000.00
“10 of the 12 of us agreed on the above answer.
“H. Loss and impairment of her ability to perform services as a wife to her husband reasonably certain to be sustained in the future: $ -0-
“12 of the 12 of us agreed on the above answer.
TOTAL $6,500.00”
Plaintiff has appealed the judgment entered upon the jury’s verdict, asserting that she is entitled to a new trial because of the inadequacy of the verdict and the failure of the jury to award appropriate damages. Although plaintiff, in her motion for a new trial and in her briefs on appeal, asserts the entire verdict was based upon passion and prejudice by the jury and is inadequate, she primarily contends that she is entitled to a new trial because of the jury’s failure to allow any award for pain and suffering.
The issue of plaintiffs damages was hotly contested throughout the trial. Plaintiff focused on her numerous injuries, their severity, and their effect upon her activities. The defendants focused on plaintiffs preexisting conditions, the lack of objective evidence that plaintiff s injuries were a result of the accident, and plaintiff s credibility regarding the truth and extent of her injuries.
Evidence of what happened to plaintiff during the accident came primarily from her testimony and that of her husband. Plaintiff testified that, when she realized they were going to crash, she put her left hand on the dash and grabbed the handhold on the door. Although plaintiff did not recall hitting the dash with any part of her body, defendant Germann testified that plaintiff s knees hit the dash when she was thrown into it and that her head hit the windshield. Both he and Christy testified that Christy was thrown against the back of the front passenger seat, which shoved plaintiff forward into the dashboard. Plaintiff did remember that her head hit the windshield.
After the accident, plaintiff was taken by ambulance to Coffey County Hospital. Although she was conscious or semi-conscious immediately after the accident, she was unconscious when the ambulance personnel arrived at the scene.
According to plaintiff, when she woke up at the hospital she was suffering severe head pain; severe pain in the right ribs; pain in the right hip, knees, left hand, neck, and lower back; and numbness down the right side of her face. She could hardly open her mouth. Defendant Germann, in his testimony, confirmed his wife’s complaints of pain and suffering.
Dr. Smith, the physician who examined plaintiff at the emergency room, testified she complained of a headache, neck pain, lower back pain, and much pain in both knees. Upon his applying pressure to her scalp and both knees, Dr. Smith said plaintiff complained of “significant pain and tenderness.” He confirmed that plaintiff had some contusions and some “relatively superficial abrasions” on both knees. Dr. Smith diagnosed plaintiff as having a concussion syndrome, a cervical strain, and abrasions to the knees. She was hospitalized overnight.
Between the date of the accident and the beginning of trial on May 10, 1988, the plaintiff consulted and was treated by numerous doctors for various complaints, which plaintiff contended resulted from the accident. Plaintiff was operated upon for a torn meniscus of the right knee and had surgery on her hand for carpal tunnel syndrome. She also was treated for temporal mandibular joint misalignment. Plaintiff denied these problems existed prior to the accident. Defendants, on the other hand, asserted that the complaints were highly exaggerated or nonexistent and that, if they existed at all, the complaints were the result of preexisting conditions and the automobile collision did not cause or contribute to them. Numerous experts testified in support of both positions.
The defendants denied all of plaintiff s contentions and claims; however, the evidence of her pain and suffering at the time of the accident and immediately thereafter, as testified to by Dr. Smith and others, is essentially uncontroverted.
Although plaintiff asserts the entire verdict was inadequate and contrary to the instructions and the evidence, she primarily contests the lack of any award for pain and suffering. The issue before the Court of Appeals and now before this court is not one addressing the inadequacy of a verdict granting nominal damages for pain and suffering, but one which granted no such damages when the uncontroverted evidence was that the plaintiff did experience some pain and suffering.
Plaintiff claims that the jury’s verdict was inconsistent, because it is not conceivable for the jury to have awarded $5,500 for medical expenses and $1,000 for loss of consortium, yet find no pain and suffering. Further, she contends there was no evidence controverting the bruises and abrasions to her knees, that she was unconscious, or her complaints of pain on May 10, 1985, and, even if the jury found preexisting conditions, it was instructed to consider whether the accident aggravated those conditions. It should also be noted that plaintiff claimed medical expenses in excess of $22,000, which she attributed to the injuries sustained in the accident.
The defendants contend the jury could have awarded the $5,500 in medical expenses for services rendered for the numerous examinations and attempts at diagnosis and the loss of consortium for plaintiffs time spent in getting the examinations and diagnosis, but found the evidence showed only pain from preexisting conditions and not pain and suffering from the accident. They distinguish prior Kansas cases, saying the evidence of pain and suffering was uncontradicted in those cases and contend that plaintiff in this case did not meet her burden of proving her pain and suffering was caused by the accident.
In addition to instructing the jury on preexisting conditions (PIK Civ. 2d 9.43) and loss of consortium (PIK Civ. 2d 9.02), the court also instructed the jury as to the various elements of personal injury damages as set forth in PIK Civ. 2d 9.01. The instruction read:
“INSTRUCTION NO. 25
“If you find the Defendants, or either of them, to be at fault, it will be your duty to determine the amount of Plaintiffs recovery. You should allow her such amount of money as will reasonably compensate her for her injuries and losses resulting from the occurrence in question or aggravation of any pre-existing ailment or condition for any of the following shown by evidence:
“a. Pain, suffering, disabilities, or disfigurement, and any accompanying mental anguish suffered by the Plaintiff to date and those she is reasonably certain to experience in the luture;
“b. The reasonable expenses of necessary medical care, hospitalization and treatment received and reasonable expense of necessary medical care, hospitalization and treatment reasonably certain to be needed in the future;
“c. Loss of time or income to date by reason of her disabilities and that which she is reasonably certain to lose in the future.
“In arriving at the amount of your verdict you should consider Plaintiffs age, condition of health before and after, and the nature extent and duration of the injuries. For such items as pain, suffering, disability and mental anguish there is no unit value and no mathematical formula the Court can give you. You should award such sum as will fairly and adequately compensate her. The amount to be awarded rests within your discretion.”
In Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P.2d 60 (1961), this court considered the rules to be applied in considering a claim of an inadequate verdict. In doing so, the court stated:
“In considering the question presented, several elementary and firmly-established rules are to be kept in mind. One is that ordinarily the granting or denial of a new trial rests in the sound discretion of the trial court and a ruling thereon will not be disturbed, absent a showing of abuse of discretion or other manifest error. Another is that until the contrary is shown, a jury is presumed to have acted fairly, reasonably, intelligently and in harmony with the evidence. Still another is that the same yardstick must be applied where the claim is that a verdict is inadequate as in a case where a verdict is claimed to be excessive, and before a new trial will be granted because of the size of a verdict it must appear to be so excessive or inadequate, as the case may be, as to have been given under the influence of passion and prejudice. . . .
“. . . We also are aware of the fact that ordinarily the assessment of damages in personal injury cases is exclusively the province of the jury (Domann v. Pence, 183 Kan. 135, 325 P.2d 321), and that courts should exercise utmost care and caution in granting a new trial on the ground of inadequacy of a verdict.” 188 Kan. at 289-90.
After discussing the foregoing principles, this court, in Henderson, found that the jury verdict of $5,000 in a personal injury action was so inadequate, based upon the injuries shown by the evidence, that justice required a new trial.
The most relevant Kansas cases are those considering situations where the verdict was equal to or less than plaintiffs medical expenses. Defendants rely primarily upon Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P.2d 369 (1968), where the court found no error in such a verdict, while plaintiff relies primarily upon Timmerman v. Schroeder, 203 Kan. 397, 454 P.2d 522 (1969), where the court granted a new trial because the verdict did not reflect an amount for the uncontroverted evidence of pain and suffering. Most, if not all, of the cases relied upon by the parties involved general verdicts rather than an itemized verdict.
In Furstenberg, plaintiff suffered personal injury when she fell in an unlighted construction area while entering defendant’s hospital. The jury returned a general verdict for $765, the exact amount plaintiff had paid for medical expenses. On appeal this court found it could not conclude that the verdict denoted passion and prejudice on the part of the jury or that it was grossly inadequate. In doing so, the court first observed that the jury also denied the defendant hospital’s counterclaim of $1,730.75 for services rendered, which increased the benefits plaintiff actually received. Second, the amount of the verdict could have reflected the jury’s determination that the hospital should not be responsible for paying all plaintiffs medical expenses because of other factors, including her obesity, her preexisting arthritis, and her continuous wearing of high heels, which could have caused or contributed to her problems. Thus, the court speculated that the general verdict may not have been limited to medical expenses and may have included an amount for pain and suffering.
While defendants contend the present case is similar to Furstenberg because of the evidence that other factors caused or contributed to plaintiffs injuries, Furstenberg is not persuasive because the court inferred that the general verdict might have included some award for pain and suffering. The court simply found the jury could have questioned the amounts of the medical bills in light of the impeaching evidence. In the case now before the court, it is clear from the itemized verdict that the jury allowed nothing for plaintiffs uncontroverted pain and suffering.
In Timmerman, the plaintiff was injured in a two-car collision and in a jury trial was awarded $357.95, the exact amount she paid for medical expenses. Plaintiff received extensive facial lacerations which required numerous stitches and suffered pain from both bruising and lacerations. This court stated:
“The question here presented is whether a jury verdict which limits damages to the exact amount of medical expenses without allowing any amount for pain, suffering and permanent injuries should have been approved by the trial court when a claim for pain, suffering and permanent damages was made and proven.
“A verdict in a personal injury action limited to the exact amount of uncontradicted medical expenses incurred as a result of an accident, and which verdict includes nothing for the pain and suffering or permanent injury, shown by uncontradicted evidence is in part contrary to the evidence and should be set aside on motion for new trial. [Citations omitted.] An allowance limited to the amount of medical expenses in such cases disregards the plain instructions of the court on damages.
“The defendant relies on Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P.2d 369, and Brown v. Godfrey, 200 Kan. 568, 438 P.2d 117. The basic rule of law underlying those cases does not give support to defendant’s position. Inherent in both of those decisions is the rule expressed herein, for in upholding the verdicts we there determined the amounts allowed were not conclusively limited to actual medical expenses incurred as a result of the injuries. Some part of the amounts allowed in each of those verdicts was reasonably attributable to damages for pain and suffering or permanent disability.” 203 Kan. at 399-400.
While both Furstenberg and Timmerman can be distinguished because of the nature of a general verdict as opposed to the itemized verdict here, we find the reasoning of Timmerman applicable to the present case.
With the adoption of the itemized verdict required by K.S.A. 1989 Supp. 60-249a, the damages awarded for any specified element of loss or injury are not subject to speculation. In the present case, the elements of damage were clearly separated into four specific categories. For each element specified the jury was directed to consider the extent of the damages, if any, incurred prior to trial and those which were reasonably certain to be incurred in the future. While the jury is free to award no damages for any particular element not supported by the evidence, an award of $5,500 for medical expenses and $1,000 for loss of consortium cannot be reconciled with no award for pain and suffering. The monetary awards found by the jury clearly indicate that the jury was convinced that the plaintiff suffered injuries as a direct result of the accident. The uncontroverted evidence discloses the plaintiff experienced something more than minimal discomfort immediately following the accident and while hospitalized under Dr. Smith’s care. The jury was not free to find the plaintiff was injured to the extent indicated by the two monetary awards and then totally ignore other proven elements of damage. To do so results in an inconsistent verdict which is contrary to the instructions and the evidence.
We fully recognize that the jury, as the trier of the facts, must determine the credibility of the witnesses, the weight to be given to the evidence, and the extent of the damages suffered, if any. Here, the jury found plaintiff suffered more than minimal injury and then failed to award any amount for damages which directly flowed from those injuries. Our review of the entire record convinces us that this verdict is so far contrary to the evidence and instructions that a new trial is required.
We conclude the Court of Appeals was correct in its determination that the verdict was inadequate and that plaintiff is entitled to a new trial upon the issue of damages only.
The judgment of the Court of Appeals is affirmed, the judgment of the district court is reversed, and the case is remanded with directions to grant the plaintiff a new trial on the issue of damages only. | [
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The opinion of the court was delivered by
Six, J.:
This case concerns “jurisdiction.” We address the issue by inquiring; Does a K.S.A. 1989 Supp. 60-2102(a)(4) “final decision” on the merits require resolution of a request or motion for attorney fees before filing a timely notice of appeal pursuant to K.S.A. 1989 Supp. 60-2102 and K.S.A. 1989 Supp. 60-2103? We conclude that, by answering “no” to this question, the appellate courts have jurisdiction to hear this appeal. Therefore, we reverse the decision of the Court of Appeals.
Facts
State Farm Mutual Automobile Insurance Company (State Farm) appealed from a jury verdict finding that it had wrongfully denied insurance coverage to Brian Owen, who had been involved in an automobile accident with Billy Snodgrass. Snodgrass and his insurer, Automobile Insurance Company of Hartford, Connecticut, (Hartford) brought this action as assignees and gamishers of Owen. The trial court entered judgment in favor of Snodgrass and Hartford and against State Farm in the amount of the $300,000 (the judgment originally obtained by Snodgrass against Owen). Interest was added resulting in a total judgment of $574,762.30 plus costs. A journal entry of judgment was filed on April 18, 1988.
State Farm filed a notice of appeal on April 28, 1988, stating that it appealed “from the journal entry and order of the court entered April 18, 1988, to the Court of Appeals of the State of Kansas.” Snodgrass and Hartford filed a notice of cross-appeal on May 17, 1988, regarding “the trial court’s final judgment entered on the jury’s verdict to the extent the trial court refused to give plaintiffs’ requested jury instructions.” Snodgrass and Hartford alleged in their petition that they were entitled to recover reasonable attorney fees “to be taxed as costs pursuant to K.S.A. 40-256.” They moved the trial court “to tax attorney fees pursuant to K.S.A. 40-256.” The trial court, on May 2, 1988, awarded attorney fees pursuant to K.S.A. 40-256 in the amount of $144,000. There was no appeal from the order of attorney fees.
The Court of Appeals issued an order to show cause why this appeal should not be dismissed for lack of jurisdiction because the notice of appeal was filed prior to the decision and entry of judgment on attorney fees. The parties responded with briefs and argument. In an unpublished opinion filed June 2, 1989, the Court of Appeals found it had no jurisdiction and dismissed the appeal without reaching the merits of the numerous issues raised by the appeal and cross-appeal. The Court of Appeals reasoned that, because the amount of attorney fees to be awarded had not yet been determined when the notice of appeal was filed, there was no final appealable judgment and, consequently, no jurisdiction. We granted State Farm’s petition for review. The judgment of the Court of Appeals is reversed. We remand to the Court of Appeals with directions to reinstate both the appeal and cross-appeal.
Jurisdiction
The Court of Appeals concluded that State Farm did not file a timely notice of appeal because none was filed after the ruling on the motion for attorney fees. Although neither party raised the issue, the Court of Appeals had a duty to consider jurisdiction on its own motion and, if the record disclosed a lack of jurisdiction, to dismiss the appeal. McArthur v. Glass King Mfg., Inc., 11 Kan. App. 2d 35, 36, 711 P.2d 774 (1986).
The manner in which the jurisdiction of the Court of Appeals is invoked is set out at K.S.A. 1989 Supp. 60-2102, which provides in part:
“Invoking jurisdiction of court of appeals, (a) As of right. Except for any order or final decision of a district magistrate judge, the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:
“(4) A final decision in any action, except in an action where a direct appeal to the supreme court is required by law. In any appeal or cross appeal from a final decision, any act or ruling from the beginning of the proceedings shall be reviewable.
“(b) Other appeals. When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order.” (Emphasis added.)
In discussing K.S.A. 1989 Supp. 60-2102(a)(4), Judge Spencer A. Gard in his text on civil procedure noted that the term “final decision” is not defined but “is really self-defining. Obviously it is an order which definitely terminates a right or liability involved in the action, or which grants or refuses a remedy as a terminal act in the case.” Comments, 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-2102 (1979).
In resolving the issue of jurisdiction, we are called upon to determine whether a K.S.A. 40-256 motion or request for attorney fees alleged in the petition is a part of the merits of the underlying action. In our view such a motion or request is not. Attorney fees are not part of the compensation for a plaintiffs injury. Attorney fees traditionally have been regarded by the legislature as costs awarded to the prevailing party.
The appeal filed by State Farm in this action was not a premature notice of appeal contemplated by Rule 2.03 (1989 Kan. Ct. R. Annot. 6). The notice was not filed between announcement of the judgment to be entered by the court and the actual entry of judgment, but was filed after the entry of judgment documenting the jury verdict. The only issue that remained to be decided, and which the Court of Appeals concluded made the appeal interlocutory, was the issue of attorney fees.
In Cornett v. Roth, 233 Kan. 936, 666 P.2d 1182 (1983), this court concluded that it had jurisdiction to consider an appeal even though the notice of appeal was filed before the trial court decided a motion for reconsideration. The journal entry of final judgment in Roth was filed October 5, 1982. Plaintiffs filed a notice of appeal November 2, 1982. Previously, on October 15, 1982, plaintiffs had filed a motion for reconsideration of the October 5 order, which was denied on November 10, 1982. No additional notice of appeal was filed. We held that defendants showed no prejudice from the allegedly premature filing of the notice of appeal. A unanimous court, speaking through Justice Holmes, stated:
“Considering the liberal construction to be given our procedural statutes and rules and the intent of our code of civil procedure and our appellate rules, we find no fatal jurisdictional defects and will proceed to determine the appeal on the merits. See K.S.A. 60-102; Supreme Court Rule 2.03 (230 Kan. xlv).” 233 Kan. at 939-40.
We adopt the rationale of Budinich v. Becton Dickinson & Co., 486 U.S. 196, 100 L. Ed. 2d 178, 108 S. Ct. 1717 (1988). A decision on the merits is final for purposes of appeal even if a request or motion for attorney fees attributable to the case has not yet been determined.
The petitioner in Budinich initially filed an action in Colorado state court to recover employment compensation. Respondent removed the case to the United States District Court for the District of Colorado on the basis of diversity of citizenship. A jury awarded petitioner $5,000 in damages, much less than what had been sought. The judgment of the jury award was entered on March 26, 1984. Petitioner filed new trial motions, challenging numerous rulings by the District Court, and a motion for attorney fees. Pursuant to Colorado law, petitioner was entitled to receive “a reasonable attorney fee” as part of the costs of the action. On May 14, 1984, the District Court denied the new trial motions and found that petitioner was entitled to attorney fees but requested briefing and documentation before awarding a specific amount. The District Court issued its final order concerning attorney fees on August 1, 1984. Petitioner filed a notice of appeal on August 29, 1984.
Pursuant to 28 U.S.C. § 1291 (1982), all “final decisions of the district courts” are appealable to the courts of appeals. (Emphasis added.) In Budinich, the Court concluded that the meaning of the phrase “final decisions” was an issue of federal law and not intended by Congress to rest upon state law concepts. Thus, the question was whether a decision on the merits is a “final decision” as a matter of federal law under § 1291 when the recoverability or amount of attorney fees for the litigation remains to be determined. 486 U.S. at 199. In answering this question, a unanimous Court stated:
“[W]e think it indisputable that a claim for attorney’s fees is not part of the merits of the action to which the fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is often available to the party defending against the action. At common law, attorney’s fees were regarded as an element of ‘costs’ awarded to the prevailing party, see 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil § 2665 (1983), which are not generally treated as part of the merits judgment, cf. Fed. Rule Civ. Proc. 58 (‘Entry of the judgment shall not be delayed for the taxing of costs’).” 486 U.S. at 200-01.
The United States Supreme Court recognized that attorney fees could be distinguished between those requested pursuant to statutes, which may cause them to be part of the merits relief, and those specifying that they are to be taxed and collected as costs. 486 U.S. at 201. But the Court, emphasizing the need for reserving operational consistency and predictability in the overall application of § 1291, concluded:
“The time of appealability, having jurisdictional consequences, should above all be clear. We are not inclined to adopt a disposition that requires the merits or nonmerits status of each attorney’s fee provision to be clearly established before the time to appeal can be clearly known. Courts and litigants are best served by the bright-line rule, which accords with traditional understanding, that a decision on the merits is a ‘final decision’ for the purposes of § 1291 whether or not there remains for adjudication a request for attorney’s fees attributable to the case.” 486 U.S. at 202-03.
No jurisdiction existed for the appeal in Budinich because petitioner’s judgment on the merits was final and appealable when it was entered. The notice of appeal filed after a decision awarding attorney fees was untimely.
Both the Kansas statute and its federal counterpart, 28 U.S.C. § 1291, employ the same critical term “final decision” as the basis for appellate jurisdiction. K.S.A. 1989 Supp. 60-2102 provides:
“Invoking Jurisdiction of Court of Appeals, (a) As of right. . . . the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from:
“(4) A final decision in any action . . . .” (Emphasis added.)
The federal statute provides:
“Final decisions of district courts. “The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts . . . . ” (Emphasis added.) 28 U.S.C. § 1291.
Although we are not bound by the Budinich interpretation of the federal statute governing appeals, we recognized in Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 128, 415 P.2d 398 (1966), that the federal statute was similar to ours by providing for appeals from final decisions. We noted that federal decisions construing § 1291 are entitled to persuasive weight in interpreting our state statute.
In Budinich, the Court reasoned that, at common law, attorney fees were regarded as an element of costs, which are not treated as part of the merits judgment. 486 U.S. at 200.
Fed. R. Civ. Proc. 58 states that the “entry of the judgment shall not be delayed for the taxing of costs.” The comparable Kansas provision, K.S.A. 60-258, has omitted that statement from its adoption in 1963 to the present. Instead, Kansas provides a separate article on costs. K.S.A. 60-2001 et seq. Pursuant to K.S.A. 60-2001(d), “other fees and expenses” to be assessed as court costs, in addition to the docket fee, are to be approved by the court unless specifically fixed by statute. These other fees “shall include, but not be limited to, witness fees, . . . attorneys’ fees, . . . and any other fees and expenses required by statute.” The subsection further provides: “All additional court costs shall be taxed and billed against the parties as directed by the court.”
Under the provisions of K.S.A. 60-2002(a), costs “shall be allowed to the party in whose favor judgment is rendered” unless a statute provides otherwise. The clerk of the court taxes the costs, subject to review by the judge on timely motion by an interested party. K.S.A. 60-2002(c). Among those items listed under the section titled “Items allowable as costs” are “[s]uch other charges as are by statute authorized to be taxed as costs.” K.S.A. 60-2003(6). Commenting upon this section, Judge Gard states:
“This section needs no explanation. The taxing as costs of most of the items listed here would follow as a matter of course under the authorization of other statutes. But it is helpful to have the taxable items gathered together in one place, subject, however, to reference to other statutes for authority to tax as costs such things as appraisers’ and attorneys’ fees, costs on appeal, and the like.” Comments, 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-2003 (1979).
K.S.A. 60-2002 and 60-2003 indicate the intent of the legislature to award attorney fees as costs in the action. Although the legislature could explicitly require a trial court to decide the issue of attorney fees as part of the merits of the case, the statutes now treat attorney fees as an element of costs to be awarded to the prevailing party. The legislature has characterized an award of attorney fees as something separate from the merits of the underlying case.
We find the reasoning of Budinich persuasive. We believe a bright-line rule that a decision on the merits is a final judgment for appeal purposes despite any remaining question as to attorney fees is necessary and appropriate.
We are aware that the rule we have adopted may lead to an occasional “piecemeal” appeal of a judgment on the merits and an award of attorneys fees. The problem of the “piecemeal” appeal may be avoided if trial judges delay entering judgment oh the merits until the fee question is resolved and dispose of both the merits and the attorney fees in a single judgment. The better practice will be to resolve all fee questions in a timely fashion. This will allow an appeal to proceed more expeditiously. We conclude, however, that a decision on the merits is a “final decision” for purposes of appeal whether or not a request or motion for attorney fees attributable to the case remains to be adjudicated. A question of whether to award attorney fees under Kansas statutes is to be regarded as the assignment of costs rather than the termination of a right or liability or grant or refusal of a remedy.
Our alignment with Budinich also carries the value of procedural uniformity for state and federal practice in this jurisdiction. Our resolution of this jurisdictional issue follows the course recently charted by Colorado and Connecticut when faced with similar situations. Baldwin v. Bright Mortg. Co., 757 P.2d 1072, 1073-74 (Colo. 1988) (reversing Court of Appeals ruling similar to that entered herein); Paranteau v. DeVita, 208 Conn. 515, 520-23, 544 A. 2d 634 (1988).
Supersedeas Bond — Docketing Statement
State Farm also argued that its supersedeas bond filed on May 9, 1988, and the docketing statement filed on May 18, 1988, should be viewed as a second notice of appeal. The Court of Appeals disagreed with this analysis, pointing out that the mandatory requirements for invoking the jurisdiction of the appellate courts of this state are set out at K.S.A. 1989 Supp. 60-2103.
The Court of Appeals was correct in concluding that the docketing statement and supersedeas bond do not satisfy the requirements of filing the notice with the clerk of the district court and in rejecting this argument.
The Cross-Appeal
Finally, concerning notices of appeal, the Court of Appeals concluded that the cross-appeal of Snodgrass and Hartford must also be dismissed. The first issue raised by Snodgrass and Hartford involves the refusal to give certain instructions, which the Court of Appeals dismissed as moot. The notice of cross-appeal was filed prior to the entry of judgment on the attorney fees issue. The instruction issue may be considered on remand as the notice of cross-appeal was timely filed after the final decision.
The second issue raised by Snodgrass and Hartford concerned the amount of attorney fees awarded. The notice of cross-appeal did not specify the fee amount as an issue. The Court of Appeals concluded that the issue was not preserved for appeal and would not be considered. We agree.
Attorney Fees
No appeal or cross-appeal was taken from the May 2, 1988, order awarding attorney fees; consequently, attorney fees are no longer an issue on appeal.
The remaining issues raised in the appeal and cross-appeal are to be considered by the Court of Appeals on remand.
Reversed and remanded to the Court of Appeals with directions to reinstate the appeal and cross-appeal. | [
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The opinion of the court was delivered by
McFarland, J.:
Jack Leroy Spears appeals his jury trial convictions of first-degree felony murder (K.S.A. 21-3401), aggravated robbery (K.S.A. 21-3427), theft (K.S.A. 1987 Supp. 21-3701), and forgery (K.S.A. 21-3710).
Defendant arrived in Garden City on October 25, 1986, without money, means of transport, or possessions other than the clothes he was wearing. He went to the residence of a friend, Courtney Johnson. He asked Johnson to take him to Randy Bolay’s home on Kello Street. Johnson complied and saw defendant enter the Bolay residence.
That evening, Bolay and defendant attended a party. Considerable drinking occurred and Bolay boasted of having $600 in cash in his possession for his planned vacation. Bolay and defendant left the party in Bolay’s pickup at approximately 3:30 a.m. on October 26. Defendant was seen leaving the Bolay residence at 10:30 a.m. He went to a local drive-in where he paid for his purchases with money taken from a large roll of bills. That morning defendant came across another friend, Robert Guerttman. While the two were together, Guerttman received word his mother had died in Iowa. Defendant stated he had a pickup truck and offered to drive Guerttman to Iowa for the funeral. The following day, defendant cashed a $100 check drawn on Bolay’s account. On the same day, defendant had another friend pawn a television set for $55 on his behalf. Defendant drove to Ottumwa, Iowa, on October 28 in a yellow Toyota pickup truck. He went to the home of a friend, James Breeding. That evening he told Breeding he had beaten a man to death and that the victim would not be found for a while. On October 30, 1986, defendant was arrested for DUI in Iowa while driving the pickup. He told a passenger that he might be using a different name when he talked to the arresting officer.
On November 5, 1986, Randy Bolay’s body was found in his Garden City residence. Cause of the death of the decomposing body was found to be multiple head wounds from a bladed object. Defendant was arrested in Iowa and returned to Garden City.
The pickup defendant was driving belonged to Bolay. Bloody palm prints and fingerprints in the Bolay residence belonged to defendant. The pawned television set was the property of Bolay. Belongings of Bolay were found in the pickup. In defendant’s duffel bag were cards belonging to Bolay and some bloody items. The blood was identified as being Bolay’s. The signature on the check cashed by defendant on Bolay’s account was found to have been forged by defendant. Other facts will be stated as necessary for the discussion of particular issues.
For his first issue, defendant contends the language employed in the amended information on the count charging aggravated robbery was insufficient. The count states:
“That on the 26th day of October, 1986, in said County of Finney and State of Kansas, one Jack Leroy Spears did then and there unlawfully, feloniously and willfully take property, cash money, wallet, bank deposit slip, and pick-up from the person or presence of Randall C. Bolay by inflicting great bodily harm to the person of Randall C. Bolay. Contrary to and in violation of K.S.A. 21-3427, Aggravated Robbery, a Class B felony.”
K.S.A. 21-3427 provides:
“Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.”
The underlying crime of robbery is defined by K.S.A. 21-3426 as follows:
“Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.”
K.S.A. 22-3201 provides that the indictment, information, or complaint shall be a plain and concise written statement of the essential facts constituting the crime charged and when drawn in the language of the statute shall be deemed sufficient. However, the exact statutory words need not be used if the meaning is clear. State v. Vakas, 242 Kan. 103, Syl. ¶ 3, 744 P.2d 812 (1987).
Defendant challenged the sufficiency of the count in a motion for arrest of judgment, which motion was denied.
Is the aggravated robbery count fatally flawed? We believe not. The count states defendant took property from Randy Bolay by inflicting great bodily harm to the person of Randy Bolay. This is a clear statement that the taking was by force and bodily harm occurred from the application of that force.
Defendant next argues that, inasmuch as his conviction for aggravated robbery is invalid, then the felony-murder conviction must also fall as aggravated robbery is the underlying felony in the felony-murder charge. This issue is rendered moot by our holding in the preceding issue.
For his third issue, defendant contends the trial court abused its discretion in admitting certain autopsy photographs and a videotape of the crime scene. The victim was hit on the head at least twenty-four times with what was later identified as a hatchet. A witness used the photographs to illustrate his testimony as to the injuries inflicted upon the deceased. Due to the spherical shape of the human cranium, five photographs were necessary to portray all of the wounds.
The law is well settled in this state that, in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome. State v. Shehan, 242 Kan. 127, Syl. ¶ 8, 744 P.2d 824 (1987); State v. Yarrington, 238 Kan. 141, Syl. ¶ 4, 708 P.2d 524 (1985). The admissibility of photographic evidence lies within the discretion of the trial court, and its decision to admit such photographs must be accepted on appellate review absent a showing of an abuse of discretion. State v. Shehan, 242 Kan. 127, Syl. ¶ 7; State v. Yarrington, 238 Kan. 141, Syl. ¶ 3. An abuse of discretion may be reached if the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice. See State v. Randol, 212 Kan. 461, 467, 513 P.2d 248 (1973).
The crime scene videotape shows the body and relevant conditions in the residence. No specific objection to the videotape is made.
Certainly, the photographs and videotape herein are grim. This was a brutal crime and the body was not found for approximately ten days. The admission of the photographs and the videotape served legitimate evidentiary purposes. We find no abuse of discretion in their admission.
For his fourth issue, defendant contends the trial court erred in permitting Kenneth Armbeck to testify. Some background facts must be stated. Armbeck and defendant shared a cell in the Finney County jail for approximately three weeks. Armbeck stated that defendant talked to him at length about all facets of the crimes herein and consulted with him as defendant was preparing a written factual statement for his attorney. The State admits Armbeck read the document. Defendant contends he did not so converse with Armbeck and that Armbeck could only have obtained the details of the crimes by surreptitiously reading the document which defendant had hidden under his mattress. Defendant argues the document was protected by an attorney-client privilege. Armbeck’s testimony gives a detailed account of the crimes.
K.S.A. 60-426 provides:
“(a) General rule. Subject to K.S.A. 60-437, and except as otherwise provided by subsection (b) of this section communications found by the judge to have been between lawyer and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (1) if he or she is the witness to refuse to disclose any such communication, and (2) to prevent his or her lawyer from disclosing it, and (3) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated by the client, or (iii) as a result of a breach of the lawyer-client relationship. The privilege may be claimed by the client in person or by his or her lawyer, or if an incapacitated person, by either his or her guardian or conservator, or if deceased, by his or her personal representative.”
K.S.A. 60-437 provides:
“A person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if the judge finds that such person or any other person while the holder of the privilege has (a) contracted with a party against whom the privilege is claimed that he or she would not claim the privilege or, (b) without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.” (Emphasis supplied.)
Judge Gard, in his Code of Civil Procedure 2d, states:
“Clause (b) requires that the waiver which results from prior disclosure must be voluntary and not obtained through ignorance of the privilege or through coercion or fraud. But if a privilege is waived as to a part of the subject matter, so that it has lost its confidential character, the waiver must, in justice, apply to the whole of the matter. No picking and choosing is permitted.” 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-437 (1979).
The trial court did not rule upon whether or not defendant discussed the crimes with Armbeck. The trial court’s rationale in permitting Armbeck to testify is as follows:
“Based upon the arguments of counsel presented here this morning, the Court cannot say that, based upon what is available to the Court, that a person incarcerated in the Finney County Jail or other penal institution has any reasonable expectation of privacy. There is no allegation by either side that this was in the course of transmittal between the client and the attorney, other than there was a written memorandum which was being prepared by the client for the attorney. There is a factual dispute as to whether or not Mr. Armbeck may have surreptitiously obtained this information without the knowledge of the client. It is alleged by defense that it was or could have been viewed while the defendant was out of his cell. The State’s position on the other side is that the statement was voluntarily given by the defendant to his cellmate, the witness in this case, and was read, questions asked, and so forth. But based upon the Court’s previous findings, the Court must conclude that whether or not it was observed voluntarily or involuntarily, the fact that there was no reasonable expectation of privacy should have alerted the client, in this instance, and is particularly so where it is urged that these parties were not on the best of relationships, that that could have been observed or viewed by Mr. Armbeck. The Court would conclude, therefore, that under the circumstances presented, the communication or the information was in fact communicated to a third person, and that there is no longer the privilege of attorney-client relationship, as to the communications involved. This finding is based upon the provision of 60-426 and that of 60-437, regarding the waiver of privilege.”
Defendant testified that he could have taken the document with him when he was absent from the cell and, thus, kept it from Armbeck. He also indicated he and Armbeck did not get along with each other. Even under defendant’s version it would appear quite likely that Armbeck would look at the document in defendant’s absence. There is no claim Armbeck was planted in the cell by the police to obtain information.
Under the facts herein, we find no error or abuse of discretion in the admission of the Armbeck testimony.
For his final issue, defendant contends the trial court erred in denying his request to include in the instructions precisely what property was alleged to have been taken in the armed robbery and the theft. The complained-of instructions are as follows:
“In Count II, the defendant is charged with the crime of aggravated robbery. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
1. That the defendant intentionally took property from the person of Randall C. Bolay;
2. That the taking was by force;
3. That the defendant inflicted bodily harm on any person in the course of such conduct; and
4. That this act occurred on or about the 26th day of October, 1986, in Finney County, Kansas.”
“In Count III, the defendant is charged with the crime of theft of property of a value less than one hundred and fifty dollars. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
1. That Randall C. Bolay was the owner of the property;
2 That the defendant obtained or exerted unauthorized control over the property;
3. That the defendant intended to deprive Randall C. Bolay permanently of the use or benefit of the property;
4. That the value of the property was less than one hundred and fifty dollars; and
5. That this act occurred on or about the 26th day of October, 1986, in Finney County, Kansas.”
In the amended information, defendant was charged with aggravated robbery by taking from the victim “property, cash money, wallet, bank deposit slip, and pick-up.” The theft count charged defendant with the taking of the victim’s television set.
The testimony of Kenneth Armbeck clearly provided evidence separating the two counts. As to the aggravated robbery count, Armbeck testified defendant took immediate possession of the victim’s property, a wallet, checkbook, keys, and pickup truck. On the theft count, Armbeck testified the defendant, needing additional money, returned to the victim’s apartment one day after the murder, took the television set and had a friend pawn it for him.
In the closing argument, the State made it clear that the two counts involved different property, taken at different times (the television set being the property involved in theft).
In his brief argument on this issue, defendant states:
“ ‘The principal damages raised by a multiplicitous indictment [is] the possibility that the Defendant will receive more than one sentence for a single offense.' United States v. Hearod, 499 F.2d 1003, 1005 (5th Cir. 1974); State v. Dorsey, 224 Kan. 152, 154-155, 578 P.2d 261 (1978); State v. Stoops, 4 [Kan. App. 2d] 130, 136, 603 P.2d 221 (1980).”
In the case herein, the amended information does specify what property is alleged to have been taken in each count. Hence, we do not have charges which could be said to be multiplicitous. The only evidence that the television set was taken the day following the murder as an afterthought comes from Armbeck. Without his testimony all property would have been assumed to be part of the aggravated robbery proceeds. There was abundant evidence of property taken in the aggravated robbery. We think it highly unlikely that the jury could have been misled by the jury instructions herein — particularly since the theft charge was only misdemeanor theft. However, on the possibility there was some confusion, we reverse the theft conviction. The trial court should have specified the property alleged to have been taken in each of the crimes, especially where defendant had requested that this be done.
The judgment is affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
McFarland, J.:
This is a divorce action in which the petitioner husband appeals from the division of property, award of maintenance, and allowance of attorney fees made by the trial court. The Court of Appeals affirmed the trial court in an unpublished opinion pursuant to Supreme Court Rule 7.042 (1989 Kan. Ct. R. Annot. 35), said opinion being filed on November 22, 1989.
We granted review to determine the issue of whether it was proper for the trial court to admit evidence of fault and to consider fault in the division of property and awards of maintenance and attorney fees where the divorce was sought and granted on the ground of incompatibility (K.S.A. 60-1601[a][l]).
The parties, Donald and Tepin, were married on May 16, 1970. On March 15, 1971, and on September 14, 1972, respectively, the parties’ two children were born. The trial court granted a divorce on the ground of incompatibility on February 13, 1989. The balance of the issues were taken under advisement. On March 16, 1989, the trial court entered its memorandum opinion which provided, inter alia:
1. joint custody of the children with Tepin to be the custodial parent;
2. child support to be paid by Donald in the amount of $411 per month per child;
3. Tepin to be awarded 45 percent of Donald’s retirement benefits with the U.S. Postal Service;
4. Tepin to be awarded the family residence subject to the indebtedness thereon;
5. Tepin to be awarded maintenance of $500 per month for 100 months;
6. Donald to pay the marital indebtedness other than that on the residence and, the motor vehicles of Tepin and their son, Alan, and to Montgomery Ward; and
7. Donald to pay $1,000 on Tepin’s attorney fees.
Over Donald’s objection, evidence was admitted that he was having an extramarital affair with a named individual. In its March 16 memorandum opinion, the trial court stated, in part:
“The Court specifically finds that the primary cause of the destruction of the marriage was the Petitioner’s involvement with [name deleted], which the Court finds relevant to the issue of maintenance. The Court finds that the Petitioner entered into this relationship, irrespective of any fault on part of the Respondent. The Court further finds that an award of maintenance should be made to the Petitioner not only because of this factor, but because of the totality of all the factors in this case, including, but not limited to: the length of marriage (19 years); the past, present, and future income producing ability of the parties, which the evidence clearly indicates is favorable to the Petitioner; the division of the property and division of debts awarded to the Respondent; and the need to adequately provide for the children.
“In determining this division of property, the Court has taken into account the ages of the parties, the duration of the marriage, the property owned by the parties, their present and future earning capacities, the time, source and manner of acquisition of property, family ties and obligations, the allowance of maintenance or lack thereof, dissipation of assets, and such other factors this Court considered necessary all as required by K.S.A. 1988 Supp. 60-1610(b)(l).
“Kansas law, of course, does not require equal split of all property acquired during marriage but rather gives the Court discretion to consider all the property to arrive at a just and reasonable division.
“. . . Most importantly, and first and foremost, is that the Respondent, in this case, has been married to the Petitioner for many years, was a good and responsible housewife, and contributed to the accumulation of the marital property. The Petitioner in this case now decides, after having taken up with another woman, specifically [name deleted], that he no longer desires to live with, support, and be a good husband to the Respondent in this case.
“While this Court recognizes that this is a no-fault divorce case, nonetheless, there is still some room in these cases for fault, the fault lies with the Petitioner and that matter can appropriately be taken into account by the Court in making an equitable division of property and the Court has done so.”
K.S.A. 60-1601(a) provides:
“The district court shall grant a decree of divorce or separate maintenance for any of the following grounds: (1) Incompatibility; (2) failure to perform a material marital duty or obligation; or (3) incompatibility by reason of mental illness or mental incapacity of one or both spouses.”
K.S.A. 1989 Supp. 60-1610(b)(1) provides in pertinent part:
“In making the division of property the court shall consider the age of the parties; the duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property.” (Emphasis supplied.)
Donald contends that the trial court’s admission of evidence of fault (his alleged marital infidelity) and the consideration thereof in determining the financial aspects of the dissolution of the marriage was improper and contrary to the concept of incompatibility as a no-fault ground for divorce. It should be noted that Donald has consistently denied the existence of the alleged marital infidelity. Tepin contends that such evidence was properly considered as it falls within the purview of the non-specified “such other factors” phrase of K.S.A. 1989 Supp. 60-1610(b)(l).
Maxwell, In the Best Interests of the Divided Family: An Analysis of the 1982 Amendments to the Kansas Divorce Code, 22 Washburn L.J. 177 (1983), contains an excellent discussion of the 1982 amendments to the Kansas Divorce Code. In her analysis of the amendments to K.S.A. 60-1601(a), Professor Maxwell states:
“As previously mentioned, incompatibility is now listed first because the drafters believe incompatibility is the cause of most divorces and thus the preferred ground. The second ground, failure to perform a material marital duty or obligation, is the only ground for divorce or separate maintenance that assigns fault. This ground is not intended as a new ground, but rather summarizes previous fault grounds for divorce — adultery, extreme cruelty, habitual drunkenness, gross neglect of duty, and conviction of a felony that results in imprisonment subsequent to the marriage.
“The language of the new fault ground was a compromise position between FLAC [Family Law Advisory Committee] members who wanted to eliminate fault completely and members who believed fault still served a useful function in divorce litigation. The members who favored fault believed there were situations, such as cases of severe physical abuse, that warranted a finding of fault. There was also concern that eliminating fault entirely as a ground for divorce might be too drastic a change, and unacceptable to the public.
“The opponents of fault divorce believed spouses who used fault grounds were rarely persons who truly had been innocent of contributing to the failure of the marriage. They said fault was used most often by vindictive spouses seeking to publicly humiliate or punish their partners. If incompatibility was the only ground for divorce, less animosity would result because the pleadings could not be used by spouses to accuse the other of extreme cruelty, habitual drunkenness or other fault behavior. Opponents of fault divorce also contended incompatibility would not restrict the parties from presenting evidence of fault-type behavior because it would be relevant in proving incompatibility. The judge would continue to be apprised of the same evidence as in a fault divorce, but the court’s task would be to determine whether the parties were incompatible, rather than which spouse should be blamed for the marital failure.
“FLAC resolved the differences of opinion in several ways. First, incompatibility was listed as the preferred ground for divorce, recognizing that truly fault-based divorces, with an innocent and a guilty spouse, were rare. Second, the language of the new fault ground, 'failure to perform a material marital duty or obligation,’ left out references to specific behavior. Thus, pleadings and findings of the court could be relatively innocuous, reducing vindictive motives and acrimony. Finally, by retaining one general fault ground, the law preserves for courts the power to find a spouse responsible for the marital breakdown if the facts strongly indicate blameworthy behavior.
“The FLAC members also discussed whether ‘failure to perform a material marital duty or obligation’ should be specifically defined. The decision was made to use the phrase as a summary of the old fault grounds.” 22 Washburn L.J. at 182-83.
In the case before us, much evidentiary time was spent in seeking to prove the alleged infidelity. The “other woman” was called as a witness. Tepin proved to the court’s satisfaction that her claims of marital infidelity were true. The trial court specifically stated it considered marital infidelity on the part of Donald in resolving the financial matters. The clear inference is that the trial court penalized Donald for his fault in making its findings relative to the financial aspects involved in the dissolution of the marriage. But for his fault, the resolution of the financial aspects would, presumably, have been more favorable to Donald. Was this error? We believe so.
The Maxwell article previously referred to traces the amendments to K.S.A. 60-1610 as follows:
“The new section on the division of property does very little to change the status of the law. The main addition to the statute is the incorporation of factors the court is required to consider in dividing the property. The factors include:
‘the age of the parties; duration of the marriage; the property owned by the parties; their present and future earning capacities; the time, source and manner of acquisition of the property; family ties and obligations; the allowance of maintenance or lack thereof; dissipation of assets; and such other factors as the court considers necessary to make a just and reasonable division of property.’
These factors were not included in the original proposal from the Judicial Council, but were added by the members of the House Family Law Subcommittee. Most of the factors are found in Kansas cases; therefore, this addition codifies case law.
“The statute differs from case law in two respects, however. First, fault was a factor specifically listed in the eases, but it is not listed in the new code. Second, dissipation of assets was added to the statutory list, but this factor was not found in the cases. These two differences were the result of a compromise between members of the House and the Senate, who (lisagreed on the original proposal that stated the court should divide the property ‘without regard to marital fault.’ The House members believed certain types of marital fault were relevant to division of the property. In particular, some legislators argued dissipation of assets and spousal abuse should be considered by the court in dividing the property. Although the Senate version of the bill incorporated dissipation of assets as a relevant factor, the senators supported the original proposal which specifically prohibited the court from considering marital fault in dividing the property. The senators supported the position of the original drafters that marital fault is not relevant to the division of assets because most marriages do not have an innocent and a guilty party. The members of the Senate believed fault should be excluded to maintain the intent of the drafters to reduce fault in domestic cases.
“Although it was the consensus of the House members that marital indiscretions were irrelevant to property division, they were unwilling to prohibit the court from considering extreme cases of marital fault, such as spousal abuse, in dividing the property. As a compromise, the conference committee determined that fault would not be listed specifically as a factor ‘the court shall consider,’ but could be considered with ‘such other factors as the court considers necessary to make a just and reasonable division of the property.’ Therefore, the legislative intent can be interpreted as disapproving the use of fault or marital misconduct in dividing the property unless the misconduct is extreme.” 22 Washburn L.J. at 225-27.
We conclude that in domestic relations actions it was the legislative intent that, in all but extremely gross and rare situations, financial penalties are not to be imposed by a trial court on a party on the basis of fault. There is difficulty in establishing rigid rules relative thereto. For purposes of consideration of the financial aspects of the dissolution of a marriage, the term fault must be confined to a term of art relative to a ground for dissolution of the marriage and penalties arising therefrom. Certain conduct might be a fault ground and also be a circumstance properly to be considered in making a determination relative to financial matters. For illustration, let us say that because of the husband’s mental abuse of the wife she is so emotionally impaired that her earning capacity is affected. Certainly, the court should consider this in its determination of a fair and equitable award. The court, in such circumstances, is not imposing a penalty for fault but is considering the circumstances of the parties as they exist and making its award based on such existing circumstances and the likely future results arising therefrom. For another example, let us say that each party is requesting the court to award the family dog to him or her. Evidence that one spouse has cruelly abused the dog in the past and only seeks it to further hurt the other spouse, who has great affection for the animal, should certainly be presented to the court and considered by the court in its division of property. Again, such evidence is not evidence of fault as a term of art, but is evidence necessary to the making of an appropriate division of property. For a final example, let us say we have a physician who because of alcoholism or drug abuse is on a downward professional spiral. The physician’s income is high now, but the circumstances show that this income level is not likely to continue. The trial court should have this information before it. It might well conclude that the physician’s future ability to pay adequate maintenance and child support is highly questionable and that it would be more provident to award a greater than usual share of the marital property to the custodial spouse. Again, such action would not be a penalty for fault, but rather would be based upon a realistic evaluation of the parties’ circumstances, future income, and needs.
It is difficult to conceive of any circumstances where evidence of marital infidelity would be a proper consideration in the resolution of the financial aspects of a marriage. Consideration of such evidence could result only on a decision of whether or not to impose a penalty for such conduct, as it does not relate to the present or future financial circumstances of the parties or the award of any particular property.
We believe that this interpretation of K.S.A. 1989 Supp. 60-1610(b)(1) is consistent with its language that the court should, in making its division of property, consider “such other factors as the court considers necessary to make a just and reasonable division of property,” and the legislative history of its enactment. Fault, as a term of art, is not to be considered in the determi nation of the financial aspects of the dissolution of the marriage, nor should a penalty be imposed as a result of such consideration. The only exception would be some rare and unusual situation where a party’s conduct is so gross and extreme that failure to penalize therefor would, itself, be inequitable.
This interpretation should also be consistent with the legislative intent that marriage dissolutions occur with minimal hostility and vituperation. The decision to seek a divorce on the grounds of incompatibility or on fault should not be made on the basis that an allegation of fault might result in a party being awarded a greater share of the parties’ accumulated hoard of nuts or a lesser share of accumulated debts.
We conclude that the trial court erred in admitting evidence of fault (Donald’s alleged infidelity) and in considering the same in its resolution of the financial aspects of the dissolution of the marriage. Accordingly, the case must be remanded for redetermination of these matters without consideration of fault. Such holding renders moot a number of the issues on appeal relative to particular aspects of the award made. Two of the issues may well arise again on remand and should, accordingly, be discussed briefly herein.
Tepin operates a beauty salon. The trial court determined that the business had minimal value as it was primarily dependent upon the personal services performed by Tepin herself. No professional appraisal of the shop’s market value was offered. Donald testified the business was worth $25,000 based on an annual net income of approximately $20,000. We find no error or abuse of discretion in this regard based upon the record herein.
Donald further argues that the trial court erred in awarding Tepin a portion of Donald’s vested interest in retirement benefits from the U.S. Postal Service, as it had no authority to do so.
K.S.A. 23-201(b) provides:
“All property owned by married persons, including the present value of any vested or unvested military retirement pay, whether described in subsection (a) or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 60-1610 and amendments thereto.”
The reference to retired military pay in K.S.A. 23-201(b) was added to the statute following the decision in Grant v. Grant, 9 Kan. App. 2d 671, 685 P.2d 327, rev. denied 236 Kan. 875 (1984). See L. 1987, ch. 120, § 1. In Grant, the Court of Appeals held that military retirement pay did not have a present value which becomes part of the marital property divisible at divorce. 9 Kan. App. 2d 671, Syl. ¶ 5.
The language of K.S.A. 23-201(b) appears to be inclusive rather than exclusive. There is no logical reason why one type of retirement benefits for federal services should be treated differently from another. We conclude that K.S.A. 23-201(b) is broad enough to include retirement benefits from the U.S. Postal Service and that the trial court had authority for its consideration thereof.
The judgment of the Court of Appeals is reversed. The judgment of the district court, as to the award of the division of property, maintenance, and attorney fees herein, is reversed, and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Six, J.:
Ormond Wimberly appeals from a conviction of felony murder grounded upon the underlying felony of aggravated robbery.
The controlling question in this appeal centers upon the relationship of circumstantial evidence, fingerprint evidence, and the sufficiency of the totality of the evidence presented to the jury.
Wimberly contends the record does not contain sufficient evidence to support his conviction. We disagree.
Wimberly also contends that the district court erred in: (1) denying his motion to dismiss following the preliminary hearing;
(2) refusing to suppress the evidence of his fingerprints and palm prints because the prints were obtained without his consent; and
(3) failing to instruct the jury on circumstantial evidence. We find no basis for error in the trial court’s disposition of the issues addressed by these three additional contentions.
Wimberly also questions the use of a prior military conviction as a basis for invoking the Habitual Criminal Act at sentencing. We agree that it was error for the trial court to enhance Wimberly’s sentence based upon a military court-martial. The imposition of the second life sentence is vacated.
Facts
The body of Sarah Woody was found on the morning of June 17, 1981, by the maintenance supervisor of Montgomery Ward in Topeka. A car was parked in the Ward’s parking lot, which contained her body lying face down on the rear floorboard.
An autopsy was performed. The deputy coroner testified that Woody had suffered five bullet wounds, one of which was fatal. He determined that the wounds were caused by a large caliber weapon, consistent with a .38 caliber, which was shot at close range (within one and one-half feet). The time of death was estimated between 3:30 and 9:30 p.m. on June 16, 1981.
The State presented a number of witnesses who testified that Woody’s vehicle had been parked in the Ward’s parking lot for some time before her body was found.
A teller working at the drive up window at Capitol Federal Savings and Loan in Topeka testified she cashed a check in the amount of $500 for Mrs. Woody at approximately 4:00 p.m. on June 16. On cross-examination, the teller stated that she could not be positive that the check was cashed at 4:00 p.m.; it could have been cashed earlier in the day.
Officers with the Crime Scene Search Team processed the homicide. They dusted for fingerprints and took photographs. The officers testified as to a number of items which were found in Mrs. Woody’s car. A white purse was located behind the passenger seat. Its contents were strewn out on the right rear floorboard. It appeared that someone had gone through the purse. Near the purse were a makeup case, a Capitol Federal Savings book, a woman’s brown billfold, and an appointment book. No money was found in the vehicle. On the front floorboard of the passenger side, the officers found an open shoe box with a pair of brown shoes, a pair of tennis shoes, a small book, and a package of Kleenex.
The Woody murder was unsolved for several years. In March 1987, the Woody file was turned over to a special agent with the Kansas Bureau of Investigation (KBI). At that time, the agent was also involved in the investigation of a homicide in Kansas City in which Wimberly was a suspect. The agent noticed some peculiarities in the slugs that were removed from Mrs. Woody’s body and vehicle. He determined that the slugs were similar to the slugs found in connection with the Kansas City investigation.
Another special agent with the KBI went to Wimberly’s place of employment and asked Wimberly to accompany him to KBI headquarters for an interview in connection with the Kansas City homicide. Wimberly was asked if he would allow the KBI to take his fingerprints and samples of his hair and saliva. According to the agent, Wimberly was free to go at any time and was not obligated to give the samples or fingerprints. The agent described Wimberly as “extremely cooperative.” The agent believed that the interview and fingerprinting of Wimberly were for the Kansas City case. On cross-examination, the agent testified as follows:
“Q. And you did not tell him at that time words, ‘You don’t have to come’? “A. Not those words, no sir.
“Q. And at any time when you visited with him, did you ever tell him, ‘You don’t have to give fingerprints’?
“A. No sir.
“Q. And you also told him that the only reason you wanted the prints was for elimination purposes?
“A. Yes, sir.
“Q. And at the time you told him that, he had not been excluded as a suspect, had he?
“A. No, sir.
“Q. At that time he was, in other words, still a possible suspect?
“A. Yes, sir.
“Q. And before giving him — before having him give any of the sample fingerprints, hair, saliva, did you ever show him a Consent to Search form? “A. No, sir.
“Q. You do have Consent to Search forms at the KBI, don’t you?
“A. Yes, sir.”
(The references to Wimberly being a suspect are in regard to the Kansas City investigation, not the Woody murder.)
At the hearing on the motion to suppress the fingerprints and hair and saliva samples, Wimberly testified that he was not informed by the KBI officers that he did not have to give the samples. When asked why he gave his fingerprints, Wimberly testified, “Number one, the way I was being sort of commandeered around, it gave me the impression, ‘Hey, you have to do this. They’re telling you to do this.’ ” After the fingerprints and samples were taken, Wimberly was moved to the Topeka Police Department for a polygraph test. Wimberly testified that, in the course of explaining the polygraph test, the police detective told him that he did not have to take it if he did not want to. Wimberly testified that until that point he was not informed that he was free to go at any time. The trial court held that Wimberly voluntarily consented to the taking of his fingerprints and of the other samples.
Two fingerprint specialists, one with the Federal Bureau of Investigation (FBI), and the other with the KBI, testified re garding the latent fingerprints and palm prints found on the items in Mrs. Woody’s car. Wimberly’s fingerprints were found on a Standard Oil charge receipt dated January 10, 1981, and a King Travel receipt dated May 6, 1981. The two receipts were inside Mrs. Woody’s billfold that was found in the back seat of her car. Wimberly’s fingerprints were also on the shoe box and the Kleenex package that were found in the front seat of the car.
A witness, who works in the federal building across the street from where Mrs. Woody was found, testified that Wimberly had been in the witness’ office sometime during the day on June 16, 1981. He could not give an exact time. Another witness testified that he had seen a handgun in Wimberly’s car while that witness was cleaning the car for Wimberly about a year prior to the Woody murder. Six close friends of the Woodys testified that they had never heard Mrs. Woody mention Wimberly nor had they ever seen him in her company.
An employee of Hallmark Cards testified that, when she was leaving work with a co-worker on the evening of June 16, 1981, she observed three people in or around the car parked next to hers. She described the people as one woman and two men, either Caucasian or Hispanic. Wimberly is black. The Hallmark employee testified that the three appeared to be listening to a police scanner or a CB radio. She thought that one of them said, “They haven’t found her yet.” She thought that the people seemed suspicious. They were not Hallmark employees, and they did not move so that her co-worker could enter her car. Hallmark is located one block east of Montgomery Ward where Mrs. Woody’s body was found. The Hallmark co-worker testified that, after hearing the report regarding the discovery of Mrs. Woody’s body, the two felt that they should report what they saw to the police.
At sentencing, the State moved to invoke the Habitual Criminal Act based on a military court-martial in which Wimberly pled guilty to felony murder and felony theft. Wimberly objected, contending that a military court martial is not a conviction contemplated by the Act.
In sentencing Wimberly, the trial judge noted the prior military felony-murder conviction in which Wimberly pled guilty to killing a young man and taking his car, money, and credit cards to go on a date. The trial court observed that Wimberly’s record in- eluded seven criminal convictions, including larceny in 1967 and employment security fraud in 1983. The trial judge sentenced Wimberly to life imprisonment and enhanced the sentence with a consecutive sentence of life imprisonment. Wimberly’s motion to modify sentence was denied.
Sufficency of the Evidence — The Fingerprints
Wimberly raises two points in support of his contention that there was insufficient evidence to convict him of felony murder. First, he argues that there was insufficient evidence to connect him to the murder of Mrs. Woody. Second, he argues that the conviction of felony murder cannot be sustained because there was insufficient evidence of the underlying felony, aggravated robbery. Our standard of review was recently stated in State v. Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989) (whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt). The prosecution is not under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 326, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).
The evidence against Wimberly was predominantly circumstantial. Wimberly asserts that, at most, the prosecution proved that Wimberly had handled some of the items found in Mrs. Woody’s car. It should be noted that the two receipts upon which Wimberly’s fingerprints were found were inside Mrs. Woody’s billfold. Wimberly emphasizes that, besides Mrs. Woody’s own prints, six prints were identified as his, while seventeen were unidentified. The FBI expert testified that there was no way of determining when the fingerprints were placed on the items. None of the hairs found in Mrs. Woody’s car were Negroid hairs.
Testimony placed Wimberly within a block of where Mrs. Woody’s body was discovered on the day of the murder. A witness testified that he had seen a handgun in Wimberly’s car prior to Woody’s death. The witness was not sure what caliber the weapon was, but he said that it could have been a .38. The witness had been placed at a Shawnee County Youth Center group home where Wimberly was employed. The defense called another employee of the Shawnee County Youth Center who testified that the State’s gun witness has a tendency to exaggerate the truth and is intimidated by authority figures.
Wimberly relies upon United States v. Nazarok, 330 F. Supp. 1054 (E.D. Pa. 1971); State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979); and Crouch v. State, 498 S.W.2d 97 (Tenn. 1973). In Scott, a rancher was found murdered in his rural home when his niece, who resided with him, returned from work. The only evidence connecting the defendant to the crime was a single thumbprint which was found on a metal box in the family business office in the house.
The Supreme Court of North Carolina reversed the defendant’s conviction. It held that, because the niece worked full time during the week, she had no knowledge of who came to the house during the weekdays to visit her uncle or conduct business with him. The court noted that the State had not presented any evidence which would exclude the possibility that the defendant had visited the house and touched the box on an occasion prior to the murder and the robbery.
In Crouch, there was no other circumstantial evidence tending to exclude the hypothesis that a single thumbprint was impressed at a time other than that of the crime.
Nazarok involved a single fingerprint, found within hours after the robbery, somewhere in or on the car used by the robbers. The testimony was that the robbers wore gloves during the robbery. There was no corroborating evidence placing defendant Nazarok near the scene. There was testimony that the print could have possibly been placed on the car at any time during its three-year life. There was no evidence as to the location on the car from which Nazarok’s print was lifted. The court noted it might have been on a fender, hood, gas cap, or window.
Wimberly also cited Borum v. United States, 380 F.2d 595 (D.C. Cir. 1967). The United States Court of Appeals in Borum reversed the defendant’s conviction for housebreaking. The court commented:
“The Government’s evidence shows that Borum touched the one or two jars in question. But there is no evidence, either direct or circumstantial, which indicates that he touched the jars in the course of a housebreaking on June 2, 1965. Indeed, one of the Government’s own witnesses testified that Borum’s fingerprints could have been on the jars ‘indefinitely.’ . . . The Government introduced no evidence which could account for, or even suggest an inference about, the custody or location of the jars during that period.” 380 F.2d at 596.
The Court of Appeals reasoned that “the case should not have been submitted to the jury, for the Government produced no evidence, either direct or circumstantial, which could support an inference that the fingerprints were placed on the jars during commission of the crime.” 380 F.2d at 597.
The State’s witnesses who testified regarding whether Mrs. Woody was acquainted with Wimberly were acquainted with Woody either through the church or Mr. Woody’s business. At least one of these witnesses had known the Woodys for 35 years. One witness described the Woodys as the grandparents that his children had never had. None of these witnesses had ever seen or heard of Wimberly prior to Mrs. Woody’s death.
The court in Borum, reasoned that the defendant’s conviction for housebreaking could not be predicated on fingerprints removed from objects in the home “in [the] absence of evidence indicating that such objects were generally inaccessible to defendant.” 380 F.2d 595. A jury could reason that the two receipts containing Wimberly’s fingerprints that were removed from Woody’s billfold were not objects that were accessible to Wimberly prior to the crime.
The fact that other fingerprints, in addition to Wimberly’s, found at the scene of the homicide were not identified or explained affected the weight of the fingerprint evidence rather than its admissibility. State v. Hall, 262 So. 2d 498, 499 (La. 1972).
Wimberly is, in effect, requesting this court to reweigh the evidence. This we will not do. It is the jury’s function to weigh the evidence and determine the credibility of the witnesses, not ours. The jury carries the responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319.
The cardinal question for our review is whether we are convinced that a rational factfinder could have found Wimberly guilty beyond a reasonable doubt from the evidence viewed in the light most favorable to the prosecution. Wimberly’s challenge to the sufficiency of the evidence connecting him with the murder of Mrs. Woody fails.
Wimberly also contends that his conviction of felony murder cannot be sustained because there was insufficient evidence to prove the underlying felony. The complaint charged Wimberly with the crime of first-degree murder "while in the perpetration or attempt to perpetrate the crime of Aggravated Robbery.” The jury was instructed as follows:
“The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant killed Sarah M. Woody;
2. That such killing was done while in the commission of aggravated robbery, a felony; and
3. That this act occurred on or about the 16th day of June, 1981, in Shawnee County, Kansas.
“The elements of the crime of aggravated robbery referred to in the preceding instruction are as follows:
1. That the defendant intentionally took property from the person or presence of Sarah M. Woody.
2. That the taking was by force;
3. That the defendant was armed with a dangerous weapon or inflicted bodily harm on any person in the course of such conduct; and
4. That this act occurred on or about the 16th day of June, 1981 in Shawnee County, Kansas.”
The jury was also instructed on second-degree murder and voluntary manslaughter. The evidence showed that Mrs. Woody had $500 in cash with her at some point during the day of her murder. There was no cash in her billfold, purse, or vehicle when her body was found. In addition, her purse was dumped out on the floor next to her body, and its contents were strewn about.
In State v. Wise, 237 Kan. 117, 123, 697 P.2d 1295 (1985), the defendant argued that he could not be convicted of felony murder where he was not charged and convicted of the underlying felony. We held that an accused need not be prosecuted or convicted of the underlying felony in order to be convicted of felony murder.
There was no suggestion of the existence of any motive other than robbery for the brutal shooting of Mrs. Woody. There was sufficient evidence to support a charge of felony murder based on the underlying felony of aggravated robbery.
Wimberly’s Motion to Dismiss
Wimberly contends that the case should have been dismissed after the preliminary hearing because no evidence was presented to indicate that any property had been taken from Mrs. Woody. We discussed the nature and purpose of preliminary hearings in State v. Boone, 218 Kan. 482, 485, 543 P.2d 945, cert. denied 425 U.S. 915, reh. denied 425 U.S. 985 (1975).
“[A] preliminary examination is not a trial of a defendant’s guilt; it is rather an inquiry whether the defendant should be held for trial. Its principal purpose is the determination of whether a crime has been committed and whether there is a probability that the defendant committed the crime.” In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963).
In the case at bar, there was no question that a crime had been committed. There was no question that Woody’s death was a result of foul play. At the preliminary hearing, the State presented the fingerprint evidence and the testimony regarding Woody’s $500 withdrawal on the day of her death. The parties stipulated to testimony which placed Wimberly in the vicinity of the crime. This evidence was sufficient to bind Wimberly over for trial.
Wimberly’s Motion to Suppress the Fingerprints and Palm Prints
Both parties agree that this issue is controlled by Schneckloth v. Bustamante, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Bustamonte was a passenger in a vehicle which was pulled over because of a burned-out headlight. Another passenger in the car told the officer that the car belonged to the passenger’s brother and gave the officer permission to search the vehicle. The glove box and the trunk were unlocked and opened for the officer. Under the left rear seat, the officer found three wadded-up checks that had been stolen from a car wash. The trial court found that the search was consensual and denied Bustamonte’s motion to suppress the evidence seized. The California appellate courts affirmed the defendant’s conviction. The United States District Court denied defendant’s petition for habeas corpus. The Court of Appeals for the Ninth Circuit held that in order for consent to the search to be held voluntary it must be found that the person who consented to the search knew that he had a right to refuse such consent. It then vacated the order denying the writ and remanded the case. 448 F.2d 699. The United States Supreme Court reversed.
The issue raised before the Supreme Court was what constitutes voluntary consent.
“[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a ‘voluntary’ consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.” 412 U.S. at 227.
In Schneckloth, the defendant was not the owner or the driver of the vehicle searched and the consent to search was given by another individual. The search did not take place at police headquarters. In Wimberly’s case, two KBI officers came to Wimberly’s place of employment and asked him to accompany them to KBI headquarters. Agent Schmidt testified that Wimberly was not under arrest and that he was extremely cooperative. Wimberly described his impression of the agents’ conversation:
“Two gentlemen were out there and they identified themselves, who they were, and told me that they needed me to come with them and if I have trouble getting permission to leave, then they would talk to my supervisor. I, at that point, went and talked to my supervisor. He told me — gave me permission to leave. I didn’t know where I was going. They asked me to come with them and I said I would and at that point, the way they were telling me things, saying things, it was like, well, either, ‘Come let’s go, do it anyway against your will.’ ”
Upon arrival at KBI headquarters, the agents asked Wimberly if he would give fingerprints and saliva samples. Wimberly testified that he was not informed that he did not have to submit to the fingerprinting. Agent Schmidt corroborated Wimberly’s testimony. Schmidt also testified that Wimberly was not under arrest and that he was free to go at any time.
Upon being taken to the Topeka Police Department to undergo a polygraph test, Wimberly was informed that he did not have to take the polygraph. The defense emphasizes the fact that as soon as Wimberly was so informed he refused consent and asked to leave.
On cross-examination, it was revealed that Wimberly has a four-year college degree in criminal justice. Wimberly, however, claimed that he had not had any courses in criminal law or criminal rules. In denying the defense motion to suppress the fingerprint card, the trial court made the following comments:
“[T]he factors the Court mentioned are the age of the person, his education, intelligence, his mental and physical condition at the time, whether he’s under arrest, the length and nature of other interrogations, whether he’s been advised of his right to refuse to consent is one of the factors. It seems to me that Mr. Wimberly, while he denies that he’s taken a course in criminal law, it’s interesting in that curriculum. I’m surprised.
“I’m not going to doubt him, but it certainly seems interesting to me that it’s not a 101 course. But in any event, he is a college graduate and in a related area and under the circumstances described I can’t see that there’s any sort of coercive detention here or that the confession — not the confession — the statement that he gave and the physical samples were not cooperative. The reasonableness of the interview, I think, is adequately explained by the KBI officers.”
The trial court had the opportunity to hear the testimony of both Wimberly and Schmidt. The trial court did not abuse its discretion in allowing the fingerprint card to be admitted as evidence.
Failure to Instruct on Circumstantial Evidence
Wimberly contends that it was error for the court to deny his requested instruction on circumstantial evidence. He argues that the instruction was crucial to his theory of the case — that the State’s case against him was entirely circumstantial. We discarded our rule requiring the giving of a circumstantial evidence instruction 16 years ago in State v. Wilkins, 215 Kan. 145, 156, 523 P.2d 728 (1974).
The jury was properly instructed as to reasonable doubt. The Committee on Pattern Jury Instructions for Kansas (PIK) has recommended that no instruction on circumstantial evidence be given. PIK Crim. 2d 52.16. In State v. Powell, 220 Kan. 168, 551 P.2d 902 (1976), we held that, although a circumstantial evidence instruction should not be given, it was not reversible error to give such an instruction as it is generally beneficial to the defendant. The court stated, “It is the province of the jury to weigh the evidence and a trial court should not by its instructions attempt to stress the comparative weight and strength of any particular type of evidence.” 220 Kan. at 174.
The trial court did not err in denying the requested instruction.
The Prior Military Conviction
Wimberly was convicted of felony murder and felony theft in 1969 in a military court-martial. Wimberly pled guilty and was sentenced to 45 years. He was released in 1977. Rased on that conviction, the trial court enhanced Wimberly’s sentence, sentencing him to two life sentences instead of one.
Wimberly argues that it was error for the court to enhance his sentence based on a military court-martial, citing State v. Paxton, 201 Kan. 353, 440 P.2d 650, modified 201 Kan. 607, 440 P.2d 650, cert. denied 393 U.S. 849 (1968). We agree.
The defendant in Paxton had been convicted by a general court-martial of robbery and felonious assault. We held that a prior conviction by court-martial may not be used to invoke the provisions of the Habitual Criminal Act. 201 Kan. at 365.
Paxton was decided in 1968 under K.S.A. 21-107a (Corrick), which was the precursor of the current Habitual Criminal Act found at K.S.A. 21-4504. “However, even though the language of the successor statute, K.S.A. 21-4504, is different, the legislative purpose and intent behind our present statute is clearly the same as it was behind 21-107a.” State v. Baker, 237 Kan. 54, 56-57, 697 P.2d 1267 (1985). The State points out that, under the present Habitual Criminal Act, enhancement is discretionary with the trial court in cases of a second conviction whereas under the old statute, the trial court had no discretion. We note, however, that a third felony conviction requires the judge to enhance the sentence.
K.S.A. 21-4504 has been amended several times since 1968, the date of Paxton. We presume that the legislature acted with full knowledge of Paxton in effecting the later amendments. See City of Lenexa v. Board of Johnson County Comm’rs, 237 Kan. 782, 786, 703 P.2d 800 (1985).
The district court was in error in imposing an enhanced term based on the prior military court-martial conviction. The addi tional consecutive life sentence is vacated; otherwise, the judgment of the district court is affirmed.
Affirmed in part, reversed in part, and remanded for re-sentencing. | [
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The opinion of the court was delivered by
Herd, J.:
In this action Jessie Jones appeals from jury convictions of two counts of first-degree murder, K.S.A. 21-3401; and two counts of aggravated battery, K.S.A. 21-3414. Jones was sentenced to life imprisonment on each count of first-degree murder and received a three- to ten-year sentence on each count of aggravated battery. All sentences, are to run concurrently.
This case arises from a drug transaction. On the morning of January 14, 1988, Julia Dawn, Frank Morris, Michael Mills, and Donna Barrett were gathered at Barrett’s residence at 916 Haskell in Kansas City, Wyandotte County, Kansas. Dawn was there to lend her car to Mills and Barrett. Morris was present to lend Mills a suitcase. Soon after Morris’ arrival, Mills informed him that someone was coming over to conduct a drug deal.
The record clearly establishes that Jessie Jones was involved in the shooting spree which followed. Julia Dawn testified that three men came to the residence shortly after she arrived. She saw Damon Huff carrying a handgun and Jessie Jones a shotgun. Dawn heard loud talking before she was shot in the head and lost consciousness.
Frank Morris testified that Damon Huff and Darrell Stallings arrived shortly after Dawn arrived. Morris saw Jessie Jones enter soon after and saw that he carried a shotgun. While seated on the couch with the others, Morris saw Jones raise the shotgun and heard two shots before he lost consciousness. Morris received shotgun wounds to his eye, face, hand, arm, and hip.
Michael Mills was killed by pistol and shotgun wounds to the head. Donna Barrett died from a pistol wound to the brain. Two other witnesses testified that on the same morning they saw Darrell Stallings and Jessie Jones get out of a blue BMW automobile on a nearby street. Both witnesses saw Stallings and Jones exit the BMW and get into a red Ford Escort.
Damon Huff testified he had had possession of the blue BMW in exchange for cocaine received by Michael Mills, but that title to the car belonged to Mills. Huff further testified Stallings and Jones went with him to meet Mills in order to obtain title to the automobile. The three men drove the BMW and the Ford Escort to within a block of Barrett’s residence. Huff stated he and Stallings entered the house first and that Jones entered shortly after with a shotgun. While Huff was talking with Mills about the drug deal, Stallings shot Mills, Barrett, and Morris, and Jones fired several shots at Morris before the three left.
Jessie Jones relied upon an alibi defense. He testified he spent the night with his girlfriend and was helping her children get ready for school at the time of the shootings. Jones also stated he spent the rest of the morning at his mother’s house.
Huff was arrested soon after the incident. Stallings, however, escaped and was a fugitive at the time of Jessie Jones’ trial. On January 21, 1988, Jones made a statement to police which contained an admission that he knew Damon Huff and Darrell Stallings and had had contact with them on the morning of the incident. Further, Jones admitted he was told by Huff he could pay off a debt by going along on a transaction. This statement was introduced at trial over Jones’ objection.
Jones was found guilty of the first-degree murders of Donna Rarrett and Michael Mills and of aggravated battery against Julia Dawn and Frank Morris. This appeal followed.
The first issue is whether the district court erred in admitting the statement of Jessie Jones. Jones contends he was subjected to a custodial interrogation by police without receiving Miranda warnings and that any statement thus elicited was inadmissible evidence.
It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of the defendant unless the State demonstrates the use of procedural safeguards to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); State v. Roadenbaugh, 234 Kan. 474, 476, 673 P.2d 1166 (1983). The United States Supreme Court has defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444. In State v. Bohanan, 220 Kan. 121, 128, 551 P.2d 828 (1976), this court adopted the same test in stating that a person not arrested is not in custody unless significant restraints have been placed upon that person’s freedom of movement. The point is further clarified by the court’s distinction between custodial and investigatory interrogations. An investigatory interrogation is the questioning of a person by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such person is not in legal custody or deprived of his freedom of action in any significant way. State v. Bohanan, 220 Kan. at 128; see State v. Taylor, 231 Kan. 171, 173, 642 P.2d 989 (1982); State v. Costa, 228 Kan. 308, 312, 613 P.2d 1359 (1980). The Bohanan court further stated that a determination of custodial interrogation must be based upon a case-by-case analysis of the factual circumstances. 220 Kan. at 127.
In Bohanan, the defendant’s name was given to a police detective as a possible suspect seen running from a murder scene. The detective had little information at this time and did not consider Bohanan a suspect; however, he left a message with Bohanan’s family. Bohanan returned the call and agreed to talk with the officer. When the detective arrived at Bohanan’s home, he agreed to talk with the officer outside in the police car. No Miranda warning was given to Bohanan, but when he made statements which raised the officer’s suspicion all questioning ceased and Bohanan was taken into custody. 220 Kan. at 122-23.
This court determined that a custodial interrogation did not occur. The investigation was considered general in nature because the officer had little information and no warrant had been issued for Bohanan’s arrest; nor was any evidence presented that Bohanan’s freedom of action had been restrained. Thus, the court held that no Miranda warning was required. 220 Kan. at 128-29.
In the present case, police detective McKinney knew that he was looking for Damon Huff and Darrell Stallings. He had also received the names Jerome Carter, Little “J,” and Little Jessie. McKinney left messages in several places and Jones returned McKinney’s telephone call on January 21, 1988. Jones voluntarily agreed to meet with McKinney at the police station; he was neither under arrest nor a suspect at that time. Detective McKinney acknowledges that no Miranda warning was given to Jones prior to the interview.
McKinney testified that prior to the interview he did not know if Jessie Jones was involved with the crime and stated that after a one and one-half hour interview he did not find anything that linked Jones to the incident. A photo was taken of Jones prior to his departure from the police station and a witness soon thereafter identified Jones from a photo lineup. Subsequently, Jessie Jones was arrested and taken into custody.
Jones contends the statement he gave to Detective McKinney should have been suppressed because it was taken during a custodial interrogation with no Miranda warning. The State argues that Detective McKinney was not required to issue a Miranda warning since there was no custodial interrogation.
First, we recognize that Jones went to the police station voluntarily. Because he was not under arrest, Jones was not subject to a custodial interrogation unless significant restraints were placed upon his freedom of movement. State v. Bohanan, 220 Kan. at 128. Similar to the Bohanan case, there is no evidence of any significant restraints placed upon Jones’ freedom of movement. Not only did Jones go to the police station of his own accord, he remained for an interview that lasted more than one hour and then left the station without any restraints having been placed upon his movement. He was clearly not in police custody at that time. For this reason, we find no error in admitting Jones’ statement into evidence.
The second issue is whether the district court erred in ruling that statements made by an unavailable codefendant to a witness were inadmissible hearsay.
Jones contends that Darrell Stallings had watched television with James Hudson on the evening following the crime. There, Stallings supposedly admitted to Hudson that he committed the crimes along with Damon Huff and a man from Missouri. Jones is from Kansas and argues that Stallings’ statement to Hudson exonerates him of all guilt. The district court ruled, however, the statements by Stallings to Hudson constituted inadmissible hearsay.
Jones argues that the admission by Stallings should have been admitted into evidence as a declaration against interest, a hearsay exception. K.S.A. 1989 Supp. 60-460(j) provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(j) . . . Subject to the limitations of exception (f), a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true.”
In addition to meeting the requirements of this statute, Jones must also make a showing of trustworthiness by the declarant. State v. Prince, 227 Kan. 137, 147, 605 P.2d 563 (1980). A trial judge has wide discretion in determining the admissibility of a declaration against interest and may consider such factors as the nature and character of the statement, the person to whom the statement was made, the relationship between the parties, and the probable motivation of the declarant in making the statement. Thompson v. Norman, 198 Kan. 436, 443, 424 P.2d 593 (1967).
Hudson’s witness statement reveals that he did not know Darrell Stallings until the day the criminal events occurred. According to Hudson’s statement, while watching the evening news about the shootings, Stallings told him that he had fired a couple of shots and hit someone during the shooting spree. Stallings further stated that Damon and another guy from Missouri were with him during the criminal event. Finally, Stallings stated that he wanted to get out of town and refused to turn himself in.
We find the district court erred in refusing to admit Hudson’s testimony. The statements of Stallings were against his interest and therefore an exception to the hearsay rule. However, in light of the overwhelming evidence against Jones, the error is harmless.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Miller, C.J.:
This is a wrongful death case brought by Bonnie Hammig against Thomas Ford. The District Court of Johnson County granted summary judgment in favor of defendant Ford. The propriety of that order is the controlling issue before us.
FACTUAL BACKGROUND
Thomas Ford was driving north on Metcalf Avenue in Overland Park, Kansas, on November 21, 1985. James Brooks was driving south on the same thoroughfare. Brooks, in making a left turn onto 107th Street, collided with the Ford vehicle. Brooks fled the scene by proceeding east on 107th. As soon as it was apparent to Ford that Brooks was not going to stop, he followed Brooks in order to obtain his license number.
Shortly east of Metcalf, 107th Street makes an S curve; thereafter, it is straight all the way to Lamar, one-half mile east of Metcalf. The two cars sped east on 107th, with speeds reaching 60 miles per hour, although the speed limit was 30 or 35 miles per hour. Neither Brooks nor Ford remembers any other traffic on 107th. Brooks testified by deposition that, after about a block, he became aware that Ford was following him, but that was not why he was speeding; he was determined to leave the scene and go to Missouri. He did not want to be arrested for driving without a license.
Even though Brooks had a head start, Ford was able to catch up to him and to read his license number. Ford then pulled over to the side of the street, about a half block west of Lamar, to write down the number. Brooks, however, did not stop or slow down. He proceeded to speed into the four-way stop intersection at Lamar, and in doing so collided with another vehicle in which Bret Hammig was a passenger. Hammig died of injuries sustained in the crash.
This action is brought by Hammig’s widow and sole heir, Bonnie Hammig, individually and as administratrix of his estate. Suit was commenced against Brooks; Brooks’ parents, who were the owners of the car he was driving; and Ford. Summary judgment was entered in favor of Brooks’ mother. Later, plaintiffs claims against Brooks and his father were settled, and an order was issued dismissing those claims with prejudice. The orders relating to the claims against Brooks and his parents are final, and no appeal has been taken from them.
DISTRICT CQURT’S DISPOSITION
Defendant Ford moved for summary judgment, and the trial court agreed, finding
“that there are no material issues of fact remaining, and that reasonable minds cannot differ as to the fact that the actions or inactions of defendant Ford did not in any way cause or contribute to cause the collision between the Brooks and Hammig vehicles. Therefore, the Court finds that the defendant Ford is entitled to judgment as a matter of law.”
Plaintiff appealed.
COURT OF APPEALS’ DISPOSITION
The Court of Appeals, in an unpublished opinion filed June 2, 1989, reversed. After setting forth the facts and the rules relating to the entry of summary judgment, the opinion states:
“To recover in a negligence action a plaintiff must establish the following: (1) a duty owed by the defendant to the plaintiff; (2) defendant breached that duty; (3) plaintiff was damaged; (4) the breach of duty was a cause in fact of the damage; (5) and the breach of duty was the ‘proximate’ or ‘legal’ cause of the damage. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987).
“Proximate cause has been defined as follows:
“ ‘The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. [Citation ommitted.]’ Baker, 240 Kan. at 557.
“Generally, drivers have a duty to operate their motor vehicles in the same manner as a prudent driver would do and whether they have done so is ordinarily a question of fact to be determined by the jury in light of all the evidence. Drennan v. Penn. Casualty Co., 162 Kan. 286, 288, 176 P.2d 522 (1947). Failure to use that degree of care and caution which an ordinary careful and prudent person would exercise under same or similar circumstances is negligence. Morris v. Hoesch, 204 Kan. 735, 738, 466 P.2d 272 (1970).
“Viewing the record in the light most favorable to the plaintiff as the nonmoving party, we conclude it was reversible error for the district court to grant summary judgment for defendant because there exists a genuine issue as to the proximate cause of the collision.”
We granted Ford’s petition for review.
RULES RELATING TO SUMMARY JUDGMENTS
A party seeking summary judgment bears a heavy burden. The trial court is required to resolve all inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. If factual issues exist, they must be material to the case to preclude summary judgment.
The same rules apply on appeal. The appellate court is required to read the record in the light most favorable to the party who defended against the motion for summary judgment. Summary judgment must be found improper where the appellate court finds that reasonable minds could differ as to the conclusions drawn from the evidence. Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); see Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
The trial judge, a reasonable person, concluded that the evidence led to but one conclusion: that Ford’s actions or inactions “did not in any way cause or contribute to cause the collision between the Brooks and Hammig vehicles.” Judges of a Court of Appeals panel, reasonable people, upon consideration of the same evidence, came to a conclusion that “there exists a genuine issue as to the proximate cause of the collision.” As reasonable minds differ on the conclusion to be drawn from the evidence, summary judgment must be deemed improper unless our independent review of the record shows that Ford is entitled to judgment as a matter of law. Although summary judgment is seldom proper in negligence cases, it is proper if the plaintiff fails to provide evidence of an element essential to his case. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. at 307.
NEGLIGENCE CASES
The plaintiff in a negligence case must establish these essential elements:
(1) A duty of reasonable care owed by the defendant to the plaintiff;
(2) a breach of that duty;
(3) damage to the plaintiff; and
(4) a causal connection between the duty breached and the damage sustained.
See Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987) (citing Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 [1983]). The Baker opinion also states:
“[T]he breach of duty must be the actual and proximate cause of the injury. The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 235, 552 P.2d 938 (1976).” 240 Kan. at 557.
In Baker, plaintiff sustained personal injuries when a tractor-trailer ran a red light and struck the Baker vehicle. Baker brought suit against the truck driver, the truck owner, its insurance carrier, the county, the city, and the Kansas Department of Transportation. The first three settled; the county was granted summary judgment; and, at the close of trial, the judge granted a directed verdict in favor of the city and KDOT. Plaintiff appealed the directed verdict, claiming that improper timing and installation of the traffic lights by the city and KDOT caused or contributed to the collision. Noting that whether conduct is the proximate cause of a plaintiff s injuries is normally a question of fact for the jury, we nevertheless affirmed. We held there was no evidence in the record to indicate that either the timing or the installation of the signal lights caused the truck driver’s failure to stop. Thus, there was insufficient evidence to permit the causation issue relating to the city or KDOT to go to the jury.
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Hammig argues that Brooks’ credibility is a genuine issue of material fact. Ford, in the memorandum in support of his motion for summary judgment, listed some 28 separately numbered paragraphs of “Uncontroverted Contentions of Fact.” Plaintiff, in response, controverted only five: paragraphs numbered 8, 11, 26, 27, and 28. Defendant’s paragraph No. 8 states: “That Brooks fled the scene of the accident because he was driving without a license, and did not want to get a ticket.” Plaintiff responded: “Controverted. Defendant Brooks’ credibility is at issue as to any statements he made. (See Plaintiffs Statement of Controverted Contentions of Facts Par. 6 below.)” Plaintiffs paragraph No. 6, however, does not controvert the statements contained in defendant’s paragraph No. 8. It reads: “Brooks ran the stop sign at the intersection of 107th Street and Lamar at approximately sixty miles per hour without attempting to brake. (Affidavit of Thomas Hansen, Par. 4).” The statements of Brooks, contained within his deposition, constitute the only evidence of his motivation for leaving the scene of the first collision and driving in excess of the speed limit on 107th Street. At the time his deposition was taken, Brooks had already pled guilty to vehicular homicide, failure to stop and render assistance, and driving with a suspended license. We conclude that the mere statement that plaintiff questions Brooks’ credibility does not constitute a valid and sufficient controversion of Ford’s statement of fact No. 8. We require a party opposing the statement of an uncontroverted fact in a motion for summary judgment to come forth with a concise summary of conflicting testimony or evidence. Rule 141(b) (1989 Kan. Ct. R. Annot. 94). Clearly, plaintiffs response does not comport with that rule.
Defendant’s paragraph No. 11 states that Ford followed Brooks at speeds over the legal limits in an attempt “to slow Brooks down and let him know that he was back there to get the license number.” Plaintiff attempted to controvert that paragraph by adding that “Mr. Ford stated unequivocally that in an effort to catch up to Brooks, he reached 60 miles per hour. Ford further stated that even though Brooks had a head start, he was able to catch up to him.” These statements do not change materially the basic statement of uncontested fact, which we have included in the factual statement in this opinion. Plaintiff also controverted defendant’s paragraphs numbered 26, 27, and 28 on the grounds of relevancy and materiality. Those paragraphs describe the activities of a witness to the fatal collision who followed the car in which Brooks made his escape from that scene. The facts of that incident are not relevant to the issues before us. Also, the additional statements of fact included by plaintiff in response to defendant’s motion for summary judgment do not add materially to the facts as stated earlier in this opinion. We conclude, as did the trial court, that the facts are undisputed and do not disclose that Ford’s action or inaction caused or contributed to cause the fatal collision.
DISCUSSION
Ford admits that he drove at speeds exceeding the posted limit in an effort to get Brooks’ license number. Driving at unlawful speeds may, of course, be negligence; but the violation of a traffic law results in liability for the injury of another only where there is “a causal or proximate relationship to the injury.” Williams v. Esaw, 214 Kan. 658, 660, 522 P.2d 950 (1974).
We find no case precisely on point with the facts of this case. The police chase cases, such as Thornton v. Shore, 233 Kan. 737, 666 P.2d 655 (1983); Roll v. Timberman, 94 N.J. Super. 530, 229 A. 2d 281, cert. denied 50 N.J. 84 (1967); and Wrubel v. State of New York, 11 Misc. 2d 878, 174 N.Y.S. 687 (1958), involve situations where police officers pursued lawbreakers at high speeds and the pursued vehicle struck a third vehicle, inflicting injuries. Special statutes pertaining to police vehicles are involved, and the police vehicles had not abandoned the chase at the time of the collisions. The majority of those cases hold that the officer is not liable to the third party because the sole proximate cause is the fleeing party’s negligence rather than the officer’s conduct in electing to pursue. Similarly inapplicable are the racing cases, where both drivers are engaged in a common enterprise which results in injury to a third person. See, e.g., Bellamy v. Edwards, 181 Ga. App. 887, 354 S.E.2d 434 (1987).
The closest case to that at bar is Johnson v. Johnson, 171 So. 2d 710 (La. App. 1965). In Johnson, the defendant witnessed a drunken driver collide with another car and drive away. The defendant gave chase to get the license number. He overtook the driver, who agreed to return to the scene, but instead fled again. The defendant, who had failed to note the license number because of the agreement, continued the chase at high speeds but was two blocks away when the drunken driver crashed into a car in which the plaintiff was a passenger. The Louisiana court held that the trial court properly dismissed plaintiffs claim against the defendant because defendant owed plaintiff no legal duty not to pursue the driver under the circumstances. Furthermore, because the other driver was “oblivious” to the pursuit, the court found no causal connection between the pursuit and the pursued driver’s actions. The court stated:
“It is fundamental that a complained of act is not actionable unless it is a cause in fact of the harm for which recovery is sought, and the burden of proving this causal link is upon the plaintiff. Without causal connection between the act and the accident no legal liability exists.” 171 So. 2d at 712.
Here, two undisputed facts are of importance. First, though Brooks knew that he was being followed or pursued, he had every reason to flee the scene of the first accident. He testified he wanted to leave the general vicinity because he did not want to go to jail for driving without a license and that he was not worried about Ford following him. This testimony has independent support in the record. Brooks’ driver’s license had been suspended, and he was heading for what he perceived to be the asylum of his home state, Missouri, only two or three miles away. Second, Ford’s pursuit had ended prior to the collision. Ford decelerated his vehicle, pulled to the side of the road, and stopped in order to write down Brooks’ license number. Ford was no longer in pursuit of Brooks at the time of the collision. We conclude that the trial court was correct, and that Ford’s actions did not cause or contribute to the collision as a matter of law.
The judgment of the Court of Appeals reversing the district court is reversed, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Cub Riddle appeals his conviction of one count of aggravated sodomy (K.S.A. 21-3506). He argues that the evidence police seized after he was arrested should have been suppressed. Riddle claims that, because officers seized him on the front porch of his dwelling prior to obtaining an arrest warrant, the arrest was illegal and the evidence obtained after the illegal arrest should have been suppressed as fruit of the poisonous tree. We disagree and affirm the district court.
On March 6, 1988, Ms. S. informed the police that she had been abducted and sexually attacked earlier that morning by a black male named Cub, whom she had met at a party the previous evening. Although Ms. S. had driven the man to his home, she could not remember his address. One of her friends told police that the man lived at 5131 Dodson in Kansas City, Kansas. When the police checked the address, they were met at the door by a black male who identified himself as Cub Riddle. The officers asked Riddle to step outside. When he did, the officer arrested him and seized from the dwelling the clothing he said he had worn the previous evening. On appeal, Riddle claims the trial court erred in failing to suppress the evidence that was seized from his home in conjunction with an unlawful, warrantless arrest. Other facts will be provided as necessary.
Two of the statutory circumstances under which a law enforcement officer may arrest a person are when (1) the officer has a warrant commanding that the person be arrested, and (2) the officer has probable cause to believe that the person has committed a felony. K.S.A. 22-2401.
Here, officers had probable cause to believe an individual had committed a felony but had not obtained a warrant for his arrest. There is a constitutional distinction as to where a warrantless arrest may be executed. A valid arrest for a felony may be made without a warrant in a public place based upon probable cause. However, the existence of probable cause does not per se authorize a forcible entry into a person’s residence to make a warrantless arrest. State v. Platten, 225 Kan. 764, 768, 594 P.2d 201 (1979).
Following our decision in Platten, the United States Supreme Court decided Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). In Payton, officers broke into a murder suspect’s apartment prior to obtaining a warrant for his arrest. The Supreme Court held that, unless special circumstances are present, warrantless arrests in the home are unconstitutional. 445 U.S. at 590. In reaching its decision, the Court recognized the purpose of the Fourth Amendment in limiting the authority of general warrants that are not based upon probable cause. The Court noted that “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” 445 U.S. at 585.
In the present case, the trial court found that Riddle had been arrested in a lawful manner outside his home — in a public place, i.e., on his front porch. The arresting officer, Detective Mohler, testified:
“Q. What did you do next?
“A. I contacted another detective named Kenneth Allen and advised him I was going back out to the Dodson address to see if in fact a black male lived at that address by the name of Cub. And asked him if he would meet me. We proceeded to the area of approximately 51 and Gibbs and waited for assistance from the South Patrol Uniform Division so there would be no misunderstanding that we were in fact police officers. 2 uniformed officers arrived. I advised them where we were going and what the purpose of our going there was. The 2 officers and the detective and myself then proceeded to 5131 Dodson, and exited the vehicle. One uniformed officer went to the back of the residence, one started towards the side of the residence and we approached the front. A young black male came to the front door. I identified myself as a police officer. A uniformed officer came to my side and Detective Allen was on my left. I asked the man what his name was. He identified himself as Cub Riddle. I asked him to step outside, we'd like to talk to him. He exited the residence and stood on a small stone on the front porch. I advised him why we were there and that a complaint had been lodged and we believed he was a suspect in a rape and we would have to ask him to come with us to the Police Department of Kansas City, Kansas so we could interview him. He said he would like to get some clothing on. He just had a pair of pants on. We told him we would need the clothes he wore the night before.
“Q. Did he give them to you?
“A. Yes. He ushered us into the residence and his wife was sitting on the divan by the door as you enter. We entered a small bedroom where he got dressed and handed us some clothing. That was a green coat and a pair of blue nylon type pants and a pair of black tennis shoes and I believe a T-shirt. We then proceeded back into the front room. Officer Nelson took Mr. Riddle to his patrol car and transported him to the Detective Bureau. At that time I talked to Mrs. Sherri Riddle and explained to her what we were doing and why we were there. She had not moved from the divan from the time we arrived. I asked her if she could maybe shed some light on the whereabouts of her husband.”
Though Riddle claims he was arrested before he exited the house, the testimony of Detective Allen and Riddle’s wife, Sherri, supports the district court’s finding that he was arrested outside the house. Where the district court has made findings of fact and conclusions of law, the function of appellate courts is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. City of Overland Park v. McLaughlin, 10 Kan. App. 2d 537, 545, 704 P.2d 997 (1985), aff’d 238 Kan. 637 (1986). There is substantial competent evidence to support the trial court’s finding that Riddle was arrested on his porch after he had exited the house.
The State cites United States v. Santana, 427 U.S. 38, 49 L. Ed. 2d 300, 96 S. Ct. 2406 (1976), for the proposition that Riddle was in a public place when he stepped onto the porch, thereby making him subject to a warrantless arrest. In Santana, an undercover narcotics officer arranged to buy heroin from McCafferty and waited while she obtained the drugs from Santana. Mc-Cafferty returned with the heroin and was arrested. Moments later, officers observed Santana standing in the doorway of her home, holding a bag which contained packets of heroin. As the officers approached the house and identified themselves, Santana retreated into her vestibule. The police followed her into the house and arrested her. Santana was subsequently convicted for possession of heroin with intent to distribute. In affirming Santana’s conviction, the Court first held that she had no reasonable expectation of privacy while standing in her doorway. Since the officers had probable cause to believe that she had committed a felony, there was no Fourth Amendment violation when they attempted to arrest her without a warrant.
Even if the arrest actually took place outside the home, Riddle argues: “Without the prior judicial determination of probable cause, it is unconstitutional to require a citizen to open doors in order to then effect a warrantless arrest.” We disagree. The focus in Santana was upon exigent circumstances, i.e., the hot pursuit exception to the prohibition against a warrantless arrest in the accused’s home, not whether an arrest of an individual in the doorway of his or her home was legal. Here, rather than adopting Santana’s exigent circumstances rationale, the trial court found that defendant had been legally arrested outside the house.
A warrantless arrest has been deemed unobjectionable when a defendant came outside at the request of police who did not reveal their intention to arrest, or, indeed, even when the police engaged in some affirmative misrepresentation, such as that they merely wanted to discuss matters with the defendant or that the defendant was viewed by them only as a suspect or a witness. Such ruses have been considered permissible in other contexts where courts have considered police tactics of misinformation and have found no constitutional violation. 2 LaFave, Search and Seizure § 6.1(e) (1978).
In People v. Moore, 105 Ill. App. 3d 264, 434 N.E.2d 300 (1982), the defendant claimed he was induced to leave his home by deception; therefore, his presence on the street was not voluntary. Before his warrantless arrest, the police had falsely informed the defendant that he was not the target of the investigation and successfully lured him out of his home. The court found that the police had not concealed their identity or the fact that they were investigating a robbery. The fact that the police used subterfuge to lure the defendant outside of his home was held to have not been an illegal attempt to circumvent the rule announced in Payton. The court then cited several cases where police tactics of misinformation were not a constitutional violation. See Lewis v. United States, 385 U.S. 206, 210, 17 L. Ed. 2d 312, 87 S. Ct. 424 (1966) (no violation of defendant’s privacy when policeman misrepresented his identity in order to gain admittance to defendant’s home and purchase illegal drugs); People v. Boerckel, 68 Ill. App. 3d 103, 111-12, 385 N.E.2d 815 (1979), cert. denied 447 U.S. 911 (1980) (fact that police misrepresented the evidence against defendant did not render his confession involuntary or violate fundamental fairness); People v. Houston, 36 Ill. App. 3d 695, 699, 344 N.E.2d 641 (1976), cert. denied 429 U.S. 1109 (1977) (police officer investigating an armed robbery stated that he was investigating an accident; “subtle subterfuge” held constitutionally permissible).
Here, Riddle knew that he was being asked to step outside by police officers. The officers made no misrepresentation of their intentions to him. Once he was outside on the porch, they informed him that he was a suspect in a rape investigation and requested that he accompany them to the police department. We agree that when an individual recognizes that law enforcement officers are asking him to step outside of his dwelling and when he voluntarily opens the door and steps outside onto the porch, the individual has no expectation of privacy. A warrantless arrest of an individual on his or her front porch does not intrude on the individual’s expectation of privacy and, therefore, if the arrest is based on probable cause, it is not illegal. Based on the record and the cited authority, Riddle’s arrest was legal.
Riddle contends that, because his arrest was illegal, his consent to search following his arrest was invalid. Because of our holding that Riddle’s arrest was legal, the validity of his consent to the search after his arrest is not an issue. The record indicates that Riddle consented to the search by voluntarily giving the police the evidence to which he now objects.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Miller, C.J.:
This is a direct appeal by James N. White from his jury convictions in Shawnee District Court of first-degree felony murder, K.S.A. 21-3401, and conspiracy to commit first-degree murder, K.S.A. 21-3302; K.S.A. 21-3401. He was sentenced to not less than 5 nor more than 20 years for conspiracy, to run concurrent with a term of life imprisonment for the murder conviction.
Defendant raises four issues on appeal: (1) whether a statement White made to Arizona authorities (the Arizona statement) was coerced; (2) whether the court erred in admitting into evidence a statement White made to Kansas authorities (the Kansas statement) after counsel had been appointed for him at his arraignment on an Arizona charge of possession of stolen property; (3) whether any error in the admission of the Kansas statement may be held to be harmless error beyond a reasonable doubt; and (4) whether there is sufficient evidence to support the conspiracy conviction.
THE FACTUAL BACKGROUND
John Stacy was found dead in a Topeka hotel room on June 27, 1987. He had a broken nose, cuts on his right wrist, and twelve broken ribs. The coroner found the cause of death to be suffocation, suffered sometime between 10 p.m. on June 26 and 10 a.m. on June 27. Because of the absence of damage to the skin or soft tissues of the chest, the coroner concluded that Stacy’s ribs were broken by means of blunt force, such as would be applied by someone sitting heavily on the chest. He also found it likely that complete suffocation was achieved by someone holding the bloodstained pillow, which had been found in the hotel room, over Stacy’s face. Finally, he was of the opinion that Stacy’s wrist had been cut after his death because only a very small amount of blood flowed from the wound.
Stacy’s watch and car were missing, and only two dollars were found in his wallet. The car was found about 37 days later in Arizona. This led to information leading to the arrest of White and his companion, Sandra Hamilton, for possession of stolen property. While he was in custody, White gave statements admitting the murder to Arizona authorities (the Arizona statement) and later, while still in custody in Arizona, to Kansas authorities. Both statements were received in evidence, and form the basis for the issues raised on appeal. We will discuss both statements in connection with those issues.
In addition to White’s statements, there was a great deal of evidence placing White and Hamilton at the scene of the homicide, and placing them in Stacy’s company shortly before his death. A neighbor of Stacy’s testified she saw two people fitting White’s and Hamilton’s descriptions go with Stacy into his trailer home on June 26. An acquaintance of Stacy’s testified that on June 26, a young man fitting White’s description appeared with Stacy at her home to pick up a painting. Another witness, a laundromat employee, testified that two people fitting White’s and Hamilton’s descriptions used the laundromat on the afternoon of June 26, while Stacy waited in his car. A bank teller testified that a young white man and a young white woman were with Stacy on the late afternoon of June 26 when Stacy withdrew $300 from his bank account at the drive-up window.
A Topeka hotel employee testified that two people fitting the description of White and Hamilton checked into the hotel on June 26. The woman fitting Hamilton’s description signed the register and receipt in Stacy’s name. A document examiner for the K.B.I. verified that the writing was Hamilton’s. A waitress at the hotel testified that two people fitting the description of White and Hamilton had dinner with an older man fitting Stacy’s description on June 26. She identified photographs of them, picked out White in a photographic lineup, and identified him in court. Latent fingerprints, one of White’s and one of Hamilton’s, were found in Stacy’s car, along with a letter addressed to White.
White and Hamilton were charged with murder by Kansas authorities, extradited from Arizona, and driven back to Topeka by two Kansas deputy sheriffs. One of the deputies testified that she overheard several incriminating statements while White and Hamilton talked together in the back seat, and that none of the statements were made as a result of questioning, coercion, or inducement. The first statement was made while White and Hamilton were discussing possible sentences which might be imposed on them. White told Hamilton, “I did the crime, I have to do the time.” The second statement occurred while the two were discussing cars. White indicated he preferred Chevys and Hamilton said she preferred Fords. White said, “I started to say that I wouldn’t even steal a Ford, but I can’t say that since the Escort [Stacy’s car] was a Ford.” The third statement occurred while the two were discussing their bonds, and Hamilton said she could borrow $250,000 from someone. White asked her why, if she could get that kind of money, she had not done so before. He concluded, “If you had borrowed the money, we wouldn’t have had to steal the car and everything.” As they entered Topeka, White said it did not look familiar. Hamilton replied, “That’s because we were never in Topeka. We just got off the ramp at the motel.” The evidence at trial indicated the three had stayed at the Downtown Holiday Inn in Topeka, just off Interstate 70.
White was later arrested by local police in Arizona. One of the Arizona officers testified that White was arrested and handcuffed when he stepped outside a residence. White was immediately informed he was being detained for having committed the crime of possession of a stolen vehicle, and he was given the Miranda warnings. White acknowledged he understood his rights and told the officers he had taken the vehicle. The officer testified that at that time White appeared coherent, appeared to understand what was going on as the officer read him his rights and did not appear to be under the influence of alcohol or drugs. At the hearing before the trial court on the admissibility of this statement, White argued he was not given the Miranda warnings before he told the officers he took Stacy’s car. The court found the officer’s testimony more credible and admitted the statement. The admission of White’s statement that he took the vehicle is not challenged by him on appeal.
THE ARIZONA STATEMENT
The first issue is whether the trial court erred in receiving into evidence the Arizona statement. Briefly summarized, the Arizona statement shows that White said that he met Sandy Hamilton in Peru, Indiana. In late June 1987, the two of them left Peru and hitchhiked to Missouri. White first stated they found Stacy’s car in a parking lot with the keys in the ignition. He said they got in and he drove to Long Beach, California, then on to Tijuana, Mexico, before arriving in Phoenix. He denied having ever met the owner of the vehicle.
Later in the statement, White changed his story. He said they met Stacy in a Denny’s restaurant in Missouri. They rode with him, stopped at a Holiday Inn, ate dinner, and took showers. Stacy then fell asleep. White and Hamilton stayed up. White stated, “[We] wanted to get away. We wanted to get out of state. We didn’t want to walk and wanted to use a car.” They jumped Stacy as he slept. Hamilton, a large person, held him down by sitting on him, and White, with some help from Hamilton, held a pillow over Stacy’s head. They pounded his face and White cut Stacy’s left wrist. They took the money from Stacy’s wallet, over $300, and the car keys. Before leaving the hotel room, they wiped everything down to get rid of fingerprints.
White made this statement to two Arizona officers in an interrogation room at the Glendale, Arizona, police station shortly after his arrest. The interrogation was tape-recorded and the tapes were received in evidence and played to the jury, with a portion deleted. A transcription of the tapes was proffered by the State. The trial court did not receive the transcript in evidence, but the trial court examined the transcript and personally marked on the transcript that portion of the tapes which was deleted. Neither the tapes nor the transcript were made a part of the record on appeal; however, the transcript of the Arizona statement has been secured and reviewed.
Defendant contends the statement was coerced. The trial court listened to the tapes and conducted a full hearing on the admissibility of the statement. It found no coercion, and admitted the Arizona statement into evidence. When a trial court determines after a full pretrial hearing that an extrajudicial statement by an accused was voluntarily given and admits the statement into evidence at trial, the appellate court will not reverse the court’s finding if it is supported by substantial competent evidence. State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988).
The burden of proving a statement admissible is on the prosecution. K.S.A. 22-3215(4). The court must view the totality of the circumstances when determining the voluntariness of a statement, including (1) the manner and duration of the questioning; (2) the suspect’s ability upon request to communicate with the outside world; (3) the suspect’s intellect, age, and background; and (4) the fairness of the interrogating officers. State v. Waugh, 238 Kan. 537, 541, 712 P.2d 1243 (1986). Uncontested are the facts that White’s handcuffs were removed during the interview, which began shortly after arrest, lasted only about an hour, and was attended by only two officers. Also uncontested is the court’s finding that White is of normal intelligence and was not mentally impaired or under the influence of drugs or alcohol.
According to the Arizona officers, White did not at any time request an attorney or evidence a desire to end the questioning. The officers testified the entire interview was tape-recorded. According to White, he requested an attorney before the tape began playing and again while the tape was stopped when one of the officers left the room for a few minutes. The trial court found no evidence of coercion or unfairness and found nothing that rebutted the officers’ testimony. It found in odd contrast White’s ready flow of talk on the tape in which he gives no sign of being coerced and never indicates a wish for counsel, and his testimony that he requested counsel several times — always when the tape recorder was not running. The court found White’s version was not credible.
During the last part of White’s interview, Hamilton was being questioned in an adjoining room. One of the officers told White that Hamilton was making a statement against him and that her statement did not mesh with his. Hamilton was crying, and the trial court noted that it could hear crying in the background during a portion of the tape.
During White’s interrogation, one of the officers said in substance that the city had an ordinance against hindering an investigation, but that was something that could easily be taken care of. The trial court found this not to constitute such a promise or inducement as to render White’s statement involuntary. The court said: “[At] most, it [was] merely a promise of collateral benefit with no assurance of benefit to the accused with respect to the crime under inquiry.” We conclude that the officer’s comment was not enough to render White’s statement involuntary in the absence of other circumstances not present here. See State v. Holloman, 240 Kan. 589, Syl. ¶ 5, 731 P.2d 294 (1987). We conclude that the statement was voluntarily made and not the product of coercion, and that the trial court did not err in receiving the Arizona statement into evidence.
THE KANSAS STATEMENT
The second issue is whether the trial court erred in admitting the Kansas statement into evidence. The Kansas officers arrived in Arizona two days after White was arrested. The officers gave White the Miranda warnings, and he agreed to talk with them. The parties agree the Kansas statement is more detailed but otherwise similar to the Arizona statement. We have not reviewed the Kansas statement as no copy has been provided with the appellate record.
White’s objection to the admission of the Kansas statement is that, on the day before it was given, he was taken before a magistrate in Arizona on the charge of possession of stolen property. He asked for an attorney, and the court appointed counsel for him. This was known to the Kansas officers. Upon hearing the motion to suppress this statement, the trial, court noted the Arizona court order appointing counsel was quite specific and contained the handwritten notation “only on [Ariz. Rev. Stat.] 13-1802,” which would indicate that counsel’s appointment was limited to representing White on charges pending against him in Arizona.
A number of Fifth and Sixth Amendment cases are helpful in determining this issue. The first is Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 (1981), a Fifth Amendment case. The defendant was given the Miranda warnings and stated he did not wish to answer questions without a lawyer. The next day, however, officers gave him the Miranda warnings again and proceeded to question him. On that occasion, the defendant made incriminating statements. The United States Supreme Court held the admission of the statement violated the defendant’s Fifth and Fourteenth Amendment rights to have counsel present during custodial interrogation. The defendant had declined to answer questions without counsel; he remained in custody throughout; and the questioning on the second day, initiated by the officers, concerned the same offense for which he was arrested. The case establishes the rule that, once a suspect has invoked his Fifth Amendment right to have counsel at a custodial interrogation, officers may not interrogate him, while he remains in custody, about the offense for which he is held unless the suspect himself initiates discussion concerning the offense.
In Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), the defendants were arrested and arraigned and had counsel appointed for them. The next day, before they had the opportunity to talk with counsel, they were given the Miranda warnings and were questioned by officers about the offenses. Although the case involved a Sixth Amendment right to counsel, the Supreme Court held the reasoning of Edwards applied with even greater force where counsel has been requested and appointed in a pending proceeding; therefore, their statements were inadmissible.
The trial court’s decision to admit the Kansas statement in this case was made before the United States Supreme Court handed down its opinion in Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988). Roberson was arrested at the scene of a burglary. In response to the Miranda warnings given him, he replied he did not want to answer any questions without a lawyer. Three days later, while he was still in custody, a different officer advised him of his Miranda rights, questioned him about an unrelated burglary, and obtained an incriminating statement. The trial court ruled the statement inadmissible and the Supreme Court affirmed. It applied Edwards v. Arizona and reasoned that the statement violated Roberson’s Fifth Amendment right to have counsel present during custodial interrogation.
Two cases, decided since Roberson, are instructive. The first is our decision in State v. Norris, 244 Kan. 326, 331-32, 768 P.2d 296 (1989). In that case, we indicated our acceptance of the argument that Edwards, Jackson, and Roberson mandate a holding that police may not initiate interrogation where the suspect has invoked his right to counsel at arraignment on an unrelated charge, so long as the suspect remains in custody. Norris, however, was free on bond when he was arrested and interrogated on the second charge, and, thus, the rule did not apply.
White relies on State v. Stewart, 53 Wash. App. 150, 765 P.2d 1320 (1989). The facts in that case are similar to the facts in Norris, except that Stewart remained in custody and was still in custody when the statement was taken. The Washington Court of Appeals concluded: “Clearly, Stewart’s Fifth Amendment right to counsel as a means of protecting his rights against compelled self-incrimination was violated when he requested counsel at his arraignment on a robbery charge, remained in continuous cus tody, and was subsequently interrogated on burglary charges.” 53 Wash. App. at 156.
Stewart, however, has been reversed. In State v. Stewart, 113 Wash. 2d 462, 780 P.2d 844 (1989), the Supreme Court of Washington unanimously held that the Sixth Amendment request of Stewart for counsel in the robbery case did not amount to an assertion of his Fifth Amendment right to have counsel present when questioned about the burglaries. The Washington court carefully distinguished between the Sixth Amendment right to counsel in a particular pending judicial proceeding and the Fifth Amendment right to counsel to guard against coerced, and therefore unreliable, confessions obtained during custodial interrogation. The court carefully reviewed the cases discussed above, and others, and concluded the confession to the burglaries was admissible. It should be pointed out, however, that the burglaries were wholly unrelated to the robbery for which the accused was arrested and confined.
A discussion of the cases from other jurisdictions would but prolong this opinion. Here, White clearly invoked his Sixth Amendment right to counsel when he asked for the appointment of counsel in the pending Arizona proceeding, wherein he was charged with the unlawful possession, in Arizona, of stolen property. The stolen property was the motor vehicle which White appropriated in Kansas, immediately following the homicide of the owner. It is readily evident, upon reading the transcript of the Arizona statement, that the Arizona officers knew from the outset that White was suspected of murdering the owner of the motor vehicle in Kansas. The entire Arizona custodial interrogation focuses on that event, rather than the Arizona charge of unlawful possession of stolen property. White was charged in Kansas with aggravated robbery for taking the Ford Escort automobile, car keys, and cash from John Stacy by force and by inflicting bodily harm upon him. Under these circumstances, we conclude that rather than being wholly unrelated, as were the robbery and the burglaries in Stewart, the Arizona and Kansas offenses were clearly related. Therefore, under the rule announced in Michigan v. Jackson, the Kansas statement was inadmissible. The trial court erred in admitting it into evidence.
HARMLESS ERROR
The third issue is whether the admission of the Kansas statement constituted harmless error. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967); State v. Eaton, 244 Kan. 370, 385, 769 P.2d 1157 (1989). Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Alexander, 240 Kan. 273, 276, 729 P.2d 1126 (1986).
As we noted earlier in this opinion, the Kansas statement is not included in the record on appeal. It is a familiar rule that an appellant has the burden of furnishing a record on appeal which affirmatively shows that prejudicial error occurred in the trial court. The brief of appellant appears to quote from the Kansas statement, yet that statement is not part of the record before us. From what little information we have on the matter, it also appears that the Kansas statement is but a more detailed account of the facts set forth in the Arizona statement. The Arizona statement and the other evidence properly admitted at trial, including the .testimony of many witnesses, establish an overwhelming case against the defendant. We therefore declare the error in admitting the Kansas statement harmless beyond a reasonable doubt. See State v. Newfield, 229 Kan. 347, 623 P.2d 1349 (1981).
THE CONSPIRACY CONVICTION
The final issue is whether there is substantial competent evidence to support White’s conviction of conspiracy. To establish that charge, the State had to prove that White agreed with Hamilton to murder John Stacy and that either Hamilton or White later committed an overt act in furtherance of the object of that agreement. K.S.A. 21-3302. Like other offenses, conspiracy may be established by direct or circumstantial evidence. When the sufficiency of the evidence is challenged on appeal, the standard of review is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond
CS CS reasonable doubt. State v. Smith, 245 Kan. 381, Syl. ¶ 5, 781 .2d 666 (1989). Reviewing the evidence in this record in that light, we conclude that there is substantial competent evidence to support White’s conviction of the offense of conspiracy.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal by the State (K.S.A. 22-3602[b][l]) from the trial court’s dismissal of the two counts against Diana Sue Weis, one of three individuals charged with various drug related crimes in a multi-count complaint. The trial court determined that the detention of Weis by law enforcement officers was a warrantless arrest lacking in probable cause which required the charges against Weis to be dismissed.
At 3:00 p.m. on April 8, 1989, surveillance of 816 State Street, Salina, was established as part of a drug investigation of Robert Michael Loop and Douglas Martin Smith. When Loop and Smith departed the State Street residence, Detective Augustine followed them to the Green Lantern, where the officer arrested them. Subsequent to the arrest of Loop and Smith, Officer Soldán, to protect evidence believed to be in the house, secured the 816 State Street residence at 3:20 p.m. until a search warrant could be obtained.
At 5:52 p.m, when Diana Sue Weis arrived at the residence she shared with Smith, she was stopped by Officer Soldán and informed that, if she attempted to enter the residence before the search warrant was obtained, she would be arrested. After instructing Weis to go to the police station to get Smith, Officer Soldán required Weis to wait until an officer he summoned to escort her to the police station had arrived.
Upon arrival at the police station at 6:00 p.m, the escorting officer instructed Weis to lock her car; he then escorted her into the station. Weis was buzzed through an electronically locked door and met by Officer Fiske, who placed her in a glass room which cannot be unlocked from the inside without a key.
At the hearing on Weis’ motion to dismiss, Weis testified that around 6:30 p.m., Fiske searched her purse and took her driver’s license and keys. A short time later, Officer Fiske read her the Miranda rights, but he refused her request for an attorney and several requests to use the phone. Fiske testified that he did not recall if Weis had requested an attorney or asked to use the phone, nor did he remember searching her purse for the keys or how he obtained the keys to her house. Because Weis had been placed in a locked room, she was required to request permission in order to use a restroom. An hour and a half after her request, accompanied by a matron who constantly observed her, she was allowed to use the restroom. Officer Augustine did not recall this incident. When asked if she was under arrest, Weis was told she was under observation.
Around 9:40 p.m, Weis was taken by the officers to her residence and held while they conducted the search. At the residence, Weis’ request to use the phone was again refused. After Weis admitted that some of the marijuana and drug paraphernalia found during the search of the home was hers, Officer Marshall arrested her. Around midnight, Weis was booked into the county jail, charged with possession of marijuana (K.S.A. 1988 Supp. 65-4127b[a][3]) and possession of drug paraphernalia (K.S.A. 65-4152), and then allowed to contact her attorney.
Prior to arresting Weis, the police officers never informed her that she was free to leave. Neither the original investigation reports of the officers nor the affidavit for the search warrant included any statement of suspicious activity by Weis. The officers acknowledged that, until Weis admitted possession of the marijuana and drug paraphernalia, they never had probable cause or reasonable suspicion to arrest her.
Prior to trial, Weis’ attorney filed motions to quash the search warrant and to dismiss the charges against his client because of an illegal arrest. The district court denied the motion to quash the search warrant but, based on the testimony, found the detention of Weis was an illegal arrest and dismissed the charges against her. The State appeals the trial court’s dismissal of the misdemeanor charges.
Weis’ motion requested dismissal of the charges because the officers did not have probable cause to arrest her; however, both the State’s and Weis’ briefs focus on whether any evidence was improperly obtained after an illegal arrest.
Though the district court stated it was dismissing the complaint, in actuality it granted Weis’ motion by suppressing her incriminating statements. A trial judge’s characterization of his own action does not always control the classification of the action. State v. Ruden, 245 Kan. 95, 99, 774 P.2d 972 (1989); State v. Whorton, 225 Kan. 251, 254, 589 P.2d 610 (1979).
Prior to trial a defendant may move to suppress as evidence any confession or admission given by him or her on the ground that it is not admissible as evidence. If the written motion alleges grounds which, if proved, would show the confession or admission not to be admissible, the court conducts a hearing. The burden of proving that a confession or admission is admissible is on the prosecution. K.S.A. 22-3215(4). When a motion to suppress an illegally obtained confession is granted, the State is allowed to take an interlocutory appeal under K.S.A. 22-3603, if the suppressed evidence is essential to prove a prima facie case. Therefore, regardless of whether the court’s action is characterized as a dismissal or a suppression of evidence, we have jurisdiction.
Whether a confession is or is not voluntary is determined like any question of fact. The findings of the trial court, which has a much better opportunity to ascertain the truth than that afforded the reviewing court, if supported by substantial competent evidence, cannot be disturbed. Holt v. State, 202 Kan. 759, 764-65, 451 P.2d 221 (1969).
Weis contends that she was “seized” and her detention resulted in a custodial interrogation rather than an investigatory interrogation. An investigatory interrogation is the questioning of an individual by law enforcement officers in a routine manner where the investigation has not reached an accusatory stage and the individual is not in legal custody or deprived of his or her freedom of action in any significant manner. An individual is in police custody when significant restraints on his or her freedom of movement are imposed by some law enforcement agency. State v. Bohanan, 220 Kan. 121, 128, 551 P.2d 828 (1976).
As authority for her claim of an illegal arrest and detention, Weis cites Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). Like this case, Dunaway involved police station detention where probable cause was absent. Even though the police in Dunaway did not have sufficient information or probable cause to obtain a warrant for an arrest, the defendant was taken to the police station for questioning. Dunaway was neither informed that he was under arrest nor was he booked. The United States Supreme Court concluded that when the police took the defendant into custody and transported him to the police station for interrogation without probable cause to arrest “[t]here can be little doubt that [defendant] was ‘seized’ in the Fourth Amendment sense.” Dunaway, 442 U.S. at 207.
We agree with the trial court’s determination that without probable cause the officers had illegally seized Weis. But that finding alone does not prevent Weis from being prosecuted. Jurisdiction of a court to try a person accused of a crime is not divested by the fact he or she may have been unlawfully arrested. United States v. Crews, 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244 (1971), cited in State v. Hammond, 4 Kan. App. 2d 643, 645, 609 P.2d 1171, rev. denied 228 Kan. 807 (1980); State v. Addington, 205 Kan. 640, 644, 472 P.2d 225 (1970); Hanes v. State, 196 Kan. 404, 411 P.2d 643 (1966); State v. Cook, 194 Kan. 495, 399 P.2d 835 (1965). An unlawful arrest, without more, does not give the accused immunity from prosecution nor provide a defense to a valid conviction. Even where the trial court determines the initial arrest was without probable cause, if the taint of the illegal arrest is so separate from the statement or evidence obtained, the evidence can be admitted. See Dunaway, 442 U.S. at 216 (citing Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 [1963]).
In Dunaway, the United States Supreme Court held that the evidence police obtained from the illegal detention could not be admitted at the trial without intervening circumstances to break the nexus between the illegal detention and the evidence obtained. The determination of whether a confession is the result of free will is ascertained by no one factor. The four factors to be considered are: (1) whether Miranda warnings were given, (2) the proximity of the illegal arrest and the statement or confession, (3) the purpose and flagrancy of the officer s misconduct, and (4) other intervening circumstances. 442 U.S. at 218. Weis claims that the circumstances of the illegal arrest require a determination that her confession was not the result of her free will. See State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983); State v. Kirby, 12 Kan. App. 2d 346, 744 P.2d 146 (1987).
Though Weis concedes that the first part of the test was met, i.e., she was given the Miranda warning, the fact that her requests to contact her attorney and permission to communicate by phone had been denied until she was booked approximately 6 hours after her illegal detention negates the giving of the warning. Second, from the time of her illegal arrest until she made the statement, she was subjected to four hours of unbroken custodial interrogation. Third, the police tactics of obtaining her presence at the station, blocking her ability to leave the station, and refusing her requests to communicate with her attorney until after she gave a statement indicate police misconduct. Finally, there was no intervening event that broke the connection between her illegal detention at the police station and the incriminating statement given at the residence.
The trial court determined that the State had not met its burden of proving Weis’ statements were freely and voluntarily made or that she knowingly and intelligently waived her Miranda rights. Rased on those findings, the trial court determined that Weis’ confession was obtained by exploitation of an illegal arrest.
When a trial court conducts a full pretrial hearing on the admission of statements following an illegal arrest and determines that the initial taint of the illegal arrest has not been purged or diluted and refuses to admit the evidence at trial, this court on appeal should accept that determination if it is supported by substantial competent evidence. State v. Knapp, 234 Kan. at 175. We agree with the trial court’s determination that Weis’ statements were obtained by exploitation of an illegal arrest and were so tainted by the illegal arrest that the statements could not be admitted into evidence.
The State contends that, even if the police station detention was an unlawful arrest, it should not have resulted in the charges being dismissed because none of defendant’s substantial rights were violated. We agree.
There is no statutory authority for the trial judge to dismiss the complaint against this defendant because of the illegal arrest. Illegal detention does not in itself mandate the charges being dismissed. See State v. Addington, 205 Kan. at 645 (unlawful arrest where substantial rights are prejudiced vitiates a conviction); State v. Hammond, 4 Kan. App. 2d at 645-46 (evidence seized at time of unlawful arrest is inadmissible). The usual sanction for an illegal arrest is not the dismissal of the charges against the accused, but a prohibition against the introduction into evidence of statements or admissions made by the defendant while in custody.
Though the trial judge correctly prohibited the introduction into evidence of the statements made by Weis while illegally held in custody, the judge abused his discretion by dismissing the charges against the defendant. The sanction of dismissing a criminal complaint is one that should be used “only under extremely compelling circumstances.” State v. Crouch & Reeder, 230 Kan. 783, 788, 641 P.2d 394 (1982). Under the facts, Weis’ unlawful arrest did not give her immunity from prosecution. The State may still have sufficient evidence, not tainted by the illegal arrest, to try the defendant.
The district court’s dismissal of the two counts of the complaint against defendant Weis is reversed. Those counts are reinstated, and the case is remanded to the district court for further proceedings.
Herd, J., dissenting. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Bobby Harper appeals his conviction by a jury of one count of burglary, K.S.A. 21-3715. The jury acquitted the defendant of a charge of theft. The Court of Appeals affirmed the district court in an unpublished opinion filed March 17, 1989. We granted the defendant’s petition for review and reverse the conviction.
Sonny Dukes owned and operated Dukes’ Diamonds, a complex of softball fields in Wichita. Dukes contracted with Bobby and Kenny Harper, brothers, to pour cement and build a garage adjacent to the softball field. In exchange, the brothers were allowed to field a team for two seasons without paying entrance fees and Dukes was to pay the them $700 for their work. Dukes paid defendant $400 but refused to pay more until the job was completed. The job was to be completed by June of 1986 but, by the end of that ball season in October, only the cement slabs and some of the framing on the garage had been completed. Dukes agreed that defendant did most of the work. When defendant inquired about who would get the free slot for a team in the league during the 1987 season, Dukes informed him that no one would get the slot until the work was completed and then Kenny would be entitled to the slot because the contract was written under the name of Kenny’s business.
In addition to the contract discussed above, Dukes hired defendant as the head groundskeeper for the 1986 season. Dukes gave him keys to the entire building to enable him to do the work required by the head groundskeeper. When Dukes realized in the latter part of the season of 1986 that the work to be done by the Harpers would not be completed, he asked for his keys back. When defendant told Dukes that he needed the keys to get his tools, Dukes did not demand that the keys be returned but, instead, allowed him to retain them.
Dukes testified that he gave defendant permission to have access to the whole building when he was running the grounds crew in 1986. He also gave defendant permission to stay at the building overnight to take care of business or if he was too intoxicated to drive. Dukes did not tell defendant in 1987 that he could not stay overnight. Dukes never fired defendant.
In addition to the construction contract and his employment as head groundskeeper, defendant also worked for Dukes as an umpire. In his position as an umpire, defendant kept track of his own hours and was apparently paid on a per game basis. Ac cording to defendant, Dukes did not pay him for all of the games that he umpired, did not pay him a $50 bonus for watching the operations while Dukes was on vacation, and did not give him his discount on concessions.
On April 29, 1987, Officer Donald Luther of the Wichita Police Department was driving by Dukes’ Diamonds at night when he saw an individual in the clubhouse. After waiting for a back-up, he entered the building but found no one inside. He did notice that a metal filing cabinet looked as if it had been forced open. Outside, the officer noticed someone lying face down hear a fence that surrounded the area. Using his flashlight, the officer approached the individual, placed his foot on the individual’s back, and told the individual to take his hands out from underneath him. When the individual finally complied, his hands were handcuffed and he was lifted up and placed on his feet. Although the individual’s eyes were bloodshot, the officer did not recall indications of intoxication such as the odor of alcohol or unsteady walking. When the officer asked what he was doing there, the person replied that he stayed there and that keys to the place could be found in his pocket. This person was defendant. The officer tried the keys, which opened the locks.
Laying on the ground near defendant were a hammer and a shirt. Defendant testified at trial that the hammer belonged to him and that he had no intention of taking the shirt. He told the jury that he went into the office of Dukes’ Diamonds to obtain records to pursue a lawsuit against Dukes to get paid for his work. Defendant believed that the filing cabinet contained the records, which is why he forced it open. He left the building to go to his van to get tools to unscrew the lock of the filing cabinet. He used the shirt to wipe his fingerprints off the filing cabinet and draped it over his shoulder with no intention of taking it. He merely wanted the records to prove his case and was not looking for money. Defendant testified that he had permission to enter the office but admitted he had no permission to take the records.
The jury acquitted defendant of the charge of theft but convicted him of burglary.
While the defendant raises several issues on appeal, the dis-positive issue is whether the district court erred in not granting the defendant’s motion for judgment of acquittal. Defendant argues that his motion for judgment of acquittal should have been granted because the evidence presented by the State did not establish that defendant lacked authority to enter or remain in the Dukes’ Diamonds office, an essential element of burglary. In ruling upon a motion for judgment of acquittal, a trial judge must determine
“whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.” ’ ” State v. Lawton, 241 Kan. 140, 143, 734 P.2d 1138 (1987) (quoting State v. Nemechek, 223 Kan. 766, 768, 576 P.2d 682 [1978]).
For a question involving sufficiency of the evidence, the standard of review on appeal is whether the evidence, when viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Dukes had given defendant a key and permission to enter the building for a variety of reasons. Defendant needed full access to the building while he was head groundskeeper in 1986. The building is also where he stored the tools needed for the construction work at the ball park. In addition to these work-related uses of the building, Dukes had told defendant that he was free to use the building and even to stay all night if he needed to. Defendant testified that this time he entered the building to find employment records to use in suing Dukes for money he believed was owed to him. The jury apparently believed defendant’s explanation for his presence in the building and acquitted him of theft of the shirt and hammer found near him when he was arrested.
In concluding that the trial court did not err in refusing to sustain the motion for acquittal, the Court of Appeals relied on a decision by the Illinois appellate courts. In People v. Hart, 132 Ill. App. 2d 558, 561, 270 N.E.2d 102 (1971), the court noted that, generally, unlimited consent given to an employee to enter the premises of an employer is a defense to a charge of burglary. The court continued, stating: “However, concerning the right of an employee to enter premises of the employer, consent, either stated or implied, but limited as to place, time or purpose, is not a defense where entry occurs outside the limitation. ” Applying this interpretation, the Court of Appeals concluded that the evidence here established that defendant’s authority to be on the premises was limited and that he exceeded that authority. The Court of Appeals noted that Dukes “specifically testified that defendant did not have permission to be in the building at 2:00 a.m.” Dukes’ testimony is enlightening on this point:
“Q [by prosecutor]: Well, did he have permission to be in there at two in the morning?
“A [by Dukes]: That particular night, no.
“Q: Had he before that?
“A: I do recall making a statement the year before that if he needed to get in and to take care of business or, you know, he got — he got where he couldn’t drive home because he was intoxicated or something, that he could stay on my couch. I will admit to that. But he didn’t have any permission to be there; at that time he damn sure didn’t have permission to break in in any locker or my file cabinet.”
Other evidence presented by the State indicates that, although in the spring of 1987 Dukes at one time asked for the keys back, he did not insist upon it and allowed defendant to keep them to have access to his tools. In that regard, Dukes testified:
“A. I told him that — told him that I wanted to gather all the keys up because that was just normal procedure I did at the end of the year. So he said he needed them to get in, you know, that was his standard statement, he needed to go — so he could get to the stuff.
“Q. And what did you say to that?
“A. I said, ‘Well if it’s going to get the contract filled and get my garage built, then — then fine with me.’ Because I had to have a garage built because I had some thefts on my groundskeeping things the previous year that they wouldn’t insure any additional groundskeeping equipment without a detached garage. That’s why I did this thing in the first place.
“Q. How many times did you ask him- — do you remember this conversation specifically?
“A. Not specifically.
“Q. Well, how many times did you ask him?
“A. Well, X only asked of the key — I asked to — to complete the contract about every time I saw him.
“Q. What about the keys, though?
“A. Well, I’m sure I probably only said — said it to him once or twice at the most, you know.
“Q. You don’t have a specific recollection?
“A. No, I don’t.
“Q. Well, what is the certainty that you have that you asked him at all?
“A. Well, it was just standard procedure, I asked everybody. I got — I got the keys back from everyone. The whole deal is — is the fact that I was— since he was my groundskeeper that I’m not there all the time, I have to trust my groundskeepers with my — with my facility to make sure that it’s— that it’s taken care of and marked and everything’s ready to play. And so I extended that trust to — to Bobby that whole summer hoping that — that he could get Kenny to make good their contract between the two of them. And the only leverage I had at the end of the season was the threat of them not playing there the next year.”
On cross-examination, Dukes testified:
“Q. You made a statement on direct the, best that you recall you told him to turn in his keys, is that correct?
“A. Yes, ma’am.
“Q. You don’t remember telling Bobby to turn in his keys, is that correct?
“A. Specifically making that statement, no.”
No evidence indicates that Dukes placed any specific limitations upon defendant’s access to the building when he asked for the keys if, in fact, he did.
Although this court is required to look only to the evidence in favor of the verdict to determine whether the State has established beyond a reasonable doubt the element of “without authority,” a review of the evidence here shows that the State did not meet its burden. This does not involve a question of weighing the evidence and credibility of different witnesses because the same witness presented all the evidence about defendant’s authority to be in the building. Dukes’ testimony established that he gave defendant a key and allowed him, in essence, full access to the building at all hours, including the authority to stay overnight. Although Dukes apparently asked for the keys back, he did not receive them and was aware that defendant still retained the keys. Furthermore, Dukes did not restrict defendant’s ability to have access to the building by placing any specific limitation upon the access given through the possession of a key. The State’s suggestion, by its leading question, and the finding by the Court of Appeals that defendant did not have permission to be in the building at 2:00 a.m. was con tradicted in the answer given by Dukes. Defendant did have authority to be in the building at 2:00 a.m. The question raised by the decision by the Court of Appeals is whether the authority to enter a building is negated when entry occurs for an unlawful purpose. We hold it does not.
Defendant had virtually unlimited consent to enter the premises, not only for duties related to his employment but also to sleep if he was intoxicated; but he entered the building specifically to obtain documents to support a lawsuit against Dukes. Based upon this testimony, the Court of Appeals concluded that defendant entered without authority because Dukes did not authorize his entry to take such records. Thus, the Court of Appeals found the evidence presented sufficient to form a basis for guilt beyond a reasonable doubt and upheld the trial court in denying the motion for acquittal and in allowing the jury to decide the issue. In order to uphold this finding, we must hold that an individual who has authority to enter the premises of an employer for numerous reasons, but actually enters for another reason, enters the premises without authority for purposes of burglary. This we decline to do.
The State’s reliance on State v. Fondren, 11 Kan. App. 2d 309, 314-15, 721 P.2d 284, rev. denied 240 Kan. 805 (1986), is misplaced. In Fondren, the defendant argued that his entry into a public building, a school, was not unauthorized as long as the entry occurred during regular hours. The Court of Appeals noted that uncontradicted evidence established defendant had no express or implied authority or business in the school because neither he nor any member of his family was currently enrolled. As a former student, the defendant knew the school’s policy required one to report to the office upon entering the building. The Court of Appeals concluded that entry into a public building is impliedly authorized only to the extent the entry is consistent with the purpose or business transaction in the building. 11 Kan. App. 2d at 315. The court questioned characterizing the school as a public building, noting that it was clearly distinguishable from other public buildings such as department stores, the capítol building, or an airline terminal. The general public is not invited to school premises for nonspecific, unrelated-to-school purposes. Thus, ample evidence established the element of entry without authority, which supported the aggravated burglary conviction. The court cautioned that the key to the case “is the defendant’s knowingly entering the school without express or implied authority, with intent to commit a theft.” 11 Kan. App. 2d at 316.
Other jurisdictions have also dealt with this issue. Under the “California rule,” a defendant’s criminal intent upon entry may render the entry “unlawful” under the burglary statute. People v. Nunley, 168 Cal. App. 3d 225, 214 Cal. Rptr. 82 (1985). This rule has been criticized by other jurisdictions. For example, the Colorado Supreme Court noted that, under the California rule, “one who enters a building, even with the permission of the owner, but with intent to commit a theft therein, would a fortiori be guilty of burglary. Intent at the time of entry in Colorado is not the sole element of burglary under our statute . . . .’’People v. Carstensen, 161 Colo. 249, 251, 420 P.2d 820 (1966). Under the California rule, any theft that occurs inside a building would be elevated to a burglary because no one would authorize entry into the building to commit theft. The Kansas Legislature could have omitted the element that the entry must occur “without authority,” making all entries to commit a crime within burglaries. But it did not do so. Therefore, this statute must be construed in a manner that gives meaning to all the provisions. Thus, we reject the per se “California rule.”
Defendant urges this court to consider State v. Collins, 48 Wash. App. 95, 737 P.2d 1050 (1987), modified 110 Wash. 2d 253, 751 P.2d 837 (1988), in which the defendant received permission to enter the victims’ home to use the telephone and, after using the phone, assaulted them. The Washington Supreme Court reasoned that the consent to enter was unqualified and the “remains unlawfully” element of burglary cannot be inferred from criminal intent because then the element would become superfluous. Because the legislature is presumed to not have enacted a superfluous element, it must be given content independent of the intent element. Therefore, the “remains unlawfully” element requires independent proof that cannot simply be inferred from intent. Also inferring “remains unlawfully” from the showing of intent would transform every crime committed indoors into a burglary. For these reasons, the court rejected the State’s ar gument that an otherwise lawful entry or remaining becomes unlawful if accompanied by the necessary criminal intent.
Other jurisdictions have concluded that one who enters a building with permission of the owner cannot be guilty of burglary, even if that entry occurred with the intent to commit a felony, because intent is not the only element of burglary. In People v. Carstensen, 161 Colo. 249, defendant was admitted into an apartment to paint, and would continue doing so after the owners left. After the work was completed, the defendant was charged with theft of a television. The trial court concluded that defendant had been given permission to enter the apartment and, therefore, he could not be guilty of burglary. The Supreme Court approved the decision, noting its earlier decision in Stowell v. People, 104 Colo. 255, 90 P.2d 520 (1939), where defendant’s employer provided him with a key to a warehouse as part of his employment. He was charged with entry into and theft of parcels from the warehouse. The court in Stowell noted that defendant had the right to enter the warehouse at the time and in the manner that he did, provided his intent in doing so was lawful. Even though the offense of burglary would occur only if his unlawful intent negated his authority to enter, the court concluded that unlawful intent was not sufficient to raise the status of the offense to burglary, reasoning as follows:
“There is ‘no burglary, if the person entering has a right so to do, although he may intend to commit, and may actually commit, a felony, and although he may enter in such a way that there would be a breaking if he had no right to enter.’ 9 C.J. 20, p. 1016, § 20. Considering the history of the crime of burglary, and its evolution, this rule appears reasonable and necessary. The common-law crime was an offense against habitation. Its purpose was to give security to the home when it was presumably least protected. Essential elements thereof were an actual breaking, in the night time, with intent to commit a felony. It has been extended by statute in most states to entry in any way, into any kind of building, at any time, for any unlawful purpose. Under the rule of strict construction of statutes in derogation of the common law courts must necessarily be careful not to extend such acts beyond the clear intent of the Legislature. For instance, among the buildings enumerated in our statute are ‘schoolhouses.’ Hence, but for the rule above stated, a school teacher, using the key furnished her by the district to reopen the schoolhouse door immediately after locking it in the evening, for the purpose of taking (but not finding) a pencil belonging to one of her pupils, could be sent to the penitentiary.” 104 Colo, at 257-58.
The court in Carstensen stated:
“In our view Stowell is still the law and is fully applicable here. We do not agree with the People that the so-called California Rule apparently first announced in People v. Barry, 94 Cal. 481, 29 Pac. 1026 (1892), and followed there as recently as in People v. Deptula, [58 Cal. 2d 225,] 23 Cal. Rptr. 366, 373 P.2d 430 (1962), is or should be the law in Colorado. To so hold would mean the adoption of a rule that one who enters a building, even with the permission of the owner, but with intent to commit a theft therein, would a fortiori be guilty of burglary. Intent at the time of entry in Colorado is not the sole element of burglary under our statute (C.R.S. 1963, 40-3-5) as heretofore interpreted by the court.” 161 Colo. at 251.
In State v. Thibeault, 402 A.2d 445 (Me. 1979), the Supreme Court of Maine rejected the State’s argument that, since the defendant entered the apartment for an unlawful purpose of theft, any permission he had to enter would be negated. In so doing, the court noted:
“Since the common law required a ‘violation of the security designed to exclude,’ it was axiomatic that a person entering with the permission of the lawful possessor could not be guilty of burglary. E.g., State v. Moore, 12 N.H. 42 (1841); Davis v. Commonwealth, 132 Va. 521, 110 S.E. 356 (1922); 2 R. Anderson, Wharton’s Criminal Law and Procedure §§ 414, 442 (1957). As one authority explains,
“ ‘[t]he law was not ready to punish one who had been “invited” in any way to enter the dwelling. The law sought only to keep out intruders, and thus anyone given authority to come into the house could not be committing a breaking when he so entered.’ W. LaFave & A. Scott, Criminal Law § 96 (1972).
“In other jurisdictions, Maine among them, the word ‘breaking’ has been eliminated and a word or phrase such as ‘unlawful,’ ‘unauthorized,’ or ‘without license or privilege’ has been inserted in the statute to qualify ‘entry.’ Where such language has been employed in a burglary statute, the result has generally been to retain so much of the breaking element as required a trespassory entry while at the same time eliminating the illogical rules stemming from the ‘force’ aspect of breaking. Of course, where the statute requires a trespassory entry, the lawful possessor’s consent is a complete defense.” 402 A.2d at 447-48.
A statute similar to ours was construed by the Louisiana Supreme Court in State v. Dunn, 263 La. 58, 267 So. 2d 193 (1972). The court held that lack of authority had to be determined as a distinct element separate and apart from the intent to steal because the legislature would not have included the word “unau thorized” if it intended burglary to include any entry with the intent to steal. 263 La. at 63. Furthermore, in State v. Rogers, 83 N.M. 676, 496 P.2d 169 (1972), the court concluded that intent at the time of entry was not the sole element of burglary and, thus, the element of “without authority” had to be proven by the State. See Annot., 58 A.L.R.4th 335 and cases cited therein. The same is true in the present case. The Kansas Legislature clearly intended for the element of intent to commit a felony or theft to be separate and distinct from that of entry without authority.
The Court of Appeals erred here in concluding that entry with the intent to commit a felony or theft necessarily established that defendant exceeded the scope of his authority to enter and proved defendant entered “without authority.” The Court of Appeals stated: “If the evidence shows, as it did in this case, that defendant was limited to enter the building for a certain purpose and the only purpose for which he entered the building was to commit a felony or theft, then intent, may be used to show lack of authority.” For authority, the court relied upon State v. Schantek, 120 Wis. 2d 79, 353 N.W.2d 832 (1984). In Schantek, the defendant was never given authority to be at the place of his employment after regular business hours or for nonemployment purposes. Although the defendant was not expressly told that his presence was prohibited after hours or for nonemployment purposes, the court in Schantek noted that'most employer-employee relationships create the implied right of the employee to be on the premises for certain purposes and not for others. The extent of permission is determined under the facts of each case, which may reveal that consent was all-encompassing, strictly limited, or somewhere in between. 120 Wis. 2d at 84. The court recognized the difficulty in defining an employee’s permission to be on the premises but concluded that, under the facts in Schantek, the employer did not give defendant consent to enter the premises and that the defendant had knowledge of such nonconsent.
Here, defendant’s authority to enter the office of Dukes’ Diamonds was virtually unlimited. Dukes gave defendant authority to enter the office (1) for his duties as groundskeeper, (2) in his role as an umpire, and (3) for his construction work. But even beyond these employment responsibilities, Dukes allowed de fendant to use the office after hours for his personal needs, even spending the night if he was intoxicated. This extremely broad grant of authority to enter and use the office of Dukes’ Diamonds was ignored by the Court of Appeals. The authority to enter here must be interpreted as one that was general and not limited to specific employment purposes. The entry by the defendant was authorized and did not become unauthorized because of his criminal intent. Because the authority to enter was virtually unlimited, this evidence would cause a reasonable mind to conclude that a reasonable doubt existed that defendant entered the clubhouse at Dukes’ Diamonds without authority. Therefore, the motion for judgment of acquittal should have been granted.
This same question is raised by the defendant’s challenge to the instruction given immediately after the elements instruction on burglary, which provides as follows: “Permission to enter a building for a lawful purpose does not extend to entry for an unlawful purpose.”
Trial counsel objected that this instruction was irrelevant, but on appeal defendant argues that the instruction is a misstatement of the law. Because the objection at trial did not state the specific grounds for the objection raised on appeal, K.S.A. 22-3414(3), this court can reverse only if the trial court’s giving of the instruction was clearly erroneous. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that, if the trial error had not occurred, a real possibility exists that the jury would have returned a different verdict. State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988).
Defendant argues on appeal that this instruction eliminates the element requiring the State to show entry occurred “without authority,” because, if someone enters for an unlawful purpose, whether the individual had authority to enter is not an issue. The comments of the Judicial Council, which were made at the time the burglary statute was recommended for enactment by the legislature, note that the elements of burglary consist of “a known entry without authority and with intent to commit a felony or theft.” (Emphasis added.) Judicial Council Comment (1968) following K.S.A. 21-3716. The language of the statute and the Comment by the Judicial Council indicate that the legislature intended for entry without authority and entry with intent to commit a felony or theft to be two separate elements, both of which must be proven beyond a reasonable doubt to establish the offense of burglary. Defendant argues that, if entry occurs with intent to commit a felony or theft, under the instruction given by the court, that necessarily means the entry occurred without authority.
The Court of Appeals noted that the challenged instruction “is very close to a per se rule that intent to commit a crime always renders an entry unauthorized.” In fact, the instruction informed the jury that entry for an unlawful purpose negates the permission to enter the building for a lawful purpose. The Court of Appeals concluded that it could not say “with firm conviction in this case that, if the instruction had not been given, there was a real possibility the jury would have returned a different verdict.” The Court of Appeals points out that defendant testified he did not enter the building for any purpose related to his employment or for business purposes but, instead, to steal papers belonging to the owner. Yet these papers were related to his employment, namely defendant’s efforts to be fully compensated by Dukes. The Court of Appeals reasoned:
“Given this clear testimony directly from defendant, the jury could easily conclude he exceeded the scope of his authority to enter the building. It is not important that the reason for entering the building was criminal in nature, but rather that it was not within the scope of authority given to defendant. Based on the clear evidence of lack of authority to enter the building, we cannot conclude the instruction'was clearly erroneous.”
The problem with this reasoning is that the testimony from defendant did not clearly show that he exceeded the scope of his authority to enter the building. In fact, Dukes testified that he had given defendant complete authority to enter and stay within the building virtually whenever he wanted. Furthermore, the Court of Appeals is wrong in concluding that it is not important that the reason for entering the building is criminal in nature. Based upon the instruction given by the court, it was the “unlawful” nature of this entry that negated his permission to enter the building.
The evidence presented by the State on this case is certainly not overwhelming. The testimony regarding the authority for defendant to be on the premises was based upon that of Dukes and defendant. Dukes testified that defendant on the one hand was given the key for purposes of fulfilling his employment obligations, but, on the other hand, was given authority to stay at the building virtually whenever he wanted. This contradiction in the testimony of the State’s key witness on the authority issue presents a real possibility that the jury could have returned a different verdict if it had been properly instructed. Therefore, the instruction is clearly erroneous and its use constitutes reversible error.
In view of the foregoing, we need not address the other issues raised by the defendant.
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed and the defendant’s conviction for burglary is vacated.
Six, J., not participating.
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The decision of the court was delivered by
Holmes, J.:
The Board of County Commissioners of Wyandotte County appeals from a decision of the Shawnee County District Court which reversed the Kansas Board of Tax Appeals (BOTA) denial of an ad valorem tax exemption sought under Art. 11, § 13 of the Kansas Constitution. Amicus curiae briefs supporting the position of the landowner have been filed by the City of Kansas City, the City of Wichita, and the Ellis County Economic Development Corporation. We reverse.
The facts of this case are not disputed. Kansas Avenue Properties (KAP), a Kansas limited partnership, owns approximately 4.3 acres of land in Kansas City, Wyandotte County, Kansas. In 1987, KAP constructed a 56,000 square foot “multi-tenant” building on this land. Stephen Dunn, the developer and a general partner of KAP, testified before the BOTA that KAP intended to lease space in the building only to tenants who qualified for ad valorem tax exemption under Art. 11, § 13 of the Kansas Constitution.
Before constructing the building, KAP applied for ad valorem tax-exempt status from the City Council of the City of Kansas City. The City Council found that KAP’s proposed business project met the economic development purposes of Art. 11, § 13 and granted KAP a 10-year exemption “for all buildings, land, and tangible personal property.” KAP then filed its application for tax exemption with the BOTA pursuant to K.S.A. 79-213.
In an order issued April 29, 1987, the BOTA denied the application for tax exemption. Following a rehearing, the BOTA on June 1, 1988, again denied the application of KAP for ad valorem tax exemption. In doing so, the BOTA relied upon In re Board of Johnson County Comm'rs, 225 Kan. 517, 592 P.2d 875 (1979), and held:
“The Board cannot find that the lessor’s use of the property is one which qualifies for exemption under Article 11, Section 13 of the Kansas Constitution. The use made by the owner of the property, i.e., the leasing of the property in question, is not manufacturing, conducting research and development, or storing goods or commodities.”
The ROTA, in its order on rehearing, stated:
“The applicant has presented evidence that there is now a tenant in the facility and other leases are being negotiated with all uses by the various lessees to be qualifying uses as required by Article 11, Section 13. The applicant has also presented a legal argument that the Board has not properly construed In Re Board of Johnson County Commissioners, 225 Kan. 517, 592 P.2d 875 (1979), given the intent and purpose of the constitutional amendment exempting property for economic development purposes. The applicant suggests that the standard for exemption under Section 13 of Article 11 differs significantly from the standard set forth in Section 1 of Article 11. The applicant concurs with the Board’s rationale that the exclusive use test set out in Section 1 of Article 11 requires that all uses made of the property be for the stated exempt purpose. The applicant, however, contends that Section 13 of Article 11 was adopted by the people of Kansas for the specific purpose of allowing local governments to grant exemptions where the property is used exclusively by a business for one of the stated purposes. The applicant contends that the only use which must be considered under Section 13 of Article 11 is the use by the business, not the owner of the property. In other words, if any business is using the property for one of the stated purposes, it qualifies for exemption regardless of any other business use. The applicant suggests that the ‘exclusive use’ requirement is that the property be used exclusively ‘by a business’ for one of the specified purposes.
“The applicant also suggests that the Board examine the intent of the makers and adopters of this constitutional amendment as a means of ascertaining the meaning of the provisions within the constitutional amendment. Taxpayer cited cases for the proposition that a constitutional provision is not to be narrowly or technically construed, but rather its language should be interpreted to mean what the words imply to men of common understanding. The Board wholeheartedly concurs with this suggestion; however, the Kansas Supreme Court has specifically addressed what the term ‘used exclusively’ shall mean. The Legislature certainly had knowledge of what the Kansas high court has determined exclusive to mean and presumably knew what language was being used in the amendment that was placed before the voters for adoption. If the Legislature and the people did not intend for an exclusive use test to be applied to this type of exemption, the exclusive use language would have been deleted or the amendment would not have been adopted by the people. Taxpayer suggests an elementary rule of constitutional construction is that effect should be given to every part and every word and that no portion of the law should be treated as superfluous unless there is some clear reason to the contrary. The Board has followed this elementary rule of construction in that the Board has given every word, including ‘used exclusively’ the effect the words ‘used exclusively’ convey. If, as taxpayer suggests, the legal intendment is that each and every clause has been inserted for some useful purpose, then the Board has given effect to the words ‘used exclusively.’ The Kansas Supreme Court has consistently held used exclusively means just that, used exclusively. Any use other than that specifically authorized in the exemption language disqualifies the property for exemption.
“The facts in this case, as set out in the Board’s original Order demonstrate that there are multiple uses of this property. Some of these uses would fit within the constitutional amendment exempting property for economic development purposes and some do not. Since the constitutional amendment does not exempt property which is being leased, the Board has no recourse but to sustain its original Order denying exemption for failure to establish that the property is used exclusively by a business for the purpose of manufacturing articles of commerce, conducting research and development or storing goods or commodities which are sold or traded in interstate commerce.”
KAP appealed the final order of the BOTA to the Shawnee County District Court. The sole issue before the district court was whether rental property qualifies for tax exemption under Art. 11, § 13. It is undisputed that the proposed use of the property by the business tenants would qualify for exemption if the businesses were being conducted by the owner of the property. Stated in another way, the issue is whether rental property used by a business for economic development purposes qualifies for exemption from ad valorem taxation pursuant to Art. 11, § 13.
In a memorandum decision, the Shawnee County District Court reversed the BOTA, adopting as its conclusions of law the arguments in KAP’s memorandum which was submitted to the BOTA and to the district court. As would be expected, the memorandum filed by KAP contains arguments, opinions, and legal authorities supporting its position. Numerous arguments are propounded in the KAP memorandum and it would have been helpful if the district court had prepared an opinion which specified the arguments and authorities upon which it based its decision. The district court apparently determined that the leased property qualified for exemption because the language of Art. 11, § 13 modifies the exclusive use test to apply only to the business physically using the property when it is used for one of the three enumerated purposes in the amendment; because the language indicates legislative intent to give cities and counties broad authority to grant or deny exemptions; because the legislative history and the explanatory statement provided to the voters reveal no distinction between rental or owned property; and because the purpose of the amendment is to increase Kansas’ ability to compete with other states. The Roard of County Commissioners of Wyandotte County has appealed the district court decision granting the exemption.
In 1986, the Kansas Legislature adopted House Concurrent Resolution No. 5047 (HCR 5047) to submit to the voters a proposal to amend the Kansas Constitution. The proposed amendment was adopted by the voters on August 5, 1986. The amendment, designated as Art. 11, § 13 of the Kansas Constitution, reads:
Ҥ 13. Exemption of property for economic development purposes; procedure; limitations, (a) The board of county commissioners of any county or the governing body of any city may, by resolution or ordinance, as the case requires, exempt from all ad valorem taxation all or any portion of the appraised valuation of: (1) All buildings, together with the land upon which such buildings are located, and all tangible personal property associated therewith used exclusively by a business for the purpose of: (A) Manufacturing articles of commerce; (B) conducting research and development; or (C) storing goods or commodities which are sold or traded in interstate commerce, which commences operations after the date on which this amendment is approved by the electors of this state, or (2) all buildings, or added improvements to buildings constructed after the date on which this amendment is approved by the electors of this state, together with the land upon which such buildings or added improvements are located, and all tangible personal property purchased after such date and associated therewith, used exclusively for the purpose of: (A) Manufacturing articles of commerce; (B) conducting research and development; or (C) storing goods or commodities which are sold or traded in interstate commerce, which is necessary to facilitate the expansion of any such existing business if, as a result of such expansion, new employment is created.
(b) Any ad valorem tax exemption granted pursuant to subsection (a) shall be in effect for not more than 10 calendar years after the calendar year in which the business commences its operations or the calendar year in which expansion of an existing business is completed, as the case requires.
(c) The legislature may limit or prohibit the application of this section by enactment uniformly applicable to all cities or counties.
(d) The provisions of this section shall not be construed to affect exemptions of property from ad valorem taxation granted by this constitution or by enactment of the legislature, or to affect the authority of the legislature to enact additional exemptions of property from ad valorem taxation found to have a public purpose and promote the general welfare.” (Emphasis added.)
In construing an exemption to taxation, certain well-recognized rules of construction apply. Those rules were summarized in T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 693 P.2d 1187 (1985):
“In cases involving questions of claimed exemption from ad valorem taxation, the following rules and legal principles have been established as guidelines to be followed by the courts:
(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. Manhattan Masonic Temple Ass’n v. Rhodes, 132 Kan. 646, 649, 296 Pac. 734 (1931);
(2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. Lutheran Home, Inc., v. Board of County Commissioners, 211 Kan. 270, 275, 505 P.2d 1118 (1973); In re Board of Johnson County Commissioners, 225 Kan. 517, 519, 592 P.2d 875 (1979);
(3) The burden of establishing exemption from taxation is on the one claiming it. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, 690, 508 P.2d 911 (1973);
(4) The question is not whether or not the property is used partly or even largely for the purpose stated in the exemption provisions, but whether it is used exclusively for those purposes. Clements v. Ljungdahl, 161 Kan. 274, 167 P.2d 603 (1946); In re Board of Johnson County Comm’rs, 225 Kan. at 519;
(5) The phrase ‘used exclusively’ in the constitution and statutes means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683.” 236 Kan. at 645-46.
However, these rules of construction must also be considered in light of equally well-established principles relating to constitutional construction. In Behrmann v. Public Employees Relations Board, 225 Kan. 435, 591 P.2d 173 (1979), the court held:
“In ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers and adopters of that provision.” Syl. ¶ 3.
“In interpreting and construing a constitutional amendment the court must examine the language used and consider it in connection with the general surrounding facts and circumstances that caused the amendment to be submitted.” Syl. ¶ 4.
In State, ex rel., v. Hines, 163 Kan. 300, 304, 182 P.2d 865 (1947), we stated, “The rule is old that in expounding the constitution every word must be given due force and appropriate meaning.”
Appellant contends that the district court erred in apparently adopting the argument that the inclusion of the words “by a business” in Art. 11, § 13 established a new and different standard for determining whether the property is “used exclusively” for tax-exempt economic development purposes. KAP conceded in its brief, “If Section 13 did not include the phrase ‘by a business,’ Kansas Avenue would agree that this provision could be interpreted in the same manner as in Section 1 to deny exemption to rental property.”
The BOTA, and the appellant here, relied heavily upon our decision in In re Board of Johnson County Comm’rs, 225 Kan. 517, 592 P.2d 875 (1979), wherein we held that property owned by a non-tax-exempt entity and leased for profit to a tax-exempt entity pursuant to K.S.A. 79-201b First (Weeks 1977), was not being used exclusively for the statutory purpose and did not qualify for tax exemption. The statute provided:
“The following described property, to the extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“First: All real property, and tangible personal property, actually and regularly used exclusively for hospital purposes by a hospital as the same is defined by K.S.A. 1977 Supp. 65-425, and amendments thereto, or a psychiatric hospital as the same is defined by K.S.A. 1977 Supp. 59-2902, and amendments thereto, which hospital or psychiatric hospital is operated by a corporation organized not for profit . . . .” (Emphasis added.)
As in the present case, the parties desiring the exemption in Johnson County Comm’rs contended that “used exclusively” meant only the physical use of the property, and that the intangible benefits of ownership, including renting of the property for profit, did not constitute using the property. Further, because the exemption benefits would flow through to the non-profit corporation which was responsible for the taxes under the parties’ lease agreement, it was argued that granting the exemption would be consistent with the intent of the Kansas Constitution and statutes.
Despite these arguments, the court relied upon the well-established definition of the term “used exclusively” as defined in Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, Syl. ¶ 2, 508 P.2d 911 (1973), where we held, “The phrase ‘used exclusively’ in the constitution and statute means that the use made of the property sought to be exempted from taxation, must be only, solely, and purely for the purposes stated, and without participation in any other use.” The court in Johnson County Commrs stated:
“To say that an investor who owns valuable property, real or personal, and leases it for profit is not using his property ignores the obvious fact that the owner-lessor is exercising his right to use the property just as surely as if he were utilizing it in a physical sense for his own objectives. . . . The renting by the lessor and the physical use by the lessee constitute simultaneous uses of the property and when an owner leases his property to another, the lessee cannot be said to be the only one using the property. The owner is using it as he sees fit to reap a profit from his investment just as surely as if he physically operated the property.
“We hold that property owned by a non-tax-exempt entity and leased for profit to a qualifying tax-exempt entity, is not being used exclusively for tax-exempt purposes and is subject to ad valorem and property taxes.” 225 Kan. at 522-23. (Emphasis added.)
KAP and the amici briefs attempt to distinguish Johnson County Commrs, contending first that the diiferent language employed in Art. 11, § 13 and Art. 11, § 1 indicates a legislative intent to create a test which examines “the exclusive use made of the property by the business” rather than all uses. It is contended that the words “by a business” in the amendment must only refer to the tenant or physical user of the property and that when those words are given effect the KAP property qualifies for the exemption.
Kansas Constitution Art. 11, § 1(b)(2) provides:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchant’s and manufacturer’s inventories and livestock and all household goods and personal effects not used for the production of income, shall be exempted from property taxation. ” (Emphasis added.)
While it is true that Art. 11, § 1 does not specify the “ultimate end user,” it does not necessarily follow that the inclusion of the words “by a business” in Art. 11, § 13 changes existing case law. The obvious explanation for the omission of “users” from Art. 11, § 1 is that it would have been impracticable, if not impossible, to designate the vast number of various entities that would per form the numerous and diverse exempted purposes. Considering the economic development objectives of Art. 11, § 13, only “a business” would manufacture articles of commerce, conduct research and development, or store goods sold in interstate commerce and create employment opportunities. It could also be argued that Art. 11, § 1 does specifically enumerate the users of the property as being “state, county, municipal, literary, educational, scientific, religious, benevolent and charitable” entities.
Appellees and the amici briefs ignore that Johnson County Commrs addressed 79-201b, a statutory exemption, not Art. 11, § 1. That statute specifically provided ad valorem tax exemption for real and personal property “actually and regularly used exclusively for hospital purposes by a hospital.” The statute’s designation of the ultimate end user did not preclude this court from holding that the use by the owner must be considered along with the use by the lessee in determining exclusive use.
In Kenneth Godfrey Aviation, Inc. v. Smith, 12 Kan. App. 2d 434, 746 P.2d 1068 (1987), rev. denied, 242 Kan. 903 (1988), the Court of Appeals examined whether the business aircraft exemption provisions of K.S.A. 79-20lk (Ensley 1984) allowed one to look only at the owner’s use of the aircraft in determining whether it qualified for exemption or whether one must consider all uses being made of the aircraft. The statute provided, in part:
“(b) The following described property, to the extent herein specified, is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
First. For all taxable years commencing after December 31, 1982, all aircraft actually and regularly used exclusively in the conduct of a business or industry.”
The facts of the case are the reverse of the factual situation in Johnson County Comm'rs. The owner’s use of the property was solely for business purposes but the renter’s use was not always for such purpose. Kenneth Godfrey Aviation, Inc., a fixed-based operator, was seeking an exemption under the statute for aircraft used in its business. The company rented and chartered airplanes to the general flying public for use by the renters for whatever purpose, be it business or personal, they chose. The Court of Appeals denied the exemption on the basis that the property was not “used exclusively” in the conduct of a business or industry since the renters used the airplanes for personal rather than business purposes. The sole issue presented to the Court of Appeals was whether the owner’s airplanes were used exclusively in the conduct of business, thereby entitling them to exemption from ad valorem taxation. The Court of Appeals followed the definition for “used exclusively” that was set out in Seventh Day Adventist. There was no question but that as far as Godfrey Aviation, Inc., was concerned, its airplanes were being used solely for its business purpose. The Court of Appeals went on to state:
“In interpreting other tax exemption statues, the Kansas Supreme Court has held ownership is not the controlling factor; ‘exclusive use’ is the test. In re Board of Johnson County Comm’rs, 225 Kan. 517, 520, 592 P.2d 875 (1979). Furthermore, the question is not whether property is used partly or even largely for the purposes stated in the exemption provisions, but whether the property is used exclusively for those purposes. In re Application of Int’l Bhd. of Boilermakers, 242 Kan. 302, 747 P.2d 781 (1987); T-Bone Feeders, 236 Kan. at 646; Johnson County Comm’rs, 225 Kan. at 519; Cessna, 11 Kan. App. 2d at 380.” 12 Kan. App. 2d at 437.
Godfrey interpreted a statutory exemption specifically enacted to benefit the Kansas economy and found the use of rented property to be non-exclusive.
Other statutes also delineate the entity entitled to the exemption although there is no indication of a legislative intent to change established law pertaining to exclusive use. See K.S.A. 79-201 First (“all buildings used exclusively by school districts”); K.S.A. 79-201a Second (“[a]ll property used exclusively by the state or any municipality or political subdivision of the state”) K.S.A. 79-201a Third (“[a]ll works, machinery and fixtures used exclusively by any rural water district”). K.S.A. 79-201a Second also demonstrates that the legislature is fully cognizant of the difference between leased and owned property.
While this court has not previously had the opportunity to interpret Art. 11, § 13, the court has given the term “used exclusively” a consistent meaning in case law under Art. 11, § 1 and under statutory tax exemptions. Defenders of the Christian Faith v. Board of County Commissioners, 219 Kan. 181, 547 P.2d 706 (1976); Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683; Lutheran Home, Inc., v. Board of County Commssioners, 211 Kan. 270, 505 P.2d 1118 (1973); Topeka Pres byterian Manor v. Board of County Commissioners, 195 Kan. 90, 402 P.2d 802 (1965); Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 351 P.2d 19 (1960); Defenders of the Christian Faith, Inc. v. Horn, 174 Kan. 40, 254 P.2d 830 (1953); A.T. & S.F. Hospital Ass’n v. State Commission of Revenue & Taxation, 173 Kan. 312, 246 P.2d 299 (1952); Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005 (1910); Stahl v. Educational Assoc'n., 54 Kan. 542, 38 Pac. 796 (1895); St. Mary’s College v. Crowl, Treasurer, &c., 10 Kan. 442 (1872); Vail v. Beach, 10 Kan. 214 (1872); Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344 (1871).
In Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 694 P.2d 462 (1985), the owners of certain farm machinery and equipment sought a tax exemption based upon K.S.A. 79-201i and 79-201j (Ensley 1984). Those statutes read:
79-201Í. “It is the purpose of K.S.A. 79-201j of this act to promote, stimulate and develop the general welfare, economic development and prosperity of the state of Kansas by fostering the growth and development of agricultural endeavors within the state. Agriculture, as conducted in farming and ranching operations throughout the state, is the primary basis of the Kansas economy. Communities, regions, and the state as a whole are materially dependent upon agricultural endeavors and derive substantial financial benefit from the success of Kansas agriculture. Farming and ranching operations require the investment of large sums of capital for the purpose of providing the land on which the operations are conducted, and the farm machinery and equipment necessary to satisfactorily carry out such endeavors. Because of agriculture’s unique requirements of substantial capital investment, the property tax burden becomes a deterrent to such investment and, in some instances, an encouragement to farm and ranch abandonment. Kansas, and all its citizens, will benefit from any improvement in the economic environment of Kansas agriculture. The exemption from the ad valorem property tax of farm machinery and equipment actually and regularly used in farming and ranching operations will constitute an incentive to agriculture and will improve the general economy of the state. Considering this state’s heavy reliance on agriculture, the enhancement of agricultural endeavors is deemed to be a public purpose which will promote the general welfare of the state and be for the benefit of the people of the state." (Emphasis added.)
79-20lj. “The following described property, to the extent specified by this section, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“All farm machinery and equipment. The term farm machinery and equipment’ means that personal property actually and regularly used exclusively in fanning or ranching operations. The term ‘farm machinery and equipment’ shall not include any passenger vehicle, truck, truck tractor, trailer, semitrailer or pole trailer, other than a farm trailer, as the terms are defined by K.S.A. 8-126 and amendments thereto.” (Emphasis added.)
The taxpayers consisted of two groups. The individual taxpayers were engaged in the business of providing custom cutting services to farmers in Kansas and other states while the Farmers Cooperative owned fertilizer equipment and leased it to Kansas farmers. The only actual physical use made of the property in Kansas was “in farming or ranching operations” as specified in the statute.
The issue before the court was whether 79-201j “requires the one requesting the exemption be the owner of the equipment and also be the owner, tenant, or sharecropper of the land on which it is used.” 236 Kan. at 634. The statute exempted all farm machinery and equipment from ad valorem taxation, defining such equipment as that personal property actually and regularly used exclusively in farming or ranching operations.
This court denied an exemption to both groups. As the legislative intent implied limiting the exemption to those who farm or ranch and because providing a service by leasing or by operating the equipment constituted a “simultaneous use,” the property was not being used exclusively for tax-exempt purposes and thus did not qualify for ad valorem exemption even though it may have promoted economic development.
In T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 693 P.2d 1187 (1985), a unanimous court again considered the statutory exemption granted by K.S.A. 79-20U and 79-20lj (Ensley 1984) and reached the same result as in Farmers Co-op, although the decision hinged on the question of whether the operation of a feedlot fell within the statutory designation of “farming or ranching operations.” The case illustrates that broadly worded statutes, even when enacted to promote economic development, will be narrowly or strictly construed where exemption from taxation is involved.
The statutes in Farmers Co-op and T-Bone Feeders were specifically adopted “to promote, stimulate and develop the general welfare, economic development and prosperity of the state of Kansas by fostering the growth and development of agricultural endeavors within the state.” The legislative history of HCR 5047 and the language of Art. 11, § 13 clearly reveal that the purpose of the constitutional amendment was also to promote economic development within the State of Kansas.
The district court, by adopting the arguments of KAP in its memorandum, apparently concluded that the inclusion of the words “by a business” in the proposed constitutional amendment demonstrated an intent to set a new standard for tax exemption based upon the ultimate use or physical use of the property and not the total use of the property. We do not agree that such an intent is clear from the language of the amendment or that such a conclusion is justified by the legislative history of HCR 5047.
It is interesting to note that if a determination of the construction of the amendment hinges solely upon the words “by a business” as contended by KAP then a ridiculous distinction must be made between a new business entity and an established one that wants to expand its operations. Subsection (a)(1) of the amendment provides an exemption for a newly established business when the property is “used exclusively by a business” for the enumerated purposes. Subsection (a)(2), however, apparently provides that property sought to be exempt by the expansion of an existing business must be “used exclusively” for the designated purposes. An existing business seeking to expand under subsection (a)(2) does not have the advantage of the magic words “by a business” modifying the exclusive use provision. Such a literal application of the language of the amendment would obviously fail to reflect the intent of the legislature and the voters in adopting the amendment. However, that would appear to be the result if the language “by a business” is to be given the weight and interpretation urged by KAP and adopted by the district court.
HCR 5047 was adopted along with numerous statutes, including K.S.A. 1989 Supp. 74-5001a et seq., as part of a comprehensive economic development plan which included the establishment of a Department of Commerce to replace the existing Department of Economic Development. In 1985, the Institute for Public Policy and Business Research at the University of Kansas had been commissioned to make an economic development study for Kansas. The final report issued in June 1986, commonly referred to as the Redwood-Krider report, made several recommendations including Recommendation 6, which read:
“Allow local taxing jurisdictions to give property tax abatements for new and expanding manufacturing facilities, research and development facilities, equipment and machinery, and for a limited scope of non-manufacturing facilities having a potential for job creation. The authority to grant the abatement should be detached from the issuance of industrial revenue bonds.”
Nowhere, so far as we have been able to determine, was there any mention of the term “used exclusively” in the interim report available during the 1986 legislative session or in the final draft of the Redwood-Krider report. The language was apparently intentionally included in HCR 5047 by the legislature, which obviously was aware of the long history of litigation and case law which has consistently interpreted and defined the term “used exclusively” to apply to the combined use of the property by both the owner and actual occupant or physical user of the property.
Likewise, the legislative history of HCR 5047 does not reflect any discussion that the intent of the words “by a business” was to change the historical and well-established legal meaning of the term “used exclusively.” The resolution was considered and discussed by the House Committee on Assessment and Taxation on several occasions, including March 27, 28, and 31, 1986, and by the Senate Committee on Assessment and Taxation on April 8, 1986. The Senate committee made amendments to HCR 5047 and the resolution as amended was adopted by the House of Representatives on April 10, 1986. The minutes of the various meetings at which HCR 5047 was considered reflect no discussion of any intent to change the longstanding legal definition and application of the term “used exclusively.” If it had been the intention of the legislature to depart from the established law that rented property is not being “used exclusively” by the renter, it would have been a simple matter to use the necessary language to do so.
Although not mentioned in any of the five briefs filed in this court, additional support for the foregoing analysis is found in subsequent action of the legislature. In the 1989 session of the legislature, the House of Representatives passed a bill (H.B. 2529), which would specifically authorize a tax exemption to community-based not-for-profit economic development corporations for property leased by the corporation to a qualifying business for the purposes specified in Art. 11, § 13. The bill provides in part:
“Section 1. The following described property, to the extent herein specified, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
(a) Property rented or leased, with or without an option to purchase, from a community based not-for-profit economic development corporation organized under the laws of this state which is exempt from federal income taxation pursuant to section 501(c)(6) of the federal internal revenue code of 1986, as in effect on January 1, 1989, which property is otherwise used exclusively for the purposes for which an exemption may be granted pursuant to section 13 of article 11 of the Kansas constitution. . . .
(c) Any ad valorem tax exemption granted pursuant to subsection (a) shall be in effect for not more than 10 calendar years after the calendar year in which the business renting or leasing such property commences its operations or the calendar year in which expansion of an existing business renting or leasing such property is completed, as the case requires.” (Emphasis added.)
The fact that the House of Representatives found a need for such legislation for a not-for-profit owner, formed specifically for economic development purposes, to obtain tax exemption on rented or leased property certainly indicates that the legislature never intended Art. 11, § 13 to apply to property rented or leased by a private owner for profit purposes. The foregoing bill passed the House and was in the Senate Committee on Assessment and Taxation when the legislative session ended. Prior to passage of the foregoing bill, the House of Representatives held hearings on it and heard testimony from persons knowledgeable in the field.
In referring to H. B. 2529, Dick Compton, who is associated with the Ellis County Economic Development Corporation, one of the amicus curiae herein, stated:
“Candidly, in working with the drafters of this proposal [H.B. 2529], I and the other supporters involved were concerned that the legislature may not be receptive to a proposal that would include ‘for profit’ organizations. We concluded that our chances for legislative approval would be improved if we limited application to the several ‘not for profit’ organizations around the state that are in place specifically for community development and improvement.” Minutes, House Comm. Tax., Attachment 3, p. 3 (March 15, 1989).
Roger Kroh, Second Vice President of the Kansas Industrial Development Association and Director of the Lenexa Economic Development Council, stated on behalf of those organizations:
“Finally, let me say that in order for our cities to be most effective in luring companies to Kansas with our incentive packages, it would be ideal if tax exemptions could be given to companies leasing buildings from for-profit organizations. But, in our discussions with the Board of Tax Appeals and several legislators, there appears to be a sufficient amount of resistance to doing this.” Minutes, House Comm. Tax. Attachment 5, p. 3 (March 15, 1989).
If the legislature had intended HCR 5047 and Art. 11, § 13 to apply to rented or leased property, there would have been no need for the House to consider and pass H.B. 2529.
Finally, it is contended that, as the explanatory statement submitted to the voters at the time of the submission of Art. 11, § 13 makes no distinction between owned and rented property, the voters intended both to be covered. The statement reads:
“Explanatory statement. This proposed amendment would authorize cities and counties to grant property tax exemptions for economic development purposes.
“A vote for the proposed amendment would allow the governing body of a city or county to exempt property of a new manufacturing, research and development or commodity or goods storing business or property necessary to facilitate the expansion of any such existing business if, as a result of such expansion, new employment is created, from property taxation for a period not to exceed 10 years.
“A vote against the proposed amendment will continue the existing law that the legislature is the only authority to grant property tax exemptions.” L. 1986, ch. 423.
While it is true the statement makes no distinction between, or reference to, owned as opposed to rented property, it is equally true that it contains no indication of any intent to change longstanding law on when property is being “used exclusively” for purposes of tax exemption.
We have carefully considered all of the arguments and briefs of the parties and amici curiae, whether discussed at length herein or not, and conclude that Art. 11, § 13 does not grant tax exemption to property rented or leased for profit even though the property is being used by the renter or lessee solely for one or more of the economic development purposes contained in the amendment.
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The opinion of the court was delivered by:
Herd, J.:
This is a civil action. Robert Eye, Mary Stephens, a/k/a “Stevi” Stephens, Alliance for Livable Electric Rates (ALERT), and Nuclear Awareness Network (NAN) appeal from the district court’s judgment granting Kansas Gas & Electric’s (KG&E) prayer for replevin and a permanent injunction, the denial of appellants’ counterclaims, and the district court’s denial of a motion to permit supplemental pleadings.
This controversy developed from the following scenario, much of which is familiar to us from a previous case. Kansas Gas & Electric Co. v. Kansas Corporation Comm'n, 239 Kan. 483, 720 P.2d 1063 (1986). KG&E constructed and operated the Wolf Creek Generating Station (Wolf Creek), a nuclear power plant located in Coffey County. KG&E and its co-owners, Kansas City Power & Light Company (KCPL) and Kansas Electric Power Cooperatives, Inc. (KEPCO), established the Wolf Creek Nuclear Operating Corporation (WCNOC) as a wholly owned subsidiary and the acting operating agent of Wolf Creek. WCNOC succeeded KG&E as the operator of Wolf Creek on January 1, 1987.
Previously, in March of 1984, while KG&E was the plant operator it established a “whistle-blower” program. This program was initiated to improve the start up, operation, maintenance, testing, and decommissioning, as well as some design and construction matters, of the Wolf Creek nuclear facility. To attain the desired improvement, KG&E established a mechanism for employees of the plant to voluntarily and confidentially report to an independent organization any suggestions or concerns they might have with regard to safety or efficiency of the construction or operation of Wolf Creek. Quality First is that independent organization. Under the Quality First Program, all employee concerns are to be resolved in a timely and cost-efficient manner. All Wolf Creek employees are encouraged to make their concerns known to Quality First.
Because confidentiality was considered a critical element of the Quality First Program, KG&E adopted a confidentiality agreement for the use and protection of all the Wolf Creek workers who provided information under the program. Each worker was also required to execute a nondisclosure agreement. In a further effort to protect the confidentiality of Quality First documents and records, the Quality First files were kept in a central location separate and apart from other KG&E records. These files were locked in cabinets under the sole control of Quality First personnel. The making of copies of any part of the files was prohibited. Information in the files was made available to persons outside the program only upon a “need to know” basis to be determined by the Quality First manager.
A Quality First file contains various accumulated documents including, but not limited to: a concern disclosure statement; a confidentiality agreement; investigative work plans; notes; work papers; safety evaluation reports; and the notes of personal impressions, reflections, and opinions of Quality First personnel.
KG&E has authorized disclosure of the Quality First files on several occasions. The files were made available to the Nuclear Regulatory Commission (NRC) during safety inspections on a confidential basis which prohibited copying or removal from the Quality First area. The files were also made available to the Kansas Corporation Commission (KCC) for review as a part of the Wolf Creek rate case hearings. Preliminary to the KCC hearings, Commissioner Keith Henley reviewed the files in total to determine if they had any rate-making significance. Copying was prohibited. Subsequent to Henley’s review, approximately twenty files were transported to Topeka for review by the full Commission. Two files and a portion of a third were provided to parties in the rate case for review and use in cross-examination of witnesses. Again, copying was prohibited and all the files were returned to KG&E.
Several unauthorized disclosures of Quality First files have taken place. During the Wolf Creek rate case, copies of portions of two files were produced by Robert Eye, appellant and attorney for ALERT, an intervenor in the rate case. Neither Eye nor ALERT were authorized to have copies of such files. Eye received his copies of the files from Mary Stephens. She received her copies of the files as director of NAN. Stephens and NAN are unauthorized possessors of copies of the Quality First files. Eye, ALERT, Stephens, and NAN retain possession of portions of copies of approximately sixty-eight Quality First files.
On June 10, 1985, KG&E filed a petition seeking to recover all original or copies of files in the possession of appellants and to temporarily and permanently enjoin appellants from disclosing, reproducing, and disseminating the subject information. On the same day, the district court granted an ex parte temporary restraining order and notice of hearing for a temporary injunction. After a full trial, the district court granted KG&E an order of replevin for any copies of Quality First files within appellants’ possession and a permanent injunction as sought. The district court denied appellants’ counterclaims of a constitutional right to disseminate information pertaining to the efficiency and safety of the nuclear power plant. The court also denied appellants’ claim that KG&E violated the federal and state constitutions in the manner it obtained the temporary restraining order. The district court also denied appellants’ post-trial motion to supplement the record and file a supplemental pleading. This appeal followed.
The first issue on appeal is whether the district court erred in holding the Quality First files are protected by the copyright laws.
The district court determined the question of whether KG&E was the owner of the copies of the files turned upon an analysis of copyright law. The court then ruled that the Quality First information falls within the purview of the Copyright Act of 1976, 17 U.S.C. § 101 et seq., or alternatively, that the information qualifies for common-law copyright protection. We disagree.
Let us examine the copyright laws.
17 U.S.C. § 102 (1988) of the Copyright Act provides:
“(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
“(1) literary works;
“(2) musical works, including any accompanying words;
“(3) dramatic works, including any accompanying music;
“(4) pantomimes and choreographic works;
“(5) pictorial, graphic, and sculptural works;
“(6) motion pictures and other audiovisual works; and
“(7) sound recordings.
“(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
We note subsection (b) specifically states that copyright protection does not extend to ideas, procedures, or discoveries. Therefore, appellants contend, the information contained in the Quality First files is not statutorily protected. KG&E claims the files are original works of authorship and thus protected by the Act. Roth parties rely on Harper & Row v. Nation Enterprises, 471 U.S. 539, 85 L. Ed. 2d 588, 105 S. Ct. 2218 (1985). A review of that case is necessary.
In Harper & Row, the petitioners were copyright holders of publication excerpts of former President Gerald Ford’s memoirs. Petitioners entered a pre-publication licensing agreement with Time magazine under which Time purchased the right to excerpt 7,500 words from President Ford’s memoirs. Refore Time released the article, however, an unauthorized source provided The Nation Magazine with the unpublished manuscript. The Nation produced an article which contained, verbatim, quotes of copyrighted expression. As a result, Time cancelled its article and refused to pay the remaining balance to petitioners. Subsequently, petitioners brought suit alleging conversion, tortious interference with contract, and violations of the Copyright Act. 471 U.S. at 542-43.
The United States Supreme Court stated that “copyright is intended to increase and not to impede the harvest of knowledge.” 471 U.S. at 545. The Court further recognized that § 102 of the Copyright Act limits copyright to “expressions” that display the author’s originality; however, the Court also stated that even a compilation of pure fact entails originality. 471 U.S. at 547. Although the autobiography consisted of a factual narrative, the Supreme Court concluded it was protected by copyright from unauthorized reproduction. 471 U.S. at 548.
It is well established that originality is the essence of copyright protection and even compilations of fact are within the scope of protection where original skill, labor, and judgment are expended in creating the compilation. 17 U.S.C. § 103 (1988); Southern Bell Tel. & Tel. v. Assoc. Telephone Dir., 756 F.2d 801 (11th Cir. 1985); 18 Am. Jur. 2d, Copyright and Literary Property §§ 19, 43. In order to determine whether a compilation of non-copyrightable facts warrants copyright protection, the originality involved in the selection and arrangement of those facts must be examined. 1 Nimmer on Copyright § 2.04(B) at 2-41 to -42 (1989). A compiler of pre-existing materials must contribute more than minimal skill and judgment to satisfy the originality requirement of 17 U.S.C. § 102. Under this standard, any contribution to pre-existing material must render the derivative work substantially different from the underlying work in order to make it copyrightable. 18 Am. Jur. 2d, Copyright and Literary Property § 42.
As stated in the facts, a Quality First file may contain a concern disclosure statement, confidentiality agreement, investigative work plans and papers, notes, and safety evaluation reports.
KG&E contends the Quality First files involve original statements by writers, materials gathered through investigation, and other reports. Therefore, KG&E argues, the factual material and ideas contained in the Quality First documents, when combined with an author’s original contributions, form copyrightable work. We do not agree. Clearly, these individual reports contain facts which are not copyrightable. 17 U.S.C. § 102(b). Nor do we believe the Quality First files constitute a compilation of preexisting material arranged in such a novel way as to render them an original work of authorship.
KG&E has failed to show how any of the pre-existing materials within the Quality First files have been compiled or arranged to render the facts and ideas contained therein a substantially different underlying work. We believe the facts and ideas within the Quality First files might have achieved copyrightable protection had someone from KG&E pulled the material together and, through the application of skill and judgment, provided an analysis of the information contained within the Quality First files. See Wainwright Sec. v. Wall Street Transcript Corp., 558 F.2d 91 (2d Cir. 1977), cert. denied 434 U.S. 1014 (1978) (analytical research reports of various industries found copyrightable). Without this required extra step of compilation, however, the facts and ideas contained in the Quality First files remain just that, individual facts and ideas without copyrightable protection.
We also recognize that the material contained within the Quality First files was not intended to be protected by copyright law. In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984), the United States Supreme Court stated:
“ ‘The limited scope of the copyright holder’s statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an “author’s” creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ ” 464 U.S. at 431-32 (quoting Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 45 L. Ed. 2d 84, 95 S. Ct. 2040 [1975]).
In the present case, the Quality First files lack creative labor. Furthermore, providing copyright protection to these facts and ideas does not support the broad public policy of disseminating works of literature. We find the Quality First files are not copyrightable. Therefore, we need not address the other arguments pertaining to copyright.
The next issue we consider is KG&E’s claimed right to confidentiality based upon the qualified privilege of self-critical analysis. This self-evaluation has recently been recognized as a privilege designed to encourage self-analysis and self-criticism. Under this theory, it is believed the benefits from corporate internal reviews may outweigh the value of discovery of such reviews. Murphy, The Self-Evaluative Privilege, 7 J. Corp. Law 489 (1982). Originally, the privilege was applied in a medical malpractice action, Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970), in which the petitioner sought to compel discovery of a hospital committee investigatory report. The court denied discovery based on the rationale that a release of the report would “end candor and criticism in self-deliberations, which the court found necessary to continued improvements in patient care.” Note, The Self-Critical Analysis Privilege and Discovery of Affirmative Action Plans in Title VII Suits, 83 Mich. L. Rev. 405, 408-09 (1984).
For support, KG&E relies upon Berst v. Chipman, 232 Kan. 180, 653 P.2d 107 (1982). The issue in Berst was whether information obtained in the course of a confidential investigation could be discovered. The National Collegiate Athletic Association (NCAA) had obtained documents in the course of an investigation of possible NCAA violations at the University of Alabama. 232 Kan. at 181. An Alabama newspaper sought discovery of the documents to aid in its defense of a libel suit. We recognized the NCAA as a voluntary organization whose self-policing function was to enforce NCAA regulations. 232 Kan. at 184. The NCAA argued that confidentiality was central to its success as a self-policing system and that a loss of confidentiality in its investigative files and identities of sources would destroy that system.
In Berst, we stated four conditions necessary to establish a qualified privilege against disclosure of confidential communications: (1) the communications must originate in a confidence they will not be disclosed; (2) the element of confidentiality must be essential to the maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury caused by disclosure must be greater than the benefit gained for the correct disposal of litigation. 232 Kan. at 189 (citing 8 Wigmore on Evidence § 2285 [McNaughton rev. 1961]). The Berst court cited numerous cases in which the public interest in maintaining confidentiality of certain types of reports outweighed the need for disclosure. Nevertheless, the court concluded that the strong interest in confidentiality was outweighed because the information sought went to the “heart” of the issues. 232 Kan. at 193.
To decide this issue we apply a balance of interests test: Is the injury caused by disclosure of the Quality First files greater than the benefit conferred? This balancing test has been utilized many times to determine whether a qualified privilege exists against disclosure of confidential communications. Gray v. Board of Higher Educ., City of New York, 692 F.2d 901 (2d Cir. 1982); Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981). We employed the balancing test in Berst and approved it in Wesley Medical Center v. Clark, 234 Kan. 13, 25, 669 P.2d 209 (1983).
It is a well established principle that the public has a right to every man’s evidence. United States v. Bryan, 339 U.S. 323, 331, 94 L. Ed. 884, 70 S. Ct. 724, reh. denied 339 U.S. 991 (1950). Any exceptions to the demand for every man’s evidence are not lightly created nor expansively construed since they are in derogation of the search for truth. United States v. Nixon, 418 U.S. 683, 710, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). In Nixon, the United States Supreme Court ruled that, although the interest in preserving presidential confidentiality was weighty, it did not prevail over the due process of law in requiring the President to turn over certain tape recordings and documents in a criminal proceeding. 418 U.S. at 712.
In the present case, KG&E strenuously argues that confidentiality is essential to the Quality First program. Wolf Creek personnel were encouraged to discuss safety concerns with a promise of confidentiality. KG&E contends disclosure would thwart the shared goal of KG&E and appellants to maintain the safe operation of Wolf Creek and thereby promote public safety. KG&E also claims that harm by loss of the program outweighs the harm of nondisclosure because the information is available through alternative mechanisms, such as the NRC and KCC, without the threat of losing confidentiality.
Appellants assert that self-critical analysis should not be used to shield the public from vital information concerning the safety of nuclear power plants.
It is generally recognized that the maintenance of confidential communications is an important aspect of self-critical analysis and whistle-blower programs. Nevertheless, we believe the public has an overriding interest in the dissemination of information related to costs, construction, and safety practices of nuclear power plants. The Three Mile Island and Chernobyl accidents illustrate the potential public hazard contained in each nuclear plant.
The United States Supreme Court has stated that society has a strong interest in the free flow of commercial information. Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976). So too does society have an interest in the free flow of information regarding potentially harmiul and dangerous nuclear power plants. Appellants allege the Quality First files contain information about federal law violations, falsification of documents, and intimidation and harassment of power plant inspectors. Similar to the rationale of United States v. Nixon, 418 U.S. 683, release of the information contained withinthe Quality First files is one manner by which KG&E, manager of a potentially dangerous plant, can be held accountable to the public.
KG&E has failed to show that injury caused by the disclosure of confidential information would be greater than the benefit derived by society in obtaining such information. KG&E has not satisfied the conditions set forth in Berst necessary to establish a qualified privilege against disclosure of confidential communications. Therefore, KG&E is not entitled to withhold the Quality First information based upon a self-critical analysis privilege. Had a privilege existed under this theory, it was waived when KG&E breached its promise of confidentiality. In addition to the appellants, the Government Accountability Project, the Trial Lawyers for Public Justice, and several congressional staff have had possession of the Quality First files. Numerous newspapers have also obtained and published Quality First file information.
The information acquired by KG&E through its Quality First program is confidential only by agreement of the parties. The public interest in disclosure of all facts relevant to a litigated issue is paramount to the inviolability of a communication made in reliance on a fiduciary or contract relation. 81 Am. Jur. 2d, Witnesses § 141. Courts will not compel production of paper that is of a privileged character and in the hands of a person within the privileged relation, but when such paper comes into the hands of a third party, not a member of the protected relation, it is no longer protected from compelled disclosure. 81 Am. Jur. 2d, Witnesses § 143. An intent to waive one’s privilege is not necessary for such a waiver to occur. In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 675 (D.C. Cir.), cert. denied 444 U.S. 915 (1979). In the context of the attorney-client privilege, involuntary disclosures of documents through loss or theft are not protected by the privilege, based on the principle that it is the client’s and attorney’s responsibility to take sufficient precaution to prevent being overheard by third persons. 604 F.2d at 675 (citing 8 Wigmore on Evidence § 2325 [McNaughton rev. 1961]). Confidential documents which come into the hands of third persons are admissible evidence where an attorney permits the papers to pass out of his hands and into those of someone not party to the confidential relationship. State v. Buffington, 20 Kan. 599, 614 (1878).
It is established that in the present case we are not concerned with a privileged communication. Rather, the issue is whether information accumulated through an agreement to keep the information confidential remains confidential when involuntary disclosure occurs. In the case at hand, confidentiality is based upon agreement by the parties; however, the same principles apply as those governing involuntary disclosures of privileged and confidential communications.
Quality First information has passed into the hands of persons not a party to the confidentiality agreement entered by KG&E and its employees. Although KG&E kept the files in locked cabinets separate from other business documents, these measures were insufficient to prevent the information from leaking to outsiders. KG&E must bear the burden of this loss. The Quality First files which are now held by third parties have lost all visages of confidentiality. Because the information is no longer confidential, KG&E cannot claim ownership of the facts and ideas within the Quality First files.
To obtain injunctive relief from prospective injury, it must be established that a reasonable probability of such injury exists and an action at law will not afford an adequate remedy. State ex rel. Stephan v. Pepsi-Cola Gen'l Bottlers, Inc., 232 Kan. 843, 845, 659 P.2d 213 (1983).
Appellants contend there is no evidence that dissemination of the Quality First information will cause irreparable harm to KG&E. We have already determined that confidentiality in the Quality First files was lost when appellants obtained the information contained therein. Since confidentiality has already been lost, an injunction will serve no purpose. KG&E’s alleged injury from disclosure of the confidential communications has already occured. KG&E has failed to establish that a reasonable probability of future injury exists. We find, therefore, the district court erred in granting KG&E a permanent injunction.
The final issue is whether the district court abused its discretion in finding that KG&E satisfied the elements of replevin specified in K.S.A. 60-1005. The test on appellate review of whether the district court abused its discretion is whether no reasonable person would agree with the district court. If any reasonable person would agree, we will not disturb the district court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
In order to recover possession of the Quality First files, KG&E must show the files were specific personal property, that KG&E was the owner and lawfully entitled to possession of the sufficiently described files, that appellants wrongfully detained the files, and the estimated value of the Quality First files. K.S.A. 60-1005.
Appellants contend that the Quality First files are not specific personal property subject to replevin since the files contain information only and KG&E possesses all originals.
Having previously determined KG&E has no property right in the information contained in the files, it logically follows that replevin will not lie to obtain possession of them. We so hold.
In light of our holdings, we need not discuss the other issues. The judgment of the district court is reversed.
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The opinion of the court was delivered by
McFarland, J.:
In this action plaintiff lessors contend defendant lessee breached an implied covenant to market gas. The district court entered summary judgment in favor of the plaintiffs cancelling the oil and gas leases involved and ordering an accounting. Twelve wells are involved. Defendant appeals therefrom.
Plaintiffs own the mineral interests in approximately 5,900 acres of land situated in Kiowa and Comanche counties. In 1956 and 1957, Gulf Oil Corporation, defendant’s predecessor in interest, obtained oil and gas leases from plaintiffs. Subsequently, substantial quantities of gas were found. The leases represent the greater part of what is known as the Glick Field.
In June 1960, Gulf entered into a 20-year gas purchase contract with Kansas Gas Supply Corporation (KGS). Under this contract, KGS agreed to “take or pay” for an amount of gas that would: (1) exhaust the reserves over the life of the contract; or (2) be at least 80% of each well’s ability to deliver gas. KGS owns a Kansas intrastate natural gas pipeline that originates in the Glick Field and terminates in the Wichita area. The primary utilization of gas so transported was to provide boiler fuél for Wichita power plants owned by Kansas Gas & Electric Company (KGE).
In 1978 Gulf and KGS entered into an amended contract which extended the term from June 1980 to December 31, 1990. In return for the extension, KGS agreed to increase the price of the gas purchased under the contract to either 450 or 550 per Mcf, depending upon whether or not compression was applied, until December 3, 1980; to $1.50 per Mcf from December 4, 1980, to December 3, 1981; to $1.55 per Mcf from December 4, 1981, to December 3, 1982; and for the remainder of the contract the price would be redetermined annually based on the average of the highest price paid by any three pipeline buyers within an eight-county area. There were no changes to the contractual taking requirements. At the time of this amendment, the price for gas under the existing contract was 20.50 per Mcf.
On April 17, 1978, the date of the contract amendment, Gulf imposed the following express condition on the amended contract:
“Gulf’s execution of this amendment is expressly conditioned upon receiving the stated price increases as set forth. If the Kansas Corporation Commission refuses to approve any of the price increases and/or redetermined prices as of the dates provided by this amendment, then the gas purchase contract dated June 24, 1960, as amended, will terminate the date of said refusal and the term extension provided by this amendment will not be applicable.”
Gulf received the price of gas in accordance with the terms of the amendment and paid royalties based on these prices in the years 1978 through 1982.
Beginning on December 4, 1982, the determined price for the gas was to be $3.27 per mmbtu. However, the price under the contract was set at $2.289 per mmbtu by the Kansas Natural Gas Price Protection Act (Act), K.S.A. 55-1401 et seq. Gulf and KGS agreed that the contract price was capped by the Act. Gulf sold gas at the $2.289 per mmbtu price through December 1984, when the Act expired.
In 1984, a dispute arose between Gulf and KGS. Demand for the gas had been sharply reduced, prices were down, and KGS was under pressure from the Kansas Corporation Commission to reduce its costs by renegotiating contracts containing “favored nations” clauses such as the one herein. KGS successfully re negotiated contracts with some Glick Field producers. It did not reach agreement with Gulf.
From January 1, 1985, until September 13, 1985, Gulf continued to sell gas to KGS. According to Gulf, the contract price, upon redetermination, was approximately $3.56 per mmbtu. KGS paid, however, $2.28 per mmbtu for the gas.
On September 13, 1985, by which time Gulf had merged with Chevron USA, Inc., (Chevron) the wells were shut in. The wells remained shut in until approximately October 1, 1987. During the shut-in period, Chevron timely tendered shut-in royalty payments. Other producers in the Glick Field continued to produce and sell gas from this common source of supply.
In February 1987, Chevron filed suit against KGS in the United States District Court for the District of Kansas, Chevron U.S.A., Inc. v. Kansas Gas Supply Corp., et al. v. Kansas Gas and Electric Co., No. 87-1115-C, for alleged breach of contract. That lawsuit is being vigorously pursued by all parties.
In October 1987, Chevron began selling gas from the wells herein at approximately $1.21 per Mcf to Oxy Marketing, Inc., a KGS affiliate.
On July 28, 1988, plaintiffs filed this lawsuit to cancel the gas leases, alleging that in 1978 Chevron breached its implied obligation to market their gas by extending the gas purchase contract through 1990 and by the lack of sales between September 1985 and September 1987. On September 1, 1988, Chevron filed its answer and third-party complaint against KGS, seeking indemnity for any losses it might incur as a result of this action. Concurrent with its answer, Chevron filed a motion to dismiss, contending in part that Chevron, as a matter of law, did not breach its implied marketing obligation and that cancellation was not a remedy available to the plaintiffs. The motion was denied.
On October 14, 1988, plaintiffs filed a motion for partial summary judgment seeking a determination that Chevron’s leases should be cancelled for breach of the implied covenant to market. On November 2, 1988, Chevron responded to plaintiffs’ motion for partial summary judgment and filed a cross-motion for partial summary judgment, again contending that no implied duty to market the gas had been violated.
Following a hearing on the motions, the district court, on December 16, 1988, granted plaintiffs’ motion for partial summary judgment, ruling that Chevron had breached its implied duty to market the gas and that cancellation of the leases effective as of the date the wells were shut in (September 13, 1985) was the appropriate remedy. The district court further ordered an accounting for all production after October 1, 1987, at a price of not less than $2.45 per Mcf. The journal entry was filed December 20, 1988.
On January 5, 1989, Chevron filed a motion for certification of the December 20, 1988, journal entry as a final judgment under K.S.A. 1988 Supp. 60-254(b) and staying enforcement of such judgment under K.S.A. 60-262(g).
On February 28, 1989, a hearing was held on the accounting and the district court, on March 9, 1989, entered judgment against Chevron in the amount of $4,419,064.57. In the same journal entry, the district court entered an order certifying its December 20, 1988, order and its action on the accounting as a final judgment pursuant to K.S.A. 1988 Supp. 60-254(b).
It should, perhaps, be noted by way of explanation that the portion of the action between plaintiffs and Chevron, unresolved by the partial summary judgment, concerns quieting title to one well and was held to require an evidentiary hearing as to whether or not commercial quantities of gas have been produced therefrom since July 1983. By certifying under K.S.A. 1988 Supp. 60-254(b), the district court effectively severed this claim from the balance of the action, thereby directing entry of final judgment on those claims resolved by the summary judgment and permitting immediate appeal thereof. Chevron duly appealed from the summary judgment and judgment upon accounting.
Chevron’s claims of error fall into three categories as follows:
1. Entry of summary judgment. Chevron contends the district court based its finding and conclusion upon controverted facts and ignored certain uncontroverted facts. Further, the trial court erroneously concluded Chevron had breached an implied covenant to market the gas.
2. Relief afforded. Chevron contends the cancellation of the leases was an inappropriate remedy. Chevron further con tends the award of damages was computed on improper bases.
3. Denial of summary judgment to Chevron. Chevron contends that, as a matter of law, it was entitled to summary judgment in its favor.
SUMMARY JUDGMENT
Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. Bockhaus v. City of Halstead, 242 Kan. 504, 506, 748 P.2d 870 (1988). In Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988), we discussed the movant’s burden and our scope of appellate review, as follows:
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Lessley v. Hardage, 240 Kan. 72, 73-74, 727 P.2d 440 (1986). The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. Willard v. City of Kansas City, 235 Kan. 655, Syl. ¶ 2, 681 P.2d 1067 (1984); Mays v. Ciba-Geigy Corp., 233 Kan. 38, Syl. ¶ 5, 661 P.2d 348 (1983). If factual issues do exist, they must be material to the case to preclude summary judgment. Busch v. City of Augusta, 9 Kan. App. 2d 119, 123, 674 P.2d 1054 (1983).”
In entering the summary judgment herein, the district court concluded, in part, as follows:
“2. The duty to market the hydrocarbons once discovered is a responsibility placed upon the lessee for practical and equitable reasons. No good purpose would be served by enlarging on that statement. Suffice it to say that the lessee has a superior bargaining power and control over the marketing of hydrocarbons as between the lessor and the lessee and the marketing obligation acts to prevent the lessee from speculating at the expense of lessor whose benefits will only come about when the gas is marketed. It would follow then as it has been said that
‘The lessee is to be held accountable for the production of the lease as a prudent operator working for the common advantage of both the lessor and the lessee.’
“3. The wells in question were shut-in from September 13, 1985 until October 1, 1987 and notwithstanding the proffer on the part of the lessee to pay shut-in royalty payments of $1.00 per acre, they are not excused from their duty to diligently search for a market and otherwise conduct themselves as a reasonable and prudent lessee under the same or similar circumstances. The defendant did not reasonably and prudently market the gas in place any time after April of 1978 and thus, as a matter of law, has failed in its implied duties.
“4. Extension of the contract (1978) with its conditions was imprudent. Looming on the scene was the Wolf Creek project in which KG&E had announced its participation, KG&E consuming almost 80 to 85% of all gas purchased by Kansas Gas and Supply. Without KG&E to purchase its gas, KGS as a pipeline could neither take nor pay for the plaintiff’s gas. Thus the execution of the amendment to the contract in 1978 was inadequate and imprudent.
“5. Additionally the contract became vitiated by the absence and failure of Chevron to receive the price increases which were written into the contract by the 1978 amendment. At this point, certainly Chevron was left free to market the plaintiff’s gas. Probably this date could be reasonably set at January 1, 1985, the date that Kansas Price Protection Act expired.”
We have long held that there is an implied obligation to market oil and gas under a lease agreement. Once oil or gas is discovered in paying quantities, the lessee has an implied obligation to produce and market production diligently. Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47, revd on other grounds 82 Kan. 367, 108 Pac. 813 (1910). The Kansas Legislature as a matter of public policy has by statute included the implied covenant to explore and develop all oil and gas leases when such covenants are not contained in the lease. K.S.A. 55-223.
In Adolph v. Stearns, 235 Kan. 622, 626, 684 P.2d 372 (1984), we discussed the rule by which a lessee’s performance is measured:
“Whether a lessee has performed his duties under the expressed or implied covenants is a question of fact. In absence of a controlling stipulation, neither the lessor nor the lessee is the sole arbiter of the extent, or the diligence with which, the operations and development shall proceed. The standard by which both are bound is what an experienced operator of ordinary prudence would do under the same or similar circumstances, having due regard for the interests of both. [Citation omitted.]”
It is not the place of courts, or lessors, to examine in hindsight the business decisions of a gas producer. One learned treatise on the subject, 5 Williams & Meyers, Oil and Gas Law § 856.3 (1989), states:
“The greatest possible leeway should be indulged the lessee in his decisions about marketing gas, assuming no conflict of interest between lessor and lessee. Ordinarily, the interests of the lessor and lessee will coincide; the lessee will have everything to gain and nothing to lose by selling the product.” p. 411.
The treatise cautions against second-guessing an operator s marketing decision:
“There is great risk that close judicial supervision of the lessee’s conduct in selling gas will inhibit his exercise of his best judgment to the detriment of both landowner and operator. Scrutiny of lessee’s actions by judges (or, worse, juries) in the light of after-acquired, knowledge will tend to encourage the operator to take the least hazardous and perhaps least profitable course of action. It is unnecessary to impose this conservatism on the operator when his interest in selling the gas is fully identified with that of his landowner.” pp. 412-13. (Emphasis supplied.)
In Christiansen v. Virginia Drilling Co., 170 Kan. 355, 361, 226 P.2d 263 (1951), this court stated that a lessor who alleges breach of an implied covenant to develop has the burden of showing by substantial evidence that the covenant has been breached (following Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P.2d 95 [1943]).
Included in the statement of uncontroverted facts Chevron filed with its response to the summary judgment motion were the following:
“1. In April 1978 or prior thereto, the other producers in the Kansas Gas System entered into contract amendments on essentially the same terms as the agreement between Gulf and KGS. These producers include Blaik Oil Company, Petroleum, Inc., Beren Corporation, S & G Oil Company, Inc., Petro Corp., Pickrell Drilling, Barbara Oil Co. and others.
“2. KGS’ entering into the amendments extending the contract was approved by the Kansas Corporation Commission.
“3. In December 1982 Gulf and KGS agreed that the contract price would be capped by the Kansas Natural Gas Price Protection Act.
“4. In negotiations and contracts subsequent to September 1985, KGS and Chevron have recognized the continuing validity of the contract. KGS expressly has retained the right to take gas pursuant to that contract.
“5. The contract terms contained in the contract between Chevron and KGS as amended in 1978 are very favorable to the producer and the royalty owner since they required a high level of takes at a high price.
“6. There was no alternate market for the gas in September 1985.”
Each of these factual allegations was followed by references to portions of the record supporting same. These have been omitted herein. None of these statements were controverted by plaintiffs.
Looking at the factual situation and inferences which may be reasonably drawn therefrom, the following appears. There is nothing in the 1978 contract amendments that is patently imprudent. Prior to the amendments, the price being paid was 20.50 per Mcf. Pursuant to the amendments the price increased dramatically. Also, KGS was committed to a high take or pay arrangement and a most favored nation clause for determining future price. The contract amendments occurred when gas was in short supply and prices were rising. Other producers in the Glick Field entered into similar contracts.
There was also uncontroverted evidence that both KGS and KGE expected, in 1978, that demand for the gas for use by KGE would remain high through the 1980’s notwithstanding development of the nuclear power plant at Wolf Creek. Plaintiffs accepted the increased royalties arising from the 1978 amendments without complaint.
Chevron refused to accept KGS’ attempts to reduce the price in 1984-85 and stood on the terms of the contract, which had several more years to run. At least some producers in the Glick Field did accept the renegotiated lower prices. The situation reached an impasse and the wells were shut in, with shut-in royalties being tendered. There was apparently no alternate market for the gas in September 1985, when the wells were shut in. Chevron ultimately filed the federal suit against KGS which is pending and involves breach of contract claims.
In determining whether Chevron acted imprudently in entering into the 1978 amendments, in refusing to renegotiate for lower prices in 1984-85, in shutting in the wells in 1985, in seeking alternative markets thereafter, and in the other complained-of acts, Chevron’s conduct must be judged upon what an experienced operator of reasonable prudence would have done under the facts existing at the time. The wisdom of hindsight cannot be utilized in making such determinations. The individuals claiming imprudence have the burden of proving same. Whereas the events underlying this action are mainly undisputed, the claim that Chevron acted imprudently in any of the claimed particulars is hotly contested, and such claim, by its very nature, must be supported by expert testimony.
We have no hesitancy in concluding that the entry of summary judgment in favor of plaintiffs was improper under the circumstances herein and must be reversed.
RELIEF AFFORDED
Inasmuch as relief may ultimately be granted to the plaintiffs on remand, some discussion of two of the issues raised relative thereto is appropriate although the relief granted by the trial court herein is reversed by the reversal of the summary judgment.
As a general rule, forfeiture of oil and gas leases for breach of an implied covenant is disfavored. Christiansen v. Virginia Drilling Co., 170 Kan. at 361; Alford v. Dennis, 102 Kan. 403, 406, 170 Pac. 1005 (1918). Forfeiture should be granted only if a remedy of damages is inadequate. Howerton v. Gas Co., 81 Kan. at 561.
In Howerton v. Gas Co., 81 Kan. 553, this court held that cancellation was an appropriate remedy for a lessee’s breach of an implied covenant to market. 81 Kan. at 563-65. However, upon rehearing, we reversed because the lessors plaintiffs failed to show that damages would not afford an adequate remedy. Howerton v. Gas Co., 82 Kan. at 368-69. We said:
“Penalties and forfeitures are not favorites of the law, and if in this case the damages which the plaintiffs sustain from the breach of the contract can be ascertained with reasonable certainty no forfeiture can be adjudged.” 82 Kan. at 370.
Forfeiture is an extreme remedy and should only be granted where damages cannot be determined with reasonable certainty. On the present record we cannot determine whether or not the requisites for declaring a forfeiture could exist herein if plaintiffs ultimately prevail. We mention this aspect of the issues only to draw attention to the law relative to forfeiture, should the issue again arise.
One other matter relative to the court-ordered lease cancellation needs to be discussed. In its memorandum opinion the district court concluded:
“7. The only remedy available to the plaintiffs at this time is cancellation of the leases because of the breach of the implied contract to market as well as the fact that the leases expired by their terms for failure on the part of the lessee to produce gas.”
The district court ordered cancellation for breach of the implied covenant to market the gas and for failure to produce gas during the period the wells were shut in.
Paragraph 4 of the oil and gas lease herein states, in pertinent part, as follows:
“The lessee shall pay lessor as royalty Vs of the proceeds from the sale of gas as such at the mouth of the well where gas only is found and where such gas is not sold or used, lessee shall pay or tender annually at the end of each yearly period during which such gas is not sold or used, as royalty, an amount equal to the delay rental provided in paragraph 5 hereof, and while said royalty is so paid or tendered this lease shall be held as a producing lease under paragraph 2 hereof.”
In compliance with the terms of this provision, Chevron tendered shut-in royalty payments to plaintiffs during the shut-in period, September 1985 to October 1987. The payments were not accepted.
In Pray v. Premier Petroleum, Inc., 233 Kan. 351, Syl. ¶¶ 2-3, 662 P.2d 255 (1983), we held:
“A shut-in royalty clause in an oil and gas lease enables the lessee, under appropriate circumstances, to keep a nonproducing lease in force by the payment of shut-in royalties. Such a clause by agreement of the parties creates constructive production.”
“The fact a lease is held by payment of shut-in royalties does not excuse the lessee from his duty to diligently search for a market and reasonably develop the leasehold.”
Standing alone, the fact the wells were shut in during the two-year period would not warrant cancellation, as the contractual shut-in royalty payments were tendered. To justify cancellation, plaintiffs would have to establish that there was a concurrent breach of the implied covenant to market and that damages flowing therefrom could not be determined with reasonable certainty, all as previously discussed.
We see no benefit to be derived from any discussion of other claims of error relative to the relief granted. The summary judgment has been reversed, and, in the event plaintiffs ultimately prevail upon remand, the particular relief granted at that time and the full record may be so different from what is before us now that any further discussion of what was done previously would be of little value to the parties.
DENIAL OF SUMMARY JUDGMENT TO CHEVRON
Chevron contends that plaintiffs have failed to present a prima facie case to support their claim that Chevron acted imprudently in marketing the gas and thereby breached its implied covenant. Plaintiffs claim that Chevron acted imprudently by various acts extending over a considerable period of time. Each of these claims must be considered individually. Through pretrial proceedings and possible further summary judgment motions, each of these claims should be tested. There may or may not be any claims left after this winnowing process. At this point, however, we decline to hold that the district court’s denial of summary judgment to Chevron was improper.
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The opinion of the court was delivered by
Holmes, J.:
Loren K. Pierce appeals from the denial of his pro se post-appeal motion to modify his sentence. The issues on appeal are whether the defendant is statutorily or constitutionally entitled to counsel in preparing and presenting his motion for modification of sentence.
On July 14, 1986, a jury convicted the defendant of one count of aggravated burglary (K.S.A. 21-3716), one count of aggravated battery (K.S.A. 21-3414), and one count of rape (K.S.A. 21-3502).
On September 8, 1986, the trial court sentenced the defendant to consecutive terms of 5-20 years for the aggravated burglary conviction, 5-20 years for the aggravated battery conviction, and 15 years to life for the rape conviction. In sentencing the defendant, the trial court specifically referred to the defendant’s prior criminal record and the excessive force and violence used in committing the present crimes.
Defendant, through his trial attorney, filed a motion to modify his sentence on December 30, 1986, requesting probation or concurrent sentences. Following a hearing, at which defendant was represented by counsel, the trial court denied the motion. At the time the trial court had available, and considered, the report of the State Reception and Diagnostic Center (SRDC).
Defendant appealed his original convictions which were upheld by this court in an unpublished opinion filed February 19, 1988. State v. Pierce, No. 60,580, 242 Kan. xi. In his direct appeal the defendant made no attempt to raise the denial of his first motion to modify sentence as an issue before this court. On April 15, 1988, the defendant filed, pro se, another motion to modify sentence pursuant to K.S.A. 21-4603(3). In his motion the defendant asked that counsel be appointed “to represent him for purposes of hearing on this motion.” The trial court did not hold any hearing on the motion and, on May 5, 1988, issued its ruling which stated in part:
“2. Whether or not a hearing should be afforded to the movant and counsel appointed rests within the discretion of the court.
“3. After reviewing these proceedings, particularly the presentence and SRDC reports and the sentences imposed, the court concludes modification would be inappropriate.
“4. The movant is not entitled to appointment of counsel or further hearings prior to decision of the court as to whether the sentences should be modified. Accordingly, the movant’s request for appointment of counsel for this limited purpose is denied.
“It Is Therefore Ordered that the defendant’s sentences previously imposed shall not be modified by the court.
“It Is Further Ordered that the defendant’s request for the appointment of counsel and the implied request for additional hearing is denied by the court.”
Defendant has now appealed the trial court’s ruling and asserts that his statutory and constitutional rights to counsel have been violated. In asserting that his statutory rights to counsel have been violated, defendant relies upon K.S.A. 21-4603, K.S.A. 22-4503(a), and K.A.R. 105-1-1. K.S.A. 21-4603 in effect at the time relevant to this proceeding provided in pertinent part:
“(3) Any time within 120 days after a sentence is imposed or within 120 days after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.”
This subsection of the statute was amended at the 1988 and 1989 legislative sessions but the amendments are not applicable to this appeal.
K.S.A. 21-4603 is the statute which delineates the various alternatives the district court may utilize in disposing of criminal proceedings after a defendant has been found guilty of a crime. Subject to certain specified time restraints, subsection (3) authorizes the court to modify a previously imposed sentence. Action by a court under this subsection may be taken sua sponte or may be based upon a motion by the defendant requesting a modification. The statute does not specify any procedure and does not mandate that a hearing be held or that counsel be appointed to represent a defendant on a motion to modify sentence. While we have not specifically decided the issue of whether a defendant is entitled to counsel for every motion filed pursuant to K.S.A. 21-4603(3), we considered the procedural aspects of the statute at some length in State v. Jennings, 240 Kan. 377, 729 P.2d 454 (1986). The State relies heavily on Jennings.
In Jennings, the defendant Bled a motion to modify the sentence imposed after he pled nolo contendere to one count of second-degree murder. The trial court denied the motion without a hearing and the defendant appealed, contending he was entitled to notice and an opportunity to be heard. Justice Herd, writing for a unanimous court, stated:
“K.S.A. 1985 Supp. 21-4603(3) authorizes the court to modify a sentence within the statutory limits any time within 120 days after a sentence is imposed; no hearing procedure is discussed. K.S.A. 1985 Supp. 21-4603(4) allows reduction of sentence below the statutory minimum upon the recommendation of the secretary of corrections; this subsection specifically provides for a hearing and notice to interested parties. K.S.A. 22-3504 specifically provides for a hearing and that a defendant be personally present for correction of a sentence. These distinctions are significant. The legislature did not provide for a hearing on sentence modification, 21-4603(3).
“K.S.A. 1985 Supp. 22-3405(1) sets out the stages in a felony proceeding where the defendant’s presence is required and provides as follows:
“ ‘The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and, at the imposition of sentence, except as otherwise provided by law.’ (Emphasis added.)”
“Unless a motion for modification is considered part of the ‘imposition of sentence,’ the appellant had no right to appear in support of his motion. We resolved this issue in State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980), where we held that a defendant’s right to be present does not extend to post-conviction motions. In so holding, we reasoned that the trial ends when a verdict has been rendered, any right which the accused may have to be present at proceedings following indictment continues only during the pendency of the trial, and a defendant, once convicted, cannot expect to be present at post-conviction motions. See also State v. Myers, 10 Kan. App. 2d 266, 271, 697 P.2d 879 (1985), where the Court of Appeals noted that defendant has no right to be present at a ruling on a motion to modify. We agree and hold that a defendant has no right to a hearing on a motion to modify sentence or to be present at consideration of that motion.
“This holding is consistent with federal law. Federal Rule of Criminal Procedure 35(b) is nearly identical to K.S.A. 1985 Supp. 21-4603(3). Under that rule, it is discretionary with the trial judge whether to hear testimony or arguments on the motion. 3 Wright, Federal Practice and Procedure: Criminal 2d § 586 p. 405. See also United States v. Donohoe, 458 F.2d 237 (10th Cir. 1972), where it was held a defendant has no right to a hearing in open court on a motion to modify sentence and has no constitutional right to be personally present or to be represented by counsel at consideration of motion to modify sentence.” pp. 378-79.
Whether a defendant is entitled to a hearing on a K.S.A. 21-4603(3) motion is discretionary with the trial court based upon the record before the court at the time. It would logically follow that, if a defendant is not entitled to a hearing on a motion to modify sentence, nothing in K.S.A. 21-4603(3) requires the appointment of counsel for every such motion. If the court determines from the allegations set forth in the motion, from the pleadings and record including the SRDC report, or from any other source that a hearing should be held on the motion, then we agree that counsel should be appointed to represent the defendant in preparing for and participating in the hearing. However, if the motion filed on behalf of the defendant contains no new facts or allegations which would justify a hearing, and if the court determines from the available record and pleadings that no hearing is necessary, then the statute does not require the appointment of counsel.
Defendant, in his brief, also makes reference to K.S.A. 22-4503 in asserting that a defendant is entitled to the appointment of counsel for every K.S.A. 21-4603(3) motion or proceeding. K.S.A. 22-4503(a) provides:
“A defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant and a defendant in an extradition proceeding, or a habeas corpus proceeding pursuant to K.S.A. 22-2710, is entitled to have assistance of counsel at such proceeding. A person subject to an order or commitment pursuant to K.S.A. 22-3428 or 59-2917 shall be entitled to the assistance of counsel at every stage of a habeas corpus proceeding brought by such person and the provisions of this section relating to defendants shall be applicable to such persons.”
In State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980), we recognized that the legislature has adopted a comprehensive statutory scheme of legal representation for indigent persons in crim inal matters. In addition to K.S.A. 22-4503, the court reviewed other statutes which provide for the appointment of counsel for indigent defendants. K.S.A. 22-4505 provides for counsel on appeal of a criminal conviction while K.S.A. 22-4506 provides for counsel “[wjhenever any person who is in custody under a sentence of imprisonment upon conviction of a felony files a petition for writ of habeas corpus or a motion attacking sentence under K.S.A. 60-1507,” if the court finds there are substantial questions of law or triable issues of fact. The statute also provides for counsel in an appeal from such proceedings.
The State relies upon the foregoing statutes in asserting there is no statutory right to counsel for the purpose of preparing and presenting a motion to modify sentence filed pursuant to K.S.A. 21-4603(3). In Andrews, after considering the foregoing statutes in detail, we stated:
"Thus, it is obvious that our statutes provide that an indigent defendant is entitled to counsel at every stage of the pretrial proceedings and trial (K.S.A. 1979 Supp. 22-4503), on appeal (K.S.A. 1979 Supp. 22-4505) and in habeas corpus proceedings and motions attacking sentence under K.S.A. 60-1507 [K.S.A. 22-4506]. However, nothing in our statutes specifically covers the problem of post-conviction motions . . . .” 228 Kan. at 375. (Emphasis added.)
In the present case, the defendant filed two motions to modify his sentence pursuant to K.S.A. 21-4603(3). At the time the statute allowed the court to consider modification both post-sentence and post-appeal. The defendant was granted a hearing on the first motion at which he was represented by counsel. The second motion alleges no new facts or circumstances which would justify a modification of sentence or require a hearing. As we stated in Jennings and Andrews, a defendant is not entitled to a hearing and the appointment of counsel on every post-trial motion. We conclude that the requirements of K.S.A. 22-4503(a) do not extend to every post-trial motion to modify sentence which alleges no facts or circumstances which might justify a modification by the court. The trial court in its discretion should determine from the motion, pleadings, and record whether a hearing is necessary. If the trial court determines that a hearing should be held, then counsel should be appointed.
Defendant’s principal argument that a defendant is statutorily entitled to counsel on all K.S.A. 21-4603(3) motions is that the appointment of counsel is mandated by K.A.R. 105-l-l(a)(7) adopted pursuant to the Indigents’ Defense Services Act (the Act), K.S.A. 22-4501 et seq. The regulation reads, inter alia:
“(a) Legal representation, at state expense, shall be provided to all persons who are financially unable to obtain adequate representation without substantial hardship to themselves or their families in the following cases:
(7) motions to modify sentence pursuant to K.S.A. 21-4603.”
This court has often recognized that “[regulations have the full force and effect of law if they are duly adopted pursuant to statutory authority for the purpose of carrying out the policy declared by the legislature in our statutes.” Vandever v. Kansas Dept. of Revenue, 243 Kan. 693, Syl. ¶ 1, 763 P.2d 317 (1988). See also J. G. Masonry, Inc. v. Department of Revenue, 235 Kan. 497, 500, 680 P.2d 291 (1984); Jones v. The Grain Club, 227 Kan. 148, Syl. ¶ 1, 605 P.2d 142 (1980); Harder v. Kansas Comm’n on Civil Rights, 225 Kan. 556, 559, 592 P.2d 456 (1979). However, for a regulation to have legal effect it must be adopted within the statutory authority granted the agency by the legislature. We have stated the rule many times:
“Rules or regulations of an administrative agency, to be valid, must be within the statutory authority conferred upon the agency. Those rules or regulations that go beyond the authority authorized, which violate the statute, or are inconsistent with the statutory power of the agency have been found void. Administrative rules and regulations to be valid must be appropriate, reasonable and not inconsistent with the law.” Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, Syl. ¶ 1, 673 P.2d 1126 (1983).
See also Marcotte Realty & Auction, Inc. v. Schumacher, 225 Kan. 193, Syl. ¶ 3, 589 P.2d 570 (1979); Goertzen v. State Department of Social & Rehabilitation Services, 218 Kan. 313, Syl. ¶ 1, 543 P.2d 996 (1975).
In Wesley Medical Center v. Clark, 234 Kan. 13, Syl. ¶ 5, 669 P.2d 209 (1983), we held: “An administrative agency which has the power to adopt regulations does not have the authority to adopt regulations which exceed the statutory authority granted in the first instance.”
Defendant asserts that the statutory authority for the adoption of the cited regulation is K.S.A. 22-4522 which provides in part:
“The state board of indigents’ defense services shall:
“(d) adopt rules and regulations in accordance with K.S.A. 77-415 et seq., and amendments thereto, which are necessary for the operation of the board and the performance of its duties and for the guidance of appointed counsel, contract counsel and public defenders, including but not limited to:
(1) Standards for entitlement to legal representation at public expense.”
K.S.A. 22-4504(f) expounds further on the rule-making authority of the State Board for Indigents’ Defense Services (the Board) as it relates to determining the “entitlement to legal representation at public expense” and reads:
“The state board of indigents’ defense services shall adopt rules and regulations in accordance with K.S.A. 77-415 et seq., and amendments thereto, relating to the income, assets and anticipated costs of representation for the purpose of determining whether a defendant is financially able to employ counsel and the ability of a defendant to contribute to the cost of the defendant’s legal defense services.”
The defendant argues that under the foregoing statutes the Board has the authority to adopt regulations granting defendants the right to counsel even though there is no statute authorizing or requiring counsel. The State, on the other hand, argues that such a broad reading and application of K.A.R. 105-l-l(a)(7) is beyond the statutory authority of the Board. We agree with the State. Nothing in the Act grants the Board the power to determine when a defendant is legally entitled to be represented by counsel. The right to counsel is statutory and constitutional and the Board cannot expand that right by rule or regulation to areas not contemplated by statute or the constitutions. When K.A.R. 105-1-1 is considered in its entirety and considered with K.S.A. 22-4503, 22-4505, 22-4506, and 22-4522, it appears that it applies to the procedural and administrative details of the indigents’ defense system and not the substantive right of the indigent defendant to be represented by counsel at state expense.
K.A.R. 105-l-l(a)(7) is an administrative regulation which authorizes the appointment of counsel under the Act to indigent defendants for motions to modify sentence when the district court has determined the defendant is entitled to counsel. The court, not the Board, must make the determination based upon the statutory and constitutional rights of the defendant. If the court determines from the record before it that an indigent defendant is entitled to representation, then K.A.R. 105-l-l(a)(7) gives the indigents’ defense service the authority to represent such a defendant at state expense. The regulation does not expand an indigent defendant’s statutory or constitutional right to counsel but does provide the means for such representation when the court determines a defendant is entitled to counsel. Once the court determines the necessity for counsel, the regulation creates the vehicle for the appointment of counsel pursuant to the Act.
We conclude that neither the Kansas statutes nor the regulations of the Board mandate the appointment of counsel in all K.S.A. 21-4603(3) motions.
Next, defendant asserts that he was denied his Sixth Amendment right to counsel when the trial court summarily denied his pro se motion to modify the sentence without appointing counsel. Defendant is correct when he asserts that this court has not addressed the specific issue in prior cases.
The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” This court and the United States Supreme Court have recognized the right as applying only to the “critical stages” of the proceedings against the defendant. United States v. Wade, 388 U.S. 218, 224, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967); State v. Marks, 231 Kan. 645, 650, 647 P.2d 1292 (1982); State v. Andrews, 228 Kan. 368, 377, 614 P.2d 447 (1980).
In Andrews, the court observed:
“In Coleman v. Alabama, 399 U.S. 1, 9, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970), the U.S. Supreme Court held that ‘[t]he determination whether the hearing is a ‘critical stage’ requiring the provision of counsel depends, as noted, upon an analysis ‘whether potential substantial prejudice to defendant’s rights inheres in the . . . confrontation and the ability of counsel to help avoid that prejudice.’ United States v. Wade, supra [388 U.S.] at 227.” 228 Kan. at 377.
The defendant, of course, argues that a motion to modify sentence is a critical stage of the proceedings while the State contends it is not adversarial and is not a critical stage.
At the outset the defendant seeks to distinguish the decisions in United States v. Donohoe, 458 F.2d 237 (10th Cir. 1972), and State v. Jennings, 240 Kan. 377, 729 P.2d 454 (1986), which are relied upon by the State, from the present case based upon factual differences. In Donohoe the defendant, following a plea of guilty and sentencing for a charge of bank robbery, filed a motion to modify his sentence pursuant to Fed. R. Crim. Proc. 35, which was comparable to our statute, K.S.A. 21-4603(3). (That rule was amended in 1979 to separate the reduction-of-sentence portion of the rule from other provisions, and the relevant part was designated 35[b].) Donohoe’s motion to modify his sentence was denied by the trial court and on appeal the Tenth Circuit Court affirmed. One of the issues was that it was improper to hold a hearing on the motion without the defendant being present. In considering this argument, the court stated:
“Although this Court has not spoken on this particular point, other circuits have held that there is no right to a hearing in open court on a motion to modify sentence. Such a motion is addressed to the sound discretion of the trial judge and is ordinarily considered by the judge informally and in chambers. Appellant had no constitutional right to be personally present or to be represented by counsel at consideration of this motion.” 458 F.2d at 239. (Emphasis added.)
In Jennings this court considered a K.S.A. 21-4603(3) motion to modify sentence and in the opinion cited Donohoe as authority for the proposition that at a hearing on a motion to modify sentence a defendant has no constitutional right to be personally present or to be represented by counsel. As the defendant here correctly points out, the defendant in Donohoe was given a hearing and was represented by counsel. The defendant seeks to distinguish Jennings on the basis that, although the defendant was not granted a hearing, he was represented for the purpose of preparing the motion to modify sentence. Thus, the statements in those cases that a defendant has no constitutional right to be represented by counsel on a motion to modify sentence would appear to be dicta as that was not the issue upon which the cases were determined. However, we are of the opinion they are correct statements of the law.
Defendant’s position that a motion to modify sentence is a “critical” stage of the criminal proceedings requiring the appoint ment of counsel would appear to be the minority view among the state and federal courts which have considered the issue. The only case cited by the defendant, and we have found no others, which specifically states that a reconsideration of sentence hearing is a critical stage of a criminal prosecution is a decision of the Pennsylvania Superior Court. In Com. v. Dozier, 294 Pa. Super. 249, 439 A. 2d 1185 (1982), a three-judge panel considered defendant’s appeal from a conviction of rape. Defendant was sentenced on February 19, 1980, and on March 4 filed a pro se petition for reconsideration of his sentence. A hearing was set and trial counsel was ordered to appear and represent the defendant. However, on the date of the hearing defendant’s counsel failed to appear, and the court proceeded with the hearing without counsel. The Superior Court did not give any rationale for its holding and merely stated: “Since sentencing is a critical stage of a criminal prosecution, appellant had a right to be represented by counsel at the reconsideration hearing.” 294 Pa. Super at 258. In Dozier, not only was a hearing held but counsel had been appointed to represent the defendant. We would agree that if the trial court determines that a hearing is necessary at which the State is represented then fundamental fairness and due process require that the defendant also be represented. However, we do not view Dozier as authority for the argument that an indigent defendant is constitutionally entitled to counsel at all motions to modify sentence nor is it persuasive authority for the contention that every motion to modify is a critical stage of a criminal proceeding.
In Tully v. Scheu, 607 F.2d 31 (3d Cir. 1979), the court reached a conclusion somewhat similar to the Pennsylvania court in Dozier. In Tully, the defendant sought habeas corpus relief from state appellate court decisions dismissing his motion for reduction of sentence because the hearing was not held within the statutory time frame. After entering a plea of guilty and being sentenced, defendant filed a motion for reduction of sentence claiming the State breached its plea agreement. At a hearing on the motion, held just two days before the statutory time expired, the State denied the breach, claiming plea agreement terms different than those claimed by defendant, and as a result the defendant’s attorney was forced to become a witness. Accordingly, the trial court adjourned the hearing to allow defendant to obtain substitute counsel. The new hearing date was scheduled by the court beyond the 75-day period allowed for modifications. At the second hearing, the State sought to dismiss the motion, because the 75-day period had expired.
While the New Jersey trial court denied dismissal, the New Jersey appellate courts granted dismissal. Defendant then sought habeas corpus relief in federal court. The federal district court found that the case involved a claim of unconstitutionality under a New Jersey Supreme Court Rule authorizing modification of sentence and denied relief. The Third Circuit reversed, holding that dismissing defendant’s motion when the hearing was postponed to allow defendant to obtain substitute counsel denied defendant his constitutional right to counsel at the sentence reduction hearing. In doing so, the court stated:
“To argue, as does the state, that Tully has no absolute right to counsel in discretionary state appeals, Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974), is to mistake the real issue. The spirit, if not the letter, of Rule 3:21-10 makes absolute the right to have heard a timely reduction of sentence motion because the court is given no discretion to refuse to entertain a timely motion. See N.J.Ct.R. 3:21-10. The hearing on the motion is not an appeal but a continuation of the guilty plea-sentencing proceeding at the trial court level. It is as much a part of a trial in the context of a guilty plea reception as the original sentencing proceeding. . . .
“We perceive the New Jersey sentence reduction procedure to be ‘a critical stage of the criminal proceeding.’ ” 607 F.2d at 35.
The court then concluded:
“We therefore hold that the constitutional right to counsel at the hearing during which sentence is pronounced applies with equal force and effect to the sentence reduction hearing provided under Rule 3:21-10. Once Tully began the proceeding with counsel, he had an absolute right to have counsel at his side throughout.” 607 F.2d at 35-36.
In Tully the court appears to have made its determination that the sentence reduction hearing was a critical stage of the proceeding based primarily on the language of the New Jersey Supreme Court Rule and the fact that a hearing was commenced with counsel who was forced to withdraw in order to become a witness. The court did not hold that every motion to reduce or reconsider sentence constitutes a critical stage of the proceeding which would require the appointment of counsel.
Defendant also relies upon United States v. Morales, 498 F. Supp. 139 (E.D. N.Y. 1980). The court stated the issue as “whether the government may question a person who has pleaded guilty and been sentenced about matters related to the subject matter of his criminal charges in the absence of appointed counsel when the time for a F.R.Cr.P. Rule 35 motion for reduction of a sentence has not yet expired.” 498 F. Supp. at 141. The decision hinged on an appointed attorney’s duty under 18 U.S.C. § 3006A (1976) and not on the Sixth Amendment right to counsel. The court specifically stated: “This court does not decide . . . whether an indigent pro se defendant has the right to appointment of counsel solely for the purpose of applying for a reduction of sentence under Rule 35.” 498 F. Supp. at 142.
Although not cited by the State, Burrell v. United States, 332 A.2d 344 (D.C. Cir. 1975), strongly supports the State’s position. The defendant in Burrell was convicted of and sentenced for possessing a pistol without a license. Although he filed an appeal, he subsequently requested dismissal. After the court dismissed the appeal, defendant filed a pro se motion for reduction of his sentence under Super. Ct. Cr. R. 35, which is substantially identical to Fed. R. Crim. Proc. 35, 18 U.S.C. app. (Supp. III 1979).
The motion gave several reasons for reducing the sentence including defendant’s rehabilitation and opportunity to obtain work at a work-release job. In a letter attached to the motion, the defendant expressed: “I do not have a lawyer, and I would like to have a lawyer appointed to represent me for this Motion.” The trial court denied both the motion for reduction and the request for counsel. “The sole issue raised on appeal [was] whether or not the court’s failure to appoint counsel deprived him of his constitutional right to such representation at a critical stage of his prosecution.” 332 A.2d at 345.
In finding there was no constitutional right to counsel, the court stated:
“This is not a situation where an indigent defendant needs legal representation to defend himself against governmental action; that is, it is not an action brought by the government against the defendant such as one to revoke probation or to revoke his parole. This proceeding resembles those only insofar as it likewise arose after trial, sentencing and appeal. It was initiated by one who had run the gamut of the adjudicatory process. Ap pellant here had the assistance of counsel at the sentencing stage, when both counsel and the appellant were accorded the right to speak. The sentence imposed was within the statutory limits. Furthermore, as we shall see, the motion did not present to the court an appropriate basis for reduction of sentence.” 332 A.2d at 345.
The court went on to state:
“It cannot be said that appellant has been deprived of a substantive right. There is no right to work release, which is the objective underlying his motion, any more than there is a right to a reduction of confinement time. Green v. United States, 157 U.S. App. D.C. 40, 481 F.2d 1140 (1973).” 332 A. 2d at 346.
In its final conclusion, the court held:
“We think that an indigent’s right to appointed counsel for a reduction of sentence motion should be restricted by the trial court to situations raising the kind of an issue, supported by specific factual allegations, wherein fundamental fairness requires the appointment of counsel if standards of due process are to be met. No such issue is raised here.” 332 A.2d at 347.
In United, States v. Hamid, 461 A.2d 1043 (D.C. 1983), cert. denied 464 U.S. 1046 (1984), the court held, “[T]he Sixth Amendment right to the effective assistance of counsel does not apply to the post-conviction process in seeking a reduction of sentence.” 461 A. 2d at 1044. In Hamid the court was faced with a determination of the effectiveness of counsel in the filing of a Rule 35 motion to reduce sentence. The court stated:
“We hold that the Sixth Amendment right to the effective assistance of counsel does not apply to the post-conviction process in seeking a reduction of sentence. Having no constitutional right to counsel, Hamid could not be deprived of effective assistance of counsel in the filing of his Rule 35 motion. Additionally, Hamid was not deprived of due process of law.
“The right to request a reduction in sentence is not a right of sufficient substance to trigger the Sixth Amendment. Burrell v. United States, 332 A.2d 344 (D.C.), cert. denied 423 U.S. 826, 96 S. Ct. 42, 46 L. Ed. 2d 43 (1975). See Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 34 (1974) (a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for Supreme Court review). Rather, a Rule 35 reduction motion is simply a plea for leniency addressed to the trial court’s discretion. Walden v. United States, 366 A.2d 1075, 1077 (D.C. 1976); Burrell v. United States, supra, 332 A.2d at 346. Having no constitutional right to counsel for these purposes, the inquiry and determination as to his effectiveness was an irrelevancy and thus was an improper predicate for any relief.” 461 A.2d at 1044.
In United States v. Nevarez-Diaz, 648 F. Supp. 1226 (N.D. Ind. 1986), the federal district court held that a defendant had no ineffective assistance of counsel claim for his attorney’s failure to file a Rule 35(b) motion, because the defendant had no constitutional or statutory right to counsel on the post-trial motion to reduce sentence.
Regarding the constitutional right to counsel, the court first discussed the Sixth Amendment and then Fifth Amendment due process concerns. On the Sixth Amendment, the court reasoned and held:
“By definition, a Rule 35(b) motion is a post-trial proceeding and, logically, because it is not part of the criminal prosecution, it is outside the scope of the sixth amendment. A Rule 35(b) motion is not an appeal; it does not attack the legality of the sentence imposed nor does it call into question the validity of the underlying conviction. Williams v. United States, 470 A.2d 302, 305 (D.C. App. 1983), cert. denied 472 U.S. 1019, 105 S. Ct. 3483, 87 L. Ed. 2d 617 (1985); United States v. Hamid, 461 A.2d 1043, 1044-45 (D.C. App. 1983), cert. denied 464 U.S. 1046, 104 S. Ct. 718, 79 L. Ed. 2d 180 (1984). Rather, Rule 35(b) is directed toward the discretion of the sentencing judge and is essentially a plea of leniency. E.g. Shaiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984); United States v. Hooton, 693 F.2d 857 (9th Cir. 1982). As such, a Rule 35(b) motion ‘is not analogous to an appeal as of right, but is analogous to a discretionary review.’ Silano v. United States, 621 F. Supp. 1103, 1105 (D.C.N.Y. 1985). Where review is discretionary no sixth amendment right to counsel attaches. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982). Therefore, the court finds that a Rule 35(b) proceeding does not implicate the sixth amendment right to an attorney.” 648 F. Supp. at 1230.
In its discussion of the defendant’s due process right to counsel under the Fifth Amendment, the court first considered the fundamental fairness doctrine as being the basis of due process of law and then stated:
“Applying these considerations to the instant case, the court finds that due process does not automatically require the federal government, under the fifth amendment due process clause, to appoint counsel to a convicted felon for purposes of bringing a Rule 35(b) motion. First, a Rule 35(b) proceeding is not a criminal prosecution. Second, as a convicted felon, Nevarez-Diaz is entitled to a more limited due process right because he has been convicted of a crime and already suffered a loss of liberty. Gagnon, 411 U.S. at 789, 93 S. Ct. at 1763; see also Lassiter v. Department of Social Services, 452 U.S. 18, 26, 101 S. Ct. 2153, 2159, 68 L. Ed. 2d 640 (1981). Here, Nevarez-Diaz has already lost personal liberty as a result of his plea bargain with the government. The Rule 35(b) proceeding poses no new threat of an additional loss of liberty; instead, it is an attempt by Nevarez-Diaz to appeal to the leniency of the sentencing court for a reduction of his sentence. Shaiar, 736 F.2d at 818; Hooton, 693 F.2d 857. Nevarez-Diaz’s interest in liberty has already been severely diminished and ‘as [his] interest in personal liberty diminishes, so does his right to appointed counsel.’ Lassiter, 452 U.S. at 26, 101 S. Ct. at 2159.
“Moreover, the court finds that the nature of a Rule 35(b) proceeding is not so technical and complicated as to necessitate assistance of counsel to ensure the effectiveness of the hearing. As noted earlier, a Rule 35(b) motion does not attack the legality of the sentence nor the validity of the underlying conviction, rather, it is directed towards the sentencing judge’s discretion and appeals for his leniency. Generally, petitioners base such motions on changes in circumstances that were not apparent at the time of sentencing. Typical Rule 35(b) grounds presented to this court include: declarations of remorse by the petitioner; new medical problems for either the petitioner or his family; financial hardships on the petitioner’s family; petitioner’s cooperation with authorities; and petitioner’s good behavior and apparent change in attitude. Reasons such as these are more personal than legal or technical and, as such, the court fails to see how a finding of a constitutional right to counsel would greatly assist in presenting such grounds to a court.
“Therefore, the court holds that Nevarez-Diaz was not denied effective assistance of counsel because he was not constitutionally entitled to counsel.” 648 F. Supp. at 1231.
Burrell and the cases which have adopted its rationale are persuasive. We also note that effective in 1987, Fed. R. Crim. Proc. 35 was amended to eliminate the right of federal defendants to seek a modification of sentence after it has been imposed. We conclude that a motion to modify sentence under K.S.A. 21-4603(3) is not a critical stage of the criminal prosecution and that an indigent defendant does not have a Sixth Amendment right to counsel for every such motion, nor does the failure to appoint counsel constitute a Fifth Amendment denial of due process of law in all such cases.
In determining whether counsel must be appointed to represent an indigent defendant on a K.S.A. 21-4603(3) motion, the trial court should consider each such motion on a case-by-case basis. If the motion contains factual allegations not previously available to, or considered by, the court, or the existing pleadings and record disclose facts which might constitute a realistic basis for a reduction of sentence, then the trial court in the exercise of its discretion should set the matter for hearing and appoint counsel to represent the defendant. If there is to be a hearing at which the State will be represented, then due process of law does require that the defendant be represented unless the defendant waives the right to counsel. See State v. Buckland, 245 Kan. 132, 142, 777 P.2d 745 (1989).
Defendant argues that to require a defendant to allege some factual or realistic basis for a possible reduction of sentence in the motion seeking the reduction places a burden upon the defendant that he cannot meet. It is contended that counsel is necessary to gather sufficient factual information to show a change of circumstances or a basis for reduction of sentence. We find no insurmountable barriers, or constitutional prohibitions, to a requirement that the defendant show in the first instance some realistic or reasonable grounds for a possible modification of sentence. The defendant should be able to articulate the circumstances which would justify a hearing and the appointment of counsel.
We find no error in the court’s summary disposition of defendant’s K.S.A. 21-4603(3) motion.
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The opinion of the court was delivered by
McFarland, J.:
Leo D. Graham appeals his jury trial conviction of aggravated robbery (K.S.A. 21-3427).
On May 23, 1981, the clerk of a Kansas City convenience store was the victim of a robbery at gunpoint. Removal of all of the money from the cash register triggered a camera which took photographs of the robber. Defendant was subsequently arrested as a result of the photographs. He was tried in December of 1981 but failed to appear on the last day of trial. He was convicted but his whereabouts were unknown until February of 1988 when he was arrested in Missouri and returned to Kansas on a detainer. In July of 1989 he received a 10-20 year sentence and brings this appeal.
The sole issue on appeal is the propriety of the admission of expert testimony relative to certain photographs. In order to understand the issue some additional facts need be set forth. As previously stated, candid photographs were shot of the robber while the crime was in progress in May 1981. Defendant was initially arrested on June 3, 1981. Posed photographs of defendant were taken at that time depicting full face and profile views (commonly called “mug shots”).
In December 1981, shortly before trial herein and at defense counsel’s request, a group assembled at the convenience store involved herein. It included defense counsel, defendant, prosecutor, a police photographer, and a private photographer hired by defendant. Posed photos were taken of defendant in front of the counter by the same store camera and by the retained photographer using his own equipment. In summary then, three sets of photographs are involved at this point: (1) candid robbery shots taken in May 1981; (2) posed mug shots taken in June 1981; and (3) posed crime reenactment photos taken in December 1981.
The main issue at trial was identity. The store clerk positively identified defendant as the robber and this identification is not at issue herein. The State had the photographs of the crime in progress which depict the robber quite clearly. Under such circumstances, for a conviction, the jury would only have to be satisfied the robber photographed could be the defendant. The State and defense each presented an expert photographic witness. One was the last prosecution witness and the other was the first defense witness, so the two witnesses followed each other sequentially. The police photographer discussed the operation of the store camera, problems of distortion created by different camera angles, and clothing worn by defendant. Based upon his enumerated similarities, he stated the same man was depicted in all three sets of photos. The defense expert testified as to characteristics which may be distorted by cameras. Based upon his enumerated dissimilarities, this expert stated the man shown committing the robbery was not the same man in the mug shots or the reenactment shots.
On appeal, defendant argues no photographic expert testimony was necessary and its admission was error as an invasion of the province of the jury.
K.S.A. 60-456 permits the admissibility of expert opinion evidence as follows:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
In State v. Hodges, 239 Kan. 63, Syl. ¶ 1, 716 P.2d 563 (1986), we held:
“The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are inadmissible. Two requirements must be present before expert testimony is admissible at trial. First, the testimony must be helpful to the jury. Second, before expert scientific opinion may be received into evidence at trial, the basis of that opinion must be shown to be generally acceptable within the expert’s particular scientific field.”
An expert’s opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence. State v. Lash, 237 Kan. 384, Syl. ¶ 1, 699 P.2d 49 (1985). Although an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury. State v. Moore, 230 Kan. 495, Syl. ¶ 1, 639 P.2d 458 (1982).
The admissibility of expert testimony lies within the sound discretion of the trial court and its determination will not be reversed on appeal absent a showing of an abuse of discretion. State v. Stukey, 242 Kan. 204, Syl. ¶ 1, 747 P.2d 137 (1987).
On appeal, defendant challenges all of the testimony of the State’s expert. At trial, the only objection to the witness’ testimony was to the ultimate question — whether or not each of the three sets of photos portrayed the same man. As will be recalled, it was defense counsel who set up the scenario as to experts at trial. He first hired a photographer and requested the reenactment of the crime so a new set of photos could be taken as fodder for his expert. If admission of the State’s expert testimony was error, so was admission of the defense’s expert testimony.
The old saying a picture is worth a thousand words has considerable truth herein. It is difficult to describe and distinguish similar photographs. The store camera sat on a shelf in a nonfixed position. It could be moved to anywhere on the shelf. The angle of the camera was downward to the person being photographed. In the robbery shots, the robber is at more of an angle to the camera than in the reenactment shots. His chin is tucked down, his body is leaning slightly forward, and his right hand (with the gun) extends over the counter. In the reenactment photographs, defendant is standing straight and more squared to the camera with his arms at his sides. The photograph taken by the defense expert is taken from a much lower and closer perspective. The mug shots are close, no angle photos.
Even without the fact that defense counsel set up the expert testimony, we cannot say it was an abuse of discretion to admit any expert photographic testimony. The effect of different angles, perspectives, and other variables as to height, nose shape, weight, etc., is information beyond the normal experience of lay persons. Much latitude must be given to trial courts in this area. We do conclude, however, that it was an abuse of discretion, under the facts herein, to let the experts give their respective opinions as to whether or not the same man was portrayed in all photos. Obviously, neither the State nor the defense could bring in an expert who would be permitted to state the defendant is the same man shown in the photos of the crime. Yet, the same thing was accomplished herein by taking new photos and having the expert compare those to the crime photos. Such testimony invaded the province of the jury.
Does this improper admission of evidence require reversal? We believe not. The victim made positive identification of the defendant — which identification is unrelated to the photos herein. The victim had an excellent opportunity to study the robber. Further, two opposing expert opinions were expressed which pretty well cancelled each other out. Additionally, it was defense counsel who set up the scenario for the battle of experts. He objected to the ultimate question on identification propounded to the State’s witness — but was able to ask an identical question of his own expert. Without reservation, we conclude that there is little, if any, likelihood that this erroneous admission of evidence changed the result of the trial.
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The opinion of the court was delivered by
Miller, C.J.:
This is an appeal by the State on a question reserved pursuant to K.S.A. 22-3602(b)(3). The sole issue is whether the district court had jurisdiction to hear a motion to modify sentence. The motion was filed more than 120 days after the clerk of the district court received the mandate from the clerk of the Kansas Appellate Courts, but within 120 days of receipt by counsel for the parties of a copy of an order from the clerk of the Supreme Court of the United States stating that defendant’s petition for writ of certiorari was denied.
The facts are not disputed. Hugh E. “Bo” Miller was convicted by jury trial in Sedgwick County District Court of aggravated battery, K.S.A. 21-3414, on April 16, 1985. Sentence was imposed on June 11, 1985. Miller filed a notice of appeal that same day. The appeal was dismissed on April 18, 1986, for failure to docket the appeal in the appellate court. Though the record before us is ambiguous as to the date, it is clear that Miller filed a motion to modify his sentence. The district court sustained the motion and modified the sentence on March 26, 1987; Miller filed a notice of appeal that same day. The Court of Appeals affirmed in State v. Miller, No. 60,738, unpublished opinion filed March 10, 1988. Miller’s petition for review was denied by this court on May 4, 1988. 243 Kan. 781. The mandate was received and filed by the clerk of the district court on May 10, 1988.
On June 24, 1988, the trial court continued Miller’s appearance bond to allow him to file a petition for certiorari in the United States Supreme Court. On October 3, 1988, the United States Supreme Court denied Miller’s petition for certiorari. A copy of the order denying certiorari was received and filed by the clerk of the Kansas appellate courts on October 11, 1988. Apparently, copies were also received by the district attorney and Miller’s attorney.
On November 8, 1988, Miller filed another motion in district court to modify his sentence. The motion was filed within 120 days of receipt of a copy of the order of the United States Supreme Court denying certiorari, but not until well over 120 days after the Kansas mandate was received by the clerk of the district court. At the hearing on Miller’s November 8, 1988, motion to modify, the State argued that the court did not have jurisdiction to hear the motion. The court ruled the motion was timely filed and thus the court had jurisdiction to hear it; however, the court declined to modify the sentence further and ordered Miller to serve the sentence as modified on March 26, 1987. The State reserved the question of jurisdiction and appeals.
K.S.A. 21-4603(3), in effect at the time of the modification hearing, provided in part:
“Any tíme within 120 days after a sentence is imposed . . . the court may modify such sentence ... by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals
The present language of K.S.A. 1989 Supp. 21-4603(3) is similar:
“(a) Except when an appeal is taken and determined adversely to the defendant as provided in subsection (b) of this subsection (3), at any time within 120 days after a sentence is imposed, . . . the court may modify such sentence ... by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits ....
“(b) If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals.” (Emphasis supplied.)
Miller argues that the statute does not say the mandate must be from the Kansas Supreme Court or Court of Appeals, and therefore the district court had jurisdiction because the motion was timely filed as to the “mandate” in the form of the copy of an order he received from the clerk of the United States Supreme Court. We are not persuaded.
At the time of the district court’s assumption of jurisdiction, Sup. Ct. R. 23, 28 U.S.C. app. (1982), governed the procedure in the United States Supreme Court upon denial of a petition for certiorari. The rule reads in applicable part:
“Rule 23. Disposition of petition for certiorari
“1. After consideration of the papers distributed pursuant to Rule 22, the Court will enter an appropriate order. The order may be a summary disposition on the merits.
“3. Whenever a petition for writ of certiorari to review a decision of any court is denied, an order to that effect will be entered and the Clerk forthwith will notify the court below and counsel of record. ...”
Sup. Ct. R. 16, 50 CCH S. Ct. Bull. p. 9029, which took effect January 1, 1990, is identical in all relevant respects.
Another rule, Sup. Ct. R. 52.2, 28 U.S.C. app. (1982), governed the issuance of mandates in cases coming from state courts (now Sup. Ct. R. 45.2, 50 CCH S. Ct. Bull. p. 9066, similar in all relevant respects). It is clear that the order issued by the United States Supreme Court on October 3, 1988, was simply an order under Sup. Ct. Rule 23 denying the petition for certiorari and not a mandate under Rule 52.2. Notification was given by sending copies of the order to the clerk of the Kansas Court of Appeals, from which certiorari was sought, and to counsel of record. No copy of the order was sent to the sentencing court; instead, the copy sent to the district attorney was filed with the clerk of the district court on September 18, 1989.
That, however, is not decisive of the issue before us. When in Chapters 21 and 22 the Kansas statutes speak of the Supreme Court, the Court of Appeals, the appellate courts, or the district courts, they speak of Kansas state courts. K.S.A. 21-4603 empowers “the court” to modify a sentence within a defined period of time. “Court” is defined by K.S.A. 21-4602(1) as “any court having jurisdiction and power to sentence offenders for violation of the laws of this state.” Kansas district courts have such jurisdiction. See K.S.A. 20-301. Kansas statutes do not define federal crimes and offenses (with the exception of those made applicable under certain circumstances by virtue of the Assimilative Crimes Act, 18 U.S.C. § 13 [1988], not here involved) nor do they govern the jurisdiction of or the procedure in United States courts.
When the Kansas Legislature wishes to speak of United States courts, it does so in specific terms. See, for example, K.S.A. 60-3201 and K.S.A. 1989 Supp. 60-2202. Federal sentencing statutes refer to federal courts unless otherwise clearly stated; state sentencing statutes refer to state courts. Fed. R. Crim. Proc. 1 states: “(T)hese rules govern the procedure of all criminal proceedings in the courts of the United States . . . and whenever specifically provided in one of the rules, to . . . proceedings before state . . . judicial officers.” Similarly, K.S.A. 22-2102 provides: “The provisions of this code [the Kansas Code of Criminal Procedure] shall govern proceedings in all criminal cases in the courts of the state of Kansas, but shall have application to proceedings in police and municipal courts only when specifically provided by law.”
The fundamental rule of statutory construction is that the intent of the legislature governs. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Ordinary words and phrases are generally to be construed according to their ordinary meaning, without additional meaning being read into them by the courts. State v. Dubish, 234 Kan. 708, 712, 675 P.2d 877 (1984). Language of statutes is also to be construed according to the context in which it is used.
We held in State v. Timmerman, 236 Kan. 414, 691 P.2d 33 (1984), that under K.S.A. 21-4603(3), a defendant has 120 days after his direct appeal has been finally determined to move for modification of sentence, and that the filing of a collateral proceeding pursuant to K.S.A. 60-1507 does not extend the time for filing a motion to modify a sentence. We indicated that K.S.A. 21-4603(3) is to be read simply and plainly, with an eye to finality in criminal litigation.
We hold that, in cases which have been appealed, a district court does not have jurisdiction to consider a motion to modify sentence unless a motion is filed within 120 days from the time the clerk of the district court receives the mandate from the Kansas Supreme Court or Court of Appeals. The filing of a petition for certiorari in the United States Supreme Court, or the receipt of a copy of an order of that Court denying certiorari, does not extend the time for the filing of a motion to modify sentence. The filing of a motion to modify sentence is limited by the plain terms of K.S.A. 21-4603(3), now K.S.A. 1989 Supp. 21-4603(3)(b).
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The opinion of the court was delivered by
McFarland, J.:
In this original habeas corpus proceeding, Robert Lynn Lucas contends that bringing him to trial on an amended charge of second-degree murder would violate his state and federal constitutional rights not to be placed in jeopardy twice for the same offense.
Lucas was convicted by jury trial of two counts of child abuse, K.S.A. 21-3609 (one count as to victim Shannon Woodside and one count as to victim Shaina Woodside), and one count of felony murder, K.S.A. 21-3401 (as to victim Shaina Woodside). On direct appeal, State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), aff'd 244 Kan. 193, 767 P.2d 1308 (1989), we reversed the convictions of the two offenses relating to Shaina Woodside, holding:
“The purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve.” Syl. ¶ 1.
“In order to apply the felony-murder doctrine: (1) the underlying felony must be one which is inherently dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide.” Syl. ¶ 2.
“A single assaultive incident of abuse of a child (K.S.A. 1987 Supp. 21-3609) which results in the death of a child merges with [the] killing and constitutes only one offense. The coupling together of prior acts of abuse of a child with the lethal act of abuse into one collective charge of abuse of a child does not prevent the operation of the merger rule. Language to the contrary found in State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985), is disapproved.” Syl. ¶ 5.
The case was remanded for further proceedings. On remand, Lucas was charged in an amended petition with second-degree murder, K.S.A. 21-3402, and child abuse, K.S.A. 21-3609, relative to the death of Shaina Woodside. His motion to dismiss the second-degree murder charge on the grounds of double jeopardy and res judicata was denied. Lucas subsequently entered a plea of nolo contendere to the child abuse charge. Trial of the second-degree murder charge was scheduled for the fall of 1989. The habeas corpus proceeding herein was filed on September 21, 1989, and we granted a stay of proceedings in the district court. The matter is before us for decision.
A petition for a writ of habeas corpus is an appropriate method for challenging a trial court’s pretrial denial of a claim of double jeopardy. In re Habeas Corpus Petition of Hoang, 245 Kan. 560, Syl. ¶ 1, 781 P.2d 731 (1989); In re Habeas Corpus Petition of Mason, 245 Kan. 111, Syl. ¶ 1, 775 P.2d 179 (1989); In re Berkowitz, 3 Kan. App. 2d 726, Syl. ¶ 2, 602 P.2d 99 (1979).
Defendant first contends that he was acquitted of second-degree murder in the first trial and, hence, cannot be retried for that crime. The record does not support this position. The jury was instructed on the charged crime, felony murder, as well as second-degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses thereof. Specifically, the instructions stated:
“INSTRUCTION NO. 16
“The defendant is charged in Count III with the crime of felony murder. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
1. That the defendant killed Shaina Woodside;
2. That such killing was done while in the commission of abuse of a child, a felony; and
3. That this act occurred on or about the 6th day of July, 1986, in Johnson County, Kansas.
“The elements of abuse of a child are set forth in Instruction No. 11.”
“INSTRUCTION NO. 17
“If you cannot agree that the defendant is guilty of felony murder, you should then consider the lesser included offense of murder in the second degree.
“To establish this charge each of the following claims must be proved:
1. That the defendant intentionally killed Shaina Woodside;
2. That such kilhng was done maliciously; and
3. That this act was done on or about the 6th day of July, 1986, in Johnson County, Kansas.
“Maliciously means willfully doing a wrongful act without just cause or excuse.”
Instruction Nos. 18 and 19 followed the format of No. 17, setting forth the lesser included offenses of voluntary and involuntary manslaughter.
“INSTRUCTION NO. 20
“The offense of felony murder as charged in Count III with which defendant is charged includes the lesser offenses of second degree murder, voluntary manslaughter and involuntary manslaughter.
“You may find defendant guilty of felony murder, or second degree murder, or voluntary manslaughter, or involuntary manslaughter, or not guilty.
“When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only.
“Your presiding juror should sign the appropriate verdict form. The other verdict forms are to be left unsigned.”
Instruction No. 17 clearly states that second-degree murder is only to be considered if the jury cannot agree that the defendant is guilty of felony murder. The jury did agree defendant was guilty of felony murder. Defendant contends Instruction No. 20 was contradictory to Instruction No. 17 by stating defendant could be found guilty of any of the four degrees of homicide and, in the case of reasonable doubt as to which offense, he could only be found guilty of the lesser. There is no basis on which to conclude the jury had any reasonable doubt of defendant’s guilt of felony murder. Defendant also contends the verdict form contradicted the instructions in that the guilty or not guilty blanks for each of the four degrees of homicide were on one page in ascending order. That is, involuntary manslaughter was listed first and felony murder was listed last.
We find no merit in any of defendant’s assertions relative to his contention that he was acquitted of second-degree murder in his first trial.
Defendant next argues that to try him for second-degree murder at this point would be violative of the compulsory joinder provisions of K.S.A. 21-3108(2)(a). The statute provides:
“A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began.”
K.S.A. 21-3108 is the statutory enactment relative to the state and federal constitutional prohibitions against double jeopardy and expands the basic concept.
The Fifth Amendment to the United States Constitution states, in part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”
Section 10 of the Bill of Rights of the Kansas Constitution entitles a defendant to the same protections against double jeopardy afforded under the United States Constitution. In re Habeas Corpus Petition of Mason, 245 Kan. at 115.
The aspect of double jeopardy covered by K.S.A. 21-3108(2)(a) prevents piecemeal prosecution. An individual cannot be convicted for, say, aggravated robbery and then subsequently pros ecuted for an aggravated kidnapping or aggravated battery occurring during the robbery of the victim. One of the reasons for the prohibition against piecemeal prosecution is that it can lead to prosecution arising from prosecutorial vindictiveness. A prosecutor might be angry over the result of the first trial because a defendant was acquitted altogether or convicted of a lesser offense, or because the conviction might have been overturned on appeal. In retaliation, he or she might then add charges which could have been included in the original prosecution as they arose out of the incident for which defendant was originally charged.
Defendant herein was charged and convicted of felony murder with child abuse as the underlying felony. The jury was instructed on second-degree murder as a lesser offense. Although second-degree murder, voluntary manslaughter, and involuntary manslaughter are frequently referred to as lesser included offenses of first-degree murder, they are more precisely lesser degrees of the same offense. See State v. Carpenter, 228 Kan. 115, 126, 612 P.2d 163 (1980); State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977); State v. Conley, 6 Kan. App. 2d 280, Syl. ¶ 2, 627 P.2d 1174 (1981). In the time period defendant was originally charged and tried there was no reason for the prosecutor to suspect that child abuse was not an appropriate underlying felony for a charge of felony murder, as certain language in State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985), approved of such charging. It was only in the appeal of the felony-murder conviction that this court, in a four to three decision, held that the merger doctrine precluded the use of child abuse as the underlying felony for a charge of felony murder. We disapproved the contrary language in Brown, reversed the felony-murder and related child abuse convictions, and remanded the case for further proceedings. The second-degree murder charge herein is in an amended information in the original case. No new charge is involved. Defendant could have been convicted of second-degree murder in the original trial. (Note: This is not a comment on the sufficiency of the evidence to support such a conviction and only refers to the procedural aspects involved.) Although defendant vigorously argues that prosecutorial vindictiveness could have been a factor in the filing of the amended information herein, no facts or circumstances are shown to support his contention.
Defendant further argues that the circumstances of the reversal of his felony-murder conviction constitute the equivalent of reversal on the grounds of failure of proof or insufficiency of evidence to support the conviction, which should bar retrial. We do not agree. As we noted in the first Lucas opinion, there was abundant evidence that the defendant abused the child Shaina Woodside and that she died as a result of being abused by defendant. The decision in the direct appeal changed existing Kansas law as stated in Brown and held that child abuse could not be used as the underlying felony for felony murder under the merger doctrine. As this decision represented a change in the existing law, we reversed the child abuse conviction as to Shaina in order to afford the State full opportunity to make appropriate amendments to the information for further proceedings.
However, K.S.A. 21-3108(4)(c) is dispositive of the issue relative to K.S.A. 21-3108(2)(a). The statute provides:
“(4) A prosecution is not barred under this section:
(c) If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.”
Lucas was found guilty in the first trial, which conviction was reversed by this court as previously stated. K.S.A. 21-3108(4)(c) is, therefore, controlling.
After carefully considering the matter, we conclude that defendant’s rights under K.S.A. 21-3108(2)(a) and the double jeopardy clauses of the state and federal constitutions have not been violated in any of the claimed particulars.
The writ is denied. | [
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The opinion of the court was delivered by
Miller, C.J.:
This is an appeal by the State from an order of the trial court suppressing evidence, discharging defendant, Norman H. Damm, and dismissing the case. This is not an interlocutory appeal, K.S.A. 22-3603, but an appeal after final judgment, K.S.A. 1989 Supp. 22-3601(a) and K.S.A. 22-3602(b)(l).
The facts are undisputed. On the morning of April 8, 1988, Norman Damm was driving his car when he was stopped by Officer Lewis-Jones of the Lenexa police department. Officer Lewis-Jones stopped the car because the taillights were defective; one light was out, the other brightly lit as if a brake light was on. There was no other reason for the stop.
After stopping the car, Officer Lewis-Jones demanded identification from Damm, as well as from his two passengers, David Smidl and Damm’s brother David. All three complied and produced their driver s licenses. They were left sitting in the Damm vehicle while Officer Lewis-Jones returned to his police car to do a “routine records check” on each of them. Again, there was no reason for the identification check on the two passengers except they were riding in a vehicle with defective taillights.
The check on passenger David Smidl disclosed that there was a municipal court warrant outstanding for his arrest for “failure to appear.” Officer Lewis-Jones did not know what the municipal court charge against Smidl was; at trial, the State said the warrant was “based on perhaps a traffic violation.”
Officer Lewis-Jones returned to the Damm car and arrested Smidl pursuant to the warrant. He handcuffed Smidl and placed him in the police car. The officer then returned to the car and ordered the brothers out of it. Officer Lewis-Jones then proceeded to search the entire car “incident to Smidl’s arrest.” There was no other reason for the search. The State concedes there was no probable cause, no consent, and no plain view justification for the search. The major reason advanced by Officer Lewis-Jones for the search was that it was “department policy.”
The search turned up drug paraphernalia and a small supply of cocaine, after which Officer Lewis-Jones arrested Smidl and the Damm brothers for possession of cocaine. The officer forgot to cite Norman Damm for the defective taillights that night, but mailed a citation to him later.
Defendant filed a motion to suppress evidence. An evidentiary hearing was held before the trial court on September 6, 1988. The parties stipulated that the testimony of Officer Lewis-Jones, given at the preliminary examination, would constitute the evidence on the motion. After hearing the argument of counsel and reviewing the preliminary hearing transcript, the trial court sustained the motion to suppress, discharged the defendant, and released the surety on his bond. The State appeals.
Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978); State v. Schur, 217 Kan. 741, 743, 538 P.2d 689 (1975). An appellate court will uphold a trial court’s suppression of evidence if that ruling is supported by substantial competent evidence. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). The trial court’s decision will be upheld even if it is found that the court reached the right result for the wrong reason. Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985).
The State argues the search of the Damm vehicle was lawful, relying upon New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981); State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); State v. White, 230 Kan. 679, 640 P.2d 1231 (1982); and State v. Press, 9 Kan. App. 2d 589, 685 P.2d 887, rev. denied 236 Kan. 877 (1984). The facts of each of these cases make them readily distinguishable from the case at hand.
Belton involved the stop of a speeding car. The officer asked the driver for his license and the automobile registration. He discovered that none of the occupants owned the vehicle or were related to the owner. Meanwhile, he smelled the odor of burnt marijuana and saw an envelope marked “Supergold” on the floor of the car; he associated the envelope with marijuana. He directed the four occupants to get out of the car and arrested them for possession of marijuana. He then patted them down, picked up the envelope and found marijuana inside, and proceeded to search the passenger compartment of the vehicle. He found cocaine in the pocket of a jacket which was lying on the back seat. The United States Supreme Court found the search constitutionally valid, and laid down the following “bright-line” rule: “[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460. The court went on to say “that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” 453 U.S. at 460.
The facts in both Deskins and White distinguish those cases from this one. In Deskins, the defendant was stopped at a roadblock set up for the purpose of checking drivers’ licenses. An officer asked for the defendant’s license, examined it, and found it to be in order. He could smell a strong odor of some type of alcoholic beverage on defendant’s breath and noted that his eyes were bloodshot and watery. The officer asked the defendant to step outside where sobriety tests were administered, after which the defendant was arrested and moved to a police car. Another officer moved the defendant’s car out of the check lane and either he or another officer searched the passenger compartment of the vehicle and found marijuana in the glove compartment. We first determined that the roadblock was lawful and thus the initial stop or seizure was not constitutionally invalid. We then held that “the officer had sufficient reason and probable cause to place defendant under arrest when it appeared he was under the influence of alcohol. The arrest of the defendant being lawful, the search of the passenger compartment of his automobile was also lawful.” 234 Kan. at 543.
In White, a robbery occurred during the early morning hours. A description of the lone robber, the escape vehicle, and a partial license number was broadcast within minutes. While the broadcast was being made, an officer observed a car matching the description leaving the general area of the crime. A high-speed chase ensued; the defendant was arrested after his vehicle was rammed by a police car. Following the removal of the defendant from his car, the officer reached into the vehicle and seized a jacket and cap lying on the front seat. These matched the description of those worn during the robbery. Citing Belton, we upheld the search as being a contemporaneous incident of a lawful arrest.
Press involved the stop of a weaving car. The trooper observed the vehicle on a four-lane street with a center turn lane. It was weaving back and forth into the center turn lane and into the outside lane without giving turn signals. The car then stopped for a traffic light which was green for its lane of travel. The trooper stopped the car and asked the driver to perform field sobriety tests. The driver’s responses indicated he was inebriated. The trooper also smelled a mild odor of alcoholic beverage on the driver’s breath. At that point, he arrested the driver for driving while under the influence of alcohol, took him into custody, handcuffed him, and placed him in the patrol car. The officer then searched the vehicle for a bottle. He found an empty wine bottle, marijuana, and drug paraphernalia. The trial court suppressed the evidence found in the search; the Court of Appeals reversed and sustained the search as valid. The Court of Appeals relied upon Belton and upon our opinions in Deskins and White.
Belton and White were plain view cases; contraband or clothing similar in description to that worn in a robbery were in plain view of the arresting officer. Press and Deskins were DUI cases in which an intoxicated driver was removed from a vehicle. All four cases involved lawful arrests and all four vehicle searches were reasonable.
This case is different. While Damm was properly stopped and checked for the defective taillights, it was improper to seize him for the amount of time it took to run a check on every passenger in the car with him. An individual is “seized” when an officer restrains his freedom, even if the detention is brief and falls short of arrest. The Fourth and Fourteenth Amendments prohibit unreasonable seizures as well as searches. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). The scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Otherwise, the driver of a carload of people on the way to work, the driver of a vanload of people on the way to a ball game, or the driver of an intercity bus loaded with passengers, when stopped for a defective taillight, could be detained for an inordinate amount of time while the officer runs record checks on every passenger aboard.
The officer in this case had no reasonable suspicion that there were outstanding warrants for the passengers. He had no report of the commission of a crime, saw nothing within the car which would indicate to him that the occupants had committed any offense, and had no reasonable justification for requiring identi fication of the passengers and running record checks on them. The seizure of the three occupants of the vehicle while “routine record checks” were made of all occupants was unreasonable. See State v. Epperson, 237 Kan. at 712-13.
Without the unreasonable detention, the officer had no reason to arrest Smidl or the Damms. Without the arrest, there could be no search. Without the search, there was no evidence against Damm. The detention and search being unlawful, the evidence is inadmissible as fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); State v. Epperson, 237 Kan. at 719.
Similar principles were involved in Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979). There, the United States Supreme Court held a search warrant issued on probable cause authorizing police officers to search a tavern and its bartender did not give them authority to seize and search the patrons of the bar. The officers had no reason to believe the patrons to be armed and dangerous, or to believe they were engaged in criminal activity. The court held each individual is “clothed with constitutional protection against an unreasonable . . . seizure,” which may not be denied by the individual’s “mere propinquity to others independently suspected of criminal activity.” 444 U.S. at 91.
Under the facts of this case, the judgment of the district court suppressing the evidence was proper. The judgment is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
Gary Lee Hall appeals from his convictions of first-degree murder and two counts of theft.
The issues considered in the context of this criminal appeal are: (1) Was the information defective? (2) Did the trial court err in admitting evidence of Hall’s prior crimes and bad character? (3) Did the trial court err in limiting cross-examination of the State’s major witness (Hall’s ex-wife)? (4) Did the trial court err in failing to instruct the jury on unlawful deprivation of property and in giving supplementary instructions on a question raised during deliberations? (5) Was defendant denied effective assistance of counsel? We have considered the defendant’s pro se brief as well as the briefs filed by counsel for defendant and for the State.
We reverse Count II, the theft of cattle, because we find the State’s failure to allege that Hall intended permanent deprivation resulted in the omission of an essential element of the crime from the information. We affirm all other issues. We also address in some detail, in the later portion of the opinion, the question of defective information claims and establish a new prospective rule for testing such claims when raised for the first time on appeal.
Facts
On February 4, 1984, Delbert Angleton was assigned to haul a load of cattle to Leoti, Kansas. He was driving a Kenworth tractor and an American Livestock trailer belonging to his employer, Star-Kan Truck Lines. A fellow truck driver encountered Angleton in the early morning hours of February 5, 1984, on Highway 54 approximately 25 miles west of Wichita. He and Angleton spoke on the citizens’ band (CB) radio. Angleton was going west. The usual route to Leoti was west from Wichita on Highway 54. Angleton did not arrive in Leoti on February 5, as had been anticipated.
Ten or twelve days later, the rig that Angleton had been driving was found in Cheyenne, Wyoming. A fellow employee was sent to pick it up. The employee suspected that someone other than Angleton had driven the truck because the clutch was “roughed up,” the cab had been cleaned up, and the radio was set on a country western station. Angleton never listened to country western music; he enjoyed “acid rock.” The trailer had been “dollied down” (unhooked from the truck) while it was still loaded, causing damage to the trailer. Cattle trailers are not built to withstand such treatment. It is unusual to dolly down a loaded cattle trailer.
Gary Lee “Blue” Hall, the defendant, had lived on a ranch in Oregon since 1979. Prior to purchasing the Oregon ranch, Hall had lived in Gove County, Kansas.
James Woodward was a neighbor of Hall’s in Oregon. In 1982, Woodward’s daughter Roberta began working for Hall. Hall’s wife, Judy, left on a trip to visit relatives in Kansas. During the time Judy was gone, Hall began an affair with Roberta. Upon Judy’s return, the Halls were divorced. Roberta moved into , the ranch house, married Hall in the summer of 1983, and gave birth to a baby girl in August 1983. Roberta and Hall were divorced in 1985.
James Woodward testified that in February 1987 Roberta confessed to him that she and Hall had stolen a load of cattle in Kansas. Roberta told her father that Hall had killed the trucker hauling the cattle and buried him on the Oregon ranch. According to Woodward, Roberta begged her father not to go to the authorities because she said that Hall would kill her. Woodward subsequently contacted an attorney, who arranged a meeting for Woodward and Roberta with the Oregon authorities. Roberta was given immunity in exchange for her cooperation with the police.
Roberta Woodward’s Story
Roberta accompanied Hall on a trucking trip to Houston, Texas, in 1984. On their way to Texas, they stopped in Kansas and visited Hall’s friends, the Yales.
Judy Yale testified that Roberta and Hall did visit them in Kansas sometime in 1984. Yale also testified that Roberta, during the visit, had given her a picture of Heather, Roberta’s and Hall’s daughter. Judy produced the photograph, which was inscribed on the back, “Heather Lee, seven and a half months, April 1984.” Later testimony, however, indicated that Hall could not have visited the Yales in April 1984 because his truck had been confiscated in March 1984 and he did not purchase a new truck until August 1984.
The State produced documents indicating that Hall had unloaded apples in Houston, Texas, on January 31, 1984. Roberta identified Hall’s signature on the bill of lading and her own handwriting on a document for Hall’s broker. After unloading in Texas, Hall was unsuccessful in attempting to find a return load. They drifted around for a few days, following other trucks in the attempt to find a load.
On the evening of February 4, 1984, the two spent the night in the truck in Dodge City, Kansas. The next morning, Hall told Roberta that he had found a load (a cattle truck) that “looked good” and he was going to follow it.
After they passed Garden City, Hall asked Roberta to drive and to overtake the cattle truck. She began talking on the CB radio to the driver of the cattle truck, whose CB name was “Hangnail.” Delbert Angleton’s CB name was “Hangnail.” Hall told Roberta to stop the other trucker. She asked Angleton if he would like to “smoke one” (meaning smoke some marijuana). Both trucks pulled into an abandoned refinery near Scott City, Kansas. Angleton joined Roberta in the cab of Hall’s truck and smoked marijuana with her. Hall was in the sleeper and began acting like he was waking up. Roberta said that she saw a pistol come out from the sleeper and, as she turned her head away, two shots were fired. Angleton died immediately. Roberta suffered some loss of hearing due to the gun discharging so close to her head.
Hall pushed Angleton’s body down in the seat and put a sleeping bag over it. Hall told Roberta that they had to get out of there. Hall drove the cattle truck, and Roberta followed him in Hall’s truck. The two later stopped on a dirt road north of the Smoky Hill River and put Angleton’s body in Hall’s reefer trailer. They stopped for gas a couple of times and ended up at a truck stop in Cheyenne, Wyoming. Hall removed the trailer from his tractor and hitched Angleton’s cattle trailer on the back of Hall’s tractor. Roberta covered the holes in Hall’s trailer so that no one could see Angleton’s body. That trailer and the truck which had pulled the cattle trailer were left at the truck stop, and Hall and Roberta headed for Oregon.
•As soon as they arrived back at the ranch in Oregon, Hall began unloading the cattle off Angleton’s trailer. They spent the night at home, showered, and then drove back to Cheyenne. The trailers were switched again and they returned to Oregon, leaving the empty cattle truck/trailer at the truck stop. The next day, Hall called a neighbor and asked him to come dig a hole in which to bury some dead cows. The cattle were dumped in the hole. Hall then transported Angleton’s body to the hole and dumped it in. Hall instructed Roberta to cover the body so that the neighbor would not see it when the hole was filled. Hall went down the road to make sure nobody came while Roberta shoveled dirt over the body.
Hall’s Story
Hall drove straight through from Oregon to Houston. He was drinking whiskey and taking amphetamines to stay awake. Roberta frequently smoked marijuana during the trip. After dropping off the load of apples in Houston, he attempted, during the next two days, to locate a return load either in Houston or Dallas, but was not successful. Roberta continued to smoke marijuana.
The couple drove to Oklahoma City, arriving in the early morning hours of February 3. Failing to find a return load in Oklahoma City, they headed toward Dodge City, Kansas. In Dodge City, Hall again checked for a load to haul to the Northwest. From Dodge City, the couple traveled to Oakley, where Hall saw an acquaintance who had secured a load out of Garden City. Hall had planned to visit his mother in Quinter, Kansas, but changed his plans when he and Roberta fought about the visit. They returned to Dodge City in the early morning hours of February 4.
They stayed at the Dodge City truck stop throughout the day on February 4, because Hall had information that he could have a load on Monday. According to Hall, he and Roberta had another fight that evening. She wanted to go out and “party,” but he would not go. That night, he slept in the driver’s seat of the truck and Roberta slept in the sleeper.
At some point in the middle of the night, Roberta woke Hall and told him to follow her. She entered another truck, which then pulled out of the truck stop, going west. Hall testified that the other truck was a “bull wagon.” He had no idea why his wife entered the other truck and wanted him to follow the truck. He followed the other truck through Garden City and north toward Scott City. Both trucks then stopped at an abandoned refinery, and Roberta, Hall, and “Hangnail” (Angleton) sat in Hall’s truck and talked. Roberta told Angleton that Hall was thinking of hiring a driver, and Angleton said he was interested in working for him. Roberta then lit up some marijuana. Angleton admired Hall’s truck, and Roberta asked Hall if he would let Angleton drive it.
When they left the refinery, Angleton was driving Hall’s truck with Roberta as a passenger and Hall was driving Angleton’s truck. They stopped again north of Scott City near a John Deere dealership. Angleton said that he wanted to visit with Hall. Hall rode with Angleton in Angleton’s truck and Roberta followed in Hall’s truck. They next stopped at the Gove/Orion road. During the drive, Angleton had asked Hall if Hall could pasture the cattle for him.
Roberta and Angleton were planning to take Angleton’s load of cattle to Oregon, but Hall advised against it. As the three of them were standing and talking on the Orion road, a car passed by. Angleton and Roberta decided to go in Hall’s truck so they could plan what they were going to do, and Hall followed in Angleton’s truck. They next stopped at a truck stop in Goodland, Kansas. At this time, Hall told Angleton that Angleton could take Highway 27 south to Leoti and to forget all about the plan with Roberta, but Roberta told Hall to stay out of it. When they left the truck stop, Hall was driving Angleton’s truck again and Angleton was driving Hall’s truck.
They stopped one more time to transfer fuel from Hall’s truck into Angleton’s truck, then headed north toward the Nebraska state line. After that stop, Roberta was driving Hall’s truck. Hall followed in Angleton’s truck. Roberta moved way ahead of Hall and he didn’t see them again for about 30 miles. The next time Hall saw his truck, it was parked at a highway rest area in Nebraska. Hall drove on by because they had agreed to meet at a truck stop on the Wyoming/Nebraska border. When he arrived at the Wyoming truck stop, he went to sleep in the truck. Some time later, he was awakened by Roberta, who was crying and “high.”
Hall went to his truck, opened the driver’s door, and discovered Angleton’s body on the passenger side covered with a sleeping bag. Hall became ill. When he asked Roberta what had happened, she said that she had done it for him and that it would not have happened if he had not left.
Roberta told Hall that, if he would take the cattle and cover up the killing, she would promise to give up drugs and be a better wife and mother. Hall said that he and Roberta had fought many times about her drug use. Hall then moved Angleton’s body to the back of his reefer trailer and tried to clean up the cab of his truck. He said that Roberta had to help him move the body because he could not lift it by himself.
Hall’s testimony as to what occurred later was substantially similar to Roberta’s version of the facts. At the Cheyenne truck stop, they traded trailers and took the cattle to the Oregon ranch. Hall testified that, as they were driving from Cheyenne to Oregon, Roberta produced Angleton’s wallet and gave him the money out of it.
Hall testified that he called a neighbor to dig the hole. He and Roberta took Angleton’s body from the reefer trailer and put it in the trunk of their car. According to Hall, he made Roberta take the body to the hole and bury it by herself because, “It wasn’t my deal. It made me sick to even be around it.” After Roberta had disposed of the body in the hole and covered it with dirt, Hall and the neighbor dumped the dead cattle in the hole and filled it back in.
Both the State and the defense had stipulated that the body exhumed on the Hall ranch was the body of Delbert Angleton. On cross-examination of Hall, the State produced a transcript of Hall’s original statement after his arrest. Several statements made by Hall at the time of his arrest conflicted with statements made at trial.
A witness testified that he was driving down the Gove/Orion road on the morning of Sunday, February 5, 1984. He said he saw two trucks parked on the road. One was a Kenworth cab-over with a cattle trailer and the other was a cab-over with a dry box. Angleton’s truck was a Kenworth cab-over, but Hall’s truck was a conventional, not a cab-over, and had a refrigeration unit, not a dry box. The witness testified that he remembered the incident because he used to drive a truck and although cattle trucks were common in the area, one rarely saw freight trucks. He also testified that it was unusual to see a “freight box” and a “bull wagon” traveling together. The witness saw two men standing by the trailer, and he thought he saw a third person step behind one of the trucks as he drove by. He was absolutely sure the two he saw were men. The witness’ testimony was corroborated by a passenger in the witness’ car.
A second passenger in the car testified that the two men were cleanshaven. Both Angleton and Hall had full beards in February 1984. None of the three passengers in the car saw the third person described by the driver. The four witnesses were in agreement that the two persons were definitely cleanshaven men and that both trucks were cab-overs.
The testimony of medical experts indicated that Angleton suffered two bullet wounds from an Amadio-Rossi .38 caliber revolver. Hall had previously owned such a revolver and had kept it in the sleeper of his truck for protection. Woodward testified that his daughter is a good shot. The testimony of the physician who performed the autopsy indicated that Angleton had been shot twice in rapid succession while sitting down and that the shots had been fired from behind and slightly above him.
The State called an acquaintance of Hall, who had accompanied him on long trips. The defense moved in limine to preclude any testimony by the acquaintance as to Hall’s prior criminal activity. The court allowed both parties to question the acquaintance outside the presence of the jurors in order to make a determination of the admissibility of his testimony. The acquaintance testified to an incident in Georgia in which Hall followed another truck with the stated intention of killing the driver and stealing his truck. The acquaintance also testified as to an incident in which he, Hall, and another individual went to Nevada and stole a truck. The truck which was stolen was the one that Hall was driving at the time of Angleton’s murder and which was subsequently confiscated in Missouri as stolen.
The trial court ruled that the testimony as to the theft of the truck in Nevada was to be excluded as having no bearing on the case. The court did, however, allow testimony as to the incident in Georgia because the incident was illustrative of some sort of plan, intent, design, or organization. The defense requested that a limiting instruction be given to the jury at the time of the acquaintance’s testimony. The trial court stated that such an instruction should be given at the close of all the evidence but that to give the instruction at the time of the testimony would call undue attention to that particular testimony.
The testimony of other witnesses will be described as necessary for a discussion of the issues raised in this appeal.
Prior Crimes
Hall contends that the trial court erred in allowing testimony regarding the incident in Georgia. If the testimony was properly admitted, Hall claims the trial court should have given a contemporaneous limiting instruction at the time of the testimony. In addition, Hall argues that testimony regarding the fact that he was driving a stolen truck at the time of the crime and testimony indicating that he had stolen cattle in the past was unduly prejudicial and requires reversal.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Keith Malaney, an acquaintance who was a fellow trucker, testified that he and Hall were driving from Atlanta, Georgia, to North Carolina to pick up a load in November 1983. At some point during the drive, a new model International truck passed them. According to Malaney, both he and Hall commented that it was an attractive truck. The driver of the new truck spoke on the CB radio and told Hall and Malaney that he would like someone to drive for him for awhile so he could sleep as he had driven straight through from the West Coast.
According to Malaney, Hall wanted to “eliminate” the driver of the new truck and take the truck back to Oregon. Malaney testified that Hall attempted to catch up with the truck, but that Malaney wanted to stop and use the restroom. Hall argued about that but eventually stopped so that Malaney could relieve himself. After they had stopped, Malaney said that Hall drove at an excessive speed trying to catch up with the other truck. Malaney testified that Hall had a shotgun and a pistol in the truck.
The State moved to have the testimony at issue introduced pursuant to K.S.A. 60-455. Hall filed a motion in limine to preclude any testimony by Malaney as to Hall’s prior criminal activity or actions. The defense did not renew its objection to the testimony at the time that Malaney testified before the jury. “When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.” Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1138 (1985).
“Admissibility of other crimes under 60-455 is to be determined by the trial judge prior to the trial and outside the presence of the jury. [Citation omitted.] In ruling on the admissibility of the proffered evidence, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine that fact is a disputed, material fact; and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury.” State v. Breazeale, 238 Kan. 714, 719, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986).
In Breazeale, the defendant had been convicted of similar crimes in Colorado. It should be noted, however, that K.S.A. 60-455 does not require that the defendant be convicted of the crime or civil wrong at issue. The State contends that the testimony regarding the incident in Georgia was relevant to prove that Hall had a plan to kill a truck driver and steal his load. This was a disputed, material fact, as Roberta testified that Hall was driving around Kansas with such a plan in mind, whereas Hall asserted that he was driving around attempting to find a legal load to haul back to the Northwest.
Both parties cite State v. Marquez, 222 Kan. 441, 446-47, 565 P.2d 245 (1977):
“Plan refers to an antecedent mental condition that points to the doing of the offense or offenses planned. The purpose in showing a common scheme or plan is to establish, circumstantially, the commission of the act charged and the intent with which it was committed. Strictly speaking, the exception is limited to evidence which shows some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan or scheme directed toward the doing of the offense charged.”
Roberta testified that Hall spotted Angleton’s truck and instructed her to follow it; that Hall told her to engage Angleton in conversation on the CB radio and to get him to pull over somehow. Malaney testified that Hall spotted the International truck, began following it, and talked to the driver on the CB. The opportunity to have the driver pull over presented itself when the driver said that he would like someone to drive for him for awhile. The incident in Georgia, therefore, appeared to be relevant to the issue of plan. See Slough, Other Vices, Other Crimes: Kansas Statutes Annotated Section 60-455 Revisited, 26 Kan. L. Rev. 161, 165 (1978).
The trial court did not abuse its discretion in determining that testimony regarding the incident in Georgia was admissible for the purpose of showing a plan on the part of Hall. See Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
The Limiting Instruction
Hall contends that the court erred in not giving the limiting instruction contemporaneously with Malaney’s testimony. The court did give a limiting instruction in accordance with PIK Crim. 2d 52.06 at the close of the trial. PIK Crim. 2d 52.06 was approved by this court in State v. Williams, 234 Kan. 233, Syl. ¶ 2, 670 P.2d 1348 (1983). The Williams opinion did not specify whether the instruction was given contemporaneously or at the close of all the evidence.
Hall cites two cases in which a limiting instruction was given contemporaneously with the K.S.A. 60-455 evidence. State v. Clements, 241 Kan. 77, 85, 734 P.2d 1096 (1987); State v. Gourley, 224 Kan. 167, 169, 578 P.2d 713 (1978). Neither of these cases, however, mandates that the instruction is to be given contemporaneously. Although there are numerous cases construing K.S.A. 60-455, we have not adopted a rule that a limiting instruction must be given contemporaneously with the evidence at issue. The comments to PIK Crim. 2d 52.06 are silent as to this issue.
In State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988), we stated:
“Jury instructions are to be considered together and read as a whole, without isolating any one instruction. [Citation omitted.] If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.”
We believe the timing of any limiting instruction is best left to the discretion of the trial court.
The Other Crimes
Hall contends that the trial court erred in allowing the State to elicit testimony that Hall was driving a stolen truck and that Hall had stolen cattle from his neighbors.
In the State’s case in chief, Roberta testified that she and Hall had stopped to visit the Yales on the way to Houston in January 1984. The defense attempted to erode Roberta’s credibility by showing that the visit to the Yales occurred in April 1984, not January. Loren Porter testified that it would have been impossible for Hall to have visited the Yales in Hall’s truck in April because the truck had been confiscated as stolen in March 1984. This testimony was given the second time Porter testified and, at that time, the defense did not object to the testimony.
Porter, however, had previously testified that in March 1984 he was hauling a load for Hall when Porter was stopped in Oak Grove, Missouri. Hall’s truck was confiscated as stolen. This testimony was heard after Judy Yale had testified regarding the photograph of Hall’s daughter with the April 1984 date. At that time, the defense strongly objected to the line of questioning. The court ruled:
“Well, I’m going to find at this time that there is no evidence that it’s even trying to come in under 60-455. That this witness is testifying as to his relationship with that truck, and his relationship with Mr. Hall as an employer. And, at this time that that’s proper over the objection of the [defendant]. And, I’m going to call the jury back in and permit Mr. Porter to testify. ”
The State also presented a Missouri state trooper as a rebuttal witness. The trooper testified that on March 14, 1984, he was dispatched to a weigh station to investigate a stolen truck. The trooper identified the driver as Porter. At no time did the trooper testify that Hall actually stole the truck, merely that the truck was confiscated as stolen. Hall later testified that Porter called him from Missouri and told him that at least one other truck had been detained in Missouri and that Hall was never summoned to Missouri on the matter.
Hall contends that the admission of this testimony violated the rules set forth in State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). Bly, however, was a case interpreting K.S.A. 60-455. The trial court in Hall’s case specifically stated that the testimony was not coming in under K.S.A. 60-455. Hall opened the door to the testimony regarding confiscation of the truck by attempting to impeach Roberta’s testimony that they had visited the Yales on the same trip in which Angleton was killed. Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may be offered to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. State v. Weigel, 228 Kan. 194, Syl. ¶ 9, 612 P.2d 636 (1980).
Hall next asserts that the admission of testimony that he had stolen cattle from his neighbors was highly prejudicial and erroneous. The State contends that Hall opened the door to this line of questioning.
Hall called his sister, Denise, to testify on his behalf. Denise testified as to the good relationship Hall had with his daughter. Denise testified that, shortly after Christmas 1985, Hall had a blind heifer which he took to Roberta’s house for Roberta to take care of. The heifer was intended as a gift to Hall’s daughter, Heather. The defense also recalled Roberta as a defense witness and elicited testimony from her regarding the gift of the blind heifer. Defense counsel asked Roberta if the blind heifer was one of the ones from Angleton’s truck. On cross-examination, the State elicited Roberta’s story of “at least five” other cattle that Hall had “gathered up” from the neighbor and said he would give to Heather; however, Hall sold them. “When the defendant opens a subject on direct or cross-examination, the State may develop and explore various phases of that subject.” State v. Chatmon, 234 Kan. 197, 203, 671 P.2d 531 (1983).
Defense counsel made no objection to the testimony concerning the “gathered up” cattle.
Hall’s Bad Character
Hall testified at length concerning his background, education, employment, family, marriages, and his ranching operations. He testified that: (1) his brother is a former sheriff of Gove County, Kansas; (2) his mother, grandmother, aunt, uncle, brother, and sister were all present at the trial; (3) his mother hand-makes all his shirts;, and (4) his ranch was a profitable operation of a certain size with a certain number of cattle. We agree with the State’s contention that Hall went beyond basic biographical information. He attempted to portray himself as a good Kansas farm boy, a family man, and a successful rancher.
We interpreted K.S.A. 60-447(b) in State v. Stokes, 215 Kan. 5, 7, 523 P.2d 364 (1974). We recognized that, where the accused testifies on his or her own behalf, the biographical data will naturally be more extensive than that of an ordinary witness. We stated:
“He is entitled, like any other witness, to let the jury know who he is so that it may properly fit him into the pattern of events brought out at the trial. Of course, when the testimony of either the defendant or any other witness for the defense goes beyond those bounds and attempts to characterize the defendant’s past life as blemish-free, or makes reference to specific prior incidents, he foregoes to that extent the protection of the statute.” 215 Kan. at 7.
Hall specifically objects to evidence presented by the State that his first wife had an abortion prior to their marriage and that she divorced him out of fear because he shot her dog and beat a cow to death. Although the testimony about the abortion is prejudicial and not relevant to the issues in this case, it should be noted that the defense did not object to this question. The defense did object when the State asked Hall if his first wife was pregnant at the time of their marriage. The court overruled the objection when the State pointed out that defense counsel had spent several hours going over Hall’s background. The defense also did not object to the cross-examination of Hall regarding the beating of cattle and the shooting of his first wife’s dog. Hall admitted that his first wife left him, partly because he shot her dog with a .44 magnum pistol.
Cross-Examination of the State’s Major Witness
Hall next contends that the trial court erred in limiting the testimony regarding Roberta’s drug use. Hall asserts that this information was vital for the purposes of impeaching Roberta’s credibility, establishing a motive on her part for the theft and murder, and establishing a motive for Hall to conceal the crime. The State had moved in limine to prohibit the defense from inquiring into Roberta’s drug use or any indebtedness she had to any drug dealers. The trial court ruled:
“[Ujnless inquired into by plaintiff, the use, sale, possession, consumption of illegal drugs by Roberta Woodward shall not be the subject of cross examination by defendant. Defendant is prohibited from cross examining Roberta Woodward about her use, possession or consumption of marijuana and other illegal substance except as to matters disclosed by the plaintiff’s direct examination. This order in no way limits or restrains defendant’s right to call Roberta Woodward as a defense witness and examine her accordingly as to any matter providing the matter is within the Kansas Rules of Evidence as provided in K.S.A. 60-401 et seq.”
A. Credibility
It has long been the rule in this state that drug offenses are not crimes involving dishonesty and, therefore, cannot be admitted for the purpose of impeaching the credibility of a witness. State v. Crowley, 220 Kan. 532, 552 P.2d 971 (1976). During direct examination, Roberta testified that she had smoked marijuana with Angleton prior to the murder. On cross-examination, the defense questioned her at length concerning the use of marijuana. Hall was permitted to testify that Roberta smoked marijuana frequently on the haul to Houston and that she purchased more marijuana in Denton, Texas. The jury was therefore able to consider Roberta’s marijuana use at the time of the crime charged in determining the reliability of her testimony and the accuracy of her memory.
B. Motive
The defense sought to admit evidence that Roberta had a past history of heavy drug use and that Hall had agreed to help her conceal the crime because she promised to give up drugs. The defense also sought to admit evidence as to an incident that occurred subsequent to Angleton’s murder in which Roberta allegedly attempted to injure or kill Hall while she was on drugs. The trial court stated:
“Unless you can show at the time that this alleged crime occurred that some form of drug use either by the defendant or by [Roberta] Woodward directly attributed to this crime occurring you’re not going to impeach her credibility as a witness solely upon her prior drug abuse. And, my order and the motion in limine stands. Your proffer is duly noted for the record. You can certainly inquire as to her drug abuse if you can tie it into this time frame and how it affected this crime on the days and times in question as I so ruled.”
Hall was permitted to testify that Roberta was “high” at the time of Angleton’s death. He also testified that he said to her, “See what your drugs have got you into now?” He testified that Roberta told him if he helped her conceal the murder, she would quit using drugs. Hall said that her drug use had been a big issue in their marriage. Hall testified that, after they had buried the body, they continued to argue because Roberta did not stop her drug use. At that point of the trial, the State objected and the jury was excused during a discussion between the court and counsel. The court held that Roberta’s drug use subsequent to the crime charged was too far removed in time to have any probative value.
The court, however, did allow some testimony regarding an incident in which Hall was either pushed or jumped from a moving vehicle which Roberta was driving while she was “high.”
State v. Ralph, 217 Kan. 457, 537 P.2d 200 (1975), involved an armed robbery of a drugstore in which a large quantity of narcotics was taken. We held that: (1) evidence that the defendant was a narcotics addict was admissible to show motive as only narcotics were taken, not money; and (2) narcotics addiction is not a character trait pursuant to K.S.A. 60-447 and may be shown where relevant regardless of whether the defendant has put his character in issue.
As the State points out in its brief, no evidence of Roberta’s good character was presented. The defense was able to present testimony by both Hall and Roberta herself that indicated she had a drug problem. The defense made no proffer of evidence of Roberta’s alleged debts to drug dealers, which was her alleged motive for murdering Angleton. See K.S.A. 60-405. The trial court did not err in limiting the evidence of Roberta’s drug use.
Defects in the Complaint
A. The Theft of Cattle Charge
Hall contends that his conviction for count II was void because the complaint failed to allege that he took control of the cattle with the intent to permanently deprive the owner of their possession.
Hall was convicted under K.S.A. 1984 Supp. 21-3701, which states in part: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property.” Hall contends that the intent to permanently deprive the owner of possession is an essential element of theft and, therefore, the complaint was insufficient as to count II. It should be noted that count III, which contained the charge for the theft of the truck and cattle trailer, did allege the intent to permanently deprive the owner. Count II, regarding the theft of the cattle, failed to allege that the intent was to permanently deprive, but it did state that the defendant was being charged pursuant to K.S.A. 21-3701, a class E felony. We have held that the citation to the statute cannot substitute to supply a missing element of the charge, and that incorporations by reference cannot be implied and will not be inferred but must be explicit. State v. Jackson, 239 Kan. 463, 466, 721 P.2d 232 (1986). Count II stated:
“[Gary Lee Hall did] unlawfully, feloniously, and willfully obtain or exert unauthorized control over property; to wit: 75 head of yearling steers and with the intention to deprive the owner, to wit: Russell McKee, and/or Randy Beggs, of the possession, use, or benefit of said property of a value of more than One Hundred Fifty Dollars ($150.00) in violation of K.S.A. 21-3701, a Class E Felony.”
There was no K.S.A. 22-3201 incorporation by reference between Counts II and III. Under our reasoning in Jackson the inclusion of “to permanently deprive” in Count III does not cure its omission in Count II. Jackson, 239 Kan. at 466.
The jury was properly instructed on Count II. The instruction on the theft of the cattle included the element of permanency. We have also held, however, that a proper instruction does not remedy the defect. State v. Howell & Taylor, 226 Kan. 511, 513, 601 P.2d 1141 (1979). Under our past holdings the intent to permanently deprive the owner of possession is an essential element of the crime of theft and, therefore, Count II of the information did not sufficiently charge the offense of theft. See State v. Browning, 245 Kan. 26, 774 P.2d 935 (1989) (malice is an essential element of second-degree murder). There can be little doubt of what the State intended to charge in Count II. The theft statute was specifically mentioned. However, we have held that an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective and a conviction on that offense must be reversed. State v. Wilson, 240 Kan. 606, 607, 731 P.2d 306 (1987). The information does not charge theft in Count II. Our past precedent requires a reversal as to Count II.
B. The Felony-Murder Charge
Count I of the information read as follows:
“[Gary Lee Hall did] unlawfully, feloniously, willfully, and maliciously, deliberately and with premeditation, kill and murder a certain human being, to wit: Delbert W. Angleton, by shooting the said Delbert W. Angleton with a 38 caliber hand gun, or that the said Delbert W. Angleton was killed while the said Gary Lee Hall perpetrated or attempted to perpetrate a felony crime to wit: the theft of cattle and a cattle truck, all in violation of K.S.A. 21-3401, a Class A Felony.”
Hall contends that Count I is defective because it fails to specify a felony that is inherently dangerous to human life and to specify the essential elements of the underlying felony. The issue of whether theft can be the basis for felony murder was discussed in State v. Lashley, 233 Kan. 620, 664 P.2d 1358 (1983). The question is whether theft is a felony which is “inherently dangerous to human life.”
Because the complaint did not specify under which section of 21-3701 Hall was charged, he contends that it did not charge an underlying felony that was inherently dangerous to human life.
In Lashley, the defendant’s conviction of felony murder was affirmed. The evidence was that the defendant took the victim to a remote wooded area and shot him. Lashley’s first-degree felony-murder charge was based upon the theft of property belonging to the deceased Robbins. The court held: “Theft by obtaining or exerting unauthorized control over property, K.S.A. 21-3701(a), and obtaining by threat control over property, K.S.A. 21-3701(c), when considered in the abstract, are felonies inherently dangerous to human life and will sustain a conviction for murder in the first degree under the felony murder rule.” State v. Lashley, 233 Kan. 620, Syl. ¶ 12.
In State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978), the defendant was charged in the information with first-degree premeditated murder. The evidence at trial established that the victim had been shot when the defendant went looking for her and entered the victim’s mother’s house without permission. Although the defendant was charged with first-degree premeditated murder, the trial court also instructed the jury on felony murder, using aggravated burglary as the underlying felony. The defendant had not been charged with aggravated burglary. This court stated:
“Our court has held an information in the ordinary form charging that a killing was done with malice aforethought, deliberation and premeditation is sufficient to sustain a conviction of murder in the first degree committed in the perpetration of a robbery or burglary. [Citation omitted.] Therefore, the fact that felony murder was not charged in the information does not preclude an instruction where evidence supports the instruction.” 224 Kan. at 566.
The same issue was raised in State v. Murdock, 236 Kan. 146, 154, 689 P.2d 814 (1984). The defendant was charged with premeditated murder in the information but the evidence at trial indicated that the victim’s apartment was broken into and she was raped, strangled, and robbed. The trial court gave an instruction on felony murder.
In Hall’s case, the jury was instructed on both premeditated murder and felony murder. Hall does not contend that the information was insufficient as to the charge of premeditated murder.
The offense of felony theft by obtaining unauthorized control over the property of another, as set forth in the court’s instructions, is a felony, when viewed in the abstract, inherently dan gerous to human life, and is a proper felony to sustain a conviction for murder in the first-degree under the felony-murder rule.
We have previously ruled that a defendant need not be charged with or convicted of the underlying felony in order to be convicted of felony murder. State v. Wise, 237 Kan. 117, 122, 697 P.2d 1295 (1985). Hall appears to think that it was necessary for the State to include every element of the underlying felony in order to sufficiently charge felony murder in the information. Count I clearly stated that the felony murder was done in the perpetration of the theft of cattle and a cattle truck. Read in conjunction with Count III, there could be no doubt as to which theft the State referred. Under the Foy rule, the State did not even have to charge Hall with felony murder or theft as long as it charged him with premeditated murder. Under the Wise rule, the State did not have to charge Hall with theft to sustain the felony-murder conviction.
Unlawful Deprivation of Property
Hall next contends that the trial court erred in failing to instruct on the lesser included offense of unlawful deprivation of property as to count III, the theft of the truck and cattle trailer. Although defense counsel did request instructions on lesser included offenses of first-degree murder, he did not request any instructions on lesser included offenses of theft. Unlawful deprivation of property is a lesser included offense of theft.
K.S.A. 21-3107(3) states:
“In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
Hall contends that, because he did not keep Angleton’s truck but abandoned it in Wyoming, he had no intent to permanently deprive Angleton of the truck. According to Hall’s testimony, he was driving Angleton’s truck with Angleton’s permission up until Angleton’s death. Upon discovering Angleton’s death, Hall immediately abandoned the truck and only used the trailer for a couple of days to haul the cattle. According to Roberta, Hall killed Angleton with the intent to take his load of cattle. Roberta’s testimony indicated that Hall only used the truck and cattle trailer as needed to haul the cattle, then he abandoned them in Wyoming.
“The trial court has an affirmative duty to instruct on all lesser included offenses supported by the evidence. [Citations omitted.] Evidence supporting such an instruction must be considered in the light most favorable to the defendant. [Citation omitted.] The evidence need not be strong evidence — indeed, it may be weak and based only on the testimony of the defendant. [Citations omitted.] The test is whether the evidence might reasonably cause a jury to convict the defendant of the lesser charge. [Citation omitted.]” State v. Colbert, 244 Kan. 422, 427-28, 769 P.2d 1168 (1989).
In State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985), the defendant was convicted of stealing an automobile. The evidence indicated that the defendant attempted to hire a taxi to take him to a girlfriend’s house and that, when he could not book a taxi, he took the victim’s car. The car was found about a week later approximately two blocks from the defendant’s residence. The defendant argued that the evidence did not show an intent to permanently deprive the victim of the automobile but merely the “borrowing” of the car to visit his girlfriend and then go home. We noted that there was nothing to indicate the defendant intended to return the automobile at the time it was appropriated, and, during the several days before it was recovered, defendant made no effort to return the automobile or to alert the owners as to its whereabouts.
Keeler argued that it was error not to instruct the jury on the lesser offense of unlawful deprivation of property. The court held:
“It is well-settled in Kansas that the duty to instruct on lesser crimes arises only when there is evidence upon which a defendant might reasonably be convicted of the lesser crime. [Citation omitted.] Keeler took the stand and denied any involvement in the theft of the Sippels’ Toyota. The only version of the offense presented at trial was that offered by the State. Nothing is contained in the record to indicate any evidence was produced to show the defendant intended to restore the Toyota- to its owner. Under the theories presented at trial Keeler was either guilty of theft or not guilty.” 238 Kan. at 365-66.
In the case at bar, Hall did not deny having taken the truck and trailer. He contends, however, that he did not intend to take the truck permanently. There was no evidence presented to indicate that Hall attempted to restore the truck to its owner. Randall Beggs testified that the truck and trailer were recovered in Wyoming ten to twelve days after Angleton’s disappearance.
In State v. Warren, 221 Kan. 10, 557 P.2d 1248 (1976), the defendant had escaped from custody at the Salina Police Headquarters, where he had been brought in on a drug-related charge. The evidence indicated that the defendant had taken a flat-bed truck from a local lumber company to effect his escape. The truck was later abandoned at a motel in WaKeeney. This court held that it was not error for the trial court to fail to instruct on unlawful deprivation of property. “In the record presented, there is no evidence of any intent of defendant to restore the truck to its owner.” 221 Kan. at 13.
K.S.A. 21-3110(6) defines to “deprive permanently” as to:
“(a) Take from the owner the possession, use or benefit of his or her property, without an intent to restore the same; or
“(b) Retain property without intent to restore the same or with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return.” (Emphasis added.)
The Kansas theft statutes were discussed and analyzed in Wilson, Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385, 409-10 (1972). Failure to give the instruction on unlawful deprivation was not error.
Supplementary Instructions: Jury Deliberations
Hall contends that the trial court should have given supplementary instructions to the jury.
During deliberations, the jury sent the following note to the trial court: “Point three, if Randy Beggs’s truck was stolen for purpose of transporting stolen cattle and returned to a point unknown to Randy Beggs does this constitute theft of property?” The note referred to instruction number four, point three, which referred to Count III of the complaint: “That the defendant intended to deprive Randy Beggs, d/b/a Star-Kan Trucking, permanently of the use or benefit of the property.” The trial court asked counsel for comments or suggestions regarding the jury’s question. Defense counsel replied that he thought it best to instruct the jury to read all the instructions and not to pick out particular points. The State commented, “[T]he intent to permanently deprive is a question of fact to be determined by the jury from the evidence that it has heard.” Defense counsel replied that he did not think any one issue of fact should be singled out.
The court said: “Counsel, I would forward the following written response to the jury dated at 11-4-87, 5:30 p.m. ‘Members of the jury, it is for you to determine all issues of fact based upon the evidence and the law as given in these instructions. Signed J. Stephen Nyswonger. District Judge.’ ”
The court’s response to the jury’s question is not an abuse of discretion, as both counsel agreed to such response. Hall contends that the jury’s note indicates that the jury may have convicted Hall on the lesser charge of temporary deprivation had the court instructed it on such offense.
There must be some evidence to support a finding that the defendant intended to restore the property to its owner. Here, the property was abandoned hundreds of miles away, in another state. In Keeler, we held that there was no evidence of intent to restore where the property had been abandoned within the same city. 238 Kan. at 366. In Warren, the property had been abandoned 120 miles away from its original location. 221 Kan. at 11.
Effective Assistance of Counsel
Hall’s final contention is that he was deprived of effective assistance of counsel. He contends that his defense counsel had evidence that would make Hall’s testimony more plausible as it indicated that Angleton had a motive to steal his own load and that Angleton was involved in other illegal undertakings.
Defense counsel called two friends of Angleton’s, as well as Angleton’s mother, and attempted to elicit testimony that Angleton’s marriage was in trouble and that he was deeply in debt. This line of questioning was generally unsuccessful. The testimony indicated that Angleton had the same type of financial and marital problems that any average person might have. Russell McKee testified that Angleton had been hauling loads of his cattle for four or five years, with an estimated total of 700 loads. McKee said that he saw Angleton and his wife together shortly before Angleton left with the final load and that they had spent the night together at a motel prior to Angleton’s departure and seemed to be on good terms.
Hall admits that he has raised this issue for the first time on appeal. In State v. Van Cleave, 239 Kan. 117, Syl. ¶ 1, 716 P.2d 580 (1986), this court held: “In an appeal from conviction of a crime, the allegation that the defendant did not have effective assistance of counsel will not be considered for the first time on appeal.”
Allegations of a Defective Information Raised for the First Time on Appeal
We take this opportunity to express our concern relating to the number of appeals in Kansas in which the allegation of a defect in the information is raised for the first time on appeal. Our reference to “information” also includes “complaint” or “indictment,” as the pertinent Kansas statutes use the phrase “the complaint, information, or indictment.”
Initially, we address what appears to be the practice of drawing an information without having at hand the current statute defining the offense. If the statutory definition of the crime is present and utilized as the information is being drawn, it is unlikely that an essential allegation or element of the crime will be omitted. The frequency with which this court and the Court of Appeals are required to consider questions of claimed defects in informations suggests that certain prosecutors need to exercise more care in the initial preparation of the charging document.
We now turn to the explanation of our views with reference to claims of a defective information raised by the defendant for the first time on appeal.
The Rill of Rights in the Kansas Constitution requires that the accused be allowed to demand the nature and cause of the accusation. Kan. Const. Rill of Rights, § 10. A defendant cannot be charged in the information with one offense and be convicted of another and different offense which is not a lesser included offense of the crime charged when instructed upon pursuant to statute. State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983). The § 10 language is similar to the language of the Sixth Amendment to the United States Constitution, which extends to an accused the right “to be informed of the nature and cause of the accusation.” State v. Loudermilk, 221 Kan. 157, 159, 557 P.2d 1229 (1976).
The constitutional protections referred to are implemented by the requirements of K.S.A. 22-3201. The complaint, information, or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged and, when drawn in the language of the statute, shall be deemed sufficient. An information is sufficient if it clearly informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense and so that a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 (1982). It has long been the rule that the entire record of the proceedings, and not the indictment or information alone, may be referred to if there is a claim that a subsequent prosecution constitutes double jeopardy. 1 Wright, Federal Practice and Procedure: Crim. 2d § 125. We agree with the statement in 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 at 365, to the effect that the fundamental purpose of the pleading is to inform the defendant of the charge so that the defendant may prepare a defense. The test for sufficiency ought to be whether it is fair to require the defendant to defend on the basis of the charge as stated in the particular indictment or information. The stated requirement that every ingredient or essential element of the offense should be alleged must be read in the light of the fairness test just mentioned. The information is sufficient, even if an essential averment is faulty in form, if by a fair construction it may be found within the text. All parts of the pleading must be looked to in determining its sufficiency. 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 at 367.
Common sense will be a better guide than arbitrary and artificial rules. The sufficiency of an information should be determined on the basis of practical rather than technical considerations when addressed for the first time on appeal. State v. Wade, 244 Kan. 136, 766 P.2d 811 (1988); State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987); 1 Wright, Federal Practice and Procedure: Crim. 2d § 125 at 385.
In 1963, the Kansas Judicial Council established an Advisory Committee on Criminal Law Revision. The committee was given responsibility for studying and evaluating the substantive and procedural criminal law of the state and for recommending ap propriate revisions of ch. 21 and ch. 62 of the Kansas Statutes Annotated. The proposal of the committee with some modification was enacted into law, L. 1969, ch. 180, and became effective on July 1, 1970. Wherever feasible, federal statutes and federal rules of criminal procedure were followed. Kansas Code of Criminal Procedure, Kansas Jud. Council Bull, at 11 (October 1969).
K.S.A. 22-3502, Arrest of judgment, patterned after Fed. R. Crim. Proc. 34, was incorporated into the 1970 criminal code revision. A motion in arrest of judgment had been part of our criminal procedure since 1868. G.S. 1949, 62-1605. We reviewed the history of the motion in State v. Crozier, 225 Kan. 120, 123, 587 P.2d 331 (1978). Our statute prior to the enactment of K.S.A. 22-3502 contained no time limit. The current statute requires the defendant to file such a motion “within 10 days after the verdict or finding of guilty.”
“The court on motion of a defendant shall arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. The motion for arrest of judgment shall be made within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 10-day period.” (Emphasis added.) K.S.A. 22-3502.
In addition to the G.S. 1949, 62-1605 motion in arrest of judgment, prior to the criminal code revisions of 1970, the trial court was given authority by statute (G.S. 1949, 62-1606) to arrest judgment on its own motion for “any of these defects,” “these defects” referring to the grounds for the motion to arrest judgment: “First, that the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; second, that the facts stated do not constitute a public offense.” G.S. 1949, 62-1605.
The statutory authority extended to the court by G.S. 1949, 62-1606 is not found in the federal rules. The authority has been carried forward in our present criminal code at K.S.A. 22-3503, Arrest of judgment without motion: “Whenever the court becomes aware of the existence of "grounds which would require that a motion for arrest of judgment be sustained, if filed, the court may arrest the judgment without motion.”
The legislature also adopted the counterpart of Fed. R. Crim. Proc. 12, with modifications:
“(3) Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.” (Emphasis added.) K.S.A. 1989 Supp. 22-3208.
The framing of the information is outlined by K.S.A. 22-3201(2). Defects in the institution of the prosecution or in the information, other than jurisdiction or the charging of a crime, are waived if not raised by motion prior to trial. State v. Smith, 209 Kan. 664, 665, 498 P.2d. 78 (1972); K.S.A. 1989 Supp. 22-3208(3).
A defendant has the right to file a written motion for a bill of particulars when the information charges a crime but fails to specify the particulars of the crime sufficiently to enable the defendant to prepare a defense. The court may require the prosecuting attorney to furnish the defendant with a bill of particulars. The State’s .evidence must be confined to the particulars of the bill. K.S.A. 22-3201(5).
The history of information sufficiency in this jurisdiction was discussed by Chief Justice Prager speaking for the court in State v. Micheaux, 242 Kan. at 198, and by Justice Lockett speaking for the court in State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988).
K.S.A. 22-2103 establishes a legislative prologue for the code of criminal procedure. The code is intended to provide for the just determination of every criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
We now turn to a discussion of jurisdiction. Article 3 § 6 (b) of the Kansas Constitution provides that district courts shall have such jurisdiction in their respective districts as may be provided by law.
The legislature has provided that each county shall have a district court of record which shall have general original jurisdiction of all matters both civil and criminal, unless otherwise provided by law. K.S.A. 20-301.
The district court holds exclusive jurisdiction to try all felony and other criminal cases. K.S.A. 22-2601.
The Kansas Constitution and legislative action have vested in the district courts of this state subject matter jurisdiction for felony cases. Subject matter jurisdiction is the power of the court to hear and decide a particular type of action. State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985). The concept of subject matter jurisdiction is highlighted by the Matzke case. Matzke contended that the district court of Pottawatomie County lacked jurisdiction in his criminal proceeding because he had become an “Absolute Natural Person” by virtue of his affidavits, which purported to revoke all governmental agency powers. Such a revocation, he claimed, removed him from the strictures of our society and from the jurisdiction of the courts of Kansas. We held that the district court of Pottawatomie County had subject matter jurisdiction. It had the power to hear and decide Matzke’s case. Personal (in personam) jurisdiction was acquired in Matzke’s case when he was properly served as a resident of this State. The criminal action was properly initiated.
Subject matter jurisdiction lies in the district court and follows the defendant through the process of the issuing of the complaint, arrest pursuant to a warrant, initial appearance, the setting or denial of bond at the bond hearing, and the preliminary hearing, arraignment, and trial.
We have focused in Hall’s case upon the claim of a defective information raised for the first time on appeal. An information is defined in K.S.A. 1989 Supp. 22-2202(12) as “a verified written statement . . . presented to a court, which charges the commission of a crime.” (A “complaint” is a written statement under oath of the essential facts constituting a crime. K.S.A. 1989 Supp. 22-2202[8]. An “indictment” is a written statement, presented by a grand jury to a court, which charges the commission of a crime. K.S.A. 1989 Supp. 22-2202[ll]).
Our past reasoning has dictated the reversal we have applied to Count II, the theft of the cattle, in the instant case. The word “permanently” was omitted from the information. There was no incorporation by reference from Count III where “permanently” was alleged with reference to the theft of the truck and trailer that hauled the Count II cattle.
We note: (1) the jury was instructed properly as to all of the elements of theft in Counts II and III; (2) the information in Counts II and III cited the theft statute (K.S.A. 21-3701, listing a class E felony); (3) no bill of particulars was requested by Hall (K.S.A. 22-3201[5]); (4) no motion for arrest of judgment was filed (K.S.A. 22-3502); (5) Hall was represented by experienced retained counsel; and (6) no argument has been advanced by Hall that the omission of “permanently” in Count II of the information prejudiced him in any way or in any way interfered with the preparation of his defense. We have reversed Count II based upon precedent.
We now depart from that precedent. We depart from what we believe to have been a mistaken judicial blending of the concepts of “jurisdiction.”
K.S.A. 22-3201 requires the information to be “a plain and concise written statement of the essential facts constituting the crime charged, which . . . information . . . drawn in the language of the statute, shall be deemed sufficient.” Citation of the statute which the defendant is alleged to have violated is required but if omitted the omission is not fatal unless the defendant is prejudiced. We have then consistently held that if an element of the crime is omitted a jurisdictional defect is presént which may be raised for the first time on appeal. State v. Browning, 245 Kan. 26, 774 P.2d 935 (1989); State v. Wilson, 240 Kan. 606, 731 P.2d 306 (1987).
We have also held that, pursuant to K.S.A. 22-3201(4), the trial court may permit an information to be amended at any time before verdict if no new crime is charged and if substantial rights of the defendant are not prejudiced. State v. Rasch, 243 Kan. 495, 758 P.2d 214 (1988). In Rasch, the defendant was convicted of four counts of aggravated robbery, one count of attempted aggravated robbery, and two counts of aggravated battery. Rasch claimed that the aggravated robbery convictions should be reversed because the State did not amend the jurisdictionally defective complaint. It was admitted that the complaint as originally filed lacked the statutory language “[b]y threat of bodily harm ... or by force.” The State made an oral motion to amend the complaint, which was granted, and a subsequent journal entry cured the insufficiency of the complaint. In Rasch we held that when the defendant and counsel are present and permission is obtained from the judge, the State may orally amend the complaint or information any time before the verdict or finding, if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. We also reasoned that, when the jury has been properly instructed on the elements of the crime, a complaint or information which the State has orally amended to correct a deficiency is valid unless the substantial rights of the defendant are prejudiced. The amendment may be shown by (1) interlineation on the complaint or information, (2) the filing of an amended information, or (3) a journal entry stating the amendment. Rasch, 243 Kan. at 501. In Rasch, the journal entry reflecting the amendment was filed and approved by Rasch’s counsel nearly two months before trial. In State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), the State moved to amend the information to reflect a change in dates in certain counts charging indecent liberties with a child at the close of the State’s evidence to conform the charges with the evidence. The trial court granted the motion. Nunn contended that since the amendments were oral the State is bound by the original information. The journal entry recording the oral amendment was filed subsequent to trial. We held that when a motion to amend is made during trial, with defendant and counsel present, absent any showing of prejudice to the defendant, the amendment is effective immediately. The court’s action is not invalidated because a written journal entry is not filed until after the trial has been completed. We extended the rationale of Nunn in State v. Switzer, 244 Kan. 449, 769 P.2d 645 (1989), to permit an oral amendment of the information during trial to be validated by a nunc pro tunc amendment to the journal entry ordered by this court in our opinion.
The cases that we have considered under K.S.A. 22-3201(5), in amending an information, have not presented insoluble jurisdictional problems. Jurisdiction does not descend on the proceedings at the moment the amendment is granted or, as in Switzer, months or years later when the nunc pro tunc order is signed by the trial court after a ruling on appeal.
We also note our series of cases represented by State v. Maxwell, 234 Kan. 393, 672 P.2d 590 (1983). In Maxwell, and its predecessors, we considered a claim of a fatally defective information. Maxwell was charged with aggravated burglary. He claimed that, because the information did not specify the type of felony he was intending to commit at the time of entry into the residence, the information was defective. The argument, which was also advanced by the defendant in State v. Lora, 213 Kan. 184, 515 P.2d 1086 (1973), is that without knowing what evidence the State would present it was impossible to disprove the element of intent to commit a felony.
We reasoned that such an information was defective but that the defect does not automatically result in prejudicial error. There was no prejudicial error in Maxwell because the underlying felony was made clear to defendant before trial by “both the context of the other charges in the information and the preliminary hearing.” 234 Kan. at 398.
The proper procedure for a defendant who contends either that the information does not charge a crime or that the court was without jurisdiction of the crime charged is to utilize the statutory remedy extended by the legislature for these two specific situations — a K.S.A. 22-3502 motion for arrest of judgment. This remedy, available for 10 days after disposition at the trial court level, is of benefit to a defendant. It is preferable to raise either or both of these claims in the trial court rather than waiting to raise the issues for the first time on appeal. If the motion is denied by the trial court, the denial may be appealed, if appropriate, to the Court of Appeals or to this court. This approach would allow the district court to pass on the defendant’s contentions in timely fashion and to comply with what we deem to be the procedure intended by the legislature. The State is authorized by K.S.A. 22-3602(b)(2) to appeal from an order of the district court arresting judgment.
We continue to hold that a defendant, for the first time on appeal, may raise either the issue of trial court jurisdiction or the claim that the information does not charge a crime.
We have set out in this opinion the tests forming the rule we will apply in the future to determine the validity of such a “first time on appeal” claim. The longer it takes for the defendant to challenge the sufficiency of the information, the greater the presumption of regularity. 2 Orfield’s Criminal Procedure under the Federal Rules § 12:97 (2d ed. 1985).
In U.S. v. Campos-Asencio, 822 F.2d 506 (5th Cir. 1987), the defendant was convicted of illegal reentry into this country after deportation. He raised for the first time on appeal the failure of the indictment to explicitly allege lack of consent by the attorney general to his reentry. Campos-Asencio argued that such an omission rendered the indictment insufficient. The Fifth Circuit, while noting that normally objections to an indictment are waived if not made before trial, commented that a defendant may at any time claim that an indictment fails to “charge the offense,” citing Fed. R. Crim. Proc. 12(b)(2).
“However, when, as here, the defendant had notice of the issue, demonstrates no prejudice, and waits for appeal to assert his challenge, an appellate court will read the indictment liberally. Oberski, 734 F.2d at 1035; 2 W. LaFave & J. Israel, Criminal Procedure, 445-51. A statutory citation cannot, by itself, substitute for setting forth the elements of the crime, but a citation may reinforce other references within the indictment. United States v. McLennan, 672 F.2d 239, 244 (1st Cir. 1982). The indictment in the instant case both alleges that Campos was in the United States ‘unlawfully’ and points to the specific statute containing the lack of consent requirement. Hence the indictment sufficiently alleges lack of consent.” 822 F.2d at 508.
We agree with the rationale expressed by the United States Court of Appeals for the Ninth Circuit in United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied 429 U.S. 1099 (1977). One of the questions in Pheaster related to the sufficiency of the indictment. Defendants were convicted on all counts of a twelve-count indictment charging conspiracy to kidnap and mailing of requests for ransom and extortionate threats. The Pheaster court evaluated the challenge to the indictment against the fundamental requirements imposed by the Sixth Amendment. “A challenge to the sufficiency of an indictment is not a game in which the lawyer with the sharpest eye or the cleverest argument can gain reversal for his client. ‘ “Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused.” ’ ” 544 F.2d at 360 (citing Russell v. United States, 369 U.S. 749, 763, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962). The defendant in Pheaster claimed that Count I of the indictment failed to state a federal offense and, therefore, was incapable of supporting his conviction. The Ninth Circuit, in upholding the sufficiency of the indictment, noted that the asserted inadequacy of Count I was first brought to the attention of the district court only after all the evidence had been received in an extensive jury trial. After observing that failure of an indictment to state an offense is a fundamental defect which can be raised at any time, the court commented, “However, the very limited resources of our judicial system require that such challenges be made at the earliest possible moment in order to avoid needless waste. Consequently, although such defects áre never waived, indictments which are tardily challenged are liberally construed in favor of validity. For example, this Court held that when an indictment is not challenged before the verdict, it is to be upheld on appeal if ‘ “the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.” ’ ” 544 F.2d at 361. The court was of the opinion that, where the challenge to the indictment came in a motion for acquittal after all evidence had been received, the “long delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants.” 544 F.2d at 361. Pheaster notes that the fact of delay tends to negate the possibility of prejudice in the preparation of the defense. “When an objection to an indictment is not timely made, the reviewing court has considerable leeway to imply the necessary allegations from the language of the indictment.” 544 F.2d at 362.
We find the following comments of Pheaster cogent to the sufficiency of an information issue. (1) The defendant in Pheaster did not claim either in the trial court or on appeal that the language of the indictment had in any way prejudiced the preparation of his defense; (2) defendant was represented by competent and experienced counsel, yet the challenge to the indictment came at the end of the trial, after all the evidence had been received; and (3) no claim had been made that the defective drafting of Count I of the indictment would in any way impair Pheaster’s ability to plead the conviction in any subsequent prosecution.
The Fifth Circuit in United States v. Trollinger, 415 F.2d 527, 528 (5th Cir. 1969), held that an initial challenge, raised for the first time on appeal, attacking the sufficiency of an indictment will fail and the indictment must be held sufficient unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant was convicted. The Second and Seventh Circuits have also so held; United States v. Santelistes, 476 F.2d 787 (2d Cir. 1973); United States v. Knippenberg, 502 F.2d 1056, 1061 (7th Cir. 1974) (The omission of the word “wilfully” in an indictment charging transportation of stolen securities in interstate commerce is not fatal although the terms of the statute, 18 U.S.C. § 2(b) (1988) state “wilfully.”).
“[A]n indictment not challenged before trial will be upheld ‘unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.’ ” United States v. Watkins, 709 F.2d 475, 478 (7th Cir. 1983).
The Sixth Amendment provides that “the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” In Russell v. United States, 369 U.S. 749, 8 L. Ed. 2d 240, 82 S. Ct. 1038 (1962), the United States Supreme Court set forth the essential criteria for measuring the sufficiency of an indictment. It must contain the elements of the offense and sufficiently apprise the defendant of what he or she must be prepared to meet. In case of further proceedings against the defendant for a similar offense, the record must show with accuracy to what extent the defendant may plead a former acquittal or conviction. 369 U.S. at 763-64. In Russell, the petitioner had refused to answer questions before the House Un-American Activities Committee and, subsequently, was indicted for contempt of Congress. The United States Supreme Court held that the indictment must state the subject of the inquiry so that the court will have a basis for its determination of the pertinency of the questions asked the petitioner.
The Tenth Circuit has held that, in determining the sufficiency of an indictment challenged as being vague and indefinite, the whole of the indictment must be taken into consideration. United States v. Crummer, 151 F.2d 958, 962 (10th Cir. 1945), cert. denied 327 U.S. 785 (1946).
Failure of an information to state an offense is a fatal defect and, like an allegation that the court is without jurisdiction, may be raised at any time during the pendency of the proceeding. K.S.A. 1989 Supp. 22-3208(3). The orderly resolution of criminal law issues requires timely raising of claims relating to the validity of an information. Tardily challenged informations are to be construed liberally in favor of validity. The validity of an information is to be tested by reading the information as a whole. The elements of the offense may be gleaned from the information as a whole. An information not challenged before verdict or finding of guilty or pursuant to K.S.A. 22-3502 by a motion for arrest of judgment will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted. United States v. Watkins, 709 F.2d at 478.
We urge the defense bar to utilize this K.S.A. 22-3502 arrest of judgment defense tool. If the court did not have jurisdiction, or if the information did not charge a crime for which the defendant was convicted, the defendant is entitled to a determination of that condition at the trial court level.
We are applying a “common-sense” interpretation of informations when faced in the future with the issue of jurisdiction or failure to charge a crime as a result of a claimed defective information raised for the first time on appeal. We will review the information as a whole and interpret it to include facts which are necessarily implied. A tardy “first time on appeal” challenge to the information will be faced with a liberal construction in favor of Validity. 1 Wright, Federal Practice and Procedure: Crim. 2d § 123 at 354 (1982); 5 Orfield, Criminal Procedure under the Federal. Rules, § 34:4 at 389 (2d ed. 1987).
A motion for arrest of judgment is the proper procedure for a defendant who wishes to challenge the sufficiency of the information after trial because of either a claim that it did not charge a crime or that the court was without jurisdiction of the crime charged. When such a motion is timely filed, the trial court, in reviewing the motion, shall test its merit by utilizing the rationale of our pre-Hall cases.
We recognize that a defendant may raise these same two defect of information claims for the first time on appeal; however, for all informations filed after the date of this opinion, we prospectively adopt the following rule:
The Prospective Rule
Information defect challenges raised for the first time on appeal shall be reviewed by applying (1) the reasoning of K.S.A. 22-3201(4) complaint/information/indictment amendment cases as expressed in State v. Switzer, 244 Kan. 449, 769 P.2d 645 (1989), State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1988), and State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988), as that reasoning relates to jurisdiction and the substantial rights of the defendant; (2) the “common-sense” test of State v. Wade, 244 Kan. 136, 766 P.2d 811 (1989), and State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987); and (3) the rationale of United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied 729 U.S. 1099 (1977). Of paramount importance, we shall look to whether the claimed defect in the information has: (a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any way defendant’s ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant’s substantial rights to a fair trial under the guarantees of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 10. If a defendant is able to establish a claim under either (a), (b), or (c), the defective information claim, raised for the first time on appeal, will be allowed.
We hereby overrule all cases contrary to the “claim of a defective information raised for the first time on appeal” rule announced in this opinion.
Reversed as to Count II, theft of cattle; affirmed as to all other issues. | [
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The opinion of the court was delivered by
Holmes, J.:
Donnie D. Sledd, the plaintiff in a medical malpractice action, appeals from a jury verdict finding no negligence on the part of the defendant, Dr. William O. Reed, Jr. The single issue on appeal is whether certain statements made by defense counsel in closing argument constitute reversible error.
The underlying facts are not in dispute. On November 13, 1984, the plaintiff fell from a tree and severely injured his back. He was taken to the emergency room at Providence-St. Margaret Hospital, Kansas City, Kansas. The emergency room doctor contacted Dr. Robert Beatty, a neurosurgeon, who examined plaintiff s x-rays and concluded plaintiff incurred a compression or burst fracture of the first lumbar vertebrae. Dr. Beatty also conducted a neurological and physical examination and found plaintiff had normal sensation in his lower extremities, normal muscle strength, and no sign of spinal cord injury reflected in his deep tendon reflexes. In his progress reports of November 14-19, Dr. Beatty noted plaintiff had no neurological deficit, observing only a tingling in the left instep on November 15. Plaintiff was neurolog ically normal in his lower extremities and no neurological changes occurred during this time.
On November 15, 1984, Dr. Beatty contacted the defendant, Dr. Reed, an orthopedic specialist, for an opinion on whether plaintiffs fracture was unstable and required surgery. On November 16 or 17, Dr. Reed informed Dr. Beatty that plaintiffs fracture was unstable and recommended surgery. Dr. Beatty discontinued seeing plaintiff and turned him over to Dr. Reed’s care for surgery. On November 23, 1984, Dr. Reed performed surgery on the plaintiff consisting of an anterior decompression of the spine and the application of a Dunn fixation apparatus or device. Shortly after surgery, while plaintiff was still in the recovery room, it was discovered that the plaintiff was suffering a significant neurological deficit, including weakness and loss of sensation in the lower extremities and an inability to move his legs normally.
On November 27, 1989, Dr. Reed asked Dr. Beatty to examine plaintiff. After doing so, Dr. Beatty immediately recommended a myelogram, which revealed an obstruction of the spinal cord. Dr. Beatty performed a laminectomy upon the plaintiff and removed a blood clot which was pressing upon the spinal cord. However, the plaintiff still suffers from disabililty to his legs.
Dr. Reed’s treatment of plaintiff from the time he recommended surgery until Dr. Beatty performed the myelogram and laminectomy was the subject of this malpractice suit. Plaintiff claimed Dr. Reed was negligent in two respects: “In choosing to carry out an ‘anterior approach with decompression and Dunn fixation apparatus, or device’ for injury without neurological deficit when other safer options were available”; and “[i]n failing to properly monitor plaintiffs neurological deficits postoperatively and take timely appropriate treatment measures.”
As in most malpractice cases, there was expert testimony on behalf of both parties. Dr. Fries, plaintiffs expert, testified that Dr. Reed deviated from acceptable medical practice by utilizing an anterior surgical approach, from the front and side of the body, to the damaged spinal area rather than a posterior approach from the back. Defendant’s expert, Dr. Dunn, testified that, while he personally preferred the posterior approach in cases such as plaintiffs, the anterior approach was an acceptable procedure that did not deviate from acceptable medical standards. Dr. Reed testified at length describing his reasons for electing the anterior approach to the surgery.
Dr. Fries also found a deviation from acceptable medical practice in the delay between the time of the operation and the decision to do the myelogram to ascertain the cause of the neurological deficit. He was of the opinion that the delay in discovering and removing the blood clot caused permanent injury to the spinal column, resulting in permanent damage to the lower extremities. On the other hand, the defendant’s expert found the delay to be proper medical procedure.
The jury, after hearing all the expert testimony and other evidence presented during a five-day trial, returned a verdict finding no negligence on the part of the defendant, Dr. Reed. This appeal followed.
Plaintiff asserts four issues on appeal, which all overlap and intertwine, being essentially based upon certain statements made by defense counsel during closing argument and the trial court’s rulings on objections to them. The controlling issues are whether the statements were improper argument and, if so, whether reversible error occurred. The statements deemed objectionable by the plaintiff occurred during the summation of defense counsel’s argument. The record of defense counsel’s closing argument reads in pertinent part:
“One last comment on some of the evidence you heard, and that is, is you’ve heard that only a few orthopedic surgeons in each community tackle these kinds of complicated spine cases. Doctor Reed in 1984 was the only one at either one of our two local hospitals that did so, and that remains true today. This case I’m sure points out to you the reason why only a few do and only a few answer those kinds of calls.
“MR. KANCEL: Objection, Your Honor. Unfair argument.
“MR. McCAMISH: What?
“THE COURT: Overruled. It is closing argument.
“MR. McCAMISH: Okay. And that that reason is, is that these are terrible injuries, these spine injuries. They have many, many, many less than favorable outcomes. They have many, many, as you’ve' heard everyone describe potentials for complications. If we hold Doctor Reed responsible and other doctors responsible who do their best and who make their best judgments as they treat these kinds of cases, no one will answer these calls. Doctor Reed and I — I want to tell you — take a minute to say some personal things. Doctor Reed and I agree in our belief in the system. And we appreciate all of your patience over the course of these four days.
“As I told you when we started, I didn’t think this was going to be an easy case, and I don’t think it is. It’s not simple. It’s not uncomplicated. We are willing to rely on your folks to weigh the evidence, use your judgment, and find that there was no malpractice in this case. Thank you all.
“THE COURT: Mr. Kancel, you have nineteen minutes. I will give you a two minute warning. (At the Bench conference between Court and counsel, outside the hearing of the jury.)
“MR. KANCEL: Your Honor, I make an objection to the argument that Mr. McCamish was making in the vein that to allow this kind of a case, there would be no one to treat the — the injury, and I want to make quite clear that my objection is to that argument, and I move for a mistrial at this time on that basis. To me that’s as bad as an insurance case saying that their decision will raise insurance rates. What Mr. McCamish is doing is asking — is threatening the Court — the jury that if they don’t find Doctor Reed free of negligence in this case, there will be no one to treat them. I think that is an unfair argument, and as far as instruction or instruction from the Court or in lieu thereof, I ask for a mistrial.
“THE COURT: Your motion will be overruled. Of course, you may answer — during your argument, you may answer his arguments.” (Emphasis added.)
Plaintiff contends that the italicized statements in the oral argument were improper and in essence denied plaintiff a fair trial.
Defendant asserts that the statements were not improper and that plaintiffs objections to the two alleged improper remarks were insufficient and not timely. Defendant contends that the objection of “unfair argument” was not sufficiently specific. K.S.A. 60-246 provides:
“Objections to rulings. Formal exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he or she desires the court to take or his or her objection to the action of the court and his or her grounds therefor.”
While the objection certainly could have been more specific, we conclude the objection was sufficient to preserve the issue for appeal.
Next, defendant argues that there was no contemporaneous objection to the second statement of counsel to the effect that if the doctors are to be held responsible, there will be no one to treat or answer difficult spinal injury cases. Defense counsel was obviously in the closing words of his final argument. As soon as he had completed the argument, plaintiffs counsel asked to ap proach the bench, articulated the objection, and moved for an admonishment to the jury or a mistrial. We conclude the objection was sufficiently contemporaneous to preserve review. Cf. State v. Netherton, 128 Kan. 564, 573-75, 279 Pac. 19 (1929). Here, plaintiffs counsel made appropriate objections at the earliest possible time without interrupting defense counsel in the closing seconds of his argument.
We now turn to the merits of the plaintiffs appeal. Plaintiff has asserted four arguments based upon the allegedly improper argument of defense counsel: reference to extraneous matters was improper and prejudicial and constituted gross misconduct; the trial court erred in refusing to admonish the jury or, in lieu thereof, in failing to grant a mistrial; plaintiff was denied a fair and impartial trial; and the likelihood is great that the improper remarks of counsel changed the result of the verdict. Defense counsel argues that his comments were not improper and constituted proper argument based upon the evidence in the case. While it is true there was some brief testimony about the limited number of doctors who treat severe spinal injuries, the availability of treatment in this case or in the future had absolutely no bearing upon the issue in this case of whether Dr. Reed was guilty of medical malpractice.
In State v. Kelly, 209 Kan. 699, Syl. ¶ 4, 498 P.2d 87 (1972), this court held:
“In argument to the jury the prosecutor should not use statements calculated to inflame the passions or prejudices of the jury. He should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” (Emphasis added.)
Plaintiff, in his brief, states his position as follows:
“It is plaintiff’s contention that the above-quoted argument of defense counsel was a bold and calculated threat, warning, and intimidation of the jury. It was purposefully made to inflame and prejudice the jury to return a verdict for the defendant based, not upon the evidence, but upon defense counsel’s ‘belief’ and improper appeal to each individual juror’s fear that should he or his family need a doctor to ‘treat these kinds of cases’ in the future, one will not be available — -if the jury returns a verdict against Dr. Reed and other doctors.”
We agree that the statements of counsel were inappropriate, had no bearing upon the issues before the jury, and were objectionable, and that the court should have admonished the jury to disregard the remarks. Experienced defense counsel should not have made the statements which were irrelevant to the issues and cannot be considered proper closing argument. However, even though the argument was improper it does not, in our opinion, constitute reversible error.
In Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 443, 581 P.2d 372 (1978), this court stated:
“Remarks of counsel are reversible error when, because of them, the parties have not had a fair trial. [Citation omitted]. Of course, the trial court is in a better position than an appellate court to determine whether the verdict resulted from asserted misconduct of counsel or from passion or prejudice, and ordinarily its conclusion in the matter will not be disturbed. [Citations omitted.]”
To constitute reversible error it must be shown that there is a likelihood that the improper remarks changed the result of the trial. Walters v. Hitchcock, 237 Kan. 31, 33, 697 P.2d 847 (1985).
This case was thoroughly tried by experienced and respected trial counsel for both parties. The central issue was whether Dr. Reed committed malpractice in his choice of approach to the surgery and in his decision not to perform a myelogram until three or four days after surgery. The trial spanned several days and the transcripts consist of over 600 pages of testimony. The experts for both parties were extremely well respected and no question is raised regarding their qualifications to testily and give their opinions on the issues in this case. The jurors heard all the testimony and the questions asked by them during their deliberations demonstrated they clearly understood the issues.
Among the instructions to the jury was the following:
“Opening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments, which you are about to hear, are made by the attorneys to discuss the facts and circumstances in this case, and should be confined to the evidence and to reasonable inferences to be drawn therefrom. Neither opening statements nor closing arguments are evidence, and any statement or argument made by the attorneys which is not based on the evidence should be disregarded.”
We conclude, after a careful review of the entire record, that the remarks of counsel, while inappropriate and erroneous, did not deprive the plaintiff of a fair trial, and that there is no likelihood they changed the result of the trial. Under such circumstances, the statements in closing argument do not constitute reversible error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Herd, J.:
This is a direct appeal by Donovan Belnavis, who was convicted by a jury in Wyandotte County of three counts of sale of cocaine, contrary to K.S.A. 65-4127a. The trial court sustained the State’s motion to invoke the enhancement provisions of the Uniform Controlled Substances Act, K.S.A. 65-4127a, and imposed concurrent sentences of 10 to 20 years. The sentences for sale of cocaine are to run consecutively to sentences already imposed by the circuit court of Jackson County, Missouri, for previous drug offenses.
The facts are not in dispute. On June 20, 1988, Donovan Belnavis, a black male, was charged in Wyandotte County District Court with three counts of sale of cocaine. After a preliminary hearing, the case was set for trial on October 3, 1988.
During the trial, after voir dire, Belnavis moved for a mistrial on the grounds that the prosecutor systematically excluded black veniremen from the jury through use of peremptory challenges. The prosecutor denied striking the two veniremen based upon their race and stated that he struck Miss Cooper because she did detail work with photography and struck Miss Small because she was a young person likely to be sympathetic to Belnavis. The motion for mistrial was denied. Trial proceeded, and on October 4, 1988, the jury returned a guilty verdict on all counts of sale of cocaine.
A post-trial hearing was held on Belnavis’ motion for a new trial. Belnavis’ motion was based upon the State’s use of peremptory challenges to exclude two black persons from the jury panel. The district court denied Belnavis’ motion and Belnavis appealed.
The sole issue on appeal is whether the State exhibited purposeful racial discrimination in using peremptory challenges to strike two black persons from the jury panel.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court found that the Equal Protection Clause of the United States Constitution forbids prosecutors from exercising peremptory challenges against potential jurors solely on account of their race or on an assumption that black jurors as a group will be unable to impartially consider the State’s case against a black defendant. 476 U.S. at 89.
In order to question the State’s use of peremptory challenges, a defendant must make a prima facie showing of purposeful discrimination in the State’s selection of the jury. In Batson, the court set forth requisite elements which a defendant must show to establish purposeful discrimination:
“[T]he defendant first must show that he is a member of a cognizable racial group [citation omitted], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ [Citation omitted.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.” 476 U.S. at 96.
Once the defendant makes a prima facie showing of purposeful discrimination, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor’s explanation, however, need not rise to the level of justifying an exercise of a challenge for cause. 476 U.S. at 97. On the other hand,
“the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. [Citations omitted. ] . . . Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirm[ing] [his] good faith in making individual selections.’ ” 476 U.S. at 97-98.
This rule, as stated in Batson, was adopted in toto by the Kansas Supreme Court in State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987).
In the present case, Donovan Belnavis is a 22-year-old black male of Jamaican descent. The original venire panel consisted of thirty-three people. The record shows that four of the first twenty-four people on the venire list were also black. Each party exercised six peremptory challenges as provided by statute. K.S.A. 22-3412(c). The prosecution used its two final peremptory challenges to exclude two black females from the jury panel. Belnavis’ attorney also used a peremptory challenge to exclude a black male from the panel for the reason that he knew one of the State’s witnesses. From the next three names on the venire list, each party exercised one peremptory challenge and the remaining venireman was seated as an alternate. Therefore, Belnavis was ultimately tried by a jury which included one black member and one black alternate.
Belnavis has shown that he is a member of a cognizable racial group and that the State used its peremptory challenges to strike black persons from the jury panel. Furthermore, Belnavis is entitled to rely on the fact that peremptory challenges allow those who are of a mind to discriminate to do so. Thus, under the rule set forth in Batson and adopted by this court in Hood, Belnavis made a prima facie showing of purposeful discrimination by the State. It then became the State’s burden to come forward with a racially neutral explanation for challenging the black persons.
In order to determine whether the State has successfully provided a race-neutral explanation for the peremptory challenges, we must compare the characteristics of the individuals stricken with those not stricken. A prosecutor’s explanation fails to be racially neutral if characteristics of a person struck are present in white panel members not challenged by the State. U.S. v. Wilson, 853 F.2d 606, 610 (8th Cir. 1988).
At the post-trial hearing on this issue, the prosecutor stated that he challenged Miss Cooper because she had mentioned that she did detail work on photography. The prosecutor explained that he believed there would be great discrepancies in the details of one of the State’s witnesses and for this reason was concerned about having someone on the jury who might pay an inordinate amount of attention to details.
Standing alone, this explanation appears racially neutral. In most instances, the prosecution knows at the time of voir dire the strengths and weaknesses of its case. Therefore, it is not unusual that the prosecution would challenge those individuals who might focus more readily upon the weaknesses of the case. In the case at hand, the prosecution knew there would be discrepancies in the testimony of a police officer and claimed that Miss Cooper, because of her employment as a detail worker on photography, would focus upon this factor more so than other individuals on the jury panel. This explanation can stand as a race-neutral reason for challenging Miss Cooper in light of the Batson and Hood rule that a prosecutor’s explanation need not rise to the level of justifying an exercise of a challenge for cause, except for a comparison of white jurors who were not challenged. Batson, 476 U.S. at 97; Hood, 242 Kan. at 120. The record reveals that several white individuals had employment which involved a great deal of work with details. One juror was a sign language interpreter. Another worked as a computer technician. A third juror was employed as a comptroller and another as a secretary. None of these jurors were challenged. This convincingly refutes the State’s racially neutral reason for challenging Miss Cooper.
For his sixth challenge, the prosecutor explained in response to a motion for mistrial that he challenged Miss Small because she was a young, single mother, with a 7-month-old baby. For this reason, the State was not willing to leave an individual on the panel who might be easily distracted by having a young child and being a single parent.
The record shows Belnavis is a twenty-two-year-old black male. Miss Small is at least twenty-six-years-old, based upon her answer during voir dire that she had lived in Wyandotte County for that period of time. Striking a potential juror because of similarity in age with the defendant does not constitute impermissible discrimination. U.S. v. Garrison, 849 F.2d 103, 105 (4th Cir.), cert. denied 488 U.S. 996, 102 L. Ed. 2d 591 (1988). However, when we examine the record we see that two white jurors, although married, had two-year-old children and a third juror had children under the age of ten. Thus, the characteristics articulated to explain a neutral reason for challenging the black venireman were present in white jurors who went unchallenged. This is evidence of impermissible purposeful discrimination by the State. U.S. v. Wilson, 853 F.2d at 610. The State’s explanation further lacks credibility in light of the fact that no person, including Miss Small, answered affirmatively to the prosecution’s request as to whether there was any reason he or she would not be able to sit for several days as an impartial juror due to concern about family or friends at home.
In U.S. v. Garrison, 849 F.2d 103, the prosecutor stepped forward with an explanation as to why he challenged three black veniremen. The prosecutor stated that two of the black veniremen had chatted during voir dire, indicating to him boredom and disdain for the process. 849 F.2d at 105. The appellate court found the explanation a racial-neutral reason and ruled the district court did not err in finding the explanation credible. 849 F.2d at 106.
In the present case, the prosecution did not advance an explanation which indicated that Miss Small was distracted from the proceedings. Rather, the State simply stated it believed she might become distracted because she had a young child. However, because other white veniremen also had young children and remained on the jury panel, the prosecution’s proffered reason for challenge does not withstand scrutiny.
We hold the State failed to present a racially neutral reason for peremptorily challenging Miss Cooper and Miss Small. The judgment of the district court is reversed and this case is remanded for a new trial. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an original action in mandamus by Stauffer Communications, Inc., (Stauffer) which owns and operates the Topeka Capital-Journal, a daily newspaper of general circulation, against Judge Daniel L. Mitchell of the Third Judicial District, who is assigned all juvenile cases in that district. Stauffer seeks an order commanding Judge Mitchell to open to the public all detention hearings and other preliminary matters involving juveniles over the age of 15 held pursuant to the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq.
The Kansas Juvenile Offenders Code (Code) is to be liberally construed so that each juvenile shall receive the care, custody, guidance, control, and discipline, preferably in the juvenile’s own home, as will best serve the juvenile’s rehabilitation and the protection of society. Proceedings under the Code are not to import a criminal act on the part of a juvenile, but are deemed to have been taken and done in the exercise of the parental power of the state. K.S.A. 38-1601.
Subject to specific statutory exceptions, “juvenile offender” means a person who does an act while a juvenile which if done by an adult would be a felony or a misdemeanor as defined by K.S.A. 21-3105. K.S.A. 1989 Supp. 38-1602(b).
Under the Code, an action is commenced by the filing of a verified complaint. K.S.A. 38-1621. In addition to other statutory information, the complaint must state plainly and concisely the essential facts constituting the offense charged. After the complaint has been served and the juvenile is brought before the court, and the court finds it necessary to hold a detention hearing, the court sets the time and place for the hearing.
The purpose of the detention hearing is to determine whether (1) to place the juvenile in a juvenile detention facility; (2) to allow the juvenile to be released to the custody of his parents, or; (3) where it is not necessary to detain the juvenile, to place the juvenile in temporary custody of a youth residential facility, the secretary of SRS, or some other suitable person willing to accept temporary custody if the court finds it is not in the best interest of the juvenile to release the juvenile to the custody of a parent. If the court finds that the juvenile is dangerous to self or others, the juvenile may be detained in a juvenile detention facility or youth residential facility designated by the court. K.S.A. 38-1632.
After the detention hearing and all pretrial matters have been completed, the case is set for an adjudicatory hearing. The adjudicatory hearing of the juvenile is similar to the trial of an adult charged with a crime. The rules of evidence of the code of civil procedure apply. The proof required to prove the act alleged in the complaint is proof beyond a reasonable doubt. When the offense alleged is a felony under the adult code of criminal procedure, the judge may order the case tried to a jury. If the trier of fact determines that the evidence fails to prove the offense charged or an included offense as defined in K.S.A. 21-3107(2), the court dismisses the charge.
On September 22, 1989, Judge Mitchell conducted detention hearings involving two juveniles, both over the age of 15, charged with aggravated kidnapping, rape, and attempted rape. Michael Ryan, the legal affairs reporter for the Capital-Journal, was denied access to these hearings. Judge Mitchell informed Ryan that, unlike adjudicatory hearings conducted pursuant to K.S.A. 38-1652, there was no statutory basis for allowing the public to attend detention hearings. Later, Judge Mitchell ordered the detention of the two juveniles, and the orders were placed in the official file, which is available to the public pursuant to K.S.A. 1989 Supp. 38-1607(a).
Stauffer claims the legislature intended that detention hearings and other preliminary matters, held pursuant to the Kansas Juvenile Offenders Code, be open to the public when juveniles over the age of 15 are involved.
Although the hearings Ryan sought to attend have already been held, the parties concur that this situation will recur and continue to evade judicial review. Accordingly, the issue should not be regarded as moot. Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973).
The parties also agree that this case does not involve constitutional interpretation. In In re Gault, 387 U.S. 1, 25, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), the United States Supreme Court held that states may protect the confidentiality of juvenile proceedings without violating the Constitution. Citing Gault, other states have upheld the constitutionality of statutes which exclude the press from juvenile proceedings. See Edward A. Sherman Pub. Co. v. Goldberg, 443 A.2d 1252, 1258 (R.I. 1982); In re J. S., 140 Vt. 458, 465-66, 438 A.2d 1125 (Vt. 1981).
The Kansas Statutes Annotated contain the general laws and laws of a general nature in force. The volumes are arranged, numbered, annotated, and indexed with histories, notes, and references as required by law. The statutes enacted are compiled and edited by the Office of Revisor of Statutes of Kansas. The entire Kansas Juvenile Offenders Code, including section numbers and headnotes, was enacted at one time. See L. 1982, ch. 182, §§ 59-116. Chapter 38 of the annotated statutes is entitled “Minors.” Chapter 38 is divided into 17 Articles. The Articles set out the various areas of the law regarding minors. Article 38-3 controls Dependent or Neglected Children; Article 38-6 controls Child Labor; and Article 38-16 is the Kansas Juvenile Offenders Code. The Kansas Juvenile Offenders Code is further subdivided into specific areas:
General Provisions, 38-1601 et seq.
Pleading, Process, and Preliminary Matters, 38-1621 et seq.
Adjudicatory Procedure, 38-1651 et seq.
Dispositional Procedure, 38-1661 et seq.
Appeals, 38-1681 et seq.
The detention hearing, K.S.A. 38-1632, is contained in the section of the Code entitled “Pleading, Process and Preliminary Matters.” The adjudicatory hearing and the procedures for adjudication are contained in the section entitled “Adjudicatory Procedure.”
The resolution of this case depends upon our interpretation of the legislature’s intent when enacting K.S.A. 38-1652.
K.S.A. 38-1652 provides:
“Confidentiality of proceedings, (a) If the respondent was 16 or more years of age at the time of the alleged offense, the hearing shall be open to the public.
(b) If the respondent was under 16 years of age at the time of the alleged offense, the court may exclude all persons except the respondent, the respondent’s parents, attorneys for interested parties, officers of the court and the witness testifying. Upon agreement of all interested parties, the court shall allow other persons to attend the hearing unless the court finds the presence of the persons would be disruptive to the proceedings.”
Judge Mitchell found the open hearing requirement in 38-1652 inapplicable to detention hearings since those hearings usually involve evidence which is privileged under K.S.A. 1989 Supp. 38-1607, which states:
“Court records; preservation of records, (a) Official file. The official file of proceedings pursuant to this code shall consist of the complaint, process, service of process, orders, writs and journal entries reflecting hearings held and judgments and decrees entered by the court. The official file shall be kept separate from other records of the court. The official file shall be open for public inspection as to any juvenile 16 or more years of age at the time any act is alleged to have been committed. The official file shall be privileged as to any juvenile less than 16 years of age at the time any act is alleged to have been committed and shall not be disclosed directly or indirectly to anyone except [in certain enumerated situations],
“(b) Social file. Reports and information received by the court other than the official file shall be privileged and open to inspection only by attorneys for the parties or upon order of a judge of the district court or an appellate court. The reports shall not be further disclosed by the attorney without approval of the court or by being presented as admissible evidence.”
Judge Mitchell stated in his answer to the petition for mandamus:
“For example, testimony and reports of teachers, social workers, counselors, psychologists and psychiatrists are relevant and admissible [at a detention hearing] in determining the limited issue of dangerousness. At the adjudication phase, however, this evidence may be completely inadmissible as irrelevant to the determination of the respondent’s guilt or innocence . . . .”
Stauffer argues that all hearings involving juveniles over the age of 15 should be open to the public since: (1) 38-1607(a) makes the results of all such hearings public; and (2) the open hearing requirement of 38-1652 will be subverted if a defendant is allowed to plead guilty prior to the adjudication hearing.
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Dubish, 236 Kan. 848, 853, 696 P.2d 969 (1985).
Though K.S.A. 38-1652 appears under a heading entitled “Adjudicatory Procedure,” Stauffer argues that this heading was inserted by the Revisor of Statutes, not the legislature. However, in 1979, at the behest of the Legislative Coordinating Council, the Judicial Council undertook the task of recodifying the Kansas Juvenile Code, with consideration given to criminal-type offenses from the sections of the Code that dealt with status offenders. A similar heading prefaced section 1652 of the Judicial Council’s draft. Kansas Jud. Council Bull, at 83 (June 1981).
Legislative intent can be found in the historical background of an enactment and the circumstances attending its passage. State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230 Kan. 404, Syl. ¶ 25, 636 P.2d 760 (1981). The legislative history of K.S.A. 38-1652 supports Judge Mitchell’s view.
K.S.A. 38-822 (Ensley 1981), the forerunner to K.S.A. 38-1652, provided:
“The district court may exclude from any hearing pursuant to the juvenile code all persons except counsel for interested parties, officers of the court and the witness testifying.” (Emphasis added.)
In 1981, the Judicial Council’s published draft of the Kansas Juvenile Offenders Code, Section 1652, provided:
“In the trial of any case where the juvenile was less than 16 years old at the time of the alleged act the court may exclude from any hearing pursuant to this code all persons except the juvenile, the juvenile’s parents, attorneys for interested parties, officers of the court, and the witness testifying.
“Upon agreement of all interested parties the court shall allow other persons to attend said proceedings, unless the court finds the presence of such persons would be disruptive to the proceedings.” Kansas Jud. Council Bull, at 84 (June 1981). (Emphasis added.)
In its comment to this section, the Judicial Council stated: “This section removes [the judge’s authority to exclude persons from] hearings involving juveniles 16 and 17 years old. This is consistent with the opening of official records of those juveniles.” Kansas Jud. Council Bull, at 84 0une 1981).
On January 11, 1982, Senator Pomeroy introduced the Juvenile Offenders Code in Senate Bill 520. Section 94 of that bill provided:
“(a) If the respondent was 16 or more years of age at the time of the alleged offense, the hearing shall be open to the public.
“(b) If the respondent was under 16 years of age at the time of the alleged offense, the court may exclude all persons except the respondent, the respondent’s parents, attorneys for interested parties, officers of the court and the witness testifying. Upon agreement of all interested parties, the court shall allow other persons to attend the hearing unless the court finds the presence of the persons would be disruptive to the proceedings.” (Emphasis added.)
On February 19, 1982, the Senate Committee on the Judiciary amended section 94 to read: “All hearings pursuant to this code shall be open to the public unless otherwise ordered by the court in its discretion.” (Emphasis added.)
The legislature refused to change the phrase to “all hearings pursuant to this code.” Instead, the legislature retained the originally proposed language of section 94 that “the hearing” shall be open to the public. L. 1982, ch. 182, § 95. The words and phrases of the statute are to be construed according to context and the approved usage of the language. Tobin Constr. Co. v. Kemp, 239 Kan. 430, 436, 721 P.2d 278 (1986). By choosing the singular form of the word, the legislature intended to open only one hearing.
K.S.A. 1989 Supp. 38-1607(a) allows the official file to be “open for public inspection” for juveniles over the age of 15, while 38-1607(b) requires the social file to be “privileged” as to all juveniles. K.S.A. 1989 Supp. 38-1607 clearly distinguishes a detention order from the evidence introduced at the hearing upon which the order is based. The privileged information requirement of 38-1607(b) is meaningless if the public is allowed to attend detention hearings.
K.S.A. 1989 Supp. 38-1607 and K.S.A. 38-1652 are consistent, harmonious, and sensible under Judge Mitchell’s interpretation. The language “the hearing” open to the public in K.S.A. 38-1652 refers only to adjudicatory hearings involving juveniles over the age of 15.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is a civil action brought by the plaintiff, Malcolm Miller, against the law firm of Foulston, Siefkin, Powers & Eberhardt (Foulston-Siefkin) and his former partners. The plaintiff involuntarily left the firm under pressure, and, although he alleges ten separate claims in his petition, the basis of his action is that he should receive retirement benefits and a share of the attorney fees the firm received for its 20-year litigation in two sets of class action cases that have become known as the consolidated and the private helium cases. The district court denied plaintiff s motion for partial summary judgment and granted summary judgment to defendants on the grounds the claims were barred by the statute of limitations. Miller appeals from that judgment.
Miller began practicing with Foulston-Siefkin in 1952. In a memo dated May 13, 1982, the executive committee of Foulston-Siefkin advised plaintiff that it was concerned about his participation in the firm and was suggesting a substantial reduction in compensation. In December 1982, plaintiff was advised by memorandum from “his partners” of their desire for him to resign rather than face expulsion. Fifteen partners signed the memo. It was based upon a unanimous recommendation from the executive committee that plaintiff be expelled from Foulston-Siefkin. Plaintiff left the firm January 1, 1983. He was of counsel with the firm until February 28, 1983, when he was required to remove all his belongings from the firm’s offices. Plaintiff never intended to retire from the practice of law when he left Foulston-Siefkin.
Foulston-Siefkin first became involved in complex helium litigation in 1963. One set of cases in this class action became known as the consolidated helium cases. One of these cases settled in 1985, the others in 1988. The court awarded attorney fees of approximately $17 million. The second set of cases, known as the private helium cases, which were filed in 1971 and 1986, resulted in attorney fees of approximately $4.5 million. According to plaintiff, he suggested to his partner, Gerald Sawatzky, that Foulston-Siefkin seek a consensual achievement fee in the helium litigation but was told that such a request was not possible because the attorney time had been billed at a high rate throughout the litigation. This claim was denied by Sawatzky. His affidavit states that the continuous agreement with Foulston-Siefkm’s clients in the helium cases was that the firm would bill at a minimum level with the understanding that, if recovery occurred, the court would be asked to award attorney fees from the amount recovered at full compensation.
Plaintiff and Foulston-Siefkin disputed whether plaintiff should receive retirement benefits. At one point, the firm agreed to pay plaintiff retirement benefits in the amount of $190,416.89 in 120 equal installments of $1,586.81, beginning June 1, 1983, conditioned upon plaintiff s retirement. In May 1983, at the Foulston-Siefkin partnership meeting, it was reported that the firm would begin paying these retirement benefits. In the fall of 1983, plaintiff and Foulston-Siefkin attempted to negotiate a settlement which would allow plaintiff to continue some activity in the practice of law while remaining retired and receiving retirement benefits under the 1965 Foulston-Siefkin partnership agreement. Pursuant to the proposal, Foulston-Siefkin agreed to pay plaintiff $190,000 over ten years while liberalizing the phrase “practice law” contained in the partnership agreement to allow some minimal activity. Foulston-Siefkin offered to pay plaintiff $2,000 a month for 96 months if he restricted his practice to “permitted activities.”
In December 1985, plaintiff learned that Foulston-Siefkin had sought extraordinary attorney fees in the helium cases. Foulston-Siefkin first received payment on those fees in December 1985. Plaintiff sought to have a portion of the helium fees, but his request was denied. He filed the original petition on November 30, 1987. He filed his amended petition, which alleges the ten claims against the defendants, on January 20, 1989.
Plaintiff filed a motion for partial summary judgment on October 26, 1988, asking the trial court to find: (1) that the 1965 Foulston-Siefkin partnership agreement was void under the Kansas Code of Professional Responsibility, DR 2-108(A) (1989 Kan. Ct. R. Annot. 159); or, in the alternative, (2) that the withdrawal, retirement, and expulsion portions of the 1965 agreement are void under the Code of Professional Responsibility. The trial court denied the motion, finding that the 1965 agreement did not violate any ethical code and that plaintiff did not retire, which meant that he was not entitled to retirement funds available under the 1965 agreement.
Defendants (except Christopher P. Christian) filed a motion for summary judgment, arguing plaintiffs claims were time barred. The trial court found that the longest applicable statute of limitations was three years; that the action should have commenced about the end of 1985 or the early part of 1986; and that, because the action was not commenced until late in 1987, the claims were barred. The court further found that plaintiffs status in the law firm gave him knowledge that would include an awareness of the potential attorney fees that could be produced under the helium litigation even though the exact amount of anticipated fees was not known in late 1982. Finally, the court concluded that, even though plaintiffs claims are time barred, they might provide offsets to defendants’ counterclaims. The defendants dismissed their counterclaims on March 13, 1989. Defendant Christian’s motion for summary judgment was granted on March 27, 1989, based upon the same grounds as the others.
Plaintiff argues that the trial court erred in denying his motion for partial summary judgment because the 1965 Foulston-Siefkin partnership agreement is unethical and unenforceable in two ways. First, plaintiff argues that the agreement on its face restrains the practice of law and does not comply with the requirements of DR 2-108 (1989 Kan. Ct. R. Annot. 159) of the Kansas Code of Professional Responsibility, which allows for conditional payment of retirement benefits. Second, plaintiff argues that Foulston-Siefldn attempted to use the agreement to compel plain tiff to quit practicing law, which would also violate DR 2-108. Finally, plaintiff argues that, because the agreement’s restraint on the practice of law was unethical and unenforceable, the entire 1965 partnership agreement is invalid and should be found to be void.
We first consider if the conditional payment of retirement benefits make the 1965 agreement unethical and unenforceable on its face. DR 2-108(A) is intended to give clients the widest possible choice of attorneys by providing as follows:
“A lawyer shall not be a party to or participate in a partnership or employment agreement with another lawyer that restricts the right of a lawyer to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.” 1989 Kan. Ct. R. Annot. 159.
The purpose behind DR 2-108(A) is to protect the public’s right “to select and repose confidence in lawyers of their choice without restriction by providing full availability of legal counsel.” Cohen v. Lord, Day & Lord, 144 App. Div. 2d 277, 280, 534 N.Y.S.2d 161 (1988), rev’d 75 N.Y.2d 95, 551 N.Y.S.2d 157 (1989).
The partnership agreement challenged by plaintiff was adopted by Foulston-Siefldn on April 1, 1965. Twelve partners signed the “Amended Partnership Agreement,” including plaintiff. Article I contains definitions of terms used in the agreement. “Retirement and Retiring partner” are defined in Article 1(h) as “withdrawal from the partnership, other than upon death, in a manner and at the times set forth in Section 3 of ARTICLE VII.” “Withdrawal and withdrawing partner” are defined in Article I(i) as “withdrawal from the partnership other than upon death, retirement or expulsion.” Article I(j) states:
“Expulsion — shall mean expulsion from the partnership under the provisions of Section 5 of ARTICLE VII; provided, however, that any partner who is expelled and who, under the provisions of Section 5 of ARTICLE VII, is . entitled to the rights and payments provided upon retirement shall not be regarded as an expelled partner but shall be considered for all purposes as having withdrawn in retirement and as being a retired partner.”
Article VII sets out how the partnership will respond to death, retirement, withdrawal, and expulsion of one of the partners. Article VII, § 1 establishes that the occurrence of one of these four events will not terminate the partnership, but will end claims of that partner against the partnership except as set forth in the agreement. Article VII, § 2(a) defines the payments that will be received upon the death or retirement of a partner:
“(i) Such partner’s full drawing account for the month in which his death or retirement occurs.
“(ii) Such partner’s capital account as of the end of the month immediately preceding the month in which his death or retirement occurs.
“(iii) An amount equal to such partner’s share of partnership profits, as defined in Section 3 of ARTICLE VI, for either the fiscal year of the partnership first preceding the date of such death or retirement, or for the fiscal year second preceding the date of such death or retirement, whichever is greater, provided, however, that for purposes of this computation, there shall be excluded from partnership net profits that portion of any single fee paid within any such year which is in excess of $75,000.00”
Article VII, § 3 outlines the provisions by which a partner retires from the firm, as follows:
“Retirement. A partner who withdraws from the partnership for the purpose of retiring from the practice of law shall be considered as a retired partner and shall be entitled to payments provided for in Section 2 of this ARTICLE VII upon retirement, if, at the time of such withdrawal, such partner
(a) is sixty (60) years of age, or
(b) has-been associated with the partnership, whether as a partner or as an associate, or both, for at least thirty (30) years, or
(c) is, in the unanimous opinion of all remaining partners, unable to continue in the practice of law by reason of a permanent physical or mental disability,
provided, however, that notwithstanding any provision in this agreement to the contrary, if' such retired partner, without the express consent of all continuing partners, re-enters the practice of law or becomes otherwise gainfully engaged or employed at an occupation associated with or related to the practice of law, then, and upon such event, the obligation of the partnership to make the payments set forth in clause (iii) of Section 2(a) of this ARTICLE VII shall immediately cease and terminate and be forever forfeited by such retiring partner, and any amounts which have theretofore been paid by the partnership to such retired partner under clause (iii) of Section 2(a) shall be, upon demand of the partnership, immediately repaid by such retired partner to the partnership.”
In Article VII, § 4, the agreement states that if a partner withdraws other than in retirement, the withdrawing partner is entitled to a portion of the drawing account and that partner s capital account. No provision is made for the receipt of retirement funds by a withdrawing partner.
The expulsion of a partner is defined in Article VII, § 5 as follows:
“Expulsion. Any partner may be expelled at any time, with or without cause, by a majority of partners, and upon such expulsion, such expelled partner’s status as a partner shall immediately terminate and such partner shall forthwith terminate his practice of law with the partnership. Such expelled partner shall be entitled to the same payments at the same times and subject to the same terms and conditions as provided in Section 4 above with respect to a withdrawing partner, the same as if such partner had withdrawn and had not been expelled; provided, however, that if such expelled partner, at the time of expulsion, meets the conditions for retirement set forth in Section 3 hereof, and in the event the expulsion is not for cause by reason of dishonesty, unethical conduct or other acts of moral turpitude of such partner, then, and in such events, he shall be entitled to the same rights and payments, subject to the same terms and conditions, as if he had retired and had not been expelled.”
The 1965 agreement was amended in 1968. The terms of the agreement that were modified do not change the application of the 1965 agreement to the issues raised in this appeal.
Article VII, § 3 of the agreement states specific conditions that must be met by a partner to qualify for retirement benefits. If a partner does not meet those qualifications, then that partner is not entitled to the compensation designated in Article VII, § 2(a)(iii). Plaintiff argues that the 1965 agreement violates DR 2-108(A) because an expelled partner is entitled to substantial benefits under Article VII, § 2(a)(iii) if he quits practicing law, but forfeits these benefits if he resumes practice. The benefits at issue here involved approximately $190,000.
Plaintiff argues first that the terms of the 1965 agreement violate DR 2-108(A) because payment of one year of partnership profits is conditioned upon a former partner’s quitting the practice of law. In support of this argument, plaintiff directs this court’s attention to Gray v. Martin, 63 Or. App. 173, 663 P.2d 1285, rev. denied 295 Or. 541 (1983). In Gray, a law firm sued a withdrawing partner to obtain an accounting of attorney fees he collected on seven contingency fee cases he took with him when he left the firm. Defendant, the withdrawing partner, argued he was entitled to keep the contingency fees because it was not practicable for him to bill his unbilled time on those cases at the time he withdrew from the firm. The law firm described the partnership agreement as having a “nothing in - nothing out” policy. The court concluded that this policy was not consistent with a withdrawing partner’s taking the files of pending partnership cases and collecting fees on those files without accounting to the continuing firm for the monies received. 63 Or. App. at 178.
The withdrawing partner counterclaimed, alleging that he was entitled to withdrawal benefits of the partnership agreement because restrictions conditioning the payment of these benefits upon his cessation of the practice of law in three counties in which the law firm was active violated DR 2-108(A). The law firm argued that the provision did not restrict the withdrawing partner’s right to practice law and, even if it did, was an ethical condition to the payment of retirement benefits. 63 Or. App. at 181. The Oregon Court of Appeals concluded that the prohibition contained within the partnership agreement directly affected the withdrawing partner’s right to practice law in the three counties listed because he lost benefits that otherwise would be his. The court found this restricted his right to practice law and was not a condition for the payment of retirement benefits. For the disciplinary rule to have meaning, the court reasoned that retirement must mean something different than withdrawal from the firm. Otherwise, every termination of a relationship between law partners would be a retirement and agreements restricting the right to practice would always be allowed. 63 Or. App. at 182. Plaintiff argues that this case supports his claim because his entitlement to retirement benefits is conditioned upon his ceasing the practice of law.
In further support of his argument, plaintiff relies upon two opinions by state ethical committees and one opinion by a district court in Dallas County, Texas. Plaintiff did not include copies of these opinions in the record or in his brief. We note that the issue addressed by the Kentucky Rar Association Ethics Committee was whether a clause in a partnership agreement tying a partner’s right to certain payments upon his withdrawal from a firm to a covenant not to compete within a geographical area for a period of two years violates DR 2-108(A). Reasoning that not every termination of or withdrawal from a law firm can be treated as a retirement, the committee concluded that offering induce- merits or conditioning benefits upon compliance with a noncompete covenant violates DR 2-108(A), citing Gray v. Martin. The committee did not issue an opinion about the enforceability of such a provision because it involved a question of law and was likely to be the subject of litigation. Nat’l Rptr. on Legal Ethics n.2, Ky. Op., p. 13 (1988).
The agreement here is distinguishable from that in Gray and in the Kentucky ethics committee opinion. Under the 1965 Fouls-ton-Siefkin agreement, one must meet one of the three conditions of Article VII, § 3 to be entitled to receive retirement benefits. Plaintiff qualified under two of these provisions because (a) he was over 60 years of age, and (b) he had been associated with Foulston-Siefkin for more than 30 years. Although eligible to receive retirement benefits, he became entitled to receive them only if he stopped practicing law. This provision fits squarely within the exception of DR 2-108(A).
In addition, plaintiff argues that the restrictions in the 1965 agreement are unethical and unenforceable on their face because the retirement benefits are not restricted to retirement only, as required by DR 2-108, but, under the terms of the agreement, are available as well to those who are expelled.
We find no merit in plaintiffs argument. Expelled partners and retired partners are not treated the same under the agreement. Under Article VII, § 5, the agreement allows an expelled partner to be treated as if that partner retired, but only if the expelled partner qualifies under one of the three provisions of Article VII, § 3. To qualify, the expelled partner must be 60 years of age, have been with the firm at least 30 years, or be unable to continue practicing law because of a permanent physical or mental disability. Only expelled partners who fit these qualifications are entitled to receive the additional compensation provided to retiring partners. Once an expelled partner is determined to be eligible for retirement benefits, the firm then treats the expelled partner as if he had retired. To be retired, the provisions outlining the requirements for retirement impose upon the retiring or expelled partner the condition to not practice law. If a retired partner, or an expelled partner who qualifies for retirement benefits, does practice law, then, under the agreement’s retirement provisions, retirement benefits cease and any amounts previously paid must be returned.
DR 2-108(A) allows restriction of the practice of law if it is a condition to payment of retirement benefits. The provisions of the 1965 agreement, which outline the requirements for one to be retired and condition the payment of retirement benefits upon the retiring partner s continuing cessation of the practice of law, come within the exception set forth in DR 2-108. The terms of the provisions of the 1965 agreement do not violate the Code of Professional Responsibility. The agreement conditions the payment of retirement benefits upon the retiring partner’s withdrawal from the practice of law. The agreement offers the same retirement benefit payments to an expelled partner who qualifies for retirement. This case is distinguishable from the facts in Gray and the case before the Kentucky ethics committee because the expelled partner must meet specific conditions of retirement to qualify for the payment of these benefits. The failure to meet these conditions makes one ineligible for the retirement benefits. Therefore, we conclude the trial court was correct in finding that the provisions of the 1965 agreement do not violate DR 2-108(A).
We next turn to plaintiff s argument that the attempt by Fouls-ton-Siefkin to apply the terms of the 1965 agreement make the agreement void and unenforceable. According to plaintiff, Fouls-ton-Siefkin offered to pay him $190,416.89 if he would quit practicing law in Kansas, but if he continued to practice, the entire amount would be forfeited. Plaintiff argues that this amount was offered to coerce or induce him to stop practicing law. Plaintiff argues this offer was against public policy, making the partnership agreement unenforceable as it was used in his case.
In support of his argument, plaintiff once again relies upon Gray v. Martin. In Gray, the agreement prohibited the withdrawing partner from practicing law in three counties as a condition of receiving the designated compensation after withdrawing from the firm. Nothing in the agreement distinguished an expelled or withdrawing partner from a retiring partner. To show the close parallel between his case and Gray, plaintiff points to the restrictions Foulston-Siefkin suggested on his practice of law if plaintiff wanted to retain and continue to receive retirement benefits from the firm. These conditions appear in a letter dated November 16, 1983, to plaintiff from Robert N. Partridge, a partner in Foulston-Siefkin. The letter indicates the parties are attempting to settle the issues concerning plaintiffs departure from the law firm and addresses plaintiffs desire to continue certain activities without forfeiting retirement benefits. In an effort to accommodate plaintiff, Partridge sets forth “certain permitted activities in which [plaintiff] may engage which, for the purposes hereof only, will not constitute the practice of [law] or employment in an occupation associated with or related to the practice of law.” The permitted activities were described as follows:
“You may rent office space and employ a secretary, with the understanding that you will identify and utilize it as a ‘private office’ and not a law office. You agree that you will not list or advertise yourself by stationery, letterhead, building address, telephone listing, or otherwise as a lawyer or attorney. Within that setting you may consult with persons and counsel them, but you may not represent them in judicial or administrative proceedings. If you refer such persons to other lawyers, you will either make no charge for any service rendered by you either before or after the referral or you agree that it shall not be your practice to make such referrals to any particular lawyer or law firm.”
If plaintiff accepted these permitted activities, then the law firm agreed to compensate him at the rate of $2,000 a month for 96 months under the terms of the partnership agreement.
Plaintiff argues that compliance with the restrictions proposed by Foulston-Siefkin prevents him from practicing law. Plaintiff is correct. Plaintiff, however, is not prevented from practicing law. He needs to comply with these restrictions only if he wants to receive retirement benefits under this 1965 agreement.
Both parties discuss the case of Cohen v. Lord, Day & Lord, 144 App. Div. 2d 277, 280, 534 N.Y.S.2d 161 (1988), which was reversed during the pendency of this appeal by the New York Court of Appeals on December 19, 1989. Cohen v. Lord, Day & Lord, 75 N.Y.2d 95, 551 N.Y.S.2d 157 (1989). A partner who voluntarily withdrew from a law firm challenged the partnership agreement which conditioned payment of money upon a withdrawing partner’s obligation to refrain from practicing law in any state or other jurisdiction in which the partnership maintained an office, or in a contiguous jurisdiction, as an unlawful and unreasonable restriction upon the right to practice law in conflict with DR 2-108(A). Although the Appellate Division concluded that the conditional payment did not violate DR 2-108(A), but was merely a financial disincentive to keep withdrawing partners from competing with the firm, the Court of Appeals disagreed and reversed. The forfeiture-for-competition clause of the partnership agreement provided:
“Notwithstanding anything in this Article ... to the contrary, if a Partner withdraws from the Partnership and without the prior written consent of the Executive Committee continues to practice law in any state or other jurisdiction in which the Partnership maintains an office or any contiguous jurisdiction, either as a lawyer in private practice or as a counsel employed by a business firm, he shall have no further interest in and there shall be paid to him no proportion of the net profits of the Partnership collected thereafter, whether for services rendered before or after his withdrawal. There shall be paid to him only his withdrawable credit balance on the books of the Partnership at the date of his withdrawal, together with the amount of his capital account, and the Partnership shall have no further obligation to him (emphasis added).” 75 N.Y.2d at 97.
The New York Court of Appeals held that the significant monetary penalty exacted by this provision constituted an impermissible restriction on the practice of law, in violation of DR 2-108(A), and was against public policy. The court concluded that the forfeiture-for-competition provision “would functionally and realistically discourage and foreclose a withdrawing partner from serving clients who might wish to continue to be represented by the withdrawing lawyer and would thus interfere with the client’s choice of counsel.” 75 N.Y.2d at 98. In Cohen, the retirement benefits were dealt with in a separate provision of the agreement. Unlike departure compensation that had to be completed within three years, retirement benefits extended to death of the retiring partner and might even continue to the partner’s surviving spouse. The New York Court of Appeals concluded that an agreement that restricts a withdrawing partner’s ability to practice law violates DR 2-108(A) and is unenforceable as against public policy. 75 N.Y.2d at 101. No such restriction exists in the present case.
The cases cited by plaintiff are distinguishable from the present case. The plaintiffs in Gray and in Cohen both voluntarily withdrew from the firm. No agreement was made that either plaintiff qualified for retirement benefits. The question here is whether conditioning the payment of retirement benefits upon the part ner’s voluntary cessation of the practice of law violates public policy. That question was not before the court in Gray or Cohen. Here, Foulston-Siefkin offered to pay $190,419.89 in retirement benefits if plaintiff quit practicing law in competition with Fouls-ton-Siefkin. This offer was based upon the 1965 agreement. DR 2-108(A) states that the right of a lawyer to practice law after terminating a relationship created by a partnership or employment agreement with another attorney can be restricted as a condition to the payment of retirement benefits. If this is to have meaning, requiring forfeiture of the retirement benefits if the practice of law resumes will not violate DR 2-108(A). Nor was the offer of retirement benefits here coercive. Plaintiff did not voluntarily withdraw from Foulston-Siefkin. He was forced to leave under threat of being expelled. Because of his longevity with the firm, he qualified to receive retirement benefits. To receive these benefits, however, plaintiff had to meet certain conditions. Plaintiff had to choose between retiring, including stopping the practice of law and receiving over $190,000 in retirement benefits, or continuing the practice of law, in which case he lost retirement benefits. The provisions of the 1965 agreement making the payment of retirement benefits conditional upon plaintiffs retirement by not continuing to practice law was not unethical or unenforceable and did not violate DR 2-108(A).
Finally, plaintiff argues that, because the conditional payment of the retirement benefits is an unethical and unenforceable restraint on the continued practice of law, the entire 1965 agreement is unethical and unenforceable. Because the 1965 agreement contains no severability clause and the conditional payment of retirement benefits is unlawful, plaintiff argues that the entire agreement is void. The retirement provisions, however, do not violate DR 2-108(A) or public policy. The contract is not illegal or void.
Even if the provisions relating to retirement benefits were illegal, they are easily severable from the rest of the contract. A contract that contains valid and invalid provisions in which the lawful provisions can be easily severed will be upheld as to the lawful portion. Henshaw v. Smith, 102 Kan. 599, Syl. ¶ 1, 171 Pac. 616 (1918). As a general rule, if possible, a court should sustain the legality of contracts in whole or in part when they are fairly entered into by the parties. The court should not seek loopholes and technical grounds for defeating the intended purpose of the contract but, instead, public policy encourages the freedom to contract, which should not be interfered with lightly. Foltz v. Struxness, 168 Kan. 714, 721-22, 215 P.2d 133 (1950).
Plaintiffs attempt to have the 1965 agreement declared void and unenforceable in its entirety is related to plaintiffs argument that he should receive a portion of the attorney fees collected in the helium litigation cases. Under the terms of the agreement, any partner who leaves the firm as a result of death, retirement, withdrawal, or expulsion ceases to have any interest in the partnership except as expressly provided in the agreement. In particular, Article VII, § 1 provides:
“[N]o such deceased, retiring, withdrawing or expelled partner, or his beneficiaries . . . shall have any claim of any nature or kind against the remaining partners or against the partnership including, but not limited to, any claims for work in process or uncollected fees, it being the intention hereof to limit such deceased, retiring, withdrawing or expelled partner’s rights only to such rights as are expressly provided in this ARTICLE VII and in ARTICLE II relating to the firm name.”
The trial court did not address the enforceability of this provision but, instead, dismissed the plaintiffs claims as being time barred. Our finding that the 1965 partnership agreement is enforceable would preclude plaintiff s claim for attorney fees acquired by the firm after he left. Plaintiff attempts to avoid the above provision by the ten claims set out in his amended petition. Several of these claims are based upon alleged oral agreements or conduct that supplemented or modified the 1965 agreement.
The oral agreements or conduct supplementing or modifying the 1965 agreement allegedly occurred prior to plaintiffs leaving the firm. The cause of action based upon such an agreement or conduct would have accrued at the time the plaintiff left the firm on January 1, 1983. Since the case was not filed within three years of that date, the trial court correctly held these claims were time barred pursuant to K.S.A. 60-512.
The balance of plaintiffs claims are based upon wrongful discharge, fraud, breach of a fiduciary duty, and quantum meruit. Some of these claims are very broadly worded and include several allegations, some of which we need not specifically address due to our holding herein that the 1965 partnership agreement is valid and enforceable.
Both parties agree that the two-year statute of limitations contained at K.S.A. 1989 Supp. 60-513(a) applies to plaintiffs claim that he was wrongfully discharged. Plaintiff argues that substantial injury in this case did not occur until he became aware that Foulston-Siefkin had actually filed for and received extraordinary fees in the helium litigation. According to plaintiff, this occurred in December 1985. Defendants argue that any entitlement plaintiff had to attorney fees from the helium litigation cases existed when plaintiff left the firm on January 1, 1983. Defendants point out that the 1965 agreement did not allow plaintiff to recover for fees received after he left the firm even though work was in progress at the time of his departure. Defendants argue that plaintiff should have filed suit within two years of leaving the firm, or by January 1985.
Plaintiff obviously was fully aware of the complexity of those cases. As one of the most senior partners in the law firm, he was acquainted with those cases and even argues that he was intimately involved in their litigation. Although plaintiff would not have known at the time he was expelled from Foulston-Siefkin of the amount of attorney fees that would ultimately be recovered by the firm, plaintiff was fully aware of the potential for recovery. In fact, plaintiff asserts that he urged Foulston-Siefkin to seek extraordinary fees just prior to his leaving the law firm. Although he did not know the amount of fees that would be recovered, he would have been aware of sufficient ascertainable injury to justify an action for recovery of damages at the time he now alleges that he was wrongfully expelled. Therefore, the two-year statute of limitations under K.S.A. 1989 Supp. 60-5l3(a) accrued at the time he left the firm. He officially ceased being a partner in the firm on January 1, 1983, although he remained “of counsel” until February 28, 1983. In any event, this action was not filed until November 1987, long after the two-year statute of limitations had run. The trial court was correct in dismissing plaintiffs claim because it was barred by the statute of limitations.
Plaintiff next claims that the partnership had a fiduciary obligation to not make material misrepresentations or omissions concerning partnership affairs; specifically those involving the partnership’s intent to seek extraordinary fees in the helium cases. Plaintiff alleges that the partnership breached this fiduciary duty by misrepresenting to plaintiff that it did not intend to seek attorney fees in the helium cases and by failing to disclose that it was attempting to obtain those fees simultaneously with its efforts to expel plaintiff. Plaintiff alleges that the two-year statute of limitations contained in K.S.A. 1989 Supp. 60-513(a)(3) applies and that this cause of action was filed in a timely manner because it did not accrue until the fraud was discovered. Plaintiff asserts that he first became aware of recovery of attorney fees in the helium cases in December 1985, and, because this action was filed in November 1987, it was timely.
Defendants agree that this claim is controlled by the two-year statute of limitations contained at K.S.A. 1989 Supp. 60-513(a)(3), but argue the cause of action accrued at the time plaintiff left the firm because plaintiff knew or could have easily discovered the facts involving this claim when he departed on January 1, 1983.
Although the trial court, in dismissing these claims, did not specifically deal with each of the ten claims filed by plaintiff, it did specifically find as follows:
“Miller’s status in the firm allowed him to know about the 1965 agreement and other firm business including the potential that the helium litigation could produce some large but highly delayed firm income. The parties do not claim any pending [litigation] tolled the applicable statutes or any personal incompetencies. Miller’s claim that he did not know the substantial nature of the effect of the 1965 agreement is not supported by the facts of this case even though the exact amount of any helium fees were not generally known in late 1982 by Miller or any party. There is no tolling or extension of time applicable to this case.”
“Under Kansas law, a fraud is discovered at the time of actual discovery or when, with reasonable diligence, the fraud could have been discovered.” Waite v. Adler, 239 Kan. 1, 6, 716 P.2d 524 (1986). Although plaintiff argues that he did not actually discover that Foulston-Siefkin was seeking and receiving attorney fees until December 1985, with reasonable diligence he could have determined this much earlier. Although Sawatzky, the attorney in charge of the helium litigation, indicated that plaintiff was not intimately involved in these cases when he left the firm, plaintiff was certainly aware of the ongoing litigation. A statement regarding attorney fees and litigation costs was filed in the United States District Court for the District of Kansas in the helium cases on December 1, 1982. With the exercise of reasonable diligence, plaintiff could have learned of this filing. Although he may not have been aware of the extent of the fees recovered by the firm until December 1985, he was certainly aware of the potential for recovery of such fees. Any statements made by the firm that could be termed a misrepresentation or any facts that could be regarded as concealed by the firm could have been easily discovered by plaintiff with the exercise of reasonable diligence. Therefore, this cause of action, which was not brought within two years of plaintiffs expulsion on January 1, 1983, is time barred.
Plaintiff also claims that a fiduciary duty was owed to him by the partnership and by the executive committee of the partnership, which was violated when it made misrepresentations and omissions concerning the efforts of Foulston-Siefkin to receive compensation for additional attorney fees in the helium litigation cases. This claim relates specifically to the conduct by the executive committee. It also contains a claim that the statements made by the committee regarding the need to expel plaintiff were defamatory because the committee knew the statements were false. Plaintiff argues that these claims are controlled by the two-year statute of limitations of K.S.A. 1989 Supp. 60-513(a)(3) regarding fraud.
Defendants note that, although this claim is labeled defamation and breach of fiduciary duty by the executive committee, the allegations relate only to defamation. Defendants argue that this claim would be covered by the one-year statute of limitations of K.S.A. 60-514, which was clearly not met with the filing of this action in November 1987.
Whether this claim is viewed as merely an allegation of defamation or to also include a charge of breach of fiduciary duty, it was not brought within the applicable statute of limitations period. Clearly the claim was not brought within the one-year limitation for defamation under K.S.A. 60-514. Furthermore, it was not filed within the two-year limitation of K.S.A. 1989 Supp. 60-513(a)(3). Although the firm did not begin to actually receive fees on the helium cases until December 1985, plaintiff was aware of the possible recovery of such fees, but he did not know the amount that would be involved. Furthermore, through the exercise of reasonable diligence, plaintiff could have learned of the application by the law firm for fees. Because plaintiff was aware that this was possible and that it was time to pursue such a recovery at the time he left the firm, the cause of action accrued with his departure on January 1, 1983. The trial court did not err in concluding that this claim was barred by the statute of limitations.
Plaintiff finally argues that Foulston-Siefldn cannot use the statute of limitations as a defense to his claims because the firm misrepresented to plaintiff that it would not seek additional attorney fees in the helium litigation. As a result of the misrepresentation, plaintiff contends he left the firm without any opportunity to claim a share of the helium fees “either through the partnership processes or through litigation.” Plaintiff further alleges that Foulston-Siefldn is estopped from claiming the statute of limitations as a defense because once it requested those fees, Foulston-Siefldn never informed plaintiff that the fees were being sought. Due to our finding that the partnership agreement is enforceable, our discussion of this issue is limited to events which occurred prior to plaintiffs leaving the firm.
In support of his claim, plaintiff relies on the case of Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978). In Newton, a director of a corporation began a shareholder’s derivative action against his codirectors for misappropriation of corporate assets and excessive management salaries. When defendants attempted to assert the statute of limitations, the court did not let them take advantage of limitations when their concealment was the basis of the delay in filing the action. The court emphasized the fiduciary duty of officers and directors of corporations, noting that Kansas sets a higher standard or stricter fiduciary duty for directors and officers of corporations than some jurisdictions. Thus, Kansas imposes a very strict fiduciary duty on officers and directors of a corporation to act in the best interests of the corporation and its stockholders. This duty requires the officer or director to work for the general interests of the corporation. 224 Kan. at 514.
Plaintiff also relies upon the discussion by this court regarding the applicability of fraudulent concealment in Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980). The university sued a manufacturer of roofing materials because the roof on the university’s new library building leaked repeatedly. The roof was completed in 1969, began leaking in 1970 or 1971, and continued to leak during virtually every rain thereafter. The university repeatedly demanded that the roof be repaired. In April 1975, an expert retained by the university concluded that the entire structure had to be reroofed. The university argued that the failure of the manufacturer to disclose its problems with other roofs constituted fraudulent concealment that tolled the statute of limitations. The court rejected this argument, concluding that no concealment occurred that would toll the running of the statute of limitations when the cause of action is known to the plaintiff or where knowledge is presumed. Plaintiff relies upon the following language by the court to support his argument:
“ ‘There can be no concealment which will prevent the running of the statute of limitations where the cause of action is known to the plaintiff or there is a presumption of such knowledge. Where the defendant does not occupy a fiduciary or confidential relationship toward the plaintiff, neither affirmative nor passive conduct of the defendant will constitute such a concealment as to prevent the running of the statute of limitations, where through reasonable diligence on his part he could have learned of the existence of his cause of action. It has accordingly been held that the party seeking to toll the statute of limitations must explain why due diligence did not lead or could not have led to discovery of the facts and the cause of action.’ ” (Emphasis added.) 227 Kan. at 564 (quoting 51 Am. Jur. 2d, Limitation of Actions § 148, pp. 720-21).
Plaintiff argues that this decision in Friends University reestablishes that estoppel by fraudulent concealment as discussed in Newton applies to a fiduciary relationship.
As further support for his argument, plaintiff argues two tort cases from California and a third case from a federal district court in Virginia. All three cases involve misrepresentations made by doctors associated with respective defendants whose advice caused the plaintiffs to delay recognizing the extent of injury that resulted from the defendants’ negligence. In each case, the respective court found that the defendant would not be allowed to use the statute of limitations to bar the claim by plaintiff when defendant’s conduct caused the plaintiff to delay in filing the suit. Mumpower v. Southern Railway Company, 270 F. Supp. 318 (W.D. Va. 1967); Pashley v. Pacific Elec. Ry. Co., 25 Cal. 2d 226, 153 P.2d 325 (1944); Bowman v. McPheeters, 77 Cal. App. 2d 795, 176 P.2d 745 (1947). Plaintiff cites additional cases from several jurisdictions that support his argument that Foulston-Siefldn should not be allowed to assert the statute of limitations bar because, by doing so, Foulston-Siefldn would be allowed to take advantage of its own fraud, concealment, and misrepresentation to the plaintiff.
In response to plaintiffs argument, defendants agree that, in Kansas, one who makes representations that lull another party into a false sense of security or cause the injured party to not pursue a claim and thus allow the statute of limitations to lapse will be estopped in later attempting to plead the statute of limitations as a bar when the injured party files suit. The defendants, however, deny that this occurred in the instant case.
Plaintiffs reliance upon our decisions in the Newton and Friends cases is misplaced. In addition, the California and Virginia cases are factually distinguishable from the present case. There is no similarity between the plaintiffs’ situations in those cases and that of the plaintiff here. In Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978), this court noted that the doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. 224 Kan. at 45-46. See Coffey v. Stephens, 3 Kan. App. 2d 596, 597, 599 P.2d 310 (1979). In Bowen, this court summarized the principles surrounding the doctrine of equitable estoppel as follows:
“ ‘The doctrine of equitable estoppel requires consistency of conduct, and a litigant is estopped and precluded from maintaining an attitude with reference to a transaction involved wholly inconsistent with his previous acts and business connection with such transaction. ’ (Browning v. Lefevre, 191 Kan. 397, Syl. ¶ 2, 381 P.2d 524 [1963].)
“ ‘. . . One who asserts an estoppel must show some change in position in reliance on the adversary’s misleading statement. . . .’ (In re Morgan, 219 Kan. 136, 137, 546 P.2d 1394 [1976].)
“ . . Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts. . . .’ (United American State Bank & Trust Co. v. Wild West Chrysler Plymouth, Inc., 221 Kan. 523, 527, 561 P.2d 792 [1977].)” 224 Kan. at 46.
Even assuming that the facts are as alleged by plaintiff, nothing suggests why the exercise of due diligence by the plaintiff did not lead or could not have led to the discovery of the efforts by Foulston-Siefkin to obtain attorney fees in the helium cases. Plaintiff admits that he encouraged the law firm to seek these fees just prior to their efforts to have him expelled from the firm. At the time plaintiff left Foulston-Siefkin, he was a senior partner. Aside from the one conversation with Sawatzky, plaintiff makes no indication that he made additional inquiries concerning the possibility of obtaining fees in the helium cases. Plaintiff asserts liability by Foulston-Siefkin without assuming any responsibility for not making inquiry of his own. The trial court found that the facts of the case did not support plaintiffs claim that he had no knowledge of the substantial nature of the potential recovery that could be produced by the helium litigation or of the effect of the 1965 agreement upon such a recovery. As the trial court noted, even though the exact amount of the helium fees was not generally known at the time plaintiff was expelled, plaintiff was aware of the potential recovery.
The facts here are similar to the events that occurred in Friends University. Although Friends had not determined the exact scientific cause of the leaking roof, this did not toll the running of the statute of limitations because Friends was fully aware that a severe problem existed, yet elected to seek a nonjudicial resolution of the controversy by making repeated demands to repair the roof. Here, plaintiff was aware prior to leaving the firm of the potential recovery for attorney fees under the helium litigation. The request for attorney fees was filed with the district court and would have been easily discoverable by plaintiff, who is an experienced attorney and aware of the procedures for ob- tabling such a recovery. Any concealment that occurred here does not prevent the running of the statute of limitations because plaintiff was aware of the potential recovery of attorney fees. The fact that he did not realize the amount of recovery that was possible does not excuse his failure to exercise due diligence in attempting to determine whether such attorney fees were actually being sought. The defendants are not estopped from asserting the running of the statute of limitations.
The rules governing summary judgment are set out in K.S.A. 1989 Supp. 60-256. Summary judgment shall be granted where
“the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material feet and that the moving party is entitled to a judgment as a matter of law.” K.S.A. 1989 Supp. 60-256(c).
To oppose a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact.
“When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” K.S.A. 1989 Supp. 60-256(e).
The plaintiff here argues that material facts relied upon by the district court and by the defendants are controverted and cannot support summary judgment. We agree that many facts are disputed, but none is material to the denial of plaintiffs partial summary judgment or the entry of summary judgment in favor of the defendants.
In order to preclude summary judgment, the disputed facts must be material to the issues to be determined. In Ruebke v. Globe Communications Corp., 241 Kan. 595, 605, 738 P.2d 1246 (1987), we said:
“Ruebke’s claims do not raise any genuine issues of material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. ¶¶ 4, 5, 674 P.2d 1054 (1983).”
The trial court may properly enter summary judgment where the only material questions presented are those of law. Barber v. Williams, 244 Kan. 318, 767 P.2d 1284 (1989).
We conclude that the district court did not err in denying partial summary judgment in favor of the plaintiff and in granting summary judgment in favor of the defendants. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
McFarland, J.:
Randy D. Pioletti appeals his jury trial convictions of aggravated kidnapping (K.S.A. 21-3421) and first-degree murder (K.S.A. 21-3401).
The facts of this bizarre homicide may be summarized as follows. Karen Baile and Randy D. Pioletti were married in December 1984. A daughter, Rhyannon, was born in May of 1985. The marriage ended in a December 1987 divorce. Custody of Rhyannon was a bitter ongoing problem between her parents. In the fall of 1987, Randy told a friend, Mary Kessinger, he knew how to permanently resolve the problem. He stated he could “grab” Karen, put her in his van, take her to the mortuary where he worked, and cremate her. He made similar statements to other people. He also stated that if he did this, he wanted Karen to feel it.
On December 6, 1987, Randy made arrangements to meet Karen at Willie C’s, a restaurant near the Wichita Towne East Mall, on the following evening. The stated reason for the meeting was a joint Christmas shopping expedition for Rhyannon and Karen’s two children from a previous marriage.
At 6:30 p.m. on December 7, 1987, Randy left work at the mortuary after asking a co-worker to cover for him for a couple of hours for the stated reason he wanted to buy his daughter a Christmas present. Karen left her home at 6:10 p.m., telling the baby-sitter she would be back at 10:00 p.m. She never returned. Randy returned to work at 8:00 p.m. He appeared to be nervous and had abrasions on his face and left hand. Randy stated he had injured himself on his van door.
The next morning a co-worker at the mortuary saw Randy mopping near the crematory. He also noticed the crematory was hot, although there was no scheduled usage thereof. Randy pointed to the crematory and indicated he had cremated his dog. Later that morning, Randy went to Mary Kessinger’s house and asked her to wash some coveralls for him. He also requested and received permission to put a bucket of rags in an outbuilding on her property. Shortly after Randy left, he called Mary stating: Karen had disappeared, he was in trouble, and the police were looking for him. He also indicated he had burned a puppy in the crematory and was in difficulty at work because of it. After Randy hung up, Mary started thinking about Randy’s odd conduct that morning, his telephone call, and his prior threat to kill and cremate Karen. She went to the outbuilding and found a bucket containing cloth and ashes hidden therein. She called the police.
The bucket contained ashes, bones, pieces of flesh, teeth, sheets, paper towels, plastic, coins, a paper clip, a safety pin, gold chain, a makeup purse frame with clasp, aluminum tubing, a cigarette butt, a gold necklace fob with a clear stone, and glass. Analysis of the biological material revealed that the remains were that of a female with the following characteristics: (1) of European descent; (2) 5'2"; (3) approximately 32 years old; (4) had given birth within the last five years; (5) had a broken nose; and (6) had type O blood. Karen Baile was a 5'2" white female, 32 years old with type O blood and a broken nose, and who had last given birth in May 1985. The necklace found in the bucket was identified as belonging to Karen. DNA analysis introduced at trial indicated that blood found on the door of the crematory was probably that of the offspring of Bryon and Delphina Baile, Karen’s parents. The test indicated a 99.999% probability of parenthood. On December 8, 1987, Karen’s automobile was found in the parking lot of Willie C’s restaurant.
On December 10, 1987, Randy was charged with premeditated first-degree murder. Following a preliminary hearing, he was bound over on first-degree murder and aggravated kidnapping charges. The information was amended to reflect these charges.
On May 12, 1988, defendant was convicted of first-degree murder and aggravated kidnapping. He was sentenced to consecutive life terms. The matter is before us on Randy’s direct appeal. Other facts will be stated as necessary for discussion of the particular issues.
VOIR DIRE
Defendant complains herein of a number of what he contends were judicial improprieties committed during voir dire. Preliminarily, we must set the stage. The prospective jurors were divided into three groups of twelve, each of which was questioned separately, but in the presence of the others. Defendant had previously filed a notice of intent to rely upon an insanity defense. During voir dire examination of the first panel the matter of the insanity defense was raised, and the panel was asked if any person could not follow the judge’s instructions or not fairly consider the evidence thereon. There were no affirmative responses. Later on, when a prospective juror on the same panel was being examined, the individual expressed some doubt as to what the law on insanity was. The trial judge, over defendant’s objections, responded as follows:
“I don’t know that its going to come up in the case, but there is no reason for the jury to have any questions about the law of insanity. This is the law of insanity.
‘Insanity, to constitute a legal defense to the charge of crime, means that the defendant is laboring under such a defect of reason from disease of the mind as to not to know the nature and quality of the act he is doing, or, if he did know it, that he did not know that what he was doing was wrong because of his mental inability to distinguish between right and wrong, and if these facts exist, then the law does not hold him responsible for his act. On the other hand, if a defendant is mentally capable of understanding what he is doing and has the power to know that his act was wrong, then the law will hold him criminally responsible for it. If this power of discrimination existed, he was sane in the eyes of the law. A person of sound mind and discretion will not be exempted from punishment because he might have been a person of weak intellect or one whose moral perceptions were blunted or ill developed, or because his mind may have been depressed or distracted from brooding over misfortunes or disappointments, or because he may have been wrapped up to the greatest and most intense mental excitement from sentiments of disappointment, rage, revenge, or anger. The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by the law to be criminal, so long as the person committing the act had the capacity to know what he was doing and the power to know that his act was wrong.’
“Now, that’s the law of insanity in Kansas. If that is a defense asserted, then that will be your instruction. There will be other instructions. The reason I am doing that is because both sides saw fit to go into that on voir dire. I don’t even know if there will be any evidence in that regard. If there isn’t, you won’t get an instruction on that. That’s why I would like to caution you, we can’t expect members of the jury to speculate about matters that may not be in issue, but every time a jury raises a question, I am going to answer it. That’s why I read it. You will have that in writing if that is a defense asserted.”
The instruction read by the trial judge was from State v. Andrews, 187 Kan. 458, 357 P.2d 739 (1960), cert. denied 368 U.S. 868 (1961).
As voir dire progressed, the subject matters of insanity and expert testimony thereon continued to surface. Each time, the trial court launched anew into the subject with increasingly maundering responses. Finally, the following occurred:
“THE COURT: We have gotten into something [insanity issue] that may be purely speculative. It will be time to instruct when it becomes an issue in the case. We are getting farther and farther into it and we are going to back out. That’s the only thing I know to do.
“I am not trying to put Mr. Stahl [defense counsel]—
“MS. SWEGLE [attorney for State]: I would like to note my objection to-
“THE COURT: We are going to leave that out until we know that’s going to be the defense.
“MS. SWEGLE: That Notice has been filed; we are entitled to go into it.
“THE COURT: Let me put it this way: You have gone into it at great length, both of you. The subject matter is exhausted, period.
“MR. STAHL: Is Your Honor saying the next panel is not going into that?
“THE COURT: If you want to ask people if they will disregard those, you are welcome to do so, but — -Do any of the other twelve people that obviously have heard all of this have any questions to raise at this time about the insanity defense, should it be raised in the case?
“(No response.)
“THE COURT: Okay, nobody has any. I am just trying to get this thing in proportion. Let’s proceed.”
At the conclusion of the voir dire questioning, defense counsel moved for a declaration of mistrial based upon the judge’s comments during and conduct of the voir dire. The trial judge’s comments (out of the presence of the jury) in overruling the motion are too lengthy for in toto inclusion herein and include much irrelevant material, such as his low personal opinion on the value of expert witnesses on insanity issues. The judge concluded his remarks as follows:
“The reason I called a halt to all this final argument that was going on about the insanity defense is, I just was confronted with the fact that it hadn’t even been decided by the defense or diclosed, pardon me, disclosed to the Court whether that defense is going to be used. If it wasn’t going to be used, none of the discussion about insanity was appropriate. And if you choose not to use it, there won’t be any instruction on it. And it won’t be before the jury.”
Defense counsel’s complaints relative to alleged judicial impropriety during voir dire fall into two categories:
1. Improper statements of the applicable law; and
2. improper restriction of inquiry on voir dire.
K.S.A. 22-3408(3) provides:
“The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose.”
In State v. Jackson, 234 Kan. 84, 86, 670 P.2d 1327 (1983), we stated the rule concerning the limitation of voir dire examination of the jury as follows:
“A trial court has a broad discretion in controlling the voir dire examination in criminal cases. In the absence of a showing of an abuse of discretion and prejudice, the rulings of a trial court limiting a defendant’s voir dire examination of jurors will not be made the basis for a reversal of a case. [Citation omitted.]”
See also State v. Mahkuk, 220 Kan. 74, 77, 551 P.2d 869 (1976).
Here, the trial court limited the voir dire examination of the jury only after an extensive discussion of the various ramifications of an insanity defense had occurred. The trial court considered further discussion unnecessary in view of the discussion which had taken place with the first two jury panels and in the presence of the third panel. Moreover, before closing off the subject, he asked the remaining panel if they had any questions concerning the insanity defense. There were no questions. The court also told defense counsel that he could question the remaining jury panel about whether they would disregard insanity instructions. Defense counsel did question the prospective jurors from the third jury panel on whether there was anything that might keep them from being fair and impartial jurors.
We have carefully reviewed the entire record of the voir dire and unhesitatingly conclude:
1. No reversible misstatements of the applicable law as to insanity and expert witnesses thereon were made by the trial court;
2. the complained-of limitation of voir dire as to the insanity defense relative to the third panel was not an abuse of discretion and not prejudicial to the defendant;
3. the voir dire was not well handled by the trial court and was characterized by rambling, repetitive judicial statements that should not have been made; and
4. individually and collectively, no reversible error or prejudice to the defendant has been shown.
INSTRUCTIONS
The unnumbered instruction defining legal insanity given at the close of the evidence was the same as that set forth in the preceding issue and will not be repeated herein. As previously stated, it is taken from State v. Andrews, 187 Kan. 458, wherein it was approved. Particularly, defendant complains that it was error not to define the word “wrong.”
In State v. Boan, 235 Kan. 800, Syl. ¶ 2, 686 P.2d 160 (1984), we held:
“Under the M’Naghten test for criminal insanity, the accused is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act.”
“Wrong,” as used in the M’Naghten test, was defined as “ ‘that which is prohibited by the law of the land.’ ” 235 Kan. at 810. We further stated that the PIK instruction on insanity would be clearer to the jury if language defining the word “wrong” were added to the instruction. However, the lack of definition did not cause this court to declare the giving of the PIK instruction to be erroneous or overrule the instruction used in State v. Andrews, 187 Kan. 458. 235 Kan. at 814.
PIK Crim. 2d 54.10 was amended in response to the Boan opinion and now reads:
“The defendant has denied criminal responsibility because of lack of mental capacity at the time the offense was committed. In law, this is called insanity. The defendant is not criminally responsible for his acts if because of mental illness or defect, he lacked the capacity either
(a) to understand the nature of his acts, or
(b) to understand that what he was doing was prohibited by law.
“If you have a reasonable doubt as to his capacity to understand either, then you should find the defendant not guilty because of insanity.
“If you have no reasonable doubt that the defendant had the mental capacity at the time of the alleged offense to understand both what he was doing and that it was prohibited by law, then you should find the defendant was not insane.”
Defense counsel’s request to use this PIK instruction was denied. Boan involved an unusual factual situation wherein defendant claimed to believe the killings he committed were morally right — hence the trial court’s modification of the instruction from a right and wrong test to a contrary to law test. We held:
“Under the M’Naghten test for criminal insanity, the accused is to be held not criminally responsible (1) where he does not know the nature and quality of his act, or, in the alternative, (2) where he does not know right from wrong with respect to that act.” 235 Kan. 800, Syl. ¶ 2.
“Under the ‘right and wrong’ test of criminal insanity, it must be proved that at the material time the accused did not know that what he was doing was contrary to law. It is not sufficient to prove that he believed that, while what he was doing was legally wrong, it was morally right.” 235 Kan. 800, Syl. ¶ 3.
No such claim is made herein. Defendant’s attempts to conceal the crime were planned in advance and his conduct afterward clearly showed an awareness that the killing was prohibited by law. We find no reversible error in this instruction.
Next, defendant claims error in the following unnumbered instruction:
“Defendant has claimed as a defense, insanity.
“All persons are assumed to be sane unless the contrary appears from the facts and circumstances in the case.
“If, upon consideration of the whole evidence, the defense asserted causes the jury to have a reasonable doubt as to defendant’s sanity at the time of the occurrence, the defendant should be found not guilty by reason of insanity. ”
Defendant contends this instruction impermissibly shifted the burden of proof to him.
In State v. Hollis, 240 Kan. 521, 731 P.2d 260 (1987), we discussed the burden of proof as follows:
“ ‘[T]he state is not required in the first instance to introduce evidence to prove sanity, for the law presumes that all persons are sane, and this presumption of sanity takes the place of evidence in the first instance. It answers for evidence of sanity on the part of the state. But if evidence is introduced which tends to shake this presumption, the jury must then consider the same, and its effect upon the main issue of guilty or not guilty, and if upon considering the whole of the evidence introduced on the trial, together with the presumption of sanity, the presumption of innocence, and all other legal presumptions applicable to the case under the evidence, there should be a reasonable doubt as to whether the defendant is sane or insane, he must be acquitted. . . . [The defendant] is required only to raise a reasonable doubt as to his guilt. The burden of proof is always upon the state, and never shifts from the state to the defendant.’ ” 240 Kan. at 529 (quoting State v. Crawford, 11 Kan. 32, 44-45 [1873]).
The complained-of instruction is poorly worded. The first sentence, “Defendant has claimed as a defense, insanity,” is unnecessary. The third paragraph picks up on this sentence as follows:
“If, upon consideration of the whole evidence, the defense asserted causes the jury to have a reasonable doubt as to defendant’s sanity at the time of the occurrence, the defendant should be found not guilty by reason of insanity.” (Emphasis supplied.)
The “defense asserted” is the insanity defense referred to in the first sentence. Reliance on a claim of insanity is generally referred to as the insanity defense both in K.S.A. 22-3219 and in legal terminology. It lacks some of the characteristics of a true affirmative defense as, although notice of intention to rely thereon is required, a person claiming thereunder does not have the burden of proving the insanity.
A related matter comes up again in the following unnumbered instruction:
“Your determination of defendant’s claim of insanity must be made from the whole evidence in this case. In that regard, the testimony of persons who observed the events leading up to the transaction you are considering and who observed and described the actions and demeanor of the defendant immediately before, during and after the transaction may be considered by the jury along with the other evidence.
“You are further instructed that the testimony of psychologists and psychiatrists stands on the same footing as that of any other witness since insanity is a legal not a medical concept.”
This instruction is not an incorrect statement of the law. As we held in State v. Sanders, 225 Kan. 147, Syl. ¶ 4, 587 P.2d 893 (1978):
“The testimony of medical experts that an accused was legally insane at the time of a criminal act is not conclusive merely because it is not disputed by other medical testimony. The testimony of nonexpert witnesses who observed actions of the accused immediately before, during and after the criminal act may be considered by a jury along with testimony of expert witnesses.”
That legal insanity is a legal and not a medical statement is also a true statement. See 21 Am. Jur. 2d, Criminal Law § 49.
PIK Crim. 2d 52.14 recommends no separate instruction on expert witnesses be given.
PIK Crim. 2d 52.09 as follows was given herein:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
Did the instructions as a whole impermissibly shift the burden of proof of insanity to the defendant? We believe not. “Insanity defense” is a common term relating to the matter of criminal responsibility and by itself is not a burden shifting term. Another unnumbered instruction given herein provides:
“The law places the burden upon the state to prove the defendant is guilty. The law does not require the defendant to prove defendant is not guilty. Accordingly, you must assume defendant is not guilty unless you are convinced from all the evidence in the case defendant is guilty.
“You should evaluate the evidence admitted in this case in accordance with these instructions. The test you must use is this: If you have no reasonable doubt as to the truth of any of the claims made by the state, you should find the defendant guilty as charged; or if you have a reasonable doubt as to the truth of any of the claims made by the state, you should find the defendant not guilty.”
This instruction is quite close to PIK Grim. 2d 52.02 and clearly places the burden of proof as to guilt on the State. We find no reversible error in the instruction herein.
Before turning to the next issue, some additional comments need to be made. The instructions herein were not well done. They lack even the elementary format of being individually numbered, which renders any discussion thereof awkward. More seriously, they are another example of this particular trial judge’s long-established conduct of refusing to use PIK instructions or follow PIK recommendations. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the ap plicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed. Each of the complaints herein as to instructions given would have been avoided if PIK had been followed. It is difficult to conceive of what motivation lies behind this trial judge’s persistence in creating problems by refusing to follow PIK. Whatever his reason may be, we trust the practice will be discontinued.
DIMINISHED CAPACITY
The trial court declined to give an instruction on diminished capacity after the same was requested by defense counsel. Defendant contends this was error.
In State v. Jackson, 238 Kan. 793, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986), we discussed the doctrine of diminished capacity in some depth.
“Evidence of diminished capacity is admissible only for the limited purpose of negating specific intent and is not a substitute for a plea of insanity. Where insanity is relied upon, the jury must first determine that issue. If it finds the defendant sane, it may then consider, where appropriate, evidence of diminished capacity as a defense to a crime requiring proof of a specific intent. Whether the jury should be instructrd on diminished capacity is left to the sound discretion of the trial court.” 238 Kan. at 798.
In State v. Maas, 242 Kan. 44, 744 P.2d 1222 (1987), we approved our prior holding in Jackson that the decision of whether or not to give an instruction on diminished capacity was a matter of judicial discretion, but stated:
“However, a majority of the court is of the opinion that it would be better practice for the trial court to give an instruction on diminished capacity where such an instruction is reasonably necessary to inform the jury of the effect of a defendant’s diminished capacity on the specific intent required for the crime charged.” 242 Kan. at 52.
In State v. Morris, 244 Kan. 22, 765 P.2d 1120 (1988), we followed the holdings of Maas and Jackson and again held that the giving of the instruction is a matter of judicial discretion. We adhere thereto. We find no abuse of discretion on this issue.
AGGRAVATED KIDNAPPING CHARGE
On December 10, 1987, defendant was charged with premeditated first-degree murder. A preliminary hearing was had in January wherein defendant was bound over on the murder charge and aggravated kidnapping. The information was subsequently amended to add the additional charge. Defendant sought dismissal of the new charge, and his motion was denied.
Defendant contends the trial court erred in denying the pretrial motion to dismiss, arguing: (1) the trial judge exceeded his judicial power in binding defendant over on a charge of aggravated kidnapping where he had not been charged with same; (2) defendant was denied a full and fair hearing because he was not permitted to introduce evidence or cross-examine witnesses on the charge of aggravated kidnapping; and (3) there was insufficient evidence to bind the defendant over on a charge of aggravated kidnapping. Each argument will be discussed in sequence.
K.S.A. 22-2902 provides, in part:
“Preliminary examination. (1) Every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury.
“(3) The defendant shall not enter a plea at the preliminary examination. The defendant shall be personally present and the witnesses shall be examined in the defendant’s presence. The defendant’s voluntary absence after the preliminary examination has been begun in the defendant’s presence shall not prevent the continuation of the examination. The defendant shall have the right to cross-examine witnesses against the defendant and introduce evidence in the defendant’s own behalf. If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant.”
Defendant considers the statute means the magistrate shall determine if the felony (the charged felony) has been committed. The State contends a felony means a felony and the magistrate is not limited to just the felony charged.
Kansas has long held that a defendant may be charged with one offense and “bound over for another, if it shall appear on the [preliminary] examination that he is guilty of a public offense other than that charged in the warrant.” Redmond v. State, 12 Kan. 172, Syl. ¶ 3 (1873). See also State v. Hill, 211 Kan. 287, 296, 507 P.2d 342 (1973); State v. Scott, 210 Kan. 426, 430, 502 P.2d 753 (1972); State v. Fields, 70 Kan. 391, 394-95, 78 Pac. 833 (1904).
The problem with this longstanding rule is that the Redmond case, and others following the Redmond precedent, came under statutes different from those affecting the case at bar. In Redmond, the statutes expressly permitted a defendant to be charged for one offense on an information or warrant, and, if the preliminary hearing produced evidence that the defendant had committed a crime other than the crime charged, he could be held over for trial and given a reasonable opportunity to produce witnesses and prepare his defense. Redmond, 12 Kan. at 176; G.S. 1868, ch. 82, § 55. Our present statute, K.S.A. 22-2902(3), makes no reference to charged or uncharged felonies.
Common sense dictates that, had the legislature intended to restrict a magistrate’s power to consideration of only a charged felony, it could easily have done so. The term “a felony” contains no such limitation. Defendant’s position would often result in multiple preliminary hearings on the same set of facts. The process could continue until the magistrate agreed the State had finally charged the appropriate felony. This would be a particular problem in cases involving sexual crimes against children where there are several closely related felonies in the statute books.
Defendant next argues that he was denied his right of cross-examination of the witness at the preliminary hearing as he did not anticipate a possible aggravated kidnapping charge. There is no showing defendant was precluded or restricted in any way in his cross-examination at the preliminary hearing. We have, in essence, disposed of this issue by our previous holding herein that the magistrate had the power to bind defendant over on the aggravated kidnapping charge.
Finally, defendant argues there was insufficient evidence to bind him over on the aggravated kidnapping charge.
A defendant may be bound over for trial if the court finds there is probable cause to believe that a crime (felony) has been committed and that there is probable cause to believe the defendant committed it. State v. Burrell, 237 Kan. 303, Syl. ¶ 1, 699 P.2d 499 (1985). The evidence need not prove guilt beyond a reasonable doubt, only probable cause. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). Probable cause at a prelim inary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Puckett, 240 Kan. 393, 395, 729 P.2d 458 (1986). The trial court must draw the inferences favorable to the prosecution from the evidence presented at the preliminary examination. State v. Sherry, 233 Kan. at 935.
To bind defendant over on an aggravated kidnapping charge there must have been evidence from which the trial judge could have reasonably believed that defendant: (1) took or confined the victim by force, threat, or deception; (2) that it was done with the intent to hold her to facilitate the commission of any crime or to inflict bodily harm on the victim; and (3) that bodily harm was inflicted upon the victim. PIK Crim. 2d 56.25; K.S.A. 21-3420; K.S.A. 21-3421.
The evidence presented at the preliminary examination indicted that the defendant had stated he knew the perfect way to “take care” of his ex-wife. He could grab her, put her in his van, take her to the mortuary where he worked, and cremate her. The defendant articulated his plan to several individuals, including Mary Kessinger, with whom he discussed the plan on more than one occasion. Shortly before the victim disappeared, the defendant made arrangements to go Christmas shopping with her. The defendant also made arrangements to take a couple of hours off work for the shopping excursion. The victim and defendant met at the agreed location; however, she never returned from the planned outing. Her automobile was found at the rendezvous scene. The victim’s cremated remains were found the next day.
Inasmuch as the victim had intended to go Christmas shopping but ended up at the crematory, it is reasonable to believe she was induced to go there by force, threat, or deception, given the bitter relationship between the parties. If inducing the victim to accompany him by some false statement made by the defendant was part of his plan to commit a crime, the crime of kidnapping by deception would lie. See State v. Colbert, 221 Kan. 203, 208-09, 557 P.2d 1235 (1976). Given the facts and circumstances presented at the preliminary hearing, a person could reasonably believe that a taking or confinement occurred to facilitate the crime of murder or to inflict bodily harm upon the victim.
Clearly, there was sufficient evidence to bind the defendant over on the charge of aggravated kidnapping.
We find no error or abuse of discretion in binding the defendant over on aggravated kidnapping.
FELONY MURDER
The amended information on which defendant went to trial charged premeditated first-degree murder and aggravated kidnapping. The trial court added felony murder, instructing as follows:
“Defendant is charged with the crime of murder in the first degree. Defendant pleads not guilty. To establish this charge each of the following claims must be proved. Defendant, or someone acting in concert with him:
I.Killed another human being, Karen Baile,
(a) committed maliciously
(b) williully,
(c) deliberately and with premeditation, or
II.committed in the perpetration or attempt to perpetrate any felony,
III.this happened in Sedgwick County, Kansas.
“Felony Murder Rule: If the death of a human being ensues in the perpetration or attempt to perpetrate a felony dangerous to human life then murder in the first degree is committed even though the death of a human being is not intended.
“Kidnapping and aggravated kidnapping are felonies dangerous to human life.”
The verdict entered did not indicate on which theory the jury relied.
In State v. Foy, 224 Kan. 558, 566, 582 P.2d 281 (1978), we held the fact that felony murder is not charged in the information does not preclude an instruction on felony murder where there is evidence to support the instruction.
We recently discussed the standard of appellate review in State v. Switzer, 244 Kan. 449, Syl. ¶ 1, 769 P.2d 645 (1989), where we said:
“Where defendant claims insufficiency of the evidence in a criminal case, an appellate court is required to review all the evidence in the light most favorable to the prosecution in determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”
In the preceding issue, we set forth the evidence of aggravated kidnapping. Further, there was evidence the victim died while under defendant’s control. There was sufficient evidence to support a first-degree murder conviction under either theory.
In State v. Wilson, 220 Kan. 341, 345, 552 P.2d 931 (1976), we said: “When an accused is charged in one count of an information with both premeditated murder and felony murder it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilt by reason of the killer’s malignant purpose.” We have further held that the State is not required to elect between premeditated and felony murder, as K.S.A. 21-3401 establishes the single offense of murder in the first degree, and only provides alternative methods of proving the crime. State v. Chism, 243 Kan. 484, 491, 759 P.2d 105 (1988); see PIK Crim. 2d 56.02-A.
We find this issue to be without merit.
JURY MISCONDUCT
On May 11, 1988, the next-to-last-day of trial, the court was informed by defense counsel that the May 11, 1988, edition of the Wichita Eagle Beacon contained a story about-the trial and John Lisi, who had been implicated the previous day by the defendant’s testimony. Specifically, the article began, “A man accused by Randy Pioletti of cremating Karen Baile said he was forced at gunpoint to push Baile’s lifeless and partially burned body back into the crematorium, the man’s lawyer said in an article Tuesday.” Defense counsel requested the jurors be questioned, stating there might be grounds for a mistrial. The trial court decided not to question the jurors and defense counsel moved for a mistrial. As the jurors were being brought into the courtroom to proceed with the trial, the bailiff informed the trial judge that there was an open newspaper in the jury room. The trial court informed the jury that any statements in the article were not to be considered as facts in the case and asked that if any of them had read the trial story in the newspaper, to notify the bailiff and they would be spoken to individually. Five responded. The trial court’s questioning of each revealed that none had read the entire article and none had formed an opinion based on the article. The trial court was satisfied the jury had adhered to its oath and continued the trial, whereupon defendant renewed his motion for a mistrial.
Defendant asserts that the trial court erred in denying the mistrial, arguing that, “From the very first sentence, anyone reading the article would have gained knowledge of facts prejudicial to the defendant which were not in evidence.”
The appellate standard of review of a trial court’s refusal to grant a mistrial was stated in State v. Bagby, 231 Kan. 176, Syl. ¶ 4, 642 P.2d 993 (1982), where we said:
“Declaration of a mistrial under the provisions of K.S.A. 22-3423 is a decision largely within the discretion of the trial court, and that decision will not be set aside on appeal absent a clear showing of abuse of discretion.”
In order to prove an abuse of discretion on appeal, the party claiming error must show that he was substantially prejudiced by the court’s refusal to grant a mistrial. State v. Bagby, 231 Kan. at 179.
In State v. Baker, 227 Kan. 377, 382-83, 607 P.2d 61 (1980), we held that a juror’s reading of newspaper articles pertaining to the trial was not grounds for reversal, new trial, or mistrial “unless the articles are of such a character that they might have resulted in prejudice to the losing party.”
We found prejudice so as to warrant a mistrial in State v. Yurk, 230 Kan. 516, 638 P.2d 921 (1982), the only case cited by defendant for support. In Yurk one juror, after the trial began, read a newspaper article which recounted the defendant’s prior convictions. The juror admitted being bothered by the prior convictions. When asked by the trial court whether the information would affect his judgment or impartiality, the juror answered, “To be honest, in a way it would.” 230 Kan. at 520. The juror, under further questioning, said he could render an impartial decision, despite what he had read. The court overruled defendant’s motion for mistrial. We reversed, finding that “the juror’s later assurances that he is equal to the task, that he can lay aside his stated impressions or notions and render a verdict based solely on the evidence presented in court cannot be dispositive of the defendant’s rights.” 230 Kan. at 524.
Unlike Yurk, however, none of the jurors who saw the newspaper article were “bothered” by it or had formed an opinion based on the article. Yurk, therefore, is distinguishable from the case at bar.
In State v. Malone, 194 Kan. 563, 400 P.2d 712 (1965), the Wichita Beacon printed an article reciting the defendant’s prior convictions on the day of trial when both sides rested. 194 Kan. at 570. The trial court refused to poll the jury or grant a mistrial. The trial court, instead, instructed the jury to disregard any newspaper, radio, or television stories of the trial. 194 Kan. at 571. We affirmed the trial court’s refusal to grant a mistrial, stating:
“Here the defendant failed to make any prejudice appear. Actually the record presented shows that the only juror who had read the article said he could not recall what it had reported and when asked by the court if the article had influenced his verdicts he replied ‘Absolutely not.’ ” 194 Kan. at 572.
We find no abuse of discretion in the trial court’s refusal to grant a mistrial herein.
DOUBLE JEOPARDY
Defendant next contends that, because the possibility exists that he was convicted of felony murder and aggravated kidnapping, both convictions cannot stand as they are the same offense under Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932).
This argument has no merit.
In Blockburger v. United States, 284 U.S. 299, the United States Supreme Court examined the distinctions between offenses, stating:
“Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. [Citation omitted.]” 284 U.S. at 304.
We applied this test most recently in State v. Dunn, 243 Kan. 414, 758 P.2d 718 (1988), where we set out the elements required for felony murder and aggravated kidnapping, stating:
“The constitutional prohibition against double jeopardy is directed to the identity of the offense and the act. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied when determining whether there are two offenses or only a single offense is whether each statutory provision requires proof of an element that the other does not. Where one statute provides proof of an element that the other does not, the crimes are not the same, even though proof of the separate crimes may substantially overlap.
“. . . If there is evidence to support the elements of kidnapping and evidence to support that a homicide was committed during the perpetration of the kidnapping, then the offenses would not merge. Both of the felony convictions here are convictions for crimes independent of the homicides; therefore, they do not merge.
“Dunn’s convictions of aggravated robbery, aggravated kidnapping, and felony murder require the State to prove an element in each offense that is not required in the other offenses. Dunn’s multiple convictions for the single act or transaction are constitutionally permissible.” 243 Kan. at 432-33.
Dunn is dispositive of this issue. Defendant’s convictions of first-degree murder and aggravated kidnapping are constitutionally permissible and do not constitute double jeopardy.
PROSECUTORIAL MISCONDUCT
Defendant claims eleven instances of alleged prosecutorial misconduct occurring during cross-examination of defendant and in closing arguments. For the most part, the complaints relative to the cross-examination are on the lines of sarcastic phrasing of questions, editorial comment on the answer, and tone of voice employed.
No contemporaneous objection was made to eight of the complained-of instances. Reversible error cannot be predicated upon a complaint of misconduct of counsel during cross-examination and closing argument where no contemporaneous objection is lodged. State v. Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989); State v. Bird, 238 Kan. 160, 179-80, 708 P.2d 946 (1985); see State v. Murdock, 236 Kan. 146, 153, 689 P.2d 814 (1984); K.S.A. 60-404.
It is also well established that an appellate court will not find reversible error when an objection to a prosecutor’s question or statement has been sustained, State v. Murdock, 236 Kan. at 153-54, or when the jury has been admonished to disregard the remark. State v. Lewis, 238 Kan. 94, 99, 708 P.2d 196 (1985). In this case, the defendant’s objection to one incident was sustained. In addition, when defense counsel objected to the prosecutor’s tone of voice, the court instructed the jury that statements of lawyers are not evidence to be considered by the jury.
One final incident remains. Defendant repeatedly answered cross-examination questions with the response he could not recall the details of the night in question. At one point the prosecutor said, “Do you recall, probably not, but do you recall — ?” The trial court overruled the objection to the question.
We find no reversible error on this issue as any error had little if any likelihood of having changed the result of the trial. Before concluding this issue, we believe some additional comment is appropriate. This was a lengthy trial arising from a particularly grisly murder. Emotions, understandably, ran high at the trial. However, we wish to caution the prosecutor to exercise more professional restraint in her comments and cross-examination in the future.
SENTENCES IMPOSED
Defendant contends the trial court’s sentencing of the defendant to two consecutive life terms constituted an abuse of discretion.
K.S.A. 21-4608(1) provides that separate sentences of imprisonment for different crimes imposed on a defendant on the same date shall run concurrently or consecutively as the court directs. Whether separate sentences imposed on the same day should be concurrent or consecutive is discretionary with the trial court. State v. Strauch, 239 Kan. 203, 219, 718 P.2d 613 (1986).
K.S.A. 21-4606 establishes factors to be considered by the court in fixing the lowest minimum term of imprisonment. The sentencing criteria in K.S.A. 21-4606 apply to a trial court’s determination of the sentence to be imposed and the sentence includes whether multiple terms of imprisonment are to be served consecutively or concurrently. State v. Strauch, 239 Kan. 203, Syl. ¶ 8; State v. Adkins, 236 Kan. 259, 264, 689 P.2d 880 (1984).
A sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not the result of partiality or prejudice. Baker v. State, 243 Kan. 1, Syl. ¶ 6, 755 P.2d 493 (1988); State v. Hamilton, 240 Kan. 539, Syl. ¶ 1, 731 P.2d 863 (1987).
As previously stated, the facts herein were particularly grisly. There was no direct evidence as to whether the victim was alive or dead when cremated and, if alive, whether she was conscious or unconscious. In view of defendant’s statements that he wanted her “to feel it” and his testimony at trial that Karen was alive and pleading for help when placed in the crematory by the man defendant said committed the crime, certain grim contemplations occur.
At sentencing the trial court stated:
“At one time, not too long ago, a sentence to be confined to the custody of the Secretary of Corrections for the rest of your natural life meant just that. By statute and enactment of the legislature, that is no longer the case. At the current time, a person could be released in a far lesser time. I have taken into account the extent of the harm done, and I have taken into account what the jury found to be the facts, that the plan articulated to several people, has been carried out, and also a distressing fact, what the young lady, the secretary, testified to, that you told her that you want her to feel it. But the principal reason for making these sentences consecutive is to make sure that a substantial period of time passes before the Parole Board, by whatever name it may be called in the future, in reviewing your case, decides.”
Defendant contends this was an improper attempt by the trial court to manipulate defendant’s parole eligibility dáte.
The trial court obviously believed, and justifiably so, that defendant’s conduct warranted long-term incarceration. The language employed may have been unfortunate in some respects, but we find no abuse of discretion in the sentencing herein.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Terry Alires was convicted after a jury trial of one count of aggravated robbery (K.S.A. 21-3427) and one count of kidnapping (K.S.A. 21-3420). He appeals, claiming there was insufficient evidence to support the kidnapping conviction as alleged in the complaint and the trial court erred by not suppressing the identification obtained during an unnecessarily suggestive confrontation.
On October 13, 1988, at approximately 9:30 p.m., a female entered a convenience store and ordered the clerk, Carmela R. Frerichs, to open the cash register and to put money into a brown paper bag. To insure cooperation, the female robber raised her arm to reveal a sharp shiny object which Frerichs believed to be a knife. A male accomplice then entered the store. After the male threatened to physically harm the clerk and place her in the cooler, the female accomplice called the male “Terry” and told him to stop frightening Frerichs.
At this point in the robbery an elderly male customer entered the store. To hide the fact that a robbery was occurring, the female robber told the clerk to act naturally and to hand over cartons of Marlboros, Kools, and Winston One Hundreds cigarettes. Frerichs was then forced out of the store and instructed to get under a combine in the parking lot. Instead, she climbed up on the combine. After the two robbers drove away, Frerichs returned to the store, activated the alarm, and asked the elderly male customer, William Parrish, to remain with her.
Officers arrived and obtained descriptions of the robbers and their vehicle. Based on a glimpse, Parrish described the man and woman as either Hispanic or black and the car as white and probably a Chevrolet model. Frerichs described the male as a Hispanic with black feathered-back hair and a mustache, who was shorter than the female. She stated the female was white, had a tattoo, and was wearing large earrings and a tan sweater. She described the car as a white older model with dark color striping — possibly a Mustang. About fifteen minutes after the descriptions were broadcast, a white Rambler occupied by a male and female was stopped by law enforcement officers about two miles into Oklahoma.
Frerichs was driven by Officer Ralston to the location where the suspects’ car had been stopped. At the side of the road, illuminated by police car lights, were two individuals, handcuffed and surrounded by law enforcement officers. As Ralston slowly drove by, Frerichs observed the two suspects through the car window. Frerichs identified both suspects and stated, “I’d recognize that sweater anywhere.” Frerichs was then asked to look at an object laying on the ground. She observed a screwdriver on the ground. Frerichs stated the screwdriver “could very well have been the weapon.” A later search of Alires’ vehicle produced three cartons of cigarettes, one each of Marlboro, Kool, and Winston, along with four packs of Marlboros scattered in the rear of the car, an open bottle of malt liquor, a six-pack of beer, a brown paper sack of coins, an open box of laundry soap, and a wad of small denomination bills.
At trial, Alires testified that he and his girlfriend left their home in Garden City and drove to Liberal to visit relatives. After obtaining marijuana from a relative, they made several beer stops prior to eating at a truck stop. Shortly after they left the truck stop, the police stopped them. When ordered to throw the car keys out the window, Alires threw the screwdriver he used as a key onto the ground.
Prior to trial, Alires’ motion to suppress the evidence of the arrest scene identification and any in-court identification was denied. At trial, Alires testified that he had not been in the convenience store that night. The jury found Alires guilty of both the kidnapping and aggravated robbery charges. Pursuant to the State’s request, Alires was sentenced as a habitual criminal to not less than 30 nor more than 60 years for kidnapping and not less than 30 nor more than 60 years for aggravated robbery, the sentences to run concurrently. Alires appeals.
K.S.A. 21-3420 provides:
“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(a) For ransom, or as a shield or hostage; or
“(b) To facilitate flight or the commission of any crime; or
“(c) To inflict bodily injury or to terrorize the victim or another; or
“(d) To interfere with the performance of any governmental or political function.” (Emphasis added.)
K.S.A. 21-3420(b) describes two distinct methods of perpetrating the crime of kidnapping, i.e., to facilitate flight or the commission of any crime. The complaint charges Alires with kidnapping “to facilitate the commission of a crime.” In addition, the jury was also instructed “[t]hat it [the kidnapping] was done with the intent to hold such person to facilitate the commission of any crime.” Alires contends that, while the evidence may have shown the kidnapping was done to “facilitate flight,” the taking of Frerichs occurred after the robbery was completed; therefore, the evidence introduced at trial was insufficient for a conviction of kidnapping to “facilitate the robbery.” If the evidence introduced at trial does not support a conviction of the offense charged in the complaint, an accused cannot be found guilty of some other offense neither charged in the complaint nor instructed to the jury. State v. Houck, 240 Kan. 130, 136, 727 P.2d 460 (1986).
If a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be of the kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” (Emphasis added.) State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720 (1976).
In Buggs, we found that “[t]he forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is.” Buggs, 219 Kan. at 216.
In State v. Jackson, 238 Kan. 793, 714 P.2d 1368 (1986), we were asked to determine if the evidence was sufficient to show the defendant had acted with intent “to facilitate flight or the commission of any crime.” Jackson, after accosting a woman with a knife in a horse barn, dragged the resisting victim by her hair to the doorway of the barn and attempted to push her into his car trunk. On appeal, Jackson argued that forcing the victim from the barn to the car only increased the risk of detection and was incidental activity to the commission of the attempted murder; therefore, the movement of the victim did not constitute the independent crime of aggravated kidnapping. Applying the factors, set out in Buggs, we found that Jackson’s attempt to force the victim into the trunk of his car was sufficient to establish the separate crime of aggravated kidnapping.
Unlike Buggs, where the victim was forced back into the store to lessen detection, here the robbers removed Frerichs from the store to hide the fact that a robbery was in progress. Forcing Frerichs to move outside the store “facilitated” the commission of the robbery, substantially lessened the risk of detection by the customer, and enhanced the robbers’ escape from the scene of the crime. There was sufficient evidence at trial to support the kidnapping conviction as charged.
Alires claims that his roadside identification by the victim was so impermissibly suggestive that this identification and subse quent in-court identifications by the victim must be suppressed. We recognize there is the potential for suggestive pretrial identifications. In each case where the accused claims his pretrial identification was suggestive, the totality of the circumstances must be analyzed to determine whether an identification process was so impermissibly suggestive that there is a substantial likelihood of irreparable misidentification. Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). See State v. Ponds, 227 Kan. 627, 608 P.2d 946 (1980); State v. Baker, 227 Kan. 377, 607 P.2d 61 (1980); and State v. Reed, 226 Kan. 519, 601 P.2d 1125 (1979).
Alires claims his roadside presentation, while handcuffed and flanked by police, was so suggestive that under StovalYs “totality of the circumstances” test the only remedy is the exclusion of the identification. In Stovall, the United States Supreme Court held that the identification by one-on-one confrontation between the suspect and the hospitalized witness in an emergency situation was not unnecessarily suggestive and did not violate the Fifth Amendment.
The Stovall “totality of the circumstances” test was supplemented by five factors to be considered in evaluating the likelihood of misidentification as developed in Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972). The Biggers Court listed as factors:
“the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Biggers, 409 U.S. at 199.
Biggers was identified by the victim during a station house showup conducted seven months after commission of the crime. The showup procedure entailed two detectives walking the defendant past the victim. Unlike Stovall, the arranged station house encounter was not necessitated by exigency. Though the Biggers Court conceded the confrontation procedure was suggestive and police had not exhausted all possibilities in finding other physically comparable persons to the defendant, it still found the identification reliable since the victim had viewed her assailant for almost one-half hour during the commission of the crime, and prior to the shovvup she had given the police a description of the defendant.
Alires claims the following facts support his position: First, during the robbery, Frerichs’ view of the male suspect’s face was obstructed by a cabinet. Second, Frerichs’ frightened state of mind and inability to open the cash register reflects her inability to recall details. Third, Frerichs’ ability to describe only the clothing of the female, i.e., “I’d know that sweater anywhere,” and not the male’s clothing indicates a deficiency in identifying the male. Fourth, even in Frerichs’ police report, the identification of Alires was based on her identification of the female by the sweater. Fifth, the roadside identification took place one hour after the conclusion of the robbery.
Unlike Alires’ characterization of the circumstances during the identification, Frerichs had ample opportunity to view the male robber in the well-lighted convenience store. Her degree of attention was sufficient to detail physical characteristics of both robbers, i.e., the female’s tattoo, the man’s mustache, and the color of the car. Frerichs never wavered and was always positive in her identification of the suspects at the roadside, the preliminary examination, the suppression hearing, and at trial. The time lapse between the robbery and identification was short, less than an hour. The facts do not indicate that the roadside showup was unnecessarily suggestive or that it increased the likelihood of misidentification of the defendant as the robber. Under the totality of the circumstances, the district court correctly determined there was no substantial likelihood of misidentification.
In addition, Alires argues that, unlike Stovall’s exigent circumstances, this case is similar to Biggers because there were no exigent circumstances that required one-on-one confrontation. We disagree. In the past we have approved one-on-one confrontations shortly after the commission of an offense, recognizing that time is crucial when there is an eyewitness who can identify a suspect and that any delay in identification could impede the police investigation. State v. Meeks, 205 Kan. 261, 266, 469 P.2d 302 (1970). Though Meeks was decided prior to Stovall and Biggers, in Bey we recognized the Stovall totality of the circumstances, as developed by Biggers reliability factors, which is to be considered when determining if the lineup created a substantial likelihood of misidentification. State v. Bey, 217 Kan. 251, 535 P.2d 881 (1975).
In Bey, the defendant was present in two lineups. The first lineup was four days after the robbery and a second lineup five days after the initial lineup. The defendant was represented by counsel at both lineups. The defendant argued that being the only person to appear in both lineups invalidated the identification at the second lineup. We noted that, while it is preferable to use the same participants in each lineup, it is not feasible as participants are usually persons in custody at time of the lineup who are not available for any length of time. We found that the lineup procedures were not unduly suggestive and pointed out that in-court identifications may be admissible even if the pretrial confrontation is deficient. Bey, 217 Kan. at 259. Chief Justice Schroeder stated that reliability is the linchpin in determining the admissibility of identification testimony. The reliability factors of Biggers are also applicable for courtroom identification. Ponds, 227 Kan. at 630.
After reviewing the totality of the circumstances, we find nothing unnecessarily suggestive or conducive to irreparable mistaken identification requiring the trial court to suppress the identification made at the roadside showup or the identification of Alires as the robber made prior to trial and during the trial by the victim.
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The opinion of the court was delivered by
Lockett, J.:
Jasper R. Hays constructed a fence across Shoal Creek, in part to prevent canoeists and others from using that portion of the stream which flows through his land located in southeast Cherokee County. Christopher Y. Meek, the Cherokee County Attorney, filed a petition for declaratory judgment seeking to confirm the public’s right to use Shoal Creek for recreational purposes. On June 11, 1988, the district court ordered Hays to remove the fence pending a hearing on the State’s petition. On September 22, the district court denied the State’s petition and dissolved its temporary restraining order, concluding:
“1. Shoal Creek is not susceptible of being used in its natural and ordinary condition as a highway for commerce and does not possess a capacity for valuable floatage in transportation to market of the products of the country through which it passes; it is therefore a nonnavigable stream.
“2. Respondents hold title to the stream bed of Shoal Creek where it passes through their property, and may exercise the same authority and control over the stream, its banks and bed, as the property adjacent to the stream, including the right to erect a barricade, barrier, or fence across the stream.”
The State appeals, claiming that (1) Shoal Creek is a navigable stream; (2) the public has acquired the right to use Shoal Creek by prescriptive easement; and (3) the public has the right to use Shoal Creek under the public trust doctrine. In addition to the parties, the following amici curiae have briefed the case: The Kansas Wildlife Federation, the Geary County Fish and Game Association, and the Kansas Canoe Association support the State’s position; and the Kansas Farm Bureau and the Kansas Livestock Association support the Hays’ position.
Navigability
If Shoal Creek is a navigable stream, the Hays’ ownership extends only to the banks. Siler v. Dreyer, 183 Kan. 419, 421, 327 P.2d 1031 (1958). If the stream is nonnavigable, the Hays own the bed of the stream by the same title that they own the adjoining land. Dougan v. Shawnee County Comm'rs, 141 Kan. 554, Syl. ¶ 3, 43 P.2d 223 (1935). If the stream is nonnavigable, the Hays, who own the land adjoining both sides of the stream, may put a fence across the stream to prevent trespassers upon their property. See Att’y Gen. Op. No. 74-137.
In England, streams were considered navigable only in so far as they partook of the sea, and to the extent that their waters were affected by the ebb and flow of the tide, and only so far was the title of the riparian owner limited to the bank; above such point, even though the stream was large enough to be used, and in fact was used, for purposes of navigation, the riparian owner owned the soil ad medium filum aquae — to the middle thread of the stream. There were three distinct characters of streams recognized: First, those smaller streams, which could not be used for any purpose of navigation, in which the title to the soil was in the riparian owner, and along which the public had no rights of highway or otherwise; second, an intermediate class, in which the riparian owner owned to the middle of the channel, but along whose stream the public had all the rights of a highway; and third, that which was called technically the navigable streams, where the title to the bed of the stream was in the sovereign, and all rights were in the public. The same doctrine of riparian ownership to the center of the stream in rivers unaffected by the ebb and flow of the tide is recognized in some states of the Union; but the better and more generally accepted rule in this country is to apply the term “navigable” to all the streams which are in fact navigable; and in such case to limit the title of the riparian owner to the bank of the stream. This is true in Kansas and most states where the lands have been surveyed and patented under the federal law. Wood v. Fowler, 26 Kan. 682, 689 (1882).
To determine navigability, the first question is whether title to the riverbed passed to the State upon admittance into the Union. The critical case on this point is United States v. Holt Bank, 270 U.S. 49, 70 L. Ed. 465, 46 S. Ct. 197 (1926), which established that ownership of the beds of navigable streams and lakes is a federal question to be resolved according to principles of federal law and under federal definitions. Holt Bank also established the specific criteria to be used in determining whether particular bodies of water are deemed navigable for purposes of vesting the state with title to the beds. Under this test, bodies of water are navigable and title to the beds under the water are vested in the state if: (1) the bodies of water were used, or were susceptible of being used, as a matter of fact, as highways for commerce; (2) such use for commerce was possible under the natural conditions of the body of water; (3) commerce was or could have been conducted in the customary modes of trade or travel on water; and (4) all of these conditions were satisfied at the time of statehood. 270 U.S. at 55-56.
The last navigability case to come before this court was Webb v. Neosho County Comm'rs, 124 Kan. 38, 257 Pac. 966 (1927). There, the landowner sued the Neosho County Commissioners to recover for gravel taken from the Neosho River and used on the public roads in Neosho County. The Webb court found the Neosho River was not navigable by applying the following test:
“ ‘Navigability in fact is the test of navigability in law, and that whether a river is navigable in fact is to be determined by inquiring whether it is used, or is susceptible of being used, in its natural and ordinary condition as a highway of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.’ ” 124 Kan. at 40 (quoting Oklahoma v. Texas, 258 U.S. 574, 586, 66 L. Ed. 771, 42 S. Ct. 406 [1922]).
As Professor Wadley notes, this definition “appears to track the [Holt Bank] federal title test in all relevant areas except for the requirement that the criteria be satisfied as of the time of statehood.” Wadley, Recreational Use of Nonnavigable Waterways, 56 J.K.B.A. 27, 31 (Nov./Dec. 1987).
In its analysis, the Webb court first stated that navigability “is a question of fact to be determined from the evidence.” 124 Kan. 38, Syl. 1. It then considered the trial court’s factual findings:
“ ‘2. In early days there were used on said river at one or more places ferry boats. This was before the county had been supplied with bridges.
“ ‘3. The evidence shows that in early days some logs were floated or rafted in parts of the river to a mill or mills located on said stream.
“ ‘4. Light boats, some run by motor power, have been used on the river for the transfer of passengers for pleasure and to a very limited extent for hire.
“ ‘5. There was evidence introduced showing that at one time while the river was at ordinary height a boat traversed the river from Oswego, Kansas, to Humboldt, Kansas [a straight-line distance of approximately 50 miles].
“ ‘6. In ordinary times, or ordinary stages of the water in the Neosho river, at the points in question light boats could be transferred but could not be transported any great distance up or down the river at such ordinary times without being pushed or helped over the riffles.
“ ‘7. The riffles are very shallow, and many of them [are] in said river as it runs through Neosho county.
“ ‘8. The Neosho river has never been used for the transportation of the products of the country along said river in Neosho county, Kansas, such as corn, wheat, oats, hay, cattle, hogs, or other stock.’ ” 124 Kan. at 39.
Rased on this evidence, the Webb court found the Neosho River to be nonnavigable. 124 Kan. at 41.
Only three rivers within the state have been declared navigable: the Kansas, the Arkansas, and the Missouri. See State, ex rel. v. Akers, 92 Kan. 169, 140 Pac. 637 (1914); Dana v. Hurst, 86 Kan. 947, 964, 122 Pac. 1041 (1912); and Wood v. Fowler, 26 Kan. 682. Likewise, only three rivers have been declared non-navigable: the Neosho, the Delaware, and the Smoky Hill. See Webb v. Neosho County Comm'rs, 124 Kan. 38; Piazzek v. Drainage District, 119 Kan. 119, Syl. ¶ 2, 237 Pac. 1059 (1925); and Kregar v. Fogarty, 78 Kan. 541, Syl. ¶ 3, 96 Pac. 845 (1908).
Did title to the Shoal Creek stream bed pass to the State upon entry into the Union or is there sufficient evidence to declare Shoal Creek navigable? The trial court made these findings of fact:
“(10) Shoal Creek cannot be floated without getting out of the canoe or boat at various locations.
“(11) John Link, Jr., owner of Ozark Quality Products, Inc., travels Shoal Creek several times a year collecting plants used in his business ....
“(12) There is no evidence that Shoal Creek has ever been used for valuable floatage in transportation to market of the products of the country through which it runs.
“(13) During times of drouth, portions of Shoal Creek are impassable by even a canoe or small boat ....
“(14) Shoal Creek has been used for recreational purposes for more than fifteen years.
“(15) A canoe rental business exists, known as Holly Haven, which rents canoes to be used on Shoal Creek. The point of entry is near Joplin, Missouri, with the point of exit at Schermerhom Park, Galena, Kansas, where the business picks up the canoes and their occupants for the return trip to Holly Haven.”
Based on these findings, the district court held that Shoal Creek did not meet the Webb standard for navigability.
The State does not challenge the trial court’s findings; rather, it argues that findings (11) and (15) indicate that the stream is susceptible of being used for commerce, thus meeting the Webb standard for navigability. The Kansas Wildlife Federation adds: “Because Shoal Creek is in the same natural condition as it was at the time of statehood, any commercial use of the river today conclusively demonstrates that the river was ‘susceptible of use’ at the time Kansas was admitted to the Union.”
Based on the trial court’s finding of facts, Shoal Creek is less “navigable” than the Neosho River. Under both the federal (Holt Bank) and current state (Webb) tests for navigability, title to the Shoal Creek stream bed did not pass to the State upon entry into the Union.
Though federal and state laws set the criteria to determine the issue of navigability for purposes of determining state title, individual states are relatively free to regulate the consumptive and nonconsumptive use of water within their borders. State regulatory concerns may depart from state ownership of the beds of navigable bodies of water as the primary criterion by which public need or access to water is secured.
Based on the public’s increasing desire to use water for non-consumptive recreational purposes, the State urges us to adopt a “modern” view of navigability which would not affect landowners’ title to the riverbeds. Other states have taken such action.
A 1959 Wyoming statute allowed persons and their property to float by boat, canoe, or raft on any stream in the state that had an average flow of water exceeding 1000 cubic feet per second during the month of July. The law prohibited landowners from obstructing the stream and persons who float on the stream from going on the landowners’ property without permission. This statute was repealed in 1963. In Day v. Armstrong, 362 P.2d 137, 145-46 (Wyo. 1961), the court determined that, under the Wyoming Constitution, title to the water is in the State. Neither the Wyoming Constitution nor the act of Congress admitting the state into the Union limited the kind or type of use the State may make of its waters. Therefore, the legislature had the power to allow persons to float on the streams. In addition, the court determined that the public, while floating on the state’s waters, may hunt, fish, or do anything which is not otherwise made unlawful.
In People v. Mack, 19 Cal. App. 3d 1040, 1045-46, 97 Cal. Rptr. 448 (1971), the California court recognized that under the prior California law, a stream is navigable if it is susceptible to the useful commercial purpose of carrying the products of the country (citing Wright v. Seymour, 69 Cal. 122, 10 Pac. 323 [1886]) or when declared navigable by the legislature. A navigable stream may be used by the public for boating, swimming, fishing, hunting, and all recreational purposes. The court then discussed the modern tendency of several other states to allow the public to use any stream capable of being used for recreational purposes. It then determined that a stream that can be boated or sailed for pleasure is also navigable.
In Southern Idaho F. & G. Ass’n v. Picabo Livestock, Inc., 96 Idaho 360, 362-63, 528 P.2d 1295 (1974), the Idaho court found that, while the federal test of navigability determines the title to stream beds, as the present action did not involve title to the bed of a navigable stream, the federal test of navigability does not preclude a less restrictive state test of navigability. It upheld the legislature’s enactment that any stream which, in its natural state, will float logs or any other commercial or floatable commodity, or is capable of being navigated by oar or motor propelled small craft, for pleasure or commercial purposes, is navigable. The Idaho court concluded that, where a stream is navigable, the public’s right to use the stream for fishing extended to boating, swimming, hunting, and all recreational purposes.
In State v. McIlroy, 268 Ark. 227, Syl. ¶ 6, 595 S.W.2d 659, cert. denied 449 U.S. 843 (1980), landowners along the Mulberry River brought suit because their privacy was being interrupted by people trespassing on their property, littering the stream, and generally destroying their property. The Arkansas Supreme Court, after recognizing that the criterion for determining the navigability of a stream depended upon the usefulness of the stream for carrying out farm and forest products and bringing in merchandise during some seasons of the year, expanded navigability to include the use of streams for recreational purposes, such as fishing in flatbottomed boats, canoeing, or floating.
The Arkansas court recognized that the landowners have a right to prohibit the public from crossing their property to reach the stream. In addition, the state government has a duty to protect the landowners’ rights and the responsibility to keep navigable waters in their natural and unblemished state.
The Hays claim the adoption of a “modern” test for navigability by this court would be a radical change in current state law, citing People v. Emmert, 198 Colo. 137, 597 P.2d 1025 (1979), where the Colorado Supreme Court held that the defendants did not have any right under the state constitution to float on non-navigable streams within boundaries of privately owned property without the consent of the property owner. In that case, Emmert and two others were convicted of criminal trespass after they rafted down a nonnavigable stream without first obtaining the riparian landowner’s permission. They challenged the convictions, claiming a right to use the stream under the following state constitutional provision:
“The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.” Colo. Const, art. XVI, § 5.
In affirming the convictions, the Colorado Supreme Court held that this provision, which appeared under a section entitled “Irrigation,” did not open state waters for public recreational use. The court found support for this interpretation in state statutes which: (1) codified the common-law rule of cujus est solum, ejus est usque ad coelum — he who owns the surface of the ground has the exclusive right to everything which is above it; (2) authorized the State Wildlife Commission to contract for public hunting and fishing on private land; and (3) made unauthorized entry upon private land a crime.
The Colorado court in Emmert concisely summarized the Hays’ position: “ ‘If a change in long established judicial precedent is desirable, it is a legislative and not a judicial function to make any needed change.’ ” 198 Colo, at 141. Our legislature’s current view on the recreational use of water is discussed with the last issue.
Prescriptive Easement
The State also claims that the public has acquired the right to use Shoal Creek by prescriptive easement. Though we have never determined whether an individual can acquire a prescriptive easement to use the nonnavigable waterways of this state, in State, ex rel., Akers, 92 Kan. 169, Syl. ¶ 4, we found that title to the waters or bed of a navigable stream cannot be acquired through private use or occupancy, whether adverse or by permission, however long continued, or by prescription.
By analogy, the requirements for an overland highway easement are set out in Shanks v. Robertson, 101 Kan. 463, 465, 168 Pac. 316 (1917):
“ ‘To establish a highway by prescription the land in question must have been used by the public with the actual or implied knowledge of the landowner, adversely under claim or color of right, and not merely by the owner’s permission, and continuously and uninterruptedly, for the period required to bar an action for the recovery of possession of land or otherwise prescribed by statute. When these conditions are present a highway exists by prescription; otherwise not.’ ”
The period required to bar an action for the recovery of possession of land is 15 years. K.S.A. 60-503. There is evidence that the public had used Shoal Creek for pleasure boating for more than 15 years.
In Kratina v. Board of Commissioners, 219 Kan. 499, Syl. ¶ 3, 548 P.2d 1232 (1976), we modified the Shanks test by adding the following requirement when a prescriptive easement is to be obtained by the public at large: “Mere use by the traveling public is not enough to establish . . . that the use is adverse .... There must in addition be some action, formal or informal, by the public authorities indicating their intention to treat the road as a public one.”
The Kansas Wildlife Federation claims the Kratina requirement is inapplicable because the stream in its natural condition needs no maintenance. For authority, the Kansas Wildlife Federation cites Buffalo River Conservation v. National Park, 558 F.2d 1342 (8th Cir. 1977), cert. denied 435 U.S. 924 (1978). There, riparian landowners sued the federal government to halt the creation of a national park along the Buffalo River. In affirming the district court’s judgment against the landowners, the Court of Appeals noted that canoeists had floated the Buffalo River for many years. This flotation had been open and ever-increasing in intensity, and open and adverse for more than the seven years required by Arkansas law for the establishment of a prescriptive public easement over the course of the stream and its bed. The Eighth Circuit went on to say: “While the cases cited deal with prescriptive rights-of-way over land, we agree with the trial court that they apply by analogy to rights-of-way over non-navigable streams and their beds.” 558 F.2d at 1345.
The Hays argue that the Buffalo River case is of no precedential value because the Arkansas courts have imposed no Kratina-type requirement for official public action. They cite Kempf v. Ellixson, 69 Mich. App. 339, 244 N.W.2d 476 (1976), wherein littoral landowners brought suit contesting the public use of a lake. The Michigan court found that, unless there has been some action by representatives of the public, i.e., the government, a public easement cannot be established by prescription. The court went on to say that recreational use of an area by various individuals over a period of years is insufficient to establish a public easement. Neither occasional use by a large number of bathers nor frequent or even constant use by a smaller number of bathers gives rise to a prescriptive right in the public to use privately owned beaches. It is only when the use during the prescribed period is so multitudinous that the facilities of local governmental agencies must be put into play to regulate traffic, keep the peace, and invoke sanitary measures that it can be said that the public has acquired a prescriptive right to use privately owned beaches. The court determined that to establish public recreation rights by prescription requires at a minimum governmental action to facilitate and control recreational use and remanded the case for a determination as to whether prescriptive easements had been established. 69 Mich. App. at 343-44.
We agree that the doctrine of prescriptive easement for public highways extends to streams and rivers of this state. For the public to obtain a prescriptive easement for recreational travel, both the Shanks test and Kratina requirement for official public action are required. Neither occasional use of the creek by a large number of canoeists nor frequent use by a small number of canoeists gives rise to a prescriptive right in the public to use nonnavigable streams. A public prescriptive right arises during the prescribed period when public use becomes so burdensome that government must regulate traffic, keep the peace, invoke sanitary measures, and insure that the natural condition of the stream is maintained. Because public officials have taken no such action, there is no public prescriptive easement on Shoal Creek.
The Public Trust Doctrine
The State finally contends that the public is entitled to use Shoal Creek under the public trust doctrine. The essence of the public trust doctrine was articulated by Professor Sax: “When a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism on any government conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self-interest of private parties.” Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 473, 490 (1970). See Illinois Central Railroad v. Illinois, 146 U.S. 387, 36 L. Ed. 1018, 13 S. Ct. 110 (1892).
Citing Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 98 L. Ed. 2d 877, 108 S. Ct. 791 (1988), the Kansas Wildlife Federation points out that a state may extend the public trust doctrine to nonnavigable waters. In Phillips, the Court affirmed a decision by the Mississippi Supreme Court validating oil and gas leases the State had granted over certain nonnavigable streams and a bayou. The land underlying these waters was privately owned. Since the streams and bayou were influenced by tides running from the Gulf of Mexico, the Court found that title to the underlying land had passed to Mississippi upon its entry into the Union. Although the discussion in Phillips centered on coastal water rights, the Court acknowledged: “[I]t has been long established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit.” 484 U.S. at 475.
At least one state, Montana, has applied the public trust doctrine under facts similar to those presented by this case. The Montana Supreme Court determined that, under the public trust doctrine and the 1972 Montana Constitution, “any surface waters that are capable of recreational use may be so used by the public without regard to streambed ownership or navigability.” Montana Coalition for Stream Access v. Curran, 210 Mont. 38, 53, 682 P.2d 163 (1984). The constitutional provision to which the Montana court referred, Mont. Const, art. IX, § 3, provides: “All surface, underground, flood and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and subject to appropriation for beneficial uses as provided by law.”
The State analogizes the Montana constitutional provision with K.S.A. 82a-702, which provides:
“Dedication of use of water. All water within the state of Kansas is hereby dedicated to the use of the people of the state, subject to the control and regulation of the state in the manner herein prescribed.”
While the broad language in 82a-702 is similar to that which appears in the Montana Constitution and others, it is clear that our legislature did not intend to incorporate the State’s position when it passed that statute. A thorough discussion of the history behind 82a-702 and related statutes appears in Williams v. City of Wichita, 190 Kan. 317, 331-36, 374 P.2d 578 (1962). Here, it is sufficient to note that these statutes were intended to address problems related to the consumptive use of water, and not non-consumptive, recreational use. Statutory provisions concerned with consumptive appropriation cannot be applied to subvert a riparian landowner’s right to exclusive surface use of waters bounded by his land.
Further evidence of our legislature’s disinclination toward the State’s position can be seen in the treatment of three bills introduced during the 1986 and 1987 legislative sessions. House Rill 2835, which was introduced in 1986, sought to amend K.S.A. 82a-702 by adding the following language:
“All water of the state which can serve a beneficial purpose is hereby declared to be public waters, and the public shall have a right to make a nonconsumptive use of such water without obtaining an appropriation. The public character of the water shall not be determined exclusively by the proprietorship of the underlying, overlying or surrounding land or on whether it is a body or stream of water which was navigable in fact or susceptible of being used as a highway for commerce at the time this state was admitted to the union.”
This bill was killed in the House Energy and Natural Resources Committee on February 27, 1986.
House Bill 3038 was also introduced during the 1986 session. Known as the Kansas Recreational River Act, this bill would have allowed the legislature to designate “selected rivers within this state [which possess] outstanding fish and wildlife, recreational, geologic or scenic values” as recreational rivers. This designation would have allowed the public “to enjoy and use such rivers through noncontact river recreation.” Noncontact river recreation was defined as “the public use of a recreational river by means of a vessel.” This bill died in the House Energy and Natural Resources Committee without action.
House Bill 3038 was resurrected in 1987 as Senate Bill 94 and was killed by the Senate Energy and Natural Resources Committee on February 6, 1987.
Owners of the bed of a nonnavigable stream have the exclusive right of control of everything above the stream bed, subject only to constitutional and statutory limitations, restrictions, and regulations. Where the legislature refuses to create a public trust for recreational purposes in nonnavigable streams, courts should not alter the legislature’s statement of public policy by judicial legislation. If the nonnavigable waters of this state are to be appropriated for recreational use, the legislative process is the proper method to achieve this goal.
The public has no right to the use of nonnavigable water overlying private lands for recreational purposes without the consent of the landowner.
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The opinion of the court was delivered by
Lockett, J.:
On October 28, 1985, Mark Marquette sustained catastrophic brain damage while being prepared for knee surgery. He has since been in a persistent vegetative state — a state of “wakeful unresponsiveness” — from which he does not visibly react and will never completely recover. Charlotte Gregory brought this action as Marquette’s guardian and conservator. After extensive pretrial discovery, defendants admitted liability and the case went to trial on the sole issue of damages. The jury returned the following verdict:
Present value of future medical expenses: $2,920,000
Medical expenses to date: 602,077
Pain and suffering to date: 70,000
Future pain and suffering: 930,000
Disability to date: 45,000
Future disability: 900,000
Loss of income to date: 89,544
Present value of future lost income: 775,160
TOTAL DAMAGES: $6,331,781
On appeal, defendants claim the trial court erred by: (1) excluding defendants’ proffered evidence concerning an annuity insurance contract to pay future medical expenses of $500 per day with a 6% inflation factor; (2) submitting the issue of conscious pain and suffering to the jury; and (3) allowing argument concerning the loss of enjoyment of life as a factor in determining damages. In addition, the defendants claim that the jury’s verdict is excessive as a matter of law and request this court to abolish the collateral source rule in effect at the time Marquette sustained injury.
The Proffered Testimony of Defendants’ Annuitist
A defendant in any action is entitled to have amounts allowed for future damages reduced to present worth where there are reasonable grounds to expect that the amount awarded may be safely and profitably invested. Evidence demonstrating how to compute present worth, either by way of expert testimony or appropriate mathematical tables or formulae, is admissible in any action in which substantial future damages are claimed. Gannaway v. Missouri-Kansas-Texas Rld. Co., 2 Kan. App. 2d 81, 575 P.2d 566 (1978).
Defendants proffered the testimony of S. Gary Kuzina, an expert in single premium annuities. According to Mr. Kuzina, an annuity is a contract between an individual and a seller of an annuity in which the seller promises to make certain payments in the future in exchange for a lump sum of money. A personal annuity is one which an individual plaintiff can purchase for himself, as opposed to a structured settlement annuity which can be purchased only by the tortfeasor. The premium for the annuity is dependent upon the rate of return on investment which the seller can obtain and upon the life expectancy of the proposed annuitant. The insurers selling the annuities review medical records and arrive at their own opinion of life expectancy, upon which they base the premium charge.
Mr. Kuzina also testified that he had obtained quotes from Allstate Insurance Company and First Colony for a personal annuity which would pay $500 per day for Mr. Marquette’s medical expenses, with the daily amount increased by 6% each year for as long as Mr. Marquette remained alive. Both Allstate Insurance Company and First Colony are rated A+ (the top rating) by A.M. Best Company, a well-known analyst of insurance companies.
The witness further testified that Allstate rated Marquette’s age at 77 years, i.e., his life expectancy is the same as a 77-year-old male, while First Colony rated his age at 74. (The record does not indicate First Colony’s quote of cost for its annuity.) Kuzina stated that the cost of the Allstate annuity was $1,698,459, but the price of the annuity contract was guaranteed only through December 26, 1988. (It must be noted that since the trial ended December 16, 1988, Allstate’s offer would lapse prior to the expiration of the time for either party to appeal the judgment.)
Kuzina had no knowledge of what documents or medical records were provided to Allstate or the qualifications of the unknown person or persons who determined Marquette had a life expectancy of 8 years, or how Allstate’s annuity cost was determined. Contrary to Allstate’s 8-year life expectancy rating, plaintiff’s experts, Marquette’s treating physicians, testified that Marquette has a life expectancy within a range of 20 to 34 years.
When granting the plaintiff s motion in limine, the judge found that our statement in Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988), as to the common-law right to a jury trial to determine damages, though dicta, prevented the introduction of the cost of the annuity contract into evidence. In addition, the court found the speculative nature of the cost of care in terms of a single premium annuity, the time limitation imposed by Allstate for accepting the contract, and the hearsay problems inherent in plaintiff s inability to cross-examine the witness as to Allstate’s basis for submitting the offer all weighed in favor of granting the motion. At trial, the court generally followed PIK Civ. 2d 9.01 when instructing the jury it should determine the reasonable expenses of necessary medical care, hospitalization, and treatment received, and reasonable expenses for necessary medical care, hospitalization, and treatment reasonably expected to be needed in the future, reduced to present value.
Defendants claim the exclusion of the testimony was erroneous because: (1) the annuitist would have described a contract offered with only one condition precedent — the payment of the premium; (2) Kansas Malpractice Victims Coalition v. Bell does not preclude this testimony; (3) the proffer was not made in relation to any element of damages other than future medical expenses; and (4) cross-examination of those in the decision-making process of the company offering the annuity is unnecessary since, once sold, an annuity pays as contracted regardless of whether the calculations upon which it was based were correct.
Though the trial court ruled that our finding in Kansas Malpractice Victims Coalition v. Bell prohibited the introduction of the cost of the annuity contract into evidence, the judge’s ruling that the proffered testimony was inadmissible hearsay, if correct, does not require us to determine the constitutional issue.
Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible. K.S.A. 1989 Supp. 60-460. Though the witness may have been an expert on annuity contracts, the judge determined that the witness did not have sufficient knowledge to be cross-examined about the underlying facts and considerations in the decision-making process of the company offering the annuity; therefore, his testimony was hearsay.
Admission of expert testimony lies within the sound discretion of the trial court and its ruling thereon will not be disturbed on appeal in the absence of abuse of discretion. Walters v. Hitchcock, 237 Kan. 31, 35, 697 P.2d 847 (1985). The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
Even if the witness was an expert in annuity contracts, his testimony regarding Allstate’s quote for the annuity was not based on fact or data perceived or personally known or made known to him and was outside the knowledge, skill, experience, and training possessed by the witness. Under the facts of this case, the trial court properly excluded the hearsay testimony of the witness.
The Collateral Source Rule
The collateral source rule is a common-law rule preventing the introduction of payments made to or benefits conferred on the injured party from other sources which are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable. Stated another way, the collateral source rule provides that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. Farley v. Engelken, 241 Kan. 663, 665-66, 740 P.2d 1058 (1987).
In Farley, 241 Kan. at 678, and earlier in Wentling v. Medical Anesthesia Serv., 237 Kan. 503, 518, 701 P.2d 939 (1985), on equal protection grounds, a majority of this court invalidated legislative attempts to abrogate the collateral source rule in medical malpractice actions. In response to Farley, the legislature enacted K.S.A. 1989 Supp. 60-3801 et seq. These statutes allow for the admission of certain collateral source evidence in personal injury or death actions involving claims over $150,000. However, this legislation applies only to causes of action which accrue on or after July 1, 1988. K.S.A. 1989 Supp. 60-3807. Since Marquette was injured on October 28, 1985, K.S.A. 1989 Supp. 60-3801 et seq. are inapplicable in this case and the common-law collateral source rule applies.
The defendants proffered evidence that Marquette had received certain disability benefits and that private insurance had already paid for a substantial portion of his medical expenses. The trial court rejected the admission of the evidence because it violated the collateral source rule in effect at the time of the injury. Defendants do not contest the trial court’s ruling; rather, they urge this court to abolish the rule.
In Farley and Wentling we recognized that the legislature may modify the common law, provided that the modification is made within constitutional parameters. Implicit in this court’s unwillingness to abolish the collateral source rule in Farley is our recognition that the legislature, as the direct representative of the people, is first allowed to determine public policy. Where the legislature has enacted statutory provisions that clearly state public policy, the court may only determine if the legislature’s statement of public policy is constitutional.
When the legislature enacted K.S.A. 1989 Supp. 60-3801 et seq., which specifically allows the admission of certain collateral source evidence in personal injury or death actions involving claims over $150,000, which accrued on or after July 1, 1988, it clearly intended to deny the admission of collateral source evidence in personal injury or death actions which arose prior to July 1, 1988. We decline defendants’ invitation to overrule the legislature’s statement of public policy.
Conscious Pain and Suffering
Kansas follows the majority rule that damages are recoverable only for pain and suffering which is consciously experienced. Leiker v. Gafford, 245 Kan. 325, 342, 778 P.2d 823 (1989). At the close of plaintiff’s evidence, defendants moved for partial summary judgment on the issue of damages for pain and suffering, claiming that the evidence merely “suggests” that Marquette consciously experiences pain.
The trial court denied this motion, finding:
“[T]he evidence would justify a finding by a jury of reasonable people that Mark Marquette, a severely brain injured person existing in a persistent vegetative state, has the capacity for and does experience pain and suffering on a cortical or cognitive level. That constitutes pain and suffering under Kansas law sufficient to submit that issue to the jury.”
The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule and, where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
The trial court cited the following testimony as support for its ruling: Dr. Dilawer Abbas, a neurologist, testified that when he stuck Marquette with a pin, “there was some reaction when he moaned and sighed.” When asked to state his opinion as to whether Marquette appreciated the pain resulting from the pinprick, Dr. Abbas answered: “I said that he moaned and took some deep sighs to pinprick all over, suggesting that he did appreciate the pain.” Dr. Abbas also opined that Marquette’s response “was not purely a reflex.”
Dr. Melvin Karges, a specialist in physical medicine and rehabilitation, was advised of Marquette’s reactions to the pinprick tests and of medical records which indicate that Marquette had grimaced during stretching exercises. As for whether these facts indicated conscious pain, Dr. Karges testified: “[T]here are certain cortical levels of pain behavior such as grimacing and moaning that would raise a high suspicion that there is cortical perception.” Dr. Karges further testified: “[G]rimacing and moaning . . . definitely does raise a question of cortical response.”
Dr. William Singer, a neurologist who treated Marquette, testified: “[T]here is evidence that he has some response to pain, which would indicate that he has some awareness, at least to a small degree.”
Testimony other than that of the medical experts also indicates that Marquette consciously experiences pain. The determination of whether an injured party has experienced conscious pain and suffering may be established by either a lay witness or an expert medical witness. The testimony of the lay witnesses need not be set out here.
In addition to the testimony of the witnesses, a videotape of a day in the life of Mark Marquette was admitted into evidence and shown to the jury. In contrast to the defendants’ claim that the videotape indicates that Mark Marquette is more like a vegetable that reacts to stimuli, the plaintiff claims it shows that Marquette consciously suffers the pain. We have reviewed the videotape and find that it also supports the jury’s verdict.
Under the facts of this case, the question of whether Mark Marquette consciously suffered pain was a proper question for the jury to determine.
The Loss of Enjoyment of Life
The trial court refused to allow plaintiff to argue Marquette suffered disfigurement or mental anguish because there was insufficient evidence to show that Marquette could perceive these conditions. However, over defendants’ objections, plaintiffs attorney was permitted to argue that Marquette suffered a loss of enjoyment of life, compensable as an element of pain, suffering, and disability.
Defendants claim the trial judge’s rulings are inconsistent — if one cannot suffer mental anguish, he likewise cannot suffer loss of enjoyment of life. For authority, they cite McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937 (1989). In McDougald, the plaintiff was rendered comatose through the negligence of her physician. The trial court instructed the jury that damages for loss of enjoyment of life require no awareness of the loss on the part of the injured person. 73 N.Y.2d at 253. The jury awarded $3.5 million in such damages and the Court of Appeals vacated the award, recognizing that requiring some cognitive awareness as a prerequisite to recovery for loss of enjoyment of life results in the paradoxical situation that the greater the degree of brain injury inflicted by a negligent defendant, the smaller the award the plaintiff can recover in general damages. The court then determined, however, that the temptation to achieve a balance between injury and damages has nothing to do with meaningful compensation for the victim. “Instead, the temptation is rooted in a desire to punish the defendant in proportion to the harm inflicted. However relevant such retributive symmetry may be in the criminal law, it has no place in the law of civil damages, at least in the absence of culpability beyond mere negligence.” 73 N.Y.2d at 255.
Defendants recognize that the trial court, when ruling on their motion and instructing the jury, correctly anticipated this court’s subsequent decision in a similar case, Leiker v. Gafford, 245 Kan. at 340, that: “[E]vidence of loss of enjoyment of life is definitely admissible and proper for the jury’s consideration as it relates to disability and pain and suffering, and may certainly be argued by counsel to the jury.”
The facts in Leiker v. Gafford are similar. Shawn A. Leiker sustained personal injuries as a result of an excessive dose of spinal anesthetic while she was undergoing a Cesarean section delivery of her second child. She remained semi-comatose until her death. The personal injury and wrongful death action was brought by her husband, individually, as representative of her estate, and on behalf of their two children. The jury awarded $1,250,000 for the personal injury claim and $3,003,100 for the wrongful death claim. The trial court, as required by K.S.A. 1988 Supp. 60-1903(b), reduced the $2,000,000 award for nonpecuniary damages to $100,000.
One of the Leiker trial court’s instructions stated in part:
“If it is necessary under the instructions and the directions on the verdict form to fix the loss on the personal injury claims of Shawn A. Leiker, you will then determine the amount of recovery. You should allow such amount of money as will reasonably compensate the Estate of Shawn A. Leiker for her injuries and losses resulting from the occurrence in question, including any of the following shown by the evidence:
a) Pain, suffering, disabilities, or disfigurement, and any accompanying mental anguish suffered by Shawn A. Leiker up to the time of her death.
b) Loss of enjoyment of life and the capacity to enjoy life, suffered by Shawn A. Leiker up to the time of her death.” 245 Kan. at 335.
Here, the personal injury damages portion of the verdict form submitted to the jury did not set out loss of enjoyment of life as a separate element of damages. It included the nonpecuniary damages, pain and suffering, disability, disfigurement, and any accompanying mental anguish.
In Leiker, we first recognized that much has been written in recent years on the issue of whether damages are recoverable for loss of enjoyment of life, sometimes referred to as hedonic damages, as a separate category of damages or as a component of the more traditional categories of pain and suffering and/or disability.
The cases which have considered the issue generally fall into three categories: (1) those which totally reject loss of enjoyment of life as a consideration in awarding damages; (2) those which hold it is not a separate category of damages but may be considered as an element or component of pain and suffering and/ or disability; and (3) those which hold loss of enjoyment of life
is a separate category of damages. For an excellent and comprehensive article on the subject, see Hermes, Loss of Enjoyment of Life — Duplication of Damages Versus Full Compensation, 63 N.D.L.Rev. 561 (1987).
One of the strongest arguments that has been advanced as a reason for not recognizing loss of enjoyment of life as a separate category of damages is that it duplicates or overlaps other categories of damages, such as permanent disability or pain and suffering. See, e.g., Huff v. Tracy, 57 Cal. App. 3d 939, 943, 129 Cal. Rptr. 551 (1976); Swiler v. Bakers Super Market, Inc., 203 Neb. 183, 187, 277 N.W.2d 697 (1979); Flannery v. United States, 297 S.E.2d 433, 438 (W. Va. 1982). See generally Hermes, 63 N.D.L.Rev. 561. However, loss of enjoyment of life is arguably distinct from pain and suffering. Comment, Loss of Enjoyment of Life as a Separate Element of Damages, 12 Pac. L.J. 965, 972-73 (1981). It is also arguably distinct from loss due to disability. In Thompson v. National R.R. Passenger Corp., 621 F.2d 814 (6th Cir.), cert. denied 449 U.S. 1035 (1980), the court distinguished some of the different types of damages resulting from physical injury as follows:
“Permanent impairment compensates the victim for the fact of being permanently injured whether or not it causes any pain or inconvenience; pain and suffering compensates the victim for the physical and mental discomfort caused by the injury; and loss of enjoyment of life compensates the victim for the limitations on the person’s life created by the injury.” 621 F.2d at 824.
After acknowledging that valid arguments can be made to support all three lines of cases which have considered damages for loss of enjoyment of life in personal injury cases, we took the more realistic approach that, as a general rule, the loss of enjoyment of the pleasurable things in life is inextricably included within the more traditional areas of damages for disability and pain and suffering. While it is true that a person may recover from the physical pain of a permanent injury, the resultant inability to carry on one’s normal activities would appear to fall within the broad category of disability. In the majority of cases, loss of enjoyment of life as a separate category of damages would result in a duplication or overlapping of damages. Our holding on this issue is consistent with what appears to be a slight majority of the cases which have considered the various arguments and it is also consistent with the wording of K.S.A. 1989 Supp. 60-249a. However, we also point out that evidence of loss of enjoyment of life is definitely admissible and proper for the jury’s consideration as it relates to disability and pain and suffering and may certainly be argued by counsel to the jury. Leiker, 245 Kan. at 340.
Under the rationale of Leiker, the trial court properly allowed plaintiff to argue in closing that Marquette had suffered a loss of enjoyment of life and instructed the jury that such a loss is an element of disability, pain, and suffering.
The Amount of the Verdict
Finally, defendants seek either a remittitur or a new trial, claiming the verdict is excessive as a matter of law. In addition to the arguments previously made, defendants contend: (1) Marquette is not subjected to painful stimuli in the course of his daily routine; (2) the verdict was based upon overwhelming and unavoidable sympathy; (3) the verdict exceeds the total dollar amount of all plaintiffs’ verdicts in medical malpractice cases in Kansas during fiscal year 1988 (see Kansas Jury Verdicts Increase 9.5%, 58 J.K.B.A. 7 [Feb. 1989]); and (4) 40% of the verdict, or $3.7 million, will be used to pay attorney fees.
The defendants state that major shortcomings of the present tort system have led to calls for statutory limitations, constitutional amendments, and complete abolition of a fault-based system of recovery. Defendants argue:
“The time has come for this Court to seize the opportunity to utilize the information from itemized verdicts and exercise its power of remittitur to restore common sense and fiscal responsibility to personal injury verdicts. By so doing, this Court can send a message to the trial bench, the bar, and the public that it is embarking upon a new era in tort jurisprudence which ensures protection of both plaintiffs and defendants and the preservation of a fault based system of compensation. . . . This Court can and must act to restore the faith of the public, the business community and the insurance industry in the tort system as a responsible and responsive system of compensation. To do so, you must reduce this verdict to appropriate levels, or remand this case for new trial with appropriate instructions which will tell the trial court and the world at large that Kansas is now to be in the forefront of responsible jurisprudence.”
In part, the defendants ask that we make an economic decision rather than answer a legal question. They request this court to exceed its role under our state constitution and legislate a new tort system. Economic decisions are for the legislature, not the judiciary. Under our constitution and the separation of powers doctrine, the legislature has limited power to modify the common-law tort system. If the legislature chooses to exercise its limited power, the court does not stand as a buffer between the people and the legislature, but determines the legality of the legislature’s act under our constitution. We will follow our constitutional role and examine the amount of the verdict.
Where a charge of excessive verdict is based on passion or prejudice of the jury but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be ordered, unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court. Smelko v. Brinton, 241 Kan. 763, 771, 740 P.2d 591 (1987). After reviewing the evidence and the judge’s instructions, the amount of the jury’s verdict does not shock the conscience of this court.
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The opinion of the court was delivered by
Holmes, J.:
Fletcher Bell, Commissioner of Insurance, as Administrator of the Kansas Health Care Stabilization Fund (Com missioner), the State of Kansas, as Trustee for the Kansas Health Care Stabilization Fund, and The Kansas Health Care Stabilization Fund (Fund), plaintiffs, appeal from an adverse judgment of the Shawnee County District Court in a declaratory judgment action. The district court granted summary judgment to the defendants and held that the Fund provided defendant Stephen J. Bazzano, D.O., excess coverage in the pending malpractice claims of the defendants Jessica M. Simon and Hattie Fillenwarth. We affirm.
The facts pertinent to this appeal are essentially undisputed. The defendant, Dr. Bazzano, is a resident of Missouri and a doctor of osteopathic medicine who is licensed to practice in both Kansas and Missouri. Defendant conducts his Kansas practice from a clinic in Galena, Cherokee County, Kansas. From 1976 to April 1, 1986, Dr. Bazzano maintained individual malpractice insurance with Professional Mutual Insurance Company (PMIC), in the form of an “occurrence” policy. The policy was renewed annually, with the last renewal for the period from April 1, 1985 to April 1, 1986. While the policy was in effect, PMIC filed a “Notice of Basic Coverage,” collected the annual premium surcharge from Dr. Bazzano, and sent the surcharge and other relevant information to the Fund. The Commissioner and the Fund apparently made no objection to the type of policy, or the method of reporting and payment of the surcharge by PMIC and Dr. Bazzano, during the ten years the policy was in effect.
Dr. Bazzano admits he practiced in Kansas from April 1, 1986, to July 16, 1987, without obtaining a malpractice insurance policy that complied with the mandatory provisions of the Health Care Provider Insurance Availability Act (Act), K.S.A. 40-3401 et seq. Effective July 16, 1987, Dr. Bazzano obtained a “claims made” policy from Professional Mutual Insurance Company Risk Retention Group and paid the annual premium surcharge to the Fund.
The issues in this case arise from a malpractice suit filed in Cherokee County, Kansas, on July 16, 1987, by Jessica M. Simon, a minor, and her mother, Hattie Fillenwarth, both of whom are joined as defendants in this case. The suit was based primarily upon Dr. Bazzano’s alleged failure to run laboratory tests and correctly diagnose and treat 3-month-old Jessica on March 28, 1986, which resulted in the child having temporary and per manent disability. Dr. Bazzano was first notified of the potential claim for malpractice by the attorneys for Simon and Fillenwarth on June 5, 1987.
On November 3, 1988, Commissioner Bell filed a petition in Shawnee County District Court for declaratory judgment against Dr. Bazzano, Simon, and Fillenwarth, contending that Dr. Bazzano had no excess liability coverage from the Fund from April 1, 1986, to July 16, 1987, “because he did not maintain professional liability insurance coverage as required by the Health Care Provider Insurance Availability Act.” Dr. Bazzano denied the allegation in his answer, filed December 6, 1988, and in addition asserted the affirmative defenses of waiver and estoppel. On April 3, 1989, Dr. Bazzano and the defendants Simon and Fillenwarth filed separate motions for summary judgment asserting there was excess liability coverage. On April 4, 1989, the plaintiffs filed a counter motion for summary judgment asserting the Fund had no liability.
On May 10, 1989, the district court granted Dr. Bazzano’s motion for summary judgment and denied the motion filed by plaintiffs. The court held that PMIC’s issuance of an occurrence policy rather than a claims made policy did not relieve the Fund of liability under Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 676 P.2d 113 (1984). In Wong, the court held that under the Act a medical malpractice “policy which insures a health care provider practicing in Kansas must be construed to provide claims made coverage, notwithstanding the policy, as written, is an occurrence form policy.” Syl. ¶ 3. The court here also found that the Fund was not relieved of liability because the Fund’s coverage continues when basic coverage continues, and the basic coverage continued by operation of law due to the insurer’s failure to give a cancellation notice to the Commissioner (K.S.A. 40-3402). The plaintiffs have appealed. Plaintiffs state the issue on appeal as being whether “[t]he court erred in granting defendants’ motions for summary judgment and denying plaintiffs’ motion for summary judgment since Dr. Bazzano did not have the mandatory professional liability insurance required by the Health Care Stablization Act [sic], K.S.A. 40-3401, et seq.” The resolution of this issue involves the following:
a) Whether defendant Dr. Bazzano had basic coverage as required under the Act when the parties’ malpractice claim was made.
b) If basic coverage existed, whether Dr. Bazzano’s failure to pay the annual premium surcharge relieves the Fund of liability.
c) Whether plaintiffs are estopped from asserting Dr. Bazzano’s noncompliance with the surcharge payment requirements.
The issue and arguments raised by the plaintiffs require the interpretation and application of certain provisions of the Act. Before addressing the arguments asserted, we deem it appropriate to reiterate certain general principles applicable to statutory construction.
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” Harris Enterprises, Inc. v. Moore, 241 Kan. 59, Syl. ¶ 1, 734 P.2d 1083 (1987).
“In determining legislative intent, courts are not bound to an examination of the language alone but may properly look into the causes which impel the statute’s adoption, the objective sought to be attained, the statute’s historical background and the effect the statute may have under the various constructions suggested.” In re Petition of City of Moran, 238 Kan. 513, Syl. ¶ 2, 713 P.2d 451 (1986).
“When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Randall v. Seemann, 228 Kan. 395, Syl. ¶ 1, 613 P.2d 1376 (1980).
“Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature.” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
The plaintiffs first contend that Dr. Bazzano is not covered by the Fund because he had no basic coverage pursuant to the Act at the time the claim was made on June 5, 1987. It appears to be conceded that Dr. Bazzano had basic coverage during the PMIC policy period from April 1, 1985, to April 1, 1986. Even though the policy issued was an “occurrence” policy rather than a “claims made” policy as specified by K.S.A. 40-3402(a), the Act provides that the policy is deemed and construed to include the statutory basic coverage. In the instant case the alleged malpractice occurred March 28, 1986, at a time when all parties agree Dr. Bazzano had the required basic coverage under the PMIC policy.
The statutes pertinent to basic coverage begin with K.S.A. 40-3401(b), which provides:
“(b) ‘Basic coverage’ means a policy of professional liability insurance required to be maintained by each health care provider pursuant to the provisions of subsection (a) or (b) of K.S.A. 40-3402 and amendments thereto.”
K.S.A. 40-3402 provides in part:
“(a) A policy of professional liability insurance approved by the commissioner and issued by an insurer duly authorized to transact business in this state in which the limit of the insurer’s liability is not less than $200,000 per occurrence, subject to not less than a $600,000 annual aggregate for all claims made during the policy period, shall be maintained in effect by each resident health care provider as a condition to rendering professional service as a health care provider in this state, unless such health care provider is a self-insurer. Such policy shall provide as a minimum coverage for claims made during the term of the policy which were incurred during the term of such policy or during the prior term of a similar policy. . . .
“(1) Each insurer providing basic coverage shall within 30 days after the premium for the basic coverage is received by the insurer or within 30 days from the effective date of this act, whichever is later, notify the commissioner that such coverage is or will be in effect. Such notification shall be on a form approved by the commissioner and shall include information identifying the professional liability policy issued or to be issued, the name and address of all health care providers covered by the policy, the amount of the annual premium, the inception and expiration dates of the coverage and such other information as the commissioner shall require. A copy of the notice required by this subsection shall be furnished the named insured.
“(2) In the event of termination of basic coverage by cancellation, non-renewal, expiration or otherwise by either the insurer or named insured, notice of such termination shall be furnished by the insurer to the commissioner, the state agency which licenses, registers or certifies the named insured and the named insured. Such notice shall be provided no less than 30 days prior to the effective date of any termination initiated by the insurer or within 10 days after the date coverage is terminated at the request of the named insured and shall include the name and address of the health care provider or providers for whom basic coverage is terminated and the date basic coverage will cease to be in effect. No basic coverage shall be terminated by cancellation or failure to renew by the insurer unless such insurer provides a notice of termination as required by this subsection.
“(3) Any professional liability insurance policy issued, delivered or in effect in this state on and after the effective date of this act shall contain or be endorsed to provide basic coverage as required by subsection (a) of this section. Notwithstanding any omitted or inconsistent language, any contract of professional liability insurance shall be construed to obligate the insurer to meet all the mandatory requirements and obligations of this act. The liability of an insurer for claims made prior to July 1, 1984, shall not exceed those limits of insurance provided by such policy prior to July 1, 1984.
“(b) Unless a nonresident health care provider is a self-insurer, such provider shall not render professional service as a health care provider in this state unless such provider maintains coverage in effect as prescribed by subsection (a), except such coverage may be provided by a nonadmitted insurer who has filed the form required [in] subsection (b)(l).
“(1) Every insurance company authorized to transact business in this state, that is authorized to issue professional liability insurance in any jurisdiction, shall file with the commissioner, as a condition of its continued transaction of business within this state, a form prescribed by the commissioner declaring that its professional liability insurance policies, wherever issued, shall be deemed to provide at least the insurance required by this subsection when the insured is rendering professional services as a nonresident health care provider in this state. Any nonadmitted insurer may file such a form.
“(2) Every nonresident health care provider who is required to maintain basic coverage pursuant to this subsection shall pay the surcharge levied by the commissioner pursuant to subsection (a) of K.S.A. 40-3404 and amendments thereto directly to the commissioner and shall furnish to the commissioner the information required in subsection (a)(1).” (Emphasis added.)
There can be no doubt that Dr. Bazzano had the basic coverage required by the statutes so long as the PMIC policy was in effect. Under K.S.A. 40-3402(a)(3), every professional liability policy issued to a medical care provider “shall be construed to obligate the insurer to meet all the mandatory requirements and obligations of this act.” The statute applies to resident and nonresident health care providers as well as to admitted and nonadmitted insurers.
In Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, Dr. Wong obtained an occurrence-type liability policy from the plaintiff at a time when the doctor was practicing in both Kansas and Missouri. The plaintiff insurance company had filed the necessary “Non-Admitted Carrier Declaration of Compliance” form with the Commissioner pursuant to K.S.A. 40-3402(b)(l). The court was required to determine whether the occurrence-type policy pro vided claims made coverage for alleged acts of medical malpractice which occurred prior to the effective date of the policy. This court held:
“Where a policy of insurance is issued to an insured in compliance with the requirement of a statute, the pertinent provisions of the statute must be read into the policy, and no provisions of the policy in contravention of the statute can be given effect.” Syl. ¶ 1.
“Because medical malpractice insurance is compulsory, the terms of the Kansas Health Care Provider Insurance Availability Act (K.S.A. 40-3401 et seq.), become a part of any contract of professional liability insurance which insures a health care provider practicing in Kansas, and to the extent that the provisions of the policy contradict the terms of the act, the terms of the act are controlling with respect to the Kansas practice.” Syl. ¶ 2.
“Since K.S.A. 40-3402 requires claims made coverage to be provided in a medical malpractice insurance policy, a policy which insures a health care provider practicing in Kansas must be construed to provide claims made coverage, notwithstanding the policy, as written, is an occurrence form policy.” Syl. ¶ 3.
In the present case Dr. Bazzano actually had more extensive coverage than the minimum prescribed by the Act, at least during the policy period. He not only had contractual coverage for any alleged acts of negligence which occurred during the policy period, regardless of when the claims might be made, but by statute he also had basic claims made coverage during the policy period. All parties agree that Simon and Fillenwarth are protected to the extent of the PMIC coverage due to the fact that the alleged malpractice occurred during the policy period. However, the Fund contends it is not liable for excess coverage because Dr. Bazzano did not have a valid policy at the time the claim was first made.
Dr. Bazzano admits he failed to comply with the Act in that he did not have a policy during the period of April 1, 1986, through July 1987, but he contends that public policy requires coverage by the Fund. He contends that because the occurrence policy he obtained from PMIC covers the claim made by Simon and Fillenwarth, the Fund is not prejudiced by his failure to have a claims made policy during the April 1, 1986, to July 1987 period. He additionally contends that the basic statutory coverage was in effect when the claim was made in June 1987, by operation of K.S.A. 40-3402(a)(2), because PMIC failed to provide the Com missioner notice of the policy’s termination. He argues that, because basic coverage continued, the Fund’s liability was likewise continued and covers the claim made on June 5, 1987.
The plaintiffs contend that the provisions of K.S.A. 40-3402(a)(2) requiring notice before basic coverage may be terminated applies only to resident health care providers. It appears to be their argument that, because subsection (a) of the statute refers to “each resident health care provider” and subsection (b) refers to a “nonresident health care provider,” the sections are mutually exclusive. They then assert that under subsection (b) there is no requirement for a nonresident health care provider or his insurance company to give any notice of termination and there is no provision extending the coverage for failure to give such a notice. We do not agree with such a narrow construction of the statute and do not believe that subsections (a) and (b) can be read in isolation from each other.
K.S.A. 40-3402(b) provides that every nonresident provider, except a self-insurer, shall maintain the coverage prescribed in subsection (a). Subsection (b)(2) requires the nonresident provider to pay a surcharge levied by the Commissioner pursuant to subsection (a) and requires that the information prescribed in subsection (a)(1) be furnished to the Commissioner. It appears obvious that subsections (a) and (b) are inseparably intertwined as parts of one statute and must be read in conjunction with each other and with the provisions of the entire Act.
Commissioner Rell argues that the legislature intended to grant greater protection to resident providers than to nonresident providers, and that upon failure of the insurer to give notice the resident provider will be granted the extended coverage but the nonresident provider will not. In support of this theory, it is contended that the public policy underlying the Act is to assure an adequate supply of competent health care providers in Kansas by making malpractice coverage available to them and that the Act was adopted for the benefit of health care providers. While this is undoubtedly true, it is only a part of the policy behind the Act.
The seminal case addressing the Act is State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978), in which Dr. Liggett attacked the constitutionality of the Act. In discussing the history of the Act, the court stated:
“The original bill did not require mandatory insurance coverage, nor did it require payment of the surcharge. These provisions were added by the legislature at the behest of Insurance Commissioner Fletcher Bell. The mandatory coverage provisions, it was alleged, would provide for the financial stability of the insurance availability program and would assure all Kansans they would have a source of recovery for damages resulting from malpractice.” (Emphasis added.) 223 Kan. at 611.
In discussing an alleged due process right under one provision of the Act, the court in Harrison v. Long, 241 Kan. 174, 734 P.2d 1155 (1987), observed: “It is the public policy of the State to assure an adequate supply of health care providers and provide protection to patients who may be injured as a result of medical malpractice.” (Emphasis added.) 241 Kan. at 181.
K.S.A. 40-3402(a)(2) requires the insurer to give notice to the Commissioner, the licensing agency, and the insured of the termination of any policy providing basic coverage. An obvious purpose of the notice provision is to protect not only the health care provider and allow time to secure other coverage but also to protect the provider s patients. Under the public policy of Kansas, it would be totally illogical to provide statutory protection to the patients of resident providers and deny the same protection to Kansas patients of nonresident providers who practice in Kansas. It would be equally illogical to provide protection to resident providers and deny the same protection to nonresident providers who are licensed to practice in Kansas but happen to live outside Kansas. Many Kansas health care providers in the Kansas City and other border areas are nonresidents of Kansas and many maintain practices in two or more states. Another obvious purpose of the statute is to provide notice to the Commissioner and the licensing authority of the termination of the policy. Such information is equally necessary for both resident and nonresident providers if the Commissioner and the licensing authority are to properly carry out their administrative duties.
The Health Care Provider Insurance Availability Act was first adopted by the 1976 legislature as S.B. 646 (L. 1976, ch. 231). The bill, as originally drafted, made no distinction between resident and nonresident providers. Commissioner Bell testified in support of the Act and, in discussing recommended changes in the original bill and the proposed distinctions between what are now subsections (a) and (b) of K.S.A. 40-3402, stated:
“Presently Senate Bill No. 646 does not distinguish between resident and non-resident providers yet many Kansas health care providers are licensed and do perform medical services in other states. Similarly many non-resident health care providers are licensed and do perform medical services in Kansas.
“Since it appears that non-resident providers should be subject to the same requirements and entitled to the same protection as Kansas providers when performing medical services in this state, it seems appropriate that Senate Bill No. 646 should so specify.
“On the other hand, the provisions of Senate Bill No. 646 are intended to provide liability protection to Kansas resident providers wherever they may be lawfully providing medical services.
“In other words, the provisions of Senate Bill No. 646 must apply to both resident and non-resident providers but it cannot be applied equally other than with respect to services performed within this state. Thus a distinction is necessary and suggestions embodying this distinction are included in the suggested amendments.” (Emphasis added.) Attachment A, Amendments to SB 646, Comm. Minutes, Senate Public Health and Welfare Committee (January 28, 1976).
Thus, it appears that at the time the Act was originally adopted Commissioner Bell was urging that any distinctions between subsections (a) and (b) only applied because nonresident providers were not subject to Kansas regulation for services rendered outside Kansas. In all other respects the original intent apparently was that “non-resident providers should be subject to the same requirements and entitled to the same protection as Kansas providers when performing medical services in this state.” We agree with the Commissioner’s original intent and interpretation as expressed to the legislature.
We conclude K.S.A. 40-3402(a)(2) applies equally to resident and nonresident providers and to admitted and nonadmitted insurers. The statute further provides that the basic coverage will not terminate absent the required notice from the insurer. We hold that the basic coverage afforded by the PMIC policy for the period from April 1, 1985, to April 1, 1986, continued to be in force on June 5, 1987, the date the claim was made, because PMIC had provided no notice of termination. This is the identical position asserted by Commissioner Bell’s office in a letter to PMIC dated August 26, 1987. We also conclude that, so long as the basic coverage continued, the excess liability coverage of the Fund continued. The trial court, in reaching the same conclusion, stated, in part:
“8. If the basic coverage can not be cancelled without notice for reasons of public policy, the Court sees no reason why the Fund should not be hable under the same circumstance, although not specifically required by statute. . . .
“9. The Health Care Stablization Fund is established to provide coverage subsequent to the time that the health care provider has qualified for coverage. Since Dr. Bazzano’s basic coverage was continued he is entitled to continuous coverage from the Fund. The Court holds that the Fund is hable for the claim of Jessica Simon made in June of 1987, in excess of the basic coverage by PMI.
“10. The Court construes K.S.A. 40-3402(a)(2) to be apphcable to all insurance carriers who write medical malpractice insurance policies for health care providers liability within the state of Kansas.”
We concur with the trial court’s reasoning.
The next argument of the plaintiffs is that, even if the basic coverage was continued for failure of PMIC to give the statutory notice required by K.S.A. 40-3402(a)(2), the Fund should be relieved of liability under the provisions of K.S.A. 40-3403(c).
The statute provides:
“(c) Subject to subsections (d), (e), (f) and (i), the fund shall be hable to pay: (1) Any amount due from a judgment or settlement which is in excess of the basic coverage liability of all liable resident health care providers or resident self-insurers for any personal injury or death arising out of the rendering of or the failure to render professional services within or without this state; (2) any amount due from a judgment or settlement which is in excess of the basic coverage liability of all liable nonresident health care providers or nonresident self-insurers for any such injury or death arising out of the rendering or the failure to render professional services within this state but in no event shall the fund be obligated for claims against nonresident health care providers or nonresident self-insurers who have not complied with this act or for claims against nonresident health care providers or nonresident self-insurers that arose outside of this state.” (Emphasis added.)
It is contended by the plaintiffs that the failure of Dr. Razzano to pay a surcharge for the period from April 1986 to July 1987 constitutes a failure to comply with the Act that relieves the Fund of excess liability coverage for the claim made on June 5, 1987. It is undisputed that no surcharge was paid during the period in question. It is asserted that extension of the basic coverage for failure to give the statutory notice does not satisfy the requirement that the nonresident provider must comply with all provisions of the Act before there can be liability on the Fund. Given the recognized public policy underlying the Act, we think such a rigid construction of the statute is unreasonable and contrary to the overall objectives and purposes of the Act.
It must be presumed that the Commissioner was fully aware that Dr. Bazzano was practicing in Kansas, that he was insured by PMIC, a nonadmitted insurer; and that the statutory surcharge had been paid for many years by Dr. Bazzano through PMIC. The Commissioner must also be presumed to know that Dr. Bazzano continued to be licensed to practice medicine in Kansas subsequent to April 1, 1986, and that no premium surcharge had been received by the Fund for the period commencing April 1, 1986.
K.S.A. 40-3403(c) must be read in harmony with the entire Act. While the legislature imposed more duties on the nonresident provider, nothing indicates the legislature envisioned less protection in the form of coverage or Fund liability when basic coverage continued by operation of law. While it may be true that Dr. Bazzano owes the Fund a surcharge for the period from April 1, 1986, through July 1987, the basic coverage continued by operation of law during this period, and we hold the excess liability coverage of the Fund also continued. To hold otherwise, by a narrow isolated construction of K.S.A. 40-3403(c), would negate the public policy behind the Act as to patients of nonresident providers even though there had been substantial compliance with the Act. No such denial of protection is found for patients of resident providers and the legislative history of the Act discloses no intent by the legislature to adopt such disparate treatment. To the contrary, the purpose and public policy of the Act is to provide protection to all Kansas patients for medical services rendered in Kansas. We hold that the failure of Dr. Bazzano to pay the premium surcharge subsequent to April 1, 1986, does not relieve the Fund of excess coverage liability so long as the basic coverage remained in effect.
Subsequent to the filing of briefs in this appeal, the plaintiffs sought and obtained permission to file a supplemental brief to correct certain errors in the original. Plaintiffs’ motion stated, “[N]o new issues or authorities are being presented.” However, in their supplemental brief, plaintiffs apparently attempt to raise an issue based upon alleged misrepresentations of Dr. Bazzano as to his residence and the extent of his Kansas practice. The issue is not properly before this court and is of no merit. We have considered all of plaintiffs’ arguments, whether or not they are addressed in detail in this opinion, and conclude summary judgment was properly granted.
In view of the decision reached, there is no need to consider the defendants’ arguments that the plaintiffs are barred by estoppel.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
In this appeal we address: (1) the standard of review
for teacher-board of education controversies arising under the Professional Negotiations Act, K.S.A. 72-5413 et seq.; and (2) whether teacher evaluation criteria are mandatorily negotiable under the Act.
A resolution of these issues requires us to engage in statutory construction. We seek the legislative intent within the interplay of K.S.A. 72-9001 et seq. and K.S.A. 72-5413(1).
NEA-Goodland filed a prohibited practice charge against the Board of Education, U.S.D. No. 352. The only issue raised was the negotiability of professional employee evaluation criteria. The designee of the Secretary of Human Resources found that the criteria were subject to mandatory negotiation pursuant to the Professional Negotiations Act. The Board of Education appealed to the district court, which held that evaluation procedures are mandatorily negotiable, but evaluation criteria are not. We agree with the district court’s analysis and affirm.
Facts
The facts of this case are not in dispute and, therefore, will be summarized. In the fall of 1985, the Board of Education of U.S.D. No. 352 (the Board) created a committee to study evaluation procedures. The committee met on a monthly basis from January to May of 1986. The purpose of this committee was to assist the Board in adopting a written policy of personnel evaluation as required by K.S.A. 72-9001 et seq. The policy produced by the committee was referred to as the Professional Improvement Plan.
The Board and the NEA exchanged notices of items to be negotiated for the 1986-1987 contract. Both sides noticed proposals regarding professional employee evaluation procedures. A dispute arose between the parties regarding the Professional Improvement Plan. The Board refused to negotiate portions of the Professional Improvement Plan regarding evaluation criteria, but was willing to negotiate the portions of the plan regarding evaluation procedures. The Board and the NEA were not able to reach an agreement and the Board ultimately offered the teachers a unilateral contract. The unilateral contract included the Professional Improvement Plan, including the portions that had not been negotiated by the parties during the 1986-1987 contract negotiations.
The NEA filed a prohibited practice complaint against the Board. A hearing was held before a representative of the Secretary of the Department of Human Resources. An order was entered by the examiner which stated in part:
“Based on all the foregoing, the examiner is convinced that the legislature contemplated inclusion of the criteria upon which one is evaluated in their use of the words ‘employee appraisal procedures’ when defining those subjects listed at K.S.A. 72-5413(1) as terms and conditions of employment over which bargaining is mandatory.”
The Board petitioned the district court for review of the decision of the Department of Human Resources. The district court concluded:
“6. Professional employee appraisal procedures involve the ‘mechanics’ and the ‘how’ and ‘when’ of employee evaluation and are mandatorily negotiable. The professional employee evaluation criteria include the ‘what’ or ‘standard’ used to evaluate areas of performance by employees thus determining the quality of work to be expected which is an exclusively managerial decision.
“7. There is nothing in Article 90 of the Kansas statutes to indicate the legislature’s intention that any part of the criteria referred to in K.S.A. 72-9004 should be mandatorily negotiable.
“8. The Court should not put words in the mouth of the legislature nor rewrite statutes that are clear and concise as written.
“9. USD 352 is not required to negotiate teacher evaluation criteria. Their refusal to do so was appropriate under the law and thus no prohibitive practice occurred.”
The Standard of Review
K.S.A. 1988 Supp. 72-5430a sets out the procedure for review of controversies arising under the Professional Negotiations Act. K.S.A. 1988 Supp. 72-5430a(b) provides in part:
“Any action of the secretary pursuant to this subsection is subject to review and enforcement in accordance with the act for judicial review and civil enforcement of agency actions. Venue of the action for review is the judicial district where the principal offices of the pertinent board of education are located.
“The action for review shall be by trial de novo with or without a jury in accordance with the provisions of K.S.A. 60-238 and amendments thereto, and the court may, in its discretion, permit any party or the secretary to submit additional evidence on any issue.”
The Act for Judicial Review and Civil Enforcement of Agency Actions is set out at K.S.A. 77-601 et seq. Pursuant to K.S.A. 77-623, “[djecisions on petitions for judicial review of agency action are reviewable by the appellate courts as in other civil cases.” Under the provisions of K.S.A. 1988 Supp. 77-618, the district court is usually limited to review of the agency record and does not conduct a trial de novo. The district court’s scope of review is stated in K.S.A. 77-621, which contains the caveat, “Except to the extent that this act or another statute provides otherwise . . . .”
K.S.A. 1988 Supp. 72-5430a specifically provides for a trial de novo to the district court in cases arising under the Professional Negotiations Act.
Nurge v. University of Kansas Med. Center, 234 Kan. 309, 674 P.2d 459 (1983), which is cited by NEA, interpreted the definition of the trial de novo, as set forth in K.S.A. 44-1011, regarding appeals of orders of the Kansas Commission on Civil Rights. In Nurge we discussed the district court’s scope of review in a trial de novo, not the appellate court’s scope in reviewing the district court’s decision. NEA cites Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), which also concerned the scope of review for both the district court and the appellate court in reviewing an agency action. However, the Foote court interpreted the review statute then in effect to not encompass de novo review of the agency’s action by the district court. Nurge and Foote are not applicable to a determination of our scope of review in this case.
The Board cites Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975). Stephens also involved the issue of whether the district court could conduct a trial de novo in reviewing the order of an administrative agency and, if so, what the scope of such a trial would be. The issue of the appellate court’s scope of review where a district court has conducted a trial de novo in determining the validity of an order of an administrative agency was not raised in Stephens. In the case at bar, neither party has asserted that the district court exceeded its jurisdiction or authority in its review of the order of the Secretary of the Department of Human Resources. Neither party has challenged any of the findings of fact made by the district court.
NEA contends that we must make our own findings of fact and conclusions of law. We do not agree. Under K.S.A. 77-623, an appellate court is to review a district court’s review of an agency action in the same manner it would review any other decision of a district court in a civil matter. “Generally, a litigant must object to inadequate findings and conclusions of law in order to give the trial court an opportunity to correct them. [Citation omitted.] In the absence of an objection, omissions in findings will not be considered on appeal.” Southwest Nat’l Bank of Wichita v. ATG Constr. Mgt., Inc., 241 Kan. 257, 265, 736 P.2d 894 (1987). “This court’s review of conclusions of law is unlimited.” Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988). The interpretation of a statute is a question of law. It is our function to interpret a statute to give it the elfect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
Teacher Evaluation Criteria
K.S.A. 72-5414 gives teachers the right to organize in order to participate in professional negotiations with boards of education, “for the purpose of establishing, maintaining, protecting or improving terms and conditions of professional service.” K.S.A. 72-5413(1) defines “terms and conditions of professional service” in pertinent part as “disciplinary procedure; resignations; termination and nonrenewal of contracts; reemployment of professional employees; terms and form of individual professional employee contract; probationary period; [and] professional employee appraisal procedures.” (Emphasis added.)
We have held that, if a topic is by statute made a part of the terms and conditions of professional service, then a topic is by statute made mandatorily negotiable. NEA-Wichita v. U.S.D. No. 259, 234 Kan. 512, Syl. ¶ 5, 674 P.2d 478 (1983).
The issue of mandatory negotiation was considered in U.S.D. No. 501 v. Secretary of Kansas Dept. of Human Resources, 235 Kan. 968, 970, 685 P.2d 874 (1984): “In our judgment, the topic approach was the proper method to be utilized by the secretary and the district court in interpreting K.S.A 72-5413(1). Such an approach is in accord with the intent of the Kansas legislature and is consistent .with Kansas decisions.”
The Board argues that professional employee appraisal procedures are distinct from professional employee appraisal criteria. NEA asserts that appraisal procedures and appraisal criteria are dependent on one another and, therefore, cannot be distinguished. NEA also contends that, if appraisal criteria do not fall under the topic of appraisal procedures, they fall under the topics of disciplinary procedure, termination and nonrenewal of contract, or reemployment of professional employees.
The Professional Improvement Plan at issue in this appeal was drafted in accordance with K.S.A. 72-9001 et seq. Specific and general criteria to be incorporated into such evaluation policies are set out at K.S.A. 72-9004. K.S.A. 72-9003 states, “Every board shall adopt a written policy of personnel evaluation procedure in accordance with this act and file the same with the state board.” (Emphasis added.) Although specific guidelines are set out for the development of evaluation criteria, K.S.A. 72-9001 et seq. is more general in its requirements regarding eval uation procedures. K.S.A. 72-9003 requires that the policy must include evaluation procedures which are applicable to all employees and requires that evaluations be in writing and be filed in the employee’s personnel file for a certain time period.
K.S.A. 72-9004(c) requires that the “original policy and amendments thereto should be developed by the board in cooperation with the persons responsible for making evaluations and the persons who are to be evaluated.” The committee which was appointed to help implement the evaluation policy included several teachers, one of whom was a member of NEA.
Both parties have cited our opinion in U.S.D. No. 501 v. Secretary of Kansas Dept. of Human Resources, 235 Kan. 968. In U.S.D. No. 501, the school district appealed the trial court’s decision that 501 had failed to negotiate with the NEA on three mandatorily negotiable topics. The three topics were in the areas of staff reduction, employee files, and the student teacher program. We considered each of the three topics:
(1) Staff Reduction:
“We agree with the secretary and the district court that the decision to reduce staff is a managerial decision for the school board and thus is not mandatorily negotiable. However, the mechanics for termination or non-renewal of teachers as a result of reduction of staff are mandatorily negotiable items.” 235 Kan. at 973.
(2) Employee files:
We held the topic of employee files to be a mandatorily negotiable subject under K.S.A. 72-5413(1).
(3) Student Teacher Programs:
“We have concluded that the district court was correct in affirming the secretary and in holding that the NEA proposal covering the mechanics of selecting teachers to participate in student teacher programs fell within the category of ‘hours and amounts of work’ and was, therefore, mandatorily negotiable.” 235 Kan. at 975.
Although U.S.D. No. 501 did not address the specific issue raised in this appeal, our analysis is helpful in providing illustrations of what is and is not mandatorily negotiable. In U.S.D. No. 501, we distinguished managerial decisions and policies and the mechanics of such policies. By analogy, evaluation criteria should be defined as a managerial policy solely within the domain of the Board, whereas the evaluation procedure should be defined as the mechanics of applying such criteria.
“Perhaps the single greatest, and almost universally recognized, limitation on the scope of bargaining or negotiation by state public employees is the concept of managerial prerogative as it has developed in the public sector. In essence, the concept creates a dichotomy between ‘bargainable’ issues, that is, those issues which affect conditions of employment, and issues of ‘policy’ which are exclusively reserved to government discretion and cannot be made mandatory subjects of bargaining.” Annot., 84 A.L.R.3d 242, § 3[a].
In Tri-County Educators’ Ass’n v. Tri-County Special Ed., 225 Kan. 781, 784-85, 594 P.2d 207 (1979), we held that evaluation of employees was not a mandatorily negotiable item. The legislature subsequently amended K.S.A. 1979 Supp. 72-5413(1) to include “professional employee appraisal procedures.” (L. 1980, ch. 220, § 1.) Black’s Law Dictionary 1367 (4th ed. rev. 1968) defines “procedure” as:
“[t]he mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which, by means of the proceeding, the court is to administer; the machinery, as distinguished from its product. [Citation omitted.] That which regulates the formal steps in an action or other judicial proceeding; a form, manner, and order of conducting suits or prosecutions.”
“It is presumed the legislature understood the meaning of the words it used and intended to use them; [and] that the legislature used the words in their ordinary and common meaning.” Rogers v. Shanahan, 221 Kan. 221, 223-24, 565 P.2d 1384 (1976).
Both parties cite cases from other states in which the criteria versus procedures issue was raised.
In Aplington Community School Dist. v. Iowa PERB, 392 N.W.2d 495, 499 (Iowa 1986), the Iowa Supreme Court held that the term “evaluation procedures” encompassed substantive evaluation criteria and that negotiation of evaluation criteria was, therefore, mandatory. The court’s holding, however, was based on a previous Iowa case, Saydel Educ. Ass’n v. Public Emp. Rel. Bd., 333 N.W.2d 486 (Iowa 1983), in which the Iowa court gave the term “procedures” a broad definition. Our previous cases have noted a distinction between “mechanics” and “policy.”
In Univ. Educ. Ass’n v. Regents of Univ. of Minn., 353 N.W.2d 534, 542 (Minn. 1984), the Supreme Court of Minnesota stated:
“The substantive criteria, weights and review of faculty evaluations are undoubtedly managerial matters while the application of the evaluations is an issue that may directly affect a faculty member’s terms and conditions of employment. The fairness of the application of faculty evaluation standards is ensured by the negotiability of the tenure and promotion procedural process. It is obvious that the quality of work an employer, public or private, expects is a managerial decision.”
In rejecting reliance on case law of other jurisdictions to interpret what is mandatorily negotiable under Kansas law, we said in National Education Association v. Board of Education, 212 Kan. 741, 757, 512 P.2d 426 (1973): “Cases from other jurisdictions [prove] to be of little value in construing our own statute because each state has its own philosophy and each statute has its own peculiar phraseology; none has the legislative history of our own act.”
Under K.S.A. 72-5413(1), evaluation procedures are mandatorily negotiable; evaluation criteria are not.
The Prohibited Practice Issue
NEA contends that the Board committed a prohibited practice by refusing to negotiate evaluation criteria. K.S.A. 72-5430 defines prohibited practices. Included within the prohibited acts is the refusal to negotiate in good faith as required by K.S.A. 1988 Supp. 72-5423. We have held that evaluation criteria are not mandatorily negotiable under the Professional Negotiations Act; consequently, the Board did not commit a prohibited practice.
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The opinion of the court was delivered by
Holmes, J.:
The plaintiffs appeal from an order of the district court granting summary judgment to certain defendants in an action for the personal injury and wrongful death of Ira and Augustus Pettis. Mr. and Mrs. Pettis were killed when a church collapsed on their residence. Several of the defendants settled with the plaintiffs and the non-settling defendants were subsequently granted summary judgment. We affirm.
As this is an appeal from the granting of summary judgment, the facts will be stated in some detail.
On the evening of August 8, 1985, the Bethel A.M.E. Church (Bethel Church) at 411 Kiowa, Leavenworth, Kansas, partially collapsed on the residence of Ira and Augustus Pettis, killing both of them. The Pettis residence was located to the west of the church and the church parsonage was located to the east of the church. Apparently there was not much space between the two residences and the church building.
The plaintiffs include the heirs-at-law of Mr. and Mrs. Pettis, and James E. Gooch, as administrator of the estates of Ira Pettis and Augustus Pettis. The plaintiffs’ petition asserted claims for trespass and negligent failure to warn against Church Mutual Insurance Company (CMIC), Dressier Engineers (Dressier), GAB Business Services, Inc. (GAB), and Gerald L. Albright. Plaintiffs also asserted a claim for trespass against the Bethel Church and a claim for negligent failure to warn against the City of Leavenworth (City). In their first amended petition, the plaintiffs added a claim of negligent failure to warn against Bethel Church and named African Methodist Episcopal Church, Inc.; M.D. Cooper, d/b/a M.D. Cooper & Associates Consulting Engineers (Cooper); Julius David Kaaz (Kaaz); and Julius Kaaz Construction Co., Inc. (Kaaz, Inc.), as additional defendants. Plaintiffs asserted claims of trespass and negligent failure to warn against each of the additional defendants. Apparently, the plaintiffs brought a separate action against W.F. Mothersbaugh, d/b/a W.F. Mothersbaugh & Son, Inc. (Mothersbaugh), and the two cases were consolidated in the district court.
The Bethel Church, CMIC, African Methodist Episcopal Church, Inc., Cooper, Dressier, and Mothersbaugh settled with the plaintiffs, and the actions against them were dismissed. Thus, plaintiffs’ appeal concerns only defendants Kaaz, Kaaz, Inc., GAB and its employee Gerald L. Albright, and the City.
The voluminous record in this case, consisting of thirty-three volumes, includes one thousand four hundred forty-seven pages of pleadings, four partial transcripts of various court hearings, and twenty-six discovery depositions. The trial court, in ruling upon the motions for summary judgment filed by Kaaz, Kaaz, Inc., GAB, Albright, and the City, made one hundred eighty-five findings of fact. With this record before us, we turn to the events leading to the collapse of the church building and the filing of this action.
In June of 1985, Rev. Warren, pastor and president of the board of trustees of the Bethel Church, noticed that the east wall of the church was pulling away from the ceiling and informed Tom Bragg, Staff Johnson, and Landon Jackson, the other members of the church board of trustees. Bragg suggested contacting Kaaz, president of Kaaz, Inc., which had done some repair work at the church in prior years. Kaaz inspected the church and found problems with the ceiling truss system and a separation of the east wall from the ceiling. Kaaz then informed Bragg and Johnson that “they would have to get the services of a structural engineer and analyze the truss system to come up with a design for possible repair or replacement” and indicated the church building needed prompt attention.
On June 11, 1985, the Bethel Church filed a claim with CMIC, its property damage insurance carrier, claiming the church had been damaged by wind. On the same date, CMIC contacted the Overland Park offices of GAB “and requested GAB to investigate and adjust the property damage claim made by the Bethel Church on behalf of and for Church Mutual Insurance Company.” GAB’s business is investigating and adjusting insurance claims for insurance companies. Defendant Gerald L. Albright, one of GAB’s branch managers, made arrangements with Rev. Warren to inspect the church property. On June 21, 1985, Albright met with Rev. Warren. Not knowing what caused the damage, Albright called Patricia Heller, a claims examiner with CMIC, and recommended that CMIC hire an engineer to look at the church. After Heller authorized Albright to obtain an engineer, Albright contacted Dressier Engineers, which agreed to inspect the church and prepare a report for CMIC.
Ron Haskey, an architectural engineer with Dressier, and Donald Dressier inspected the church on June 24, 1985. Kaaz was present to point out to Haskey what he had observed on his previous inspection of the church. Haskey determined the church was “unsafe for human occupancy” and indicated the City should be notified.
The City was notified and David Pennington, the Leavenworth Public Works Director and City Engineer, inspected the property on June 24 or 25. He informed one of the church members that he would have to post the church as unfit for habitation because of his concern that plaster from the ceiling would fall on someone. He also informed church officials that they needed to hire an engineer to determine the necessary repairs which would have to be completed before they could resume use and occupancy of the building. The property was posted as unfit for habitation and the front and east sides of the church were barricaded and roped off. The church officials were ordered “to repair or remove the structure within 30 days.”
Dressier furnished its written report, dated June 28, 1985, to GAB for CMIC. The written report stated the church was “hazardous to human occupancy” and recommended “the immediate shoring of the east wall and deficient ceiling structure.” Further, it stated: “All work should be conducted under the supervision of a registered professional engineer.” Dressler’s report and the deposition of Donald Dressier further indicate that there was an immediate danger that the church ceiling would collapse into the sanctuary. Albright, who received the report on July 1, 1985, prepared a report for CMIC which included a copy of the Dressier report. Albright’s report stated that the building was dangerous and indicated that he had recommended to Rev. Warren that the area between the parsonage and the church building be roped off. By the time Albright prepared his report, the City had already barricaded and roped off the church.
On or about July 1, 1985, church trustee Tom Bragg contacted M.D. Cooper, a friend, and asked Cooper to look at the building and see what could be done. Cooper is a licensed civil engineer and he forthwith viewed the property. On either July 2 or July 3, Cooper informed Bragg that the east wall, being cracked, posed a hazard to the parsonage and that “repairs had to be implemented immediately.” On July 3, 1985, Cooper prepared a proposal for designing plans for the shoring and repair of the church, including the provision of inspection services during repair and assistance in evaluating the bids the Bethel Church received. In his proposal, he stated that he would have “complete contract documents ready to bid six weeks after acceptance of this proposal (sooner if possible).” Rev. Warren and Bragg accepted the proposal on behalf of the Bethel Church.
On July 9, 1985, Cooper again inspected the church and drew plans and tentative bid specifications for the church’s repair., On July 11, 1985, he submitted his plans to the Bethel Church which had set an August 28, 1985, deadline for bids. Cooper noted, “Failure is progressing. Time is of the essence.” On July 25, 1985, Kaaz, who was interested in bidding on the repairs, met Cooper at the church property. They discovered that more plaster from the ceiling had fallen into the sanctuary, and Kaaz informed church trustees that he was no longer interested in bidding on the repairs because he did not feel his men would be safe working there.
On August 1, 1985, Bragg called Cooper and stated he wanted demolition to be an option in the plans. On August 2, 1985, William Mothersbaugh, a contractor who church officials had contacted on July 29 or July 30, inspected the church. On August 5, 1985, Rev. William F. Dancy, a prior pastor of the church, asked William H. Johnson, an architect, to look at the church. Johnson noticed the bow in the east wall of the church which Dancy stated had been there since 1964. Dancy testified that at least one roof beam had fallen through the ceiling. Johnson testified that at least one of the roof trusses was one foot or more below ceiling level. Johnson also testified that “to appreciate the Church truss system, you would have to be a structural engineer, not just an engineer.”
On August 6, 1985, Mothersbaugh submitted a bid for the repair work. Church officials had not responded to Mothersbaugh’s bid when the church building collapsed on August 8, 1985, killing Mr. and Mrs. Pettis.
As indicated earlier, the Bethel Church, CMIC, Dressier, Cooper, African Methodist Episcopal Church, Inc., and Mothersbaugh settled with the plaintiffs for a total of $155,000. GAB and its employee Albright, Kaaz, Inc., and its president and employee Kaaz, and the City, the remaining defendants, were granted summary judgment in detailed findings of fact and con elusions of law announced by the court on December 10, 1988. The plaintiffs, in appealing, have abandoned any claims based upon their theory of trespass and the controlling issue before this court is whether the defendants, or any of them, had a duty to warn Mr. and Mrs. Pettis.
Before turning to the issues on appeal, we will once again set forth certain basic rules relating to the granting of summary judgment in a negligence action.
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.] The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. [Citations omitted.] If factual issues do exist, they must be material to the case to preclude summary judgment. ” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
“Summary judgment is proper where the only questions presented are questions of law.” Barber v. Williams, 244 Kan. 318, Syl. ¶ 1, 767 P.2d 1284 (1988).
“For negligence to exist there must be a duty and a breach thereof before the conduct becomes actionable. If no duty exists there can be no negligence.” Hanna v. Huer, Johns, Neel, Rivers & Webb, 233 Kan. 206, Syl. ¶ 5, 622 P.2d 243 (1983).
“Whether a duty exists is a question of law. [Citations omitted. ] Whether the duty has been breached is a question of fact.” Duflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
“In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact could not affect the judgment, it does not present a genuine issue of material fact.” Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, Syl. ¶ 2, 790 P.2d 404 (1990).
Plaintiffs claim two theories give rise to the defendants having a duty to warn: First, under Restatement (Second) of Torts § 324A (1964) (hereafter § 324A), defendants gratuitously undertook to render services of inspection for the Bethel Church which they should have recognized as necessary for the protection of third parties, the decedents; second, a duty existed because defendants knew or should have known of the danger to the Pettises as a result of the church’s condition.
Plaintiffs’ principal argument is that defendants had a duty to warn Mr. and Mrs. Pettis based upon the application of the § 324A, which provides:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [sic; perform] his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
The trial court found no duty under § 324A because the defendants did not agree to be, or by their actions voluntarily assume to be, responsible for the safety of the structure. On appeal, plaintiffs claim they are not asserting the defendants undertook a duty to repair the structure, or be responsible for its safety; rather, they claim defendants gratuitously undertook a duty of inspection which the Bethel Church owed to plaintiffs’ decedents for the purpose of determining whether the church was safe, and part of that duty would be to warn persons who would be in danger between the time of discovery and repair. Defendants contend they did not undertake to render services to the Bethel Church because their inspections were for their own benefit and because they had no agreement or intent to be responsible for the safety and structure of the church.
This court first recognized and adopted the principles upon which § 324A is based in Jenree v. Street Railway Co., 86 Kan. 479, 121 Pac. 510 (1912). Section 324A has been considered by this court in several recent cases. The threshold requirement for the application of § 324A is that the defendant must undertake, gratuitously or for consideration, to render services to another. In each of the Kansas cases imposing liability under § 324A, it was clear that this requirement was met. In Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982), KCPL agreed to and was hired to render traffic engineering services to the City. In Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 672 P.2d 1083 (1983), the Kansas Turnpike Authority hired Howard-Needles as its consulting engineers to make safety inspections of the turnpike and thus render services to the KTA. In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), there was evidence the county agreed with Kansas State Penitentiary officials and other law enforcement agencies to notify these agencies of escapes from the penitentiary. In Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), the police were obligated by a general police department order to take certain incapacitated persons into custody. Further, in the cases not finding a duty, it was clear there was no undertaking. In Hanna v. Heur, Johns, Neel, Rivers & Webb, 233 Kan. 206, the court found the defendant architects did not agree to be responsible for safety practices on the jobsite and took no actions indicating they assumed any such responsibility. In Meyers v. Grubaugh, 242 Kan. 716, 750 P.2d 1031 (1988), the State simply allowed the intoxicated employee to leave work. Thus, in all cases where it was found that the parties undertook to render services to another, they agreed to or were obligated to perform services for another that were accepted and thus the initial requirement of § 324A was met; and, in all cases where liability was not imposed, the defendants had no agreement and took no affirmative action that could be construed as an intentional undertaking to render services to another.
Plaintiffs basically contend that the inspections of the church property by Albright, on behalf of his employer GAB, by Kaaz, on behalf of his construction company, and by David Pennington, as city engineer for the City, constituted an undertaking by these defendants to render services to the Bethel Church. Defendants, on the other hand, contend that an undertaking requires considerably more than the limited inspections shown by this record.
Many of the cases which have found an undertaking to perform services under § 324A involve negligent inspections of an insured’s property by property or liability insurance carriers. While such cases might be persuasive if CMIC were a party to this appeal, they do not directly address the factual situation now before the court.
Plaintiffs cite several cases, but only two can be construed as favorable to them in exploring when an undertaking occurs. In American Mut. Liability Ins. Co. v. St. Paul F. & M. Ins. Co., 48 Wis. 2d 305, 179 N.W.2d 864 (1970), an employee of Menominee Enterprises was injured when a cast-iron fitting on a boiler ruptured. After paying workers compensation to the injured employee, the workers compensation carrier sued St. Paul Fire & Marine Insurance Company, the boiler insurer, claiming it negligently performed inspections on the boiler. While the evidence was clear that St. Paul was not contractually obligated to inspect the boilers, it also showed St. Paul conducted such inspections and made a report including its recommendations to the employer. Further, the Supervisor of the Boiler Section of the Industrial Safety and Building Division of the Department of Industry, Labor and Human Relations, stated in his affidavit that the Department had issued certificates to two of St. Paul’s employees authorizing them to inspect boilers. The affidavit further showed that, when reports were submitted to the Wisconsin Industrial Commission based upon inspections made by certified insurance company inspectors, the Commission did not usually conduct an inspection and that, because of St. Paul’s inspections, the Commission did not inspect the Menominee boilers for a period of nearly two years. The district court granted summary judgment to St. Paul, finding no tort duty because St. Paul conducted the inspections for its own interests, no service contract existed, and no evidence showed inspection reports were submitted to the Commission.
In reversing the trial court’s granting of summary judgment, the court first emphasized that St. Paul’s affidavit only addressed whether it contractually obligated itself to make boiler inspections, ignoring the negligence claim made under § 324A. The court, in considering § 324A, stated: “Under this view it is immaterial in a negligence action whether or not the defendant contractually obligated itself to inspect the boilers. It is enough that it undertook to inspect the boilers and that it did so negligently.” 48 Wis. 2d at 313. The court went on to state:
“One of the leading cases in the country is Hartford Steam Boiler Inspection and Ins. Co. v. Pabst Brewing Co. (7th Cir. 1912), 201 F. 617. This case arose in the State of Wisconsin in a dispute between the Pabst Brewing Company and its boiler insurer. In that case the insurer’s inspection arose ab extra the contract. The court stated:
‘Inspection of the boilers necessarily requires care and skill in its performance for safety in their use, and, when thus undertaken by the Insurance Company to sene as a benefit to the assured, the duty arises, with or without contract obligation to inspect, to exercise reasonable care and skill in each inspection so made, although no such rule of duty obtains in favor of the assured where the inspections are attributable alone to the policy provision for the sole benefit of the insurer, which would leave no ground for a finding of fact that they were understood between the parties to be made and accepted as inspection service for direct benefit to the Brewing Company. But, if so made and accepted as beneficial service, we understand the above-mentioned rule to be applicable as well with or without contract obligation for the service; that it is such making of the inspections, and no obligation on the part of the Insurance Company to make them, upon which the duty of care arises. (P. 629)’
“We believe the above reasoning is applicable to the instant case. Menominee Enterprises, the employer, had a clear obligation to inspect the boilers and to make sure that they were safe. While it is no doubt true that the inspection was made in part for the benefit of the insurance company, there is evidence which if believed on trial would lead to the conclusion that the inspection senice was accepted for the direct benefit of Menominee Enterprises.” 48 Wis. 2d at 315-16. (Emphasis added.)
By its reliance upon Pabst Brewing Co., it appears that the court in American Mut. Liability Ins. Co. based its holding, at least in part, on a finding that the boiler inspection services were done for the benefit of Menominee Enterprises, as well as for the insurance company, and that the services were accepted by the insured. There were also procedural problems which precluded the granting of summary judgment.
In Sims v. American Cas. Co., 131 Ga. App. 461, 206 S.E.2d 121 (1974), another case relied upon by plaintiffs, an employee of Bio-Lab, Inc., died from burn injuries sustained when a volatile alcohol-based product ignited. The complaint alleged the defendants, several insurance companies, had negligently inspected the premises where the deceased was working when injured. Specifically, the complaint alleged defendants made these inspections pursuant to insurance policies and, independently of the policies, the inspections were made “not only to rate the risk but to help Bio-Lab reduce its accidents and losses and to protect the lives, health and safety of its employees.” 131 Ga. App. at 467. The trial court granted the defendants’ motions to dismiss for failure to state a claim and not on the basis of summary judgment based upon a factual record.
The court considered the issue before it as whether Georgia recognizes a common-law cause of action for negligent performance of safety inspections. After reviewing several cases, the court found a cause of action, concluding: “A study of the foregoing authorities, and of Restatement, Second, Torts § 324A, leads to the conclusion that defendants’ duty may arise from contract or from undertaking actual inspections without contract.” 131 Ga. App. at 473. All that Sims actually decided was that the allegations of the amended complaint which, inter alia, alleged the inspections were conducted “to protect the lives, health and safety of employees” were sufficient to state a cause of action on behalf of an employee who was injured following an alleged negligent inspection by the defendant insurance company.
While the authorities relied upon by the plaintiffs do make it clear that there may be liability under both the common law and § 324A for a gratuitous rendering of services, none goes so far as to hold that there is liability absent an undertaking to perform services for another. In all the cases there was some duty by another to a third person assumed by the party sought to be held liable which, when the duty was breached, led to the injury of the third person.
Defendants, who assert that they did not undertake to render services to the Bethel Church, rely on numerous cases to support their position. Among the cases is Smith v. Allendale Mutual Ins. Co., 410 Mich. 685, 303 N.W.2d 702 (1981), which is instructive because of the thoroughness of the court’s analysis of the threshold requirement, under § 324A, that the defendant must have undertaken to render services to another.
In Smith, the Michigan Supreme Court considered, in two consolidated cases, whether an insured’s fire insurance carrier, who inspects the insured’s plant for fire hazards and makes safety recommendations based upon these inspections, can be liable to the insured’s employees for negligent inspection in failing to detect fire hazards. In finding no duty under § 324A, the court first recognized that the Restatement does not have the force of a statute, which is a legislative determination controlling future acts, but is an attempt to state existing common-law principles which have evolved over the years from prior cases. In determining there was no liability upon the defendants, the court stated: “[W]e conclude that the insurers in these cases are not liable to plaintiffs under the common-law rule restated in § 324A because on these records the relationships did not give rise to an undertaking creating a duty to inspect with due care.” 410 Mich, at 713. In reaching its conclusion, the court stated:
“Section 324A provides that an actor who ‘undertakes, gratuitously or for consideration, to render services to another (emphasis supplied) may in certain circumstances be liable to foreseeable third persons for negligence. Plaintiffs maintain that by inspecting the Farm Bureau feed mill and the Great Lakes Steel plant for fire hazards, the insurers in these cases embarked upon gratuitous undertakings within the ambit of § 324A.
“In our view, plaintiffs misconceive the sweep of the section’s principles. The illustrations given in the official comments to § 324A and the cases cited by way of example in the Reporter’s Notes involve either a contractual undertaking by a defendant to render particular services, an undertaking by an agent or employee to render services to his employer as part of the agency or employment, or an undertaking whose unambiguous object is to benefit another and which would not have been performed primarily for the actor’s purposes.
“One can agree with the general proposition that any person, including an insurer, who assumes to act must act with reasonable care without concluding that the insurers in these cases are subject to liability under the rule of § 324A. It is not enough that the insurer acted. It must have undertaken to render services to another. Its acts do not constitute such an undertaking unless it agreed or intended to benefit the insured or its employees by the inspections.
“Ordinarily the question whether an actor has undertaken to render services to another is not in dispute. In the instant case, the central question, as we see it, is whether such an undertaking to serve another can be established from conduct which is consistent with an intention primarily to serve the purposes of the actor.
“The law does not impose a duty upon an insurer who inspects in the absence of conduct evidencing an agreement or intent to benefit others by the inspection; only in such a case has the insurer acknowledged the propriety of judging the competence of its inspection by a standard which measures its potential effect on others. This concept of acknowledged obligation to another is comprehended by § 324A’s threshold description of ‘[o]ne who undertakes * * * to render services to another’; the rule stated in § 324A by its terms does not apply to an actor following a self-serving course of conduct.
“While an undertaking which may give rise to liability under the rule of § 324A may be gratuitous as well as contractual, the evidence must show that the actor assumed an obligation or intended to render services for the benefit of another. Evidence demonstrating merely that a benefit was conferred upon another is not sufficient to establish an undertaking which betokens duty. Persons pursuing their own interests often benefit others in the process. Accordingly, where a plaintiff seeks to prove an undertaking by conduct which benefits another and that conduct is consistent with a primary purpose on the part of the actor to benefit himself, the plaintiff must offer additional evidence to create a jury question whether there was an undertaking to render services and hence a duty to one who might foreseeably be injured by the actor s failure to perform the undertaking with reasonable care.
“An inspection for fire hazards does not in itself represent that the insurer has done more than seek to reduce claims or determine whether it is willing to underwrite or remain on the risk. Identification of fire hazards and the making of recommendations to the insured do not in themselves suggest an objective other than to reduce the insurer’s losses on the policy or to justify a decision by the insurer to raise or lower rates or to decline or remain on the risk; such conduct does not imply an undertaking to warn the insured of reasonably identifiable fire hazards.
“This is not to say that a fire insurer may not undertake to render fire inspection services to its insured and thereby incur a duty, breach of which will subject it to liability. If the insurer promises to provide complete fire inspection services to alert the insured to fire hazards on the premises, its failure to exercise reasonable care in performing that undertaking will subject it to liability under the rule of § 324A.
“Absent such a specific undertaking, there must be evidence other than the fact of inspection and consequent loss prevention to indicate that the insurer undertook to render fire inspection services for the insured’s benefit before a negligent inspection claim can be submitted to the jury. For example, if the insurer’s advertising or communications with its policyholders represent that its inspection services will relieve the insured of the burden of monitoring its own facilities, it has undertaken to render inspection services for the benefit of the insured and is subject to liability if it fails to exercise reasonable care in performing that undertaking. It would be for a jury to decide whether the insurer failed to inspect with reasonable care and whether that failure caused the plaintiffs injury.
“In sum, a fire insurer who inspects its insured’s premises for fire hazards does not, merely by making the inspections, however thorough and frequent they may be, undertake to render services to the insured.” 410 Mich, at 715-19.
The United States District Court for the District of Kansas adopted the reasoning of Smith v. Allendale Mutual Ins. Co., 410 Mich. 685, in Leroy v. Hartford Steam Boiler Inspec. and Ins. Co., 695 F. Supp. 1120 (D. Kan. 1988), and granted summary judgment to INA/Aetna, the employer’s workers compensation insurance carrier which made plant inspections pursuant to a property damage/liability coverage policy. In doing so, the court found no evidence INA/Aetna conducted the inspections for any purpose other than loss reduction and underwriting.
We find the reasoning and analysis of the Michigan court to be persuasive. For a defendant to meet the threshold requirements of § 324A, the defendant must not only take affirmative action to render services to another, but the person to whom the services are directed must accept such services in lieu of, or in addition to, such person’s obligation to perform the services. Did the defendants in the present case undertake to render services to the Bethel Church? We cannot find that they did. It is interesting that the plaintiffs have not asserted, and apparently do not contend, that the defendants were negligent in performing the various inspections of the church property. However, in considering the record in the light most favorable to plaintiffs, we assume that plaintiffs are asserting a negligent failure to properly inspect the building and further assume that the inspections were negligently performed. However, as numerous cases aptly point out, a negligent inspection does not in and of itself give rise to liability to third persons or create any duty on these defendants to provide a warning to the decedents.
In the present case, GAB and its employee Albright were hired by CMIC, not the Bethel Church, to adjust an insurance claim asserted by the Bethel Church. At no time did Albright undertake to render any services to the Bethel Church, and his actions in inspecting the church structure were solely for the benefit of his employer and CMIC. The trial court, in extensive findings of fact pertaining to GAB and Albright, found, inter alia:
“GAB was employed by and on behalf of Church Mutual Insurance Company for the sole purpose of investigating and adjusting the alleged property damage claim made by Bethel A.M.E. Church, and neither GAB nor Al-bright performed any other services with regard to the Bethel A.M.E. Church structure.”
“Albright retained Dressier Engineers on behalf of Church Mutual for the sole purpose of determining whether the damage to the Church structure was covered under the provisions of the property damage insurance . . . [and] Church Mutual paid Dressier for their services.”
“Albright knew that there was a danger of the ceiling of the Bethel A.M.E. Church falling and knew there was damage to the east wall of the Church, but from the time of his initial contact with the Bethel A.M.E. Church structure until he found out the Church structure had collapsed he never had any understanding or knowledge and was never told the Church structure could collapse to the west onto the residence of the Pettises.”
The court also found:
“Of those who inspected the church, the opinions were that the greatest danger was possible collapse of the ceiling and, thus, there was danger to occupants of the church. The west wall appeared straight, true and sound. The collective opinion was that there was no existing danger to the residents on the west.”
Albright was not an engineer, and, when he first viewed the church building, he recognized that he could not make any determination as to the cause of the damage and could not determine whether CMIC had any liability to the Bethel Church. He recommended that CMIC employ an engineer and that was done. Dressier was contacted by GAB to inspect the church for CMIC and was not retained by the Bethel Church. The services rendered by Dressier, who has settled with the plaintiffs, were for CMIC. We find nothing in this record which would indicate that GAB and Albright undertook to render services to the Bethel Church.
The record concerning the involvement of Kaaz and Kaaz, Inc., is similar to that regarding GAB and Albright. Kaaz had previously done work for the Bethel Chuch and was contacted by one of the church trustees to look at the existing problem. Kaaz immediately recognized that an evaluation of the damage and the repairs needed were beyond his expertise, and he recommended that the Bethel Church obtain the services of an engineer. From that point on, the involvement of Kaaz was merely to point out to church officials, their engineer, and others what he had observed. From the outset Kaaz approached the problem as a possible repair job for his construction company, not as an undertaking on behalf of the Bethel Church. He ultimately determined that he was not even interested in bidding upon the church repairs due to the extensive damage which had occurred in the interim and the potential danger to his workers. However, nothing indicates any undertaking for the benefit of the Bethel Church that could conceivably create a duty on Kaaz under § 24A to warn plaintiffs’ decedents. Absent any duty to warn the Bethel Church, there could be no duty extending to Mr. and Mrs. Pettis. The fact that the Bethel Church may have had a duty to warn the Pettises does not create such a duty in these defendants absent an undertaking to render services to the Bethel Church and an acceptance of those services by the Bethel Church. This record does not support any finding that Kaaz undertook to render such services, and it is clear that any inspection by Kaaz was primarily for his own benefit and not for the benefit of the Bethel Church.
It should be noted that the Bethel Church at no time surrendered its obligations relating to the church property to any of these defendants. To the contrary, the church officials aggressively pursued their own course and direction to see that the damage was promptly evaluated and took affirmative steps to address the problems independent of any actions by the defendants.
We turn next to the alleged liability of the City based upon the actions of its city engineer, David Pennington When the City was alerted as to a potentially dangerous situation at the church, it moved promptly through David Pennington to make an evaluation of the property.
In Siple v. City of Topeka, 235 Kan. 167, 679 P.2d 190 (1984), this court held:
“Inspection laws are regulations designed to safeguard the public against fraud [and] injury and to promote the public health, safety and welfare. They provide for the examination or inspection of property by an authorized public official. The public official is to examine and determine whether the standards prescribed by the regulations are complied with.” Syl. ¶ 2.
“Statutes, ordinances and codes requiring inspections are enacted by governmental entities to secure for the public at large the benefits of such enactments. The legislature determined inspection activities are to be encouraged rather than discouraged by the imposition of civil tort liability. Inspections under such statutes, ordinances and codes are not a private service to the owner or occupier of the property. Inspection laws do not create a duty to an individual. K.S.A. 1983 Supp. 75-6104(j) precludes an individual from recovering damages caused by a governmental employee acting within the scope of his employment in failing to make, or making an inadequate or negligent inspection.” Syl. ¶ 5.
Plaintiffs, in their brief, assert that the City gratuitously assumed “a duty owed by the Bethel A.M.E. Church to third parties, that being the plaintiffs’ decedents.” At the time the City was notified that the church was an unsafe structure, the church had already been inspected by Dressier Engineers, which found no imminent danger of the west wall collapsing. Again, the plaintiffs have failed to demonstrate any undertaking by the City on behalf of the Bethel Church. David Pennington was merely carrying out his duties on behalf of the City and no negligence is shown in his actions in posting the property as uninhabitable and directing the Bethel Church to proceed with repair or demolition. The City assumed no duty owed by the Bethel Church to the Pettises, and there is no showing that the actions taken by the City to protect the occupants of the church and parsonage and to prevent access to the church were in any way negligent. These actions do not constitute a gratuitous undertaking to render services to the Bethel Church but were a part of the duties prescribed by statutes and ordinances for the protection of the public. The record is devoid of any evidence which would support a finding that the City undertook to render services as required by § 324A.
Plaintiffs contend that there are controverted facts which precluded the granting of summary judgment. While it is true that plaintiffs point to some facts which are allegedly controverted, none of them are material to a resolution of this case. In Ruebke v. Globe Communications Corp., 241 Kan. 595, Syl. ¶ 7, 738 P.2d 1246 (1987), we held:
“In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact. Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. ¶¶ 4, 5, 674 P.2d 1054 (1983).”
We have carefully considered this voluminous record and conclude that such facts as are controverted are not material to the issues before the court and do not preclude summary judgment.
Finally, plaintiffs contend summary judgment was improper because the defendants “knew or should have known of danger to the Pettises.” Plaintiffs rely upon Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986), and Balagna v. Shaw nee County, 233 Kan. 1068, 668 P.2d 157 (1983). We find such reliance misplaced. Assuming these defendants had actual knowledge of a potential danger to the Pettises, which is not borne out by the record, nothing in Fudge or Balagna makes such knowledge standing alone actionable. Absent a duty there can be no negligence supporting the plaintiffs’ claims. Fudge involved Restatement (Second) of Torts § 324A and the issue of whether police officers could be held liable to a third person for failing to take an intoxicated person into custody. It was only after the court found a duty mandated by the police department requiring that intoxicated persons be taken into custody that the court applied § 324A and made the following statement:
“The police officers should have realized that taking Henley into protective custody was necessary for the protection of third persons. Their failure to do so significantly increased the risk that Henley would cause physical harm to others. Accordingly, the City of Kansas City is subject to liability to James Fudge for the officer’s failure to take Delmar Henley into custody.” 239 Kan. at 373.
It is clear the court’s language in Fudge parallels the requirements of § 324A. It is also clear that there was a specific set of guidelines or rules that the police officers were mandated to follow which created the duty to the plaintiff.
In Balagna, liability was found based upon actual knowledge of a dangerous condition coupled with a unique set of facts. The architect-engineer defendants in Balagna were fully aware of the construction contract and its requirements. They were also on the premises for the purpose of assuring that the terms of the construction contract were performed. In the performance of those duties, the defendant’s employee, Freeborn, actually observed the contractor’s failure to take appropriate safety precautions. At the time, Freeborn knew that the contractor’s actions were in violation of safety regulations promulgated by OSHA and were a violation of standards which the contractor was obligated to perform. The unique factual circumstances of Balagna are not present in the instant case.
We conclude the trial court did not err in granting summary judgment to defendants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
Laufranze Keoka Jones was convicted in a jury trial of two counts of welfare fraud (K.S.A. 39-720), one count of making a false writing (K.S.A. 21-3711), and one count of felony theft (K.S.A. 21-3701). On appeal, the Court of Appeals: (1) vacated one count of welfare fraud as being barred by the statute of limitations; (2) reversed and remanded one count of welfare fraud; and (3) affirmed the remaining two convictions. State v. Jones, 13 Kan. App. 2d 520, 775 P.2d 183 (1989). We granted defendant’s petition for review to consider the implications of State v. Wilcox, 245 Kan. 76, 775 P.2d 177 (1989), on the two convictions which were affirmed. The Wilcox opinion was filed the same day as was the Court of Appeals opinion herein (May 26, 1989).
In Wilcox, the defendant was charged with two counts of making a false writing. The purpose and result of the false writings were to enable Wilcox to receive more welfare funds from the Department of Social and Rehabilitation Services (SRS) than those to which she was entitled. We held that K.S.A. 39-720 was a specific statute dealing with the particular wrongful acts of false writing with which Wilcox was accused of committing and that she should have been prosecuted under that statute. K.S.A. 39-720 provides:
“Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a williully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K.S.A. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act. In any civil action for the recovery of assistance on the grounds the assistance was fraudulently obtained, proof that the recipient of the assistance possesses or did possess resources which does or would have rendered him ineligible to receive such assistance shall be deemed prima facie evidence that such assistance was fraudulently obtained.”
In the case before us, the two counts of welfare fraud (Counts I and II) involve the wrongful receipt of welfare monies from SRS. The false writing and theft convictions (Counts III and IV) involve the wrongful receipt of monies under the Section 8 rental assistance program funded by the United States Department of Housing and Urban Development (HUD) and administered by the Kansas City, Kansas, Housing Authority. These monies came from the federal government and not through SRS.
In State v. Micheaux, 242 Kan. 192, 200, 747 P.2d 784 (1987), we stated “It is clear from the history of K.S.A. 39-720 that that statute was enacted to create an independent crime of welfare fraud to be utilized as a means of enforcing the Social Welfare Act which was enacted by the Kansas Legislature in 1937.” K.S.A. 39-720 requires that reimbursement be made to the Secretary of SRS and is a part of the Social Welfare Act, K.S.A. 39-701 et seq. Clearly, the application of K.S.A. 39-720 is limited to the wrongful receipt of or attempt to receive assistance from SRS. As Counts III and IV do not involve SRS assistance, K.S.A. 39-720 is not a bar to the prosecutions herein under the general statutes, K.S.A. 21-3711 and K.S.A. 21-3701.
As previously stated, we granted review herein only to determine the one issue relative to the applicability of K.S.A. 39-720 to Counts III and IV in light of our State v. Wilcox, 245 Kan. 76, opinion. Other issues for which review was sought, including limitation on defense counsel’s cross-examination and sufficiency of the evidence, were adequately discussed and disposed of by the Court of Appeals and will not be dealt with herein.
The Court of Appeals’ decision affirming in part, reversing in part, and vacating in part the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Lester Eugene Toler appeals from his convictions by a jury for possession of a stimulant with intent to sell, K.S.A. 1989 Supp. 65-4127b(b)(2); possession of drug paraphernalia, K.S.A. 65-4152; and unlawful use of weapons, K.S.A. 21-4201(l)(g) (possessing a shotgun with a barrel less than 18 inches in length). The only issue raised on appeal is the adequacy of the affidavit submitted in support of the search warrant.
On April 14, 1988, Sergeant Joseph Garman, of the City of Salina Police Department, executed an affidavit to obtain a search warrant for the property at 804 Greenbriar, Salina, Saline County, Kansas. The items sought included “methamphetamine, cocaine, drug paraphernalia, phone records, documents, any illegal narcotics as described by law, and monies.” In support of his belief that this property would be found at the location to be searched, the officer listed: (1) a controlled buy of methamphetamine on April 14, 1988, at 804 Greenbriar from Phyllis Sprecker, who resided at that residence, by a confidential informant who had given the Salina Police Department reliable information in the past; (2) complaints in January 1987 from neighbors suspecting the Spreckers of dealing drugs at their home at 1505 East Ells-worth; (3) a call on September 15, 1987, from a captain with the Department of Corrections, that Phyllis Sprecker was suspected of somehow smuggling drugs to an inmate; and (4) an anonymous Salina Crimestoppers tip, No. 87-122, on December 17, 1987, stating that Phyllis Sprecker was selling amphetamines out of her home at 914 Somerset and was ordering an ounce to a quarter of a pound every few days.
The search warrant was signed on April 14, 1988, at 8:30 p.m., by a judge of the District Court of Saline County, Kansas, authorizing a search of the one-story, single family dwelling as well as outbuildings, vehicles, or persons at 804 Greenbriar. The items sought were listed as “methamphetamine, cocaine, drug paraphernalia, phone records, documents, any illegal narcotic as described by law, and monies.” The search warrant was executed at 9:40 p.m. on April 14, 1988. When the officers knocked, a babysitter answered the door and allowed the officers to enter. Present at the residence were the babysitter and six children. The officers seized numerous items during the search, including documents that indicated defendant resided at the residence with Phyllis Sprecker.
At the trial, Phyllis Toler, who was formerly Phyllis Sprecker but had recently married the defendant, testified that she sold drugs to pay bills for her and her children. She began living at 804 Greenbriar in June of 1987. Defendant moved in with her around February of 1988. She paid the bills for the household with defendant contributing his money from work. Phyllis testified that the drugs and paraphernalia found at 804 Greenbriar belonged to her and that defendant had not sold drugs for her. Defendant and Phyllis married sometime after the search.
In rebuttal, the State presented the confidential informant, who had made the drug purchase. He testified that he had purchased drugs from Phyllis Sprecker while defendant was present but had never purchased drugs from defendant. He further testified that he had previously been convicted of possession of cocaine and was on probation. The woman the confidential informant was living with had been busted and he had made the controlled buy from Phyllis with the understanding that his girlfriend’s charge would be reduced from sale to possession.
A motion to suppress was filed by defendant’s counsel on June 30, 1988. The motion challenges the sufficiency of the affidavit to support the search warrant and, in paragraph 5, alleges that the affidavit contains false and misleading information. Defense counsel filed a supplemental motion to suppress evidence on August 8, 1988, because the affidavit relied upon information provided by a confidential informant who was on probation at the time under order of the Saline County District Court. Defendant argues that use of such probationer violated local district court Rule No. 4.108, which prohibits using a person on probation or parole as a confidential informant.
At the hearing on the motion to suppress conducted on August 10, 1988, defense counsel waived his argument that the affidavit contained false or misleading information, relying instead upon his argument that the affidavit was not valid on its face. Defendant presented no evidence. The court ruled that, under the totality of the circumstances test utilized by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), the affidavit was sufficient to support the issuance of the search warrant. Although the district court recognized that the confidential informant was used in violation of a local rule that prohibits use of a probationer as a confidential informant, the court held that the violation of this local administrative rule had no bearing upon the constitutional question of the adequacy of the search warrant. The court concluded that violation of the local rule should be enforced by contempt proceedings, not by suppression of the evidence.
The only issue before us is whether the information contained in the affidavit provided probable cause for issuance of the search warrant. Defendant attacks the affidavit on three grounds. First, he argues that the reliability and credibility of the confidential informant is not established. The affidavit merely alleges that the confidential informant “has given information to the Salina Police Dept, in the past that was proven reliable.” The afifidávit does not set forth the confidential informant’s criminal history and does not reveal that he was currently on probation, that he had failed at rehabilitation by continuing to purchase drugs, and that using him violated a local rule prohibiting the use of people on probation or parole as confidential informants in drug cases. Defendant recognizes that, following the United States Supreme Court decision in Illinois v. Gates, 462 U.S. 213, the trial court will no longer employ the two-pronged analysis of Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), and Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), to test the credibility and reliability of a confidential informant. Defendant argues that, in spite of employing the more relaxed test of totality of the circumstances in Gates, the United States Supreme Court still recognizes the value of corroborating the informant’s tip by independent police investigation, citing State v. Olson, 11 Kan. App. 2d 485, 491, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986) (citing Gates, 462 U.S. at 241).
According to the decision in Gates, in determining whether probable cause exists to support a search warrant, the court must view the affidavit under the totality of the circumstances. This requires the issuing court “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238.
Prior to the decision in Gates, the courts had followed a two-pronged test to determine whether an affidavit contained probable cause, based upon prior United States Supreme Court decisions in Spinelli and Aguilar. Under this test, the affidavit was required to first show the “basis of knowledge” by stating the particular means by which the informant received the information given in his report. Second, the affidavit was required to establish either the veracity of the informant or the reliability of the information. Gates, 462 U.S. at 228-29. In Gates, the Court recognized that the elements of the two-pronged test are highly relevant considerations in the totality of the circumstances analysis that has traditionally guided a probable cause determination. But, under the totality of the circumstances, a deficiency in one aspect of the two-pronged test is not fatal and may be compensated for by determining the overall reliability of the tip, or some other strong indicia of reliability. Thus, the totality of the circumstances anal ysis permits a balanced assessment of the relative weights of all the various indicia of reliability and unreliability rather than encouraging an excessively technical dissection of informants’ tips under the two-pronged test. Gates, 462 U.S. at 234-35.
The probable cause in Gates was based upon an affidavit that recited at length the contents of an anonymous letter detailing the activities of the Gateses. Mrs. Gates would drive their car to Florida and leave it to be loaded with drugs, while Mr. Gates would fly to Florida and drive the car back to their home in Illinois. In affirming the decision in Gates, the Court noted that the police in Illinois and in Florida had taken many steps to substantiate the allegations contained in the anonymous letter. 462 U.S. at 225-27. Notwithstanding that Justice Stevens, in his dissent, noted a material discrepancy in the anonymous letter, the majority concluded that a substantial basis existed for finding probable cause to search the Gates home and car.
In Olson, the trial court concluded that the affidavit offered to obtain the search warrant did not contain adequate information even under the totality of the circumstances to establish probable cause to support issuance of the warrant. Much of the information contained within the affidavit in Olson was erroneous or misleading. For example, the affidavit indicated that the confidential informant had provided the detective seeking the search warrant with information in the past and, based upon the past performance of this informant, the detective believed him to be a reliable and trustworthy person. Yet, at a hearing on a motion to suppress, it became clear that the information that was the basis of this statement was based upon events that had occurred during the arrest of the confidential informant six months earlier. Although all statements in the affidavit filed in support of the warrant were literally true, the appellate court noted that they “certainly conveyed a false meaning to the judge who issued the warrants.” 11 Kan. App. 2d at 490. When the false and misleading information contained in the affidavit, which was based upon communication from the confidential informant, was stricken, probable cause no longer existed to support the search warrant.
The affidavit in Olson was attacked under the decision of Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). In Franks, the United States Supreme Court held that a defendant is entitled to a hearing on the adequacy of a warrant affidavit if the defendant makes a substantial preliminary showing “that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause.” 438 U.S. at 155-56. Although defendant in the present case initially alleged that the contents of the affidavit used in support of the search warrant contained false and misleading information, that allegation was withdrawn at the suppression hearing. No evidence was introduced at the suppression hearing which would show that the affidavit contained false or misleading information. Therefore, defendant’s allegation that the affiant improperly withheld information from the court regarding the confidential informant’s status as a probationer and continued drug user will not be considered by this court. Defendant had the burden and the opportunity to establish that the affiant knowingly and intentionally or with reckless disregard for the truth omitted relevant information when seeking the search warrant. Because this claim was not pursued at the suppression hearing, it cannot be argued as a ground for invalidating the search warrant on appeal.
Defendant also argues that the affidavit is inadequate because it does not contain information establishing the reliability or credibility of the allegations about Sprecker’s selling drugs. Defendant notes that the officer admitted at trial that, at the time the confidential informant made the controlled buy on April 14, 1988, neither Sprecker nor defendant was under investigation for the sale of drugs. Finally, defendant attacks the affidavit as being “devoid of any implication of [defendant] in drug dealings.” Quoting from United States v. Sorrells, 714 F.2d 1522, 1528 (11th Cir. 1983), defendant argues: “ ‘The focus of judicial inquiry should not be based upon a “grading of the paper” of the affiant, but rather, should be based upon whether the constitutional rights of the party subject to the search will be violated if the warrant is issued.’ ” Because the only information of drug activity contained within the affidavit was based upon statements by an individual on probation for drug offenses, and because nothing in the affidavit suggested defendant’s involvement in illegal drug activity, defendant argues that issuance of the warrant violated his constitutional rights.
The fact that neither defendant nor Sprecker was under active investigation as potential drug dealers does not prevent law enforcement officers from acting upon information received indicating that illegal drug activity is being conducted. Since the search warrant was issued to search the house at 804 Greenbriar, the innocence or guilt of the defendant was not relevant in determining if probable cause existed to issue the search warrant. The affidavit here contains detailed information explaining how the controlled buy was conducted. The confidential informant was searched prior to making the buy and was kept in sight until he entered the Sprecker residence at 804 Greenbriar. He turned over the methamphetamine to the waiting officers after leaving the residence. The informant specifically named Phyllis Sprecker as the person who sold him the drugs. When the search was conducted, the officers found numerous documents and personal belongings establishing that defendant also lived at 804 Greenbriar.
In addition to the information about the controlled buy, the affidavit also contains three other instances connecting one of the individuals living at 804 Greenbriar, Phyllis Sprecker, with prior incidents of suspected illegal drug activity. All three involved occurrences at previous residences where the Spreckers lived. One was a complaint from neighbors more than a year earlier. One occurred seven months previously when Phyllis Sprecker was suspected of providing an inmate with drugs. The third, occurring four months earlier, was an anonymous Crimestoppers tip.
In State v. Rose, 8 Kan. App. 2d 659, 663-64, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983), the Court of Appeals held that the decision of Illinois v. Gates would be applicable in Kansas. In adopting Gates, the court in Rose discussed the use of an informant who received favorable treatment although admitting to be a coconspirator and thereby subjecting himself to criminal liability. The Court of Appeals stated:
“ ‘Likewise, if an unquestionably honest citizen comes forward with a report of criminal activity — which if fabricated would subject him to criminal liability — we have found rigorous scrutiny of the basis of his knowledge un necessary. Adams v. Williams [407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972)]. Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.’ ” 8 Kan. App. 2d at 663 (quoting Illinois v. Gates, 462 U.S. at 233-34).
The court in Rose found no difficulty in finding probable cause to support issuance of the search warrant. The court noted that the informant had been in the residence and had observed the contraband, had previously helped transport truckloads of marijuana to the residence, and had described in detail criminal conduct that had occurred on two other occasions, which lent reliability and verified criminal conduct.
Although the confidential informant was not named in the affidavit here, he did implicate himself in the criminal conduct by participating as a coconspirator in the purchase of illegal drugs and thus subjecting himself to criminal liability. The affidavit also detailed the circumstances surrounding the controlled buy. Finally, the affidavit contained additional information which would indicate prior involvement in illegal drug activities by the party the confidential informant named as selling the drugs at the residence listed in the search warrant. Based upon the totality of the circumstances test of Gates, the affidavit was sufficient to provide information establishing probable cause to believe that contraband or evidence of a crime would be found at the place named in the search warrant. We conclude that the district judge was justified in issuing the search warrant based upon Sergeant Garman’s affidavit. The constitutional rights of the defendant were not violated by issuance of the search warrant.
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On August 15, 1989, the office of the disciplinary administrator filed a formal complaint with the Kansas Board for Discipline of Attorneys, charging Robert A, Laing of Wichita, Kansas, with violations of Canon 1 of the Kansas Code of Professional Responsibility, Supreme Court Rule 225 (1989 Kan. Ct. R. Annot. 146).
The complaint alleges that on the 28th day of March, 1988, the respondent pled guilty to two felony charges. Respondent was sentenced to a term of three to ten years on one charge and a term of two to five years on the other charge. The sentences were to run concurrently. On October 13, 1988, the respondent’s sentence was modified and he was placed on probation for five years.
An investigation of the complaint was conducted by the disciplinary administrator’s office, and, on October 4, 1989, respondent filed an answer to the formal complaint. The complaint was heard on the 4th day of October, 1989, before a panel of the Kansas Board for Discipline of Attorneys, and the panel filed its report with the court on November 28, 1989. Respondent did not file exceptions to the panel report. By letter dated February 27, 1990, respondent voluntarily surrendered his license to practice law in the State of Kansas pursuant to Supreme Court Rule 217 (1989 Kan. Ct. R. Annot. 137).
The court, having reviewed the record herein, together with the proceedings in State of Kansas v. Robert A. Laing, Sedgwick County Case No. 87 CR 1798, finds that the surrender of said license should be accepted.
It Is Therefore Ordered that Robert A. Laing be and he is hereby disbarred from the practice of law in the State of Kansas, and the clerk of the appellate courts is directed to strike the name of Robert A. Laing from the roll of attorneys authorized to practice law in the State of Kansas, pursuant to Supreme Court Rule 217.
It Is Further Ordered that Robert A. Laing shall forthwith forward, or cause to be forwarded, to the clerk of the appellate courts his certificate of admission to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent shall forthwith comply with Rule 218 (1989 Kan. Ct. R. Annot. 138).
Effective this 5th day of March, 1990. | [
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The opinion of the court was delivered by
Herd, J:
This is a personal injury case involving the Kansas Tort Claims Act. K.S.A. 75-6101 et seq.
The facts are undisputed. Jeffrey Nichols was practicing football with the Smoky Valley High School football team on the night he was injured. The head football coach directed the players to run to the locker room from the practice field after a nighttime practice on August 23, 1985. Between the football practice field and locker room there was a grassy swale or waterway which provided drainage from the high school playground. As Nichols ran to the locker room, he passed through the waterway and stumbled forward, caught his balance, and continued on into the locker room. Nichols had crossed this area many times. After taking a shower, Nichols sat down and felt pain in his back. Nichols brought suit against Unified School District No. 400 (U.S.D. 400), alleging the football coach was negligent in requiring players to run to the locker room in darkness and negligent in failing to properly supervise the players.
U.S.D. 400 is organized pursuant to the laws of the State with offices in Lindsborg. The football coach is an employee of U.S.D. 400. It is uncontroverted that the manner of conducting football practice was left to the coach’s discretion. Finally, the parties also agree that the coach did not intentionally injure Nichols.
The district court granted summary judgment in favor of the school district based upon the discretionary function and recreational use exceptions to the Kansas Tort Claims Act, K.S.A. 75-6104, and the Land and Water Recreational Areas Act, K.S.A. 58-3201 et seq. Nichols appealed.
The Court of Appeals held the recreational use exception supplied immunity to the school district and the football coach as an employee acting within the scope of employment. The court reached this decision based upon the plain and unambiguous language of K.S.A. 75-6104(n). Recause of the application of the recreational use exception, the court declined to discuss the discretionary function exception and the Land and Water Recreational Areas Act.
The first issue is whether the district court erred in finding the recreational use exception of the Kansas Tort Claims Act applicable in this case. Nichols and amicus curiae Kansas Trial Lawyers Association contend the recreational use exception to the Tort Claims Act does not apply to injuries which occur during a supervised activity by the school district. In addition, amicus curiae urges the proposition that for the recreational use exception to apply injuries must have resulted from a condition of the premises.
The Kansas Tort Claims Act is an open-ended act making governmental liability the rule and immunity the exception. Dougan v. Rossville Drainage Dist., 243 Kan. 315, 318, 757 P.2d 272 (1988).
K.S.A. 75-6103(a) states:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.”
Statutory exceptions to liability are found in K.S.A. 75-6104:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(n) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.”
At the time of Nichols’ injury, the recreational use exception was found at K.S.A. 75-6104(n). The exception has since been moved to K.S.A. 1988 Supp. 75-6104(o). Because the language remains unchanged, we will refer to the exception as designated when Nichols was injured.
Nichols’ argument that governmental immunity applies only to an unsupervised activity is without merit. The plain language of the statute makes it clear that immunity exists for any claim for negligently caused injuries resulting from the use of public property intended for recreational purposes. Nowhere in the statute does the language distinguish between activities which are supervised or unsupervised. Where a statute is plain and unambiguous, this court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Brinkmeyer v. City of Wichita, 223 Kan. 393, 397, 573 P.2d 1044 (1978). Furthermore, in Bonewell v. City of Derby, 236 Kan. 589, 693 P.2d 1179 (1985), we found governmental immunity applied to the Derby Jaycees, who administered and supervised the city softball leagues, when a plaintiff was injured sliding into home plate. 236 Kan. at 593. Therefore, Nichols’ attempt to defeat governmental immunity based upon the distinction between supervised and unsupervised activities is erroneous.
Next, amicus curiae contends immunity is available to the school district only when the injury is a result of the condition of the public property used for recreational purposes. For support, amicus relies upon four prior cases.
In Willard v. City of Kansas City, 235 Kan. 655, 681 P.2d 1067 (1984), the plaintiff sought damages from an injury he suffered when he collided with a chain link fence around a baseball field. 235 Kan. at 655-56. This court determined the City was immune from liability because the plaintiff failed to produce evidence on which to infer the City’s gross and wanton neglect. 235 Kan. at 660.
The following year, in Bonewell v. City of Derby, 236 Kan. at 589, we considered a case wherein the plaintiff suffered a broken leg from sliding into home plate. Plaintiff argued the recreational use exception applied only to injuries resulting from the natural condition of the property and thus, since her injury was due to an artificial condition of the property, a defective home plate, the City should not be immune from liability. Justice (now Chief Justice) Miller stated:
“Regardless of what causes an injury sustained in a public park, a claimant in this state must offer evidence of gross and wanton negligence; mere negligence on the part of a governmental entity is not sufficient to establish a compensable claim under the statute. We do not recognize the artificial condition or equipment exception . . . (Emphasis added.) 236 Kan. at 593.
Amicus also points to Lee v. City of Fort Scott, 238 Kan. 421, 710 P.2d 689 (1985), a wrongful death action by the parents of the decedent, who collided with a steel cable strung around the city golf course while riding a motorcycle. 238 Kan. at 422. We upheld the grant of summary judgment in favor of the City based upon the recreational use exception because plaintiff failed to produce evidence of gross and wanton negligence. 238 Kan. at 425.
Finally, in Boaldin v. University of Kansas, 242 Kan. 288, 747 P.2d 811 (1987), we considered a case in which the plaintiff was injured during a sledding accident on Daisy Hill at the K.U. campus. Plaintiff slid down Daisy Hill several times on various types of sleds. On his third trip down the hill, plaintiff lost control, hit a tree, and sustained serious back injuries. 242 Kan. at 289. Plaintiff argued the recreational use exception did not apply because Daisy Hill was not an established recreational area. 242 Kan. at 290. We held, however, that the exception is not limited to areas expressly designated as recreational. We concluded that plaintiff had failed to establish gross and wanton negligence by the University and thus held the University immune from liability. 242 Kan. at 295.
In each of those cases, amicus contends liability was barred because the injuries were a result of the condition of the premises: a defective home plate, a chain link fence, a steel cable, and trees at the bottom of a hill. Amicus argues that, in the present case, Nichols’ claim is based upon the negligence and negligent supervision of the football coach and that since the claim is not based upon any defective or artificial condition of the premises, as in the foregoing cases, governmental immunity must be denied.
We disagree and find that Boaldin v. University of Kansas governs this case. Trees at the bottom of Daisy Hill are no more a defective condition of the premises than the grass waterway at Smoky Valley High School. In Boaldin, summary judgment was granted to the University because the plaintiff failed to establish gross and wanton negligence — a necessary prerequisite to defeat governmental immunity under the plain and unambiguous wording of the statute. 242 Kan. at 295. Daisy Hill was an open area used for recreational purposes. Governmental immunity applied because the plaintiff suffered injury from the use of the premises, not the condition.
To require an injury to be the result of a condition of the premises is too restrictive a reading of the recreational use exception statute. K.S.A. 75-6104(n). Construction of the liability exception requires us to focus on the purpose and intent of the legislature when intent can be ascertained from the statute. See Brinkmeyer v. City of Wichita, 223 Kan. at 396-97. The language of K.S.A. 75-6104(n) is plain and unambiguous. If the legislature had intended to limit immunity to those situations in which an injury on public property, used for recreational purposes, was caused by conditions on the premises, it would have expressly so stated. E.g., Ind. Code § 34-4-16.5-3(4) (1988).
We need not discuss either the discretionary function exception or the Land and Water Recreational Areas Act.
The judgment of the district court is affirmed. | [
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Subsets and Splits
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