May 27, 1994.
STATE OF KANSAS, Appellee,
LARRY D. PECKHAM, SR., Appellant.
The opinion of the court was delivered by
This is a direct appeal by defendant Larry D. Peckham, Sr.,
from his convictions of first-degree murder and aggravated
robbery and from the "hard-40" sentence imposed.
The motive in this case is bizarre. The body of Raul "Roy"
Hernandez was discovered in a field at 53rd and Greenwich Road in
Wichita, Kansas, on March 6, 1992. He had been shot five times in
the head, twice in the forehead with a .22 caliber weapon and
three times on the right side of the head with a .38 caliber
weapon. The gunshot wounds were inflicted on two occasions
separated by a period of time.
Defendant had pending drug charges in Sedgwick County for which
he had unsuccessfully attempted to negotiate favorable
[255 Kan. 313]
treatment by offering to provide information to law enforcement
officials. He told his son, Larry Peckham, Jr., his roommate,
Robbie Clem, and a friend, Chris Roberts, about a plan he had
devised in order to have bargaining power concerning his drug
charges. He planned to commit two murders, frame the second
victim for the murder of the first victim, and enlist Clem to
provide information to law enforcement officials concerning the
first murder in order to seek favorable treatment for both Clem
and Peckham on pending charges. Peckham enlisted Clem to purchase
a .22 caliber weapon for him, which she did. He also asked her
for names of some possible victims for the second murder. He
asked Roberts to help him make a silencer for a weapon.
On March 2, 1992, Peckham carried out the first part of his
plan, the murder of Roy Hernandez. Hernandez had told his
roommate and his girlfriend that he had met a man matching
Peckham's description who had asked him to help "rip off a
rip-off," or rob a drug dealer in exchange for money and drugs.
Hernandez had several hundred dollars with him that day. On the
evening of March 2, 1992, Hernandez borrowed a car from Margaret
McBroom and a gun from Robert Cochran. Neither the money and
wallet nor the gun were recovered, but McBroom's car was
recovered on the morning of March 4, 1992.
On the evening of March 2, 1992, Cal Cofer, who lived behind
the field where Hernandez' body later was discovered, heard what
sounded like gunshots shortly after dark. He recalled that there
were two shots in quick succession and two more shots after brief
pauses. That evening, at 8:30 or 8:45, Peckham told Clem that he
had committed the murder, and he showed her some .38 shell
casings. He told her that a smaller caliber weapon, such as a
.22, would not have killed the victim because he tried to run
away. Clem drove out to the field with Peckham, and he had her
drive around while he went back into the field. He took a gun
with him, and when he returned he told her, "It's a good thing I
checked, because the dude wasn't dead, I had to shoot him a
couple more times in the head." That evening Peckham also stopped
by his son's house between 8:30 and 9:00 and asked his son to
make note of the time he was there and to possibly extend the
time by 30 minutes, either earlier or later.
[255 Kan. 314]
Several days later, Peckham enlisted Mike Furthmyer to help him
dig a grave, and they did dig a hole under a bale of hay. Peckham
also asked Furthmyer to help him melt down a gun, but Furthmyer
and Peckham buried the gun instead. The .38 caliber revolver was
recovered where Furthmyer and Peckham had buried it.
Peckham was convicted of first-degree murder and aggravated
robbery. The jury recommended imposition of the hard-40 sentence.
Peckham received a hard-40 sentence for first-degree murder and a
consecutive 15 years to life sentence for aggravated robbery. He
appeals. Peckham raises 19 issues on appeal. Many of these issues
are moot because of our decision on the first issue.
I. HARD-40 SENTENCE
K.S.A. 1993 Supp. 21-4624 provides certain notice requirements
before a mandatory term of imprisonment of 40 years can be
imposed following a conviction for first-degree murder.
"If a defendant is charged with murder in the first
degree, the county or district attorney shall file
written notice if such attorney intends, upon
conviction or adjudication of guilt of the defendant,
to request a separate sentencing proceeding to
determine whether the defendant should be required to
serve a mandatory term of imprisonment of 40 years.
Such notice shall be filed with the court and served
on the defendant or the defendant's attorney at the
time of arraignment. If such notice is not filed and
served as required by this subsection, the county or
district attorney may not request such a sentencing
proceeding and the defendant, if convicted of murder
in the first degree, shall be sentenced as otherwise
provided by law, and no mandatory term of
imprisonment shall be imposed hereunder." K.S.A. 1993
Peckham contends that the filing provision of K.S.A. 1993 Supp.
21-4624 was not complied with and therefore the district court
erred in imposing a mandatory 40-year term of incarceration.
Peckham was arraigned on April 29, 1992, following a two-day
preliminary hearing. At arraignment, or 10 minutes before
arraignment, Peckham and his counsel were served with the State's
notice of intent to seek the hard-40 sentence. However, a copy of
the notice was not file stamped until the following day at 8:05
a.m. The file-stamped notice in the court's file is not an
original notice and bears a photocopied signature. Peckham
[255 Kan. 315]
the delayed filing of the notice precludes the imposition of a
mandatory term of imprisonment.
Peckham first raised this issue after the jury returned a
guilty verdict on August 14, 1992. Argument on this issue on
August 17, 1992, reveals the following. Mr. Rathbun (defense
counsel) informed the court that he was served with the notice on
April 29, 1992, within 10 minutes before arraignment. Mr.
Jennings (counsel for the State) recalled that he served the
original of the notice on the defendant and his counsel, and he
placed a copy of the notice on the judge's bench at that time.
The record of arraignment is silent as to those events. However,
the district judge stated that both he and his court reporter had
a recollection of a copy of the notice being placed on the bench.
Further, the judge stated, "[T]he notice that was placed on the
judge's bench, though, apparently was not file stamped until the
next day, April 30th." This implies that the copy file stamped on
April 30, 1992, at 8:05 a.m. was the same copy that Mr. Jennings
had placed on the bench on April 29, 1992, at the defendant's
Peckham relies on State v. Deavers, 252 Kan. 149, 843 P.2d 695
(1992). There, the State neglected to give the defendant
notice of its intent to seek the hard 40 sentence at arraignment
which concluded just prior to the noon recess, but at 2:00 p.m.
the same day the State requested another hearing and served
notice on the defendant at that time. This court held that the
notice requirement of 21-4624 is mandatory, and where the State
fails to follow the requirement, the hard-40 sentence cannot be
imposed. Prejudice to the defendant was shown by the mere fact
that the defendant was subject to the enhanced sentence despite
the State's failure to comply with the statute. This court asked
a rhetorical question: "If 2 hours and 20 minutes beyond the
requirement of the statute is acceptable, at what time beyond the
statutory requirement does a court determine failure to comply
with the statute is unacceptable?" 252 Kan. at 168. Thus, this
court vacated the defendant's sentence.
The argument the State makes is two-fold. First, the State
suggests that the language of K.S.A. 1993 Supp. 21-4624 does not
require that notice be filed with the court at the time of
[255 Kan. 316]
The State posits that K.S.A. 1993 Supp. 21-4624 has two
requirements: (1) notice must be filed with the court (but there
is no time limit on the filing requirement) and (2) notice must
be served on the defendant at the time of arraignment. The phrase
"at the time of arraignment" applies only to the "service on the
defendant" requirement and not to the "filed with the court"
requirement, according to the State. Alternatively, the State
argues that it did timely comply with the filing requirement by
filing the notice with the district judge at the time of
There is a basis for construing the time frame within which
notice must be served on a defendant to be different from the
time frame within which to file such notice with the court.
Although both the filing and service requirements are set forth
in the same sentence, the phrase "at the time of arraignment"
applies only to service of the notice and not to the filing
Contrary to the State's assertion, notice may not be filed with
the court after arraignment. Notice can be filed with the clerk
of the district court after the defendant is bound over for
arraignment. (See K.S.A. 22-2905, which sets out the procedure
for filing the information after the defendant is bound over for
arraignment.) The filing of the notice with the court is a
prerequisite to serving the defendant. The defendant shall be
served with the statutory notice at the time of the arraignment
pursuant to K.S.A. 1993 Supp. 21-4624.
The State's second argument depends on whether it did file the
notice with the judge. K.S.A. 1993 Supp. 60-205(e) provides that
a judge may permit pleadings and other papers to be filed with
him or her, "in which event the judge shall note thereon the
filing date and forthwith transmit them to the office of the
clerk." "Although this statute is in the code of civil procedure,
it may be considered applicable in criminal proceedings, there
being no provision in the criminal procedures to the contrary."
State ex rel. Owens v. Hodge, 230 Kan. 804, 808, 641 P.2d 399
(1982). If papers are filed with the judge, "filing is complete
when the judge personally accepts custody of the papers." Tobin
[255 Kan. 317]
Co. v. Kemp, 239 Kan. 430, Syl. ¶ 1, 721 P.2d 278 (1986). In
Tobin Constr. Co., this court noted the similarity of 60-205(e)
to Rule 5(e) of the Federal Rules of Civil Procedure, under which
"[t]he judge's failure to forward the papers forthwith or to
enter a necessary date does not prejudice the party attempting to
comply with the filing requirement." 239 Kan. at 436.
The critical question is whether the State filed its notice
with the judge by placing a copy of the notice on the judge's
bench at the time of arraignment. In denying Peckham's motion to
preclude imposition of the hard-40 sentence, the district court
"In addition to physically serving the defendant with
written notice of the Hard 40, the State's attorney
states here in open court that he also brought up a
copy of it and laid it on the judge's bench. I have a
recollection of that. My court reporter has a
recollection of that. For whatever it's worth to
mention that on the record now. But, the record is
silent of that. I reviewed the record and there's
nothing in the record to actually confirm that. But,
I do have a specific recollection of it. The
defendant is oh, then the notice that was placed on
the judge's bench, though, apparently was not file
stamped until the next day, April 30th."
This does not show that the judge permitted the notice to be
filed with him or that he personally accepted custody of the
notice. It implies that the copy of the notice which was
ultimately file stamped by the clerk was the same copy which the
State placed on the judge's bench. However, there is no way to
know who was responsible for having that copy file stamped. Did
the judge or his court reporter transmit the notice to the clerk,
or did the State retrieve the notice from the judge's bench and
deliver it to the clerk the next day?
As noted by the trial judge, the transcript of arraignment does
not show that the State gave a copy of its notice to the court.
According to the trial judge, a copy not the original was
placed on the judge's bench. The State did not indicate on the
record that it was placing a copy of the notice on the judge's
bench with the intent to satisfy the filing requirement of K.S.A.
1993 Supp. 21-4624 rather than as a courtesy to the judge.
We are dealing with what in 1992 was this state's equivalent to
the death penalty. Thus, the State should follow the statute.
Sloppy, incomplete records are insufficient to overcome the
[255 Kan. 318]
mandate that if the State fails to file and serve the notice as
required by K.S.A. 1993 Supp. 21-4624(1), the mandatory term of
imprisonment of 40 years cannot be imposed.
We conclude that in the absence of a record showing the
district judge was furnished with the notice with the intent it
be filed with the court pursuant to K.S.A. 1993 Supp. 60-205(e),
there is not compliance with K.S.A. 1993 Supp. 21-4624(1) and the
mandatory term of imprisonment of 40 years cannot be imposed. The
record before us gives no indication the copy placed on the
judge's bench was for any purpose other than as a courtesy, and
the trial judge made no finding or comment that gives any
indication the trial judge intended or contemplated that the copy
placed on his bench was offered or accepted for filing pursuant
In State v. Johnson, 255 Kan. 140, 871 P.2d 1246 (1994), we
reaffirmed State v. Deavers, 252 Kan. 149, Syl. ¶ 6, where this
court concluded: "The notice provisions of K.S.A. 1991 Supp.
21-4624, the first-degree murder `hard-40' sentencing statute,
are mandatory. Failure of the State to comply with such
provisions requires a sentence imposed thereunder to be vacated."
The sentence imposed under K.S.A. 1993 Supp. 21-4624 is vacated,
and we remand for resentencing.
II. EXTENT OF WITNESS' PRIOR DRUG USE
Peckham's roommate, Robbie Clem, was a main witness against him
during the guilt phase of this case. There were discrepancies in
her testimony. For example, she testified that she made a
telephone call to 911 on Wednesday and a call to radio station
KFDI on Friday, but other evidence showed that both calls were
actually made on Friday. Mr. Rathbun was permitted to question
her about these discrepancies. She testified, "I've known my
memory to lapse before. . . . It's my past drug usage, you know,
and it just sometimes I have a hard time remembering things,
you know, it's not that I do things intentionally, you know, it's
just that I've got a defective brain. It's not intentional."
Defense counsel was not permitted to examine the witness
concerning the extent of her prior drug use and treatment
[255 Kan. 319]
she had been in. The trial judge reasoned that there was no
evidence that she was under the influence of drugs at the time of
the incidents about which she was testifying, that the witness
had already testified that her previous drug usage had affected
her memory, and that the prejudicial effect of such evidence far
outweighed the probative value.
Peckham points out:
"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. Osby, 246 Kan. 621, Syl. ¶ 2, 793 P.2d 243
See State v. Coe, 223 Kan. 153, 162-63, 574 P.2d 929 (1977);
State v. Nix, 215 Kan. 880, Syl. ¶ 6, 529 P.2d 147 (1974);
State v. Belote, 213 Kan. 291, 295-96, 516 P.2d 159 (1973).
Thus, evidence that the witness' memory was affected by her prior
use of drugs would be admissible here, even in the absence of any
evidence that she was under the influence of drugs at the time of
the events about which she was testifying.
The admission of evidence rests in the sound discretion of the
trial judge. Herbstreith v. de Bakker, 249 Kan. 67, Syl. ¶ 11,
815 P.2d 102 (1991). The judge did not abuse his discretion in
refusing to permit defense counsel to question the witness
further in light of the fact that the witness had already
testified that her prior use of drugs had impaired her memory.
In any event, the appellant has failed to include in the record
on appeal the exhibit proffered to show the extent of the
witness' drug use. He merely asserts in his brief that he
"obtained records from Clem's State Parole Officer indicating
that she had used marijuana for the last ten years, that she had
used amphetamines for the last two years, and listed drug
treatment programs that the witness had been in." However, at the
out-of-the-presence-of-the-jury discussion between the parties
and the court concerning permitting defense counsel to elicit
from the witness the reason for the discrepancies in her
recollection of the events, the State asked the witness how much
time had elapsed from her last
[255 Kan. 320]
usage of drugs or alcohol, and the witness indicated that more
than six months had elapsed. Peckham does not suggest that the
witness was under the influence of drugs or alcohol at the time
of the events about which she was testifying. She had previously
testified that her memory was adversely affected by her prior
drug use. There is no showing that evidence of the extent of the
witness' prior drug use would have provided additional evidence
that her memory was affected by such drug use. Thus, the trial
court did not err in excluding evidence about the extent of her
prior drug use.
III. EXCLUDING EVIDENCE OF A WITNESS' PROPENSITY FOR VIOLENCE
The defendant sought to introduce evidence that witness Robert
Cochran had intimidated a witness who was to testify against
Cochran in an unrelated case. Peckham's counsel indicated that
the intimidating statements allegedly made by Cochran included
threats that the witness
"won't make it to trial, he'll blow up their house,
asking the[m] who would take care of their children
after they were gone, and stating that he'd volunteer
to care for the children, but it would be easier just
to kill them, too, and there are I think at one
point Mr. Cochran went to the witness's house, that
he had a handgun with him, that he threatened to
shoot the witness's wife as well. . . ."
Counsel argued that Cochran was
"number one, the last person who will admit having
seen the deceased living; number two, he said that he
saw him shortly before whatever this drug rip-off
was, because he remembers he had to leave Midnight
Modeling and Security to his rendezvous with the drug
dealers in the immediate future, that he was worried
that he was going to be late and he hurried out of
the business, he took with him a .22 pistol, Mr.
Hernandez was killed or was not killed, he was shot
with a .22 pistol after he was dead. The Mr.
Cochran admits giving him a gun."
The State objected to the evidence because the intimidation
charge arose nearly four months after the victim's murder and
because the connection was too tenuous. The court declined to
admit the evidence, stating that it was inadmissible to attack
the witness' credibility and that as evidence that the witness,
[255 Kan. 321]
than the defendant, killed Roy Hernandez, it was reaching and
tenuous and had no probative value.
"When the state relies on direct evidence, circumstantial
evidence that someone other than the defendant committed the
crime charged is irrelevant in the absence of other evidence to
connect such third party with the crime." State v. Calvert,
211 Kan. 174, Syl. ¶ 3, 505 P.2d 1110 (1973); accord State v.
Brown, 230 Kan. 499, 499-500, 638 P.2d 912 (1982). Although the
State's case against Peckham was based on circumstantial
evidence, there was no error in excluding the proffered evidence
of Robert Cochran's witness intimidation charge.
The defendant cites State v. Hamons, 248 Kan. 51, 805 P.2d 6
(1991). In Hamons, this court found that the case against the
defendant, which included the defendant's bloody fingerprint at
the murder scene and evidence that the victim's blood was on the
defendant's shoes, was based on direct evidence linking the
defendant to the murder scene after the victim was dead, but an
inference was necessary to conclude that the defendant committed
the murder. 248 Kan. at 60. The defendant sought to introduce
evidence which placed two other people at the murder scene before
the murder occurred and which showed that these two people had a
motive and the opportunity to commit the murder.
"Under the facts of this case, when the State's case
relies heavily on circumstantial evidence to prove
defendant committed a murder, it is error to exclude
circumstantial evidence that someone other than the
defendant may have committed the crime, when the
evidence proffered by defendant includes timely
placement of another at the murder scene the evening
before the homicide that involved an `angry
encounter' linked with an inference of a threat
occurring the day the victim's body was discovered."
248 Kan. 51, Syl. ¶ 2.
However, this court held that exclusion of such circumstantial
evidence was harmless error in light of the overwhelming case
against the defendant. 248 Kan. 51, Syl. ¶ 3.
Here, the jury already had before it the evidence that this
witness was perhaps the last person to see the victim alive, that
this witness had given the victim a .22 caliber gun, and that the
victim had been shot with a .22 caliber gun. The proffered
[255 Kan. 322]
the witness' subsequent intimidation charge does nothing to link
the witness to the victim's murder. Unlike in Hamons, there was
no evidence showing that the witness had previously made threats
against the victim or had a motive to kill the victim. The trial
court did not err in excluding the evidence.
IV. APPOINTMENT OF ONE PSYCHOLOGIST
On July 2, 1992, Peckham filed a motion to determine whether he
was competent to stand trial, stating that he might be unable to
assist in preparing his defense. On July 2, 1992, the trial judge
ordered a psychological examination of Peckham by the Sedgwick
County Mental Health Department. On July 13, 1992, the trial
judge appointed Psychological Services Clinic to conduct a
psychological examination of Peckham.
Peckham argues that the trial court "appointed Dr. Howard
Brodsky to evaluate the appellant." He suggests that K.S.A. 1993
Supp. 22-3302(3)(c) requires the appointment of "two qualified
licensed physicians or licensed psychologists, or one of each, to
examine the defendant and report to the Court." Peckham contends
that because the trial judge appointed only one psychologist, the
trial judge failed to comply with the statute.
K.S.A. 1993 Supp. 22-3302(3) provides that the court shall
determine the issue of competency:
"The court may order a psychiatric or psychological
examination of the defendant. To facilitate the
examination, the court may: (a) If the defendant is
charged with a felony, commit the defendant to the
state security hospital or any county or private
institution for examination and report to the court .
. .; (b) designate any appropriate psychiatric or
psychological clinic, mental health center or other
psychiatric or psychological facility to conduct the
examination while the defendant is in jail or on
pretrial release; or (c) appoint two qualified
licensed physicians or licensed psychologists, or one
of each, to examine the defendant and report to the
Peckham makes two errors in his argument. First, K.S.A. 1993
Supp. 22-3302 does not make appointment of any psychologist, or
even an evaluation at all, mandatory. See State v. Green,
245 Kan. 398, Syl. ¶ 8, 781 P.2d 678 (1989).
Second, the record does not reflect here that the trial judge
in fact appointed only one psychologist, as Peckham contends.
[255 Kan. 323]
Initially, the Sedgwick County Mental Health Department was
appointed, and this would be pursuant to K.S.A. 1993 Supp.
22-3302(3)(b) ("designate any appropriate psychiatric or
psychological clinic, mental health center, or other psychiatric
or psychological facility"). Although the order does not reflect
that the appointment of the Mental Health Department was
rescinded, the trial judge did appoint another facility,
Psychological Services Clinic, to evaluate the defendant, also
pursuant to K.S.A. 1993 Supp. 22-3302(3)(b).
At the competency hearing on July 17, 1992, the trial judge
stated on the record that he had originally appointed Dr. Howard
Brodsky to conduct the evaluation, but he had revised his order
and appointed Psychological Services Clinic, a facility of which
Dr. Brodsky was a member. This does show that the court initially
appointed one psychologist to perform an evaluation, as Peckham
contends. However, Peckham has failed to include the transcript
of that earlier hearing in the record on appeal. The only record
before this court includes the court's written orders appointing
first the Sedgwick County Mental Health Department, and then
Psychological Services Clinic, to conduct the evaluation, and the
trial judge's statements concerning his recollection of the
The trial judge also discussed why Psychological Services
Clinic, rather than the Mental Health Department, ultimately
conducted the evaluation.
"[W]e started off appointing Sedgwick County
Department of Mental Health to perform the
evaluation. Which is the customary procedure here in
Sedgwick County. This defendant refused to cooperate
with them, refused to do any standardized tests or
even to talk with their psychologist. The reason that
he gave, as communicated to the Court through his
attorney, was that he thought they were in cahoots
with the sheriff's department, he didn't trust them,
and he wasn't going to talk to any psychologist, even
though it was clearly pointed out the confidentiality
provisions of the statute. To accommodate this
defendant, I decided to go a different way, a way
which wasn't objected to by counsel at the time, and
not use Sedgwick County Department of Mental Health,
but to use a different facility to perform the
evaluation. Now, it's true, I originally said I was
appointing Dr. Brodsky to perform the evaluation;
but, upon taking a closer look at the statute, I
could see the same things that Mr. Rathbun brought up
before he even brought them up, and that's why I
started the hearing today
[255 Kan. 324]
making the record on the fact that, in actuality, I
was appointing Psychological Services Clinic, which
is a psychological clinic or psychological facility
of which Dr. Brodsky is one of more than one doctor
to perform the evaluation. And I think that that
would fit into subsection 2 of the statute. And, in
fact, we do have the report from the facility and
it's clearly designated on the letterhead that it's
from Psychological Services Clinic."
The competency evaluation was done at the defendant's request,
and the first facility which was appointed to conduct the
evaluation pursuant to K.S.A. 1993 Supp. 22-3302(3)(b) was unable
to complete the evaluation because of Peckham's refusal to
cooperate. Although not the standard procedure for the court, the
court did make arrangements for another evaluation to be
conducted. The written order of the court appointed Psychological
Services Clinic, and this is clearly consistent with K.S.A. 1993
Supp. 22-3302(3)(b). The trial court did not err.
The defendant asserts that Dr. Brodsky failed to conduct a
thorough evaluation of the defendant in concluding that the
defendant was competent to stand trial. The psychologist retained
by the defendant, on the other hand, opined that the defendant
was not competent. The defendant contends that the district court
abused its discretion in finding him competent and in "placing a
defendant this ill through the rigors of a five and one-half week
Dr. Sam Harrell, who had evaluated the defendant, testified
that Peckham exhibited signs and symptoms of clinical anxiety,
which could interfere with a person's ability to assist in his or
her defense. He also testified that in his opinion Peckham was
not competent to stand trial at that time because he had a
short-term memory loss and could not "recall and recollect
pertinent data and information regarding the crime he's charged
with here." However, he did not know the legal definition of
competency. Dr. Harrell reviewed the report prepared by Dr.
Brodsky and opined that Dr. Brodsky had not conducted a thorough
enough evaluation to arrive at a legitimate determination of
competency. Dr. Harrell admitted that he did not meet with
Peckham after he was asked to evaluate Peckham's competency;
rather, he evaluated
[255 Kan. 325]
Peckham for other reasons and the issue of competency did not
arise until after he had completed his evaluation.
Dr. Brodsky testified that he spent 45 minutes evaluating
Peckham. He did not perform any clinical tests. He admitted that
he was not aware that Peckham was complaining of memory loss and
chest pains. He also admitted that during his interview with
Peckham he focused on Peckham's paranoid ideation rather than
clinical anxiety or memory loss based on the traits Peckham was
exhibiting during the interview. He testified that he had
performed hundreds of competency evaluations in his career. Dr.
Brodsky did view Dr. Harrell's report and admitted it appeared
that Dr. Harrell had conducted adequate testing and that on the
data with which Dr. Harrell was dealing, Dr. Harrell's "diagnoses
appropriately follow from the procedures and tests that he
The written psychological reports completed by Dr. Harrell and
Dr. Brodsky were admitted and considered by the trial judge, but
neither have been included in the record on appeal.
"[A] person is `incompetent to stand trial' when he is charged
with a crime and, because of mental illness or defect is unable:
(a) To understand the nature and purpose of the proceedings
against him; or (b) to make or assist in making his defense."
K.S.A. 22-3301(1). K.S.A. 1993 Supp. 22-3302(2) and (3) vest the
trial judge with authority to determine this issue of competency.
"On appeal, the reviewing court's inquiry on a trial court's
determination that a defendant is competent to stand trial is
whether the trial court abused its discretion." State v.
Perkins, 248 Kan. 760, Syl. ¶ 4, 811 P.2d 1142 (1991).
The trial judge did not abuse his discretion in finding Peckham
competent to stand trial. The judge explained his ruling at
length. He stated that his ruling was based on three factors:
first, the lack of evidence that Peckham was incompetent; second,
Dr. Brodsky's direct opinion that Peckham was competent; and
third, the judge's own observation in court. He found that
Peckham was able to understand the nature of the charges against
him and to assist in his own defense and, therefore, Peckham was
competent to stand trial. On the record before this court, this
ruling was not
[255 Kan. 326]
an abuse of discretion. Accord State v. William, 248 Kan. 389,
417, 807 P.2d 1292, cert. denied 116 L.Ed.2d 89 (1991).
Prior to trial, the court heard motions in limine from both
parties. One of the issues concerned the admissibility of
statements made by the victim, Roy Hernandez, to his roommate and
his girlfriend. The judge ruled the statements admissible and
gave four reasons for so ruling: first, the statements did not
constitute hearsay as they were not being offered to prove the
truth of the matter asserted; second, even if the statements were
hearsay, they were part of the res gestae of the offense; third,
the statements fit into the exception set forth in K.S.A. 1993
Supp. 60-460(d)(3); and fourth, the statements fit into the
exception set forth in K.S.A. 1993 Supp. 60-460(j) as statements
At trial, Tammy Eaton testified that she was Roy Hernandez'
girlfriend. The night before Hernandez' death, Gail Payne had
stopped by Hernandez' house while Eaton was there. Eaton
testified that after Payne left, Hernandez informed her that
Payne had discussed setting Hernandez up with someone Payne knew
who could help Hernandez get a "bunch" of money and cocaine. The
next morning, Hernandez received a phone call from Payne and told
Eaton he was going to meet Payne. Upon his return, Hernandez told
Eaton that he had met Payne and a man and that the man asked him
to help hurt and rob another man. Eaton testified that Hernandez
described the man he met as being "old and ball-headed and he had
glasses on." Hernandez also told Eaton that the man had given
Payne $100 for introducing him to Hernandez. Eaton further
testified that Hernandez told her he intended to get a gun to
take with him. Defense counsel fully questioned Eaton about the
statements she testified that Hernandez had made to her. Defense
counsel made no objection on hearsay grounds to any of Eaton's
Kevin Wright testified that he was Hernandez' roommate and that
on the day Hernandez died, Hernandez told him he was supposed to
rip off some drugs and money from some people and a guy he had
met would pay him. Hernandez had indicated
[255 Kan. 327]
that he met a man through Gail Payne and described the man as in
his 50's and with gray hair. As with the testimony of Eaton,
defense counsel made no objection on hearsay grounds to any of
The State points out that Peckham failed to make a
contemporaneous objection to this evidence at trial, and
therefore the issue is not properly before this court. When an
unfavorable ruling on an evidentiary question prior to trial is
received, a party must make a timely objection to such evidence
when introduced at trial in order to preserve the issue for
appeal. See State v. Toney, 253 Kan. 651, 656, 862 P.2d 350
(1993). Although Peckham did make a motion in limine raising this
issue prior to trial and received an unfavorable ruling, he
failed to make a contemporaneous objection during trial as the
evidence objected to was introduced. Therefore, Peckham may not
on appeal complain of error.
In any event, the statements of Hernandez constitute part of
the res gestae.
"Res gestae is a broader concept than an exception
to the hearsay rule. It actually deals with
admissibility of evidence of acts or declarations
before, during or after happenings of the principal
event. Those acts done or declarations made before,
during or after the happening of the principal
occurrence may be admitted as part of the res gestae
where those acts or declarations are so closely
connected with the principal occurrence as to form in
reality a part of the occurrence." State v.
Peterson, 236 Kan. 821, Syl. ¶ 1, 696 P.2d 387
The testimony of Wright and Eaton concerning comments Hernandez
made to them linked Hernandez with a man matching Peckham's
description. Peckham lured Hernandez to the field under the guise
of having Hernandez assist Peckham "rip off a rip-off." This is
what Hernandez told Wright and Eaton he was going to do.
Hernandez' statements of his meeting with Peckham and how that
was arranged are closely connected with the incident here, and
therefore it appears that the trial court properly admitted
Hernandez' statements as part of the res gestae.
VII. PRIOR CRIMINAL ACTS
The State's theory of the case was that the defendant committed
this murder in order to provide authorities with information
about it so as to gain favorable treatment on drug charges
[255 Kan. 328]
which were pending against him at the time of the offense. The
State sought to introduce evidence of the drug case at trial. The
defendant sought prior to trial to exclude such evidence. The
court ruled in favor of the State, finding that the evidence was
admissible under K.S.A. 60-455 because it was relevant to the
motive, intent, preparation, and plan of the current offense; the
motive, intent, preparation, and plan were substantial issues
which were controverted and evidence of Peckham's drug charges
was material and probative as to these issues; and the probative
value of the evidence outweighed the risk of undue prejudice. The
jury was instructed as follows: "Evidence has been admitted
tending to prove that the defendant committed crimes other than
the present crime charged. This evidence may be considered solely
for the purpose of proving the defendant's motive, intent,
preparation and/or plan."
The defendant contends that admitting evidence of the results
of his drug case was error because "[t]he fact that those charges
were ultimately resolved against the Appellant is not evidence of
the Appellant's intent" and because such evidence was
Detective John Heinrichs of the Sedgwick County Sheriff's
Department testified that Peckham contacted him on July 2, 1991,
regarding "[d]ismissal of a heroin case that was filed against
him" and proposing to "turn in a major marijuana dealer, an
individual who was bringing hundred pounds of marijuana into the
Wichita area, and he would also turn over the individual who
actually owned the heroin that we got out of his residence to us
if we would dismiss the heroin charge." Heinrichs further
testified that he told Peckham he could not deal with him because
he had an attorney representing him and that no deal was struck
"[b]ecause we didn't believe him" and "[b]ecause we knew that it
was a lie." Heinrichs also recalled that the heroin case went on
to trial and that after the first day-and-a-half of trial,
Peckham absconded and did not return for the remainder of the
trial. Heinrichs related that a marijuana charge was filed after
July 15, 1991, against Peckham as well.
Robert Jobe, a special agent with the FBI assigned to Wichita,
testified that he met with Peckham, Peckham's (former) counsel,
[255 Kan. 329]
and an assistant U.S. Attorney on July 10 or 11, 1991, regarding
a proposal in which Peckham would "furnish the identity of an
individual and the location of a nuclear power plant which the
unidentified individual had planned to bomb or blow up" and in
exchange, Peckham requested, among other things, dismissal of
marijuana charges which had not yet been filed against him but
the filing of which was imminent. Ultimately the proposal was not
accepted because "it was . . . my assessment and everyone
involved's assessment that it was a fabrication, false
Robert Sterner, a prosecuting attorney of Calloway County,
Missouri, testified that he met with Peckham and several others
on December 19, 1991, in Calloway County. The purpose of the
meeting was to obtain information from Peckham about a 1981
murder, and in exchange Peckham wanted Sterner to put in a good
word with Sedgwick County authorities concerning a criminal
prosecution Peckham was facing. Sterner testified that he called
the Sedgwick County prosecutor's office to request a continuance
of Peckham's trial in order to alleviate the time constraint that
a trial would place on Peckham's assistance to Calloway County.
Sterner related that Peckham expected Sterner to request leniency
for him on the condition that the murder case was solved.
Although an agreement was signed, Sterner stated that he never
requested leniency in connection with Peckham's pending cases,
which included one count of possession of marijuana and one count
of possession of a controlled substance, because the information
Peckham provided did not match with other information the people
investigating the 1981 murder had.
The evidence admitted here, concerning Peckham's drug charges
which were pending at the time of this offense, was properly
admissible under K.S.A. 60-455. K.S.A. 60-455 states:
"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."
This court has stated:
[255 Kan. 330]
"In ruling upon the admissibility of evidence of a
prior crime or civil wrong under K.S.A. 60-455, the
trial court must: (1) determine it is relevant to
prove one of the facts specified in the statute; (2)
determine the fact is a disputed material fact; and
(3) balance the probative value of the prior crime or
civil wrong evidence against its tendency to
prejudice the jury." State v. Grissom, 251 Kan. 851,
Syl. ¶ 28, 840 P.2d 1142 (1992).
"Appellate review of the admission of prior crimes evidence under
K.S.A. 60-455 is limited to whether the trial court abused its
discretion or whether the trial court admitted clearly irrelevant
evidence." State v. Clements, 252 Kan. 86, Syl. ¶ 2, 843 P.2d 679
The trial court did not abuse its discretion in admitting
evidence of Peckham's drug charges. Peckham does not argue on
appeal that evidence of his drug charges was irrelevant or did
not concern a disputed material fact. He only argues, "The
State's whole theory is that to avoid a trial, the Appellant
committed certain acts. The results of the trial are therefore
clearly inadmissible and prejudicial." The trial court clearly
found that all three prongs of the test for admissibility under
K.S.A. 60-455 were satisfied, and the defendant has failed to
show that this determination was an abuse of discretion. The
trial court did not err in admitting this evidence.
VIII. OFFERS OF COMPROMISE
In addition to objecting to evidence of the drug charges
pending against Peckham at the time of Roy Hernandez' murder,
Peckham objected prior to trial to the admission of evidence of
his offers of compromise concerning those charges. The court
ruled that such evidence would be admitted, finding that the rule
making offers of compromise generally inadmissible does not apply
when the offer of compromise was made in a different case.
Peckham contends that the trial court erred in admitting
evidence of his offers of compromise in the drug case. However,
he offers no argument in his brief on this issue, other than to
restate the district court's ruling on this issue and to assert,
"These statements necessarily brought before the jury the
existence of prior charges, and as such were controlled by K.S.A.
60-455." The State contends that the issue is not properly before
[255 Kan. 331]
because the defendant made no contemporaneous objection when this
evidence was admitted and, alternatively, that the fact that
offers of compromise in the drug cases would not be admissible in
those cases does not prohibit offers of compromise in the drug
cases as evidence in the murder case.
As discussed in the preceding issue, evidence of the drug
charges pending against Peckham at the time of the offense in the
case at bar was properly admitted. Evidence of the defendant's
proposed plea negotiations in his drug cases as evidenced by the
testimony of John Heinrichs, Robert Jobe, and Robert Sterner
would have been inadmissible to prove Peckham's guilt in the drug
cases. However, evidence of Peckham's offers of compromise in the
drug cases is admissible in the murder case at bar. This evidence
was central to the State's theory that Peckham killed Roy
Hernandez to gain favorable treatment on his drug cases and was
offered to prove his motive, intent, preparation, or plan in
killing Hernandez. This evidence was properly admitted.
IX. WITNESS' PRIOR CONVICTION
The defendant impeached one of the State's witnesses, Mark
Linthicum, by questioning him about a prior conviction for theft.
On redirect, the State elicited from the witness that the theft
conviction occurred more than 20 years earlier. Immediately
before the witness' testimony concluded, an off-the-record
discussion occurred between counsel and the court, after which
the witness was excused. After the next witness testified,
defense counsel noted on the record that he had requested prior
to the conclusion of Linthicum's testimony permission to
introduce evidence of a 1988 drug conviction to rebut the
inference he claims the jury was left with, that the witness had
led a crime-free life since the theft conviction. The court
excluded the evidence, stating that the witness' character had
not been sufficiently brought into issue and opining that the
witness had not left the jury with the impression that he had not
engaged in any criminal activity subsequent to the earlier theft
K.S.A. 60-421 limits the admissibility of evidence of a
witness' conviction for crimes not involving dishonesty or false
[255 Kan. 332]
Mark Linthicum's possession of marijuana conviction is not a
conviction for a crime involving dishonesty or false statement.
The only possible use of evidence of his prior possession of
marijuana conviction was to attack his credibility. This was
inadmissible under K.S.A. 60-421.
Further, exclusion of this evidence as rebuttal evidence was
not error. "Rebuttal evidence is that which is presented to deny
some fact an adverse party has attempted to prove or has placed
in dispute." State v. Burnett, 221 Kan. 40, 43, 558 P.2d 1087
(1976). "`The use and extent of rebuttal rests in the sound
discretion of the trial court and its ruling will not be reversed
unless it appears the discretion has been abused to a party's
prejudice.' State v. Phipps, 224 Kan. 158, 161, 578 P.2d 709
(1978)." State v. Lovelace, 227 Kan. 348, 353, 607 P.2d 49
(1980). See State v. Synoracki, 253 Kan. 59, 65, 853 P.2d 24
(1993). There was no evidence or inference here that Mark
Linthicum had led a crime-free life since his prior theft
conviction. Thus, even if evidence of a prior conviction for
possession of marijuana is admissible as rebuttal evidence, there
was no evidence or inference here to rebut, and the trial court
did not abuse its discretion in excluding the proffered evidence.
X. OPINION TESTIMONY
As set forth in Issue VII, Detective Heinrichs of the Sedgwick
County Sheriff's Department and Agent Jobe of the FBI testified
that they did not reach an agreement with Peckham concerning his
proposed offers in his drug cases because the information he
sought to provide was not believed or was shown to be inaccurate.
Robert Sterner of the Calloway County, Missouri, prosecutor's
office testified that he did reach an agreement with the
defendant concerning the information Peckham proposed to provide,
but the agreement was not followed through on because the
information was shown to be inaccurate. When Heinrichs testified
that "we knew that [the information Peckham had provided] was a
lie," defense counsel objected to this statement because "the
witness may not comment on credibility." The court overruled the
[255 Kan. 333]
The State's theory was that Peckham's motive in killing Roy
Hernandez was to obtain favorable treatment in his drug cases.
The testimony was not admitted to establish or impeach Peckham's
credibility. Rather, it was offered to show the process of the
offers of compromise Peckham sought to negotiate in his drug
In State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993),
this court stated that "police witnesses can testify from their
experience as to a role the defendant played in an illegal
enterprise they cannot testify that in their opinion the
defendant was guilty of the crime." Here, Heinrichs, Jobe, and
Sterner did not testify that they believed Peckham committed the
murder of Roy Hernandez or even that they believed Peckham was
guilty in the drug cases. Each merely testified as to why
Peckham's efforts at obtaining leniency in the drug cases failed,
and this evidence was elicited to show Peckham's motive, intent,
preparation, or plan in the murder case. We cannot say the
prejudicial effect of this testimony outweighed the probative
value or that the trial judge abused his discretion in admitting
Robbie Clem testified that she purchased a .22 Ruger gun at a
pawn shop and gave it to Peckham to use. She purchased it using
the name of Teresa Macy. On redirect, Clem explained that she had
false identification in the name of Teresa Macy which had Teresa
Macy's information but Clem's picture, and Clem had used this
false ID to purchase the gun. The following exchange then
"Q. What else did you do with that driver's license?
A. Wrote checks.
Q. For whom?
A. Teresa on Teresa Macy account.
Q. Was anyone else involved in those checks?
A. Janice, I don't remember her last name, she lives
with Jake, Connie's brother, she wrote some and I
Q. Who took you around?
A. Larry did, and Mike?
[255 Kan. 334]
A. Furthmyer, on
Q. Do you know
MR. RATHBUN [defense counsel]: Court note my
objection, I'll make it on the record later.
A. Excuse me.
THE COURT: No, we can't proceed that way.
MR. RATHBUN: Could we approach?"
After an off-the-record discussion, defense counsel objected on
the record that the testimony showed the defendant's involvement
in check forgery with the witness, and he requested a mistrial.
The trial judge denied Peckham's motion for a mistrial.
Defense counsel then sought a cautionary instruction after the
trial judge indicated reluctance to give one because the jury
would already be instructed regarding the admissibility of prior
offenses for a limited purpose only and because a cautionary
instruction would only amplify the situation. The court then
indicated that if a cautionary instruction was given, it would
reflect that the jury not consider any evidence of Peckham's
involvement in a check forgery offense so that the jury would not
confuse such an instruction with the admission of evidence about
Peckham's prior drug cases and plea negotiations, which were
admitted for limited purposes. The State argued that a cautionary
instruction should not single out evidence of a check forgery.
Defense counsel requested the following instruction:
"In your consideration of this case you are
instructed and admonished to disregard and set
totally from your mind any inference that the
defendant may have participated in criminal acts
other than those charged in this case. By this
admonition, I do not mean to imply that such evidence
exists or that such acts exist. You should make no
such inference from this admonition."
The court declined to give this instruction, finding that it was
too broad because the jury would be permitted to consider
evidence of certain other criminal acts for limited purposes.
Defense counsel was given an option, and he requested that the
court's proposed instruction be given rather than no cautionary
instruction. The judge then admonished the jury, "The jury should
disregard any evidence about the defendant's possible involvement
with Ms. Clem or any other witness in check forgery."
[255 Kan. 335]
Peckham argues on appeal, without analysis, that "[t]he Court's
instruction infers that the Appellant was possibly involved with
the witness, and as such should not have been given."
The instruction given by the trial court was not erroneous.
Testimony had been given, to which the defense objected. The jury
was admonished at the request of the defendant, although the
admonition did not use language the defendant requested.
Peckham's contention that the instruction "infers that the
Appellant was possibly involved with the witness" is faulty. The
witness had already testified that Peckham was involved with her,
although her testimony did not necessarily show that Peckham had
been involved in her check forgeries. In instructing the jury to
disregard the inference that Peckham was involved with the check
forgeries, it was necessary for the court to limit the
instruction to that evidence. Evidence of certain other crimes by
the defendant was admissible for limited purposes under K.S.A.
60-455. There was a need in this instruction, therefore, to
distinguish the evidence that Peckham had been involved with
check forgeries from evidence that had earlier been properly
admitted concerning other crimes Peckham may have committed. By
instructing the jury to "disregard any evidence about the
defendant's possible involvement with Ms. Clem or any other
witness in check forgery," the judge did not impermissibly
emphasize that inadmissible evidence.
XII. PERCEPTION OF DEFENSE COUNSEL'S BELIEF
Larry Peckham, Jr., the defendant's son, testified that his
father had told him of a plan to obtain favorable treatment on
his drug cases by finding "an individual that he could work into
his plan and to kill them and to set it up to look as though
someone else had done it, and to do away with that person and
bring forward an eyewitness to turn in to the police as his part
of the deal." The witness also related that defendant had stopped
by his house on March 2, 1992, the day of the murder, and asked
him to make note of the time as an alibi because he had just shot
someone named "Roy" or "Raul" north of town.
On cross-examination by Mr. Rathbun, Peckham Jr. admitted to
having made a statement to the sheriff on March 25, 1992,
[255 Kan. 336]
regarding his father's involvement in the murder. The witness
stated that he had been arrested for aiding and abetting his
father's bail bond jumping and that he was concerned about his
(the witness') parole being revoked, so he sought to provide
information in exchange for favorable treatment. Further, the
witness admitted that he had met with defense counsel on June 11,
1992, and after a discussion informed defense counsel that his
testimony at the preliminary hearing had not been true and that
he made up the story because of pressure surrounding his new
charges and the potential for a parole violation. A tape
recording of this conversation was made and was played for the
During redirect examination by the State, the witness testified
about the circumstances in which the tape recording was made. The
following exchange occurred:
"Q. Now, as far as this tape recording that Mr.
Rathbun had with you in his office, how did that
A. I I went down to talk to Mr. Rathbun and to help
to try to convince him that you know, that what
my dad was telling him was true and to defend him
Q. Had you talked to your dad before you went to Mr.
A. Yes, I had.
Q. Where did you talk to your dad?
A. At the jail.
Q. Will you tell us about those conversations,
A. My dad had told me that he was worried that Mr.
Rathbun was wondering whether or not he was
guilty or not and "
Defense counsel objected to the evidence as hearsay and urged
that such testimony made him (defense counsel) a witness in the
case. The trial judge overruled the objection.
The defendant maintains that it was error to overrule the
objection. He argues that because it would have been improper for
the State to tell the jury "I believe the defendant is guilty,"
it is likewise improper for the State to place before the jury
"defense counsel's opinions or beliefs regarding the guilt or
innocence of the Appellant." Further, he contends that because
the effect of the witness' statement was evidence that defense
counsel did not believe his client was innocent, defense counsel
was required to testify that he did believe his client was
[255 Kan. 337]
The State submits that defense counsel was not made a witness
in the case because there was no testimony before the jury that
defense counsel did not believe his client was innocent. Rather,
the witness' testimony was only that the defendant had doubts as
to whether his attorney believed in his innocence. Thus, there
was no evidence which defense counsel could rebut by testifying
that he had never had doubts about his client's innocence. The
State also points out that in making his objection in front of
the jury, defense counsel stated, "I've never had any doubt in my
mind about my client."
"Rebuttal evidence is that which is presented to deny some fact
an adverse party has attempted to prove or has placed in
dispute." State v. Burnett, 221 Kan. at 43. "`The use and
extent of rebuttal rests in the sound discretion of the trial
court and its ruling will not be reversed unless it appears the
discretion has been abused to a party's prejudice.' State v.
Phipps, 224 Kan. 158, 161, 578 P.2d 709 (1978)." State v.
Lovelace, 227 Kan. 348, 353, 607 P.2d 49 (1980). See State v.
Synoracki, 253 Kan. at 65.
There was no evidence here that defense counsel could have
rebutted by testifying. There had been no testimony that defense
counsel in fact did not believe his client was innocent. Rather,
the witness' testimony reflected at the most that the defendant
was concerned about whether his counsel believed he was innocent.
The trial court noted that "Peckham Jr. never said Rathbun told
him he had doubts about the case; that would clearly be
inadmissible. Peckham Jr. just said his father had doubts about
the case. It's like any other statement the defendant's made to a
witness in this case." As the State points out, "Testimony by
defense counsel that he had no doubts about his client's guilt
would not contradict testimony that his client had worries about
whether his attorney was wondering whether he was guilty." The
testimony by the defendant's son did not make defense counsel a
witness requiring him to testify in rebuttal.
The statement by Larry Peckham, Jr., does not require reversal
of the defendant's conviction. The testimony did not amount to
evidence concerning defense counsel's opinion as to his client's
guilt or innocence. The statement was made in response to a
[255 Kan. 338]
series of questions about what motivated the witness to approach
defense counsel and fabricate a story that the witness' prior
testimony at the preliminary hearing had been false. The
testimony was given after evidence of four different statements
by the witness: first, he testified against his father at trial
on direct examination; second, on cross-examination the tape
recording made by defense counsel in which the witness stated
that his earlier statements in the case were false was played for
the jury; third, the witness had testified against the defendant
at the preliminary hearing; and fourth, the witness' videotaped
statement to the sheriff's department on March 25, 1992, was
played for the jury. The witness' statement was not made to show
the defendant's attorney's opinion as to his client's guilt or
innocence or even to show the witness' own opinion as to his
father's guilt or innocence; it was made only to show the
witness' reason for recanting his prior testimony at the
preliminary hearing and to explain the witness' prior
inconsistent statement. The statement was one of many made by a
witness whose credibility was challenged by both parties in the
case because he changed his story several times. Under the
circumstances, reversible error is not shown.
XIII. DELAYED DISCLOSURE OF EXCULPATORY EVIDENCE
The defendant also contends that the State failed to timely
reveal exculpatory evidence and that a mistrial due to delayed
disclosure should have been granted. The delayed disclosure
concerned State's witnesses Michael Furthmyer and Robbie Clem and
involved in part action that law enforcement officials had taken
on these witnesses' behalf in order to obtain more lenient
treatment for the witnesses in pending criminal cases.
Mike Furthmyer was a confidential informant. Various reports
had been provided to the defense during discovery, but the
defendant maintained that none mentioned information provided by
a confidential informant and none named the confidential
informant. The State, conversely, maintained that all reports had
been provided to the defendant and that these reports included
affidavits which mentioned the existence of a confidential
[255 Kan. 339]
but the defendant never requested disclosure of the informant's
identity. Witnesses from the Sedgwick County Sheriff's Department
as well as Furthmyer were made available to the defendant during
trial for interview concerning Furthmyer's status as a
confidential informant once that status was disclosed.
The trial court did find that at least one report had not been
provided to the defendant until the witness was testifying. The
court also found that most of the confidential information
provided by Furthmyer involved Peckham absconding during trial on
his drug offenses and did not concern the case at bar. However,
the court did note that Furthmyer did provide "evidence to the
sheriffs about the alleged grave, but that was immediately made
known to the defense, as well as the source of that information."
The court also found that Furthmyer's status as a confidential
informant was not exculpatory evidence with which the State had a
duty to come forward and that if there was such a duty, the
defendant was not prejudiced by the delayed disclosure. A
continuance was granted at the defendant's request to review
newly disclosed reports.
During Furthmyer's testimony, the defense sought to question
him about a theft conviction and whether the sheriff's office
helped him get favorable treatment on that case. A proffer was
made, during which Furthmyer testified out of the presence of the
jury that he was not sure whether the sheriff's office intervened
on his behalf in that case. The court refused to permit the
defense to question Furthmyer along this line. Furthmyer did
testify that Detective Heinrichs gave him $100 for a water pump,
belts, wrenches, and gas and turnpike fees.
Detective Heinrichs was recalled by the State, and he admitted
to giving Furthmyer $100 and buying him several meals. After
Heinrichs was dismissed, the defense recalled him to continue
recross-examination, whereupon it was revealed that Heinrichs had
intervened on Furthmyer's behalf concerning a theft charge.
The defendant also points to other evidence he claims is
exculpatory. For example, not only did Heinrichs seek leniency
for Furthmyer on his theft charges, but another detective did so
as well. Further, another detective had questioned Furthmyer
[255 Kan. 340]
the murder of Roy Hernandez, and Furthmyer had denied having any
knowledge of it; the report of this interview was not provided by
the sheriff's office. Furthmyer was recalled to testify, and he
was questioned about statements he had made to the authorities as
well as about whether the sheriff's office had intervened on his
behalf in his theft case.
Robbie Clem testified that she did not receive any favorable
treatment on her check forgery case. However, Clem's parole
officer testified that Heinrichs had contacted her several times
concerning whether parole revocation should be sought and that
Heinrichs had sought to intervene in Clem's parole hearing.
Heinrichs also told Clem's parole officer that the district
attorney would recommend that nothing be done in Clem's check
forgery case. The defendant then moved for a mistrial because
Heinrichs had withheld exculpatory evidence. The trial court
agreed that the evidence was exculpatory, but refused to declare
a mistrial because there was no prejudice to the defendant as all
of the information was disclosed in front of the jury.
Peckham contends that the concealment of exculpatory evidence
by the Sedgwick County Sheriff's Department is attributable to
the State, although he admits that the State had no knowledge
about most of the evidence the sheriff's office was withholding.
See State v. Humphrey, 217 Kan. 352, 537 P.2d 155 (1975). He
also admits that the evidence was ultimately disclosed to him
during trial. He maintains, however, that the delayed disclosure
still constitutes a withholding of evidence because it was done
in bad faith. The crux of his argument here is that he is
required to make a lesser showing of prejudice because the
delayed disclosure was in bad faith.
In State v. Carmichael, 240 Kan. 149, Syl. ¶ 1, 727 P.2d 918
(1986), this court addressed the standard for granting a remedy
when disclosure of exculpatory evidence is delayed:
"Prosecutors are under a positive duty, independent
of court order, to disclose exculpatory evidence to a
defendant. To justify a reversal of a conviction for
failure to disclose evidence, the evidence withheld
by the prosecution must be clearly exculpatory and
the withholding of the evidence must be clearly
prejudicial to the defendant."
[255 Kan. 341]
"Evidence is exculpatory if it tends to disprove a fact in issue
which is material to guilt or punishment." 240 Kan. at 153.
Further, in State v. Barncord, 240 Kan. 35, Syl. ¶ 4, 726 P.2d 1322
(1986), this court stated that "[e]vidence not disclosed to
the defendant before trial is not suppressed or withheld by the
State if the defendant has personal knowledge thereof, or if the
facts become available to him during trial and he is not
prejudiced in defending against them."
In Carmichael, the exculpatory evidence was destroyed and
therefore was not admitted at trial. In Barncord, the evidence
was not purposefully withheld and the defendant was not
prejudiced because he had ample opportunity to cross-examine the
witnesses. Here, the evidence Peckham claims is exculpatory was
ultimately admitted at trial.
The trial court determined that some of the evidence which was
disclosed only during trial was exculpatory and some of it was
Peckham does not suggest what further evidence would have been
revealed had he received timely disclosure of this evidence and
been able to adequately investigate further. He does not suggest
that his trial strategy would have differed had the evidence been
disclosed before trial. Peckham's ability to examine each of the
witnesses testifying was not prejudiced by the delayed disclosure
during trial of this evidence. He received continuances or
recesses where appropriate, and he was able to fully examine each
witness. In fact, the delayed disclosure most likely worked to
Peckham's advantage because the credibility of the witnesses
testifying against him was severely impaired when they were
recalled to the stand and additional information was elicited
from them. We affirm the trial court and find that no prejudicial
XIV. SUFFICIENCY OF EVIDENCE
Next, defendant contends that there was insufficient evidence
to convict him of the offense of aggravated robbery. He maintains
that there was no evidence that the victim had any property taken
[255 Kan. 342]
from him and that the trial judge erred in submitting the issue
to the jury.
This court has addressed sufficiency of the evidence on
"If the sufficiency of evidence is challenged in a
criminal case, the standard of review is whether,
after review of all the evidence, viewed in the light
most favorable to the prosecution, the appellate
court is convinced that a rational factfinder could
have found the defendant guilty beyond a reasonable
doubt." State v. Grissom, 251 Kan. 851, Syl. ¶ 4,
840 P.2d 1142 (1992).
See State v. Getz, 250 Kan. 560, 830 P.2d 5 (1992). "It is the
jury's function, and not an appellate court's, to weigh the
evidence and pass upon the credibility of witnesses." State v.
Holley, 238 Kan. 501, 511, 712 P.2d 1214 (1986).
There was sufficient evidence to support the jury's finding of
guilt for the offense of aggravated robbery. Testimony revealed
that Peckham planned to kill a victim and plant a gun or other
personal objects of that victim in a second victim's car or
house. Robert Cochran testified that between 6:00 and 7:30 p.m.
on March 2, 1992, Roy Hernandez borrowed a .22 caliber gun from
him. Hernandez told Cochran at that time that he was going to
"rip off a rip-off," and he offered him $200 for the use of the
gun. That gun was never recovered. Cochran testified that
Peckham's son later told him that Peckham had thrown that gun in
the river. There was also evidence that Hernandez had several
hundred dollars in his wallet and that he took his wallet with
him when he left his house the evening he was killed. However,
when Hernandez' body was found he did not have a wallet or money
on his person. Although neither Cochran's gun nor Hernandez'
wallet or money were recovered, the evidence presented at trial
created a reasonable inference that Peckham did steal these items
as part of his plan when he killed Hernandez.
Peckham's convictions are affirmed. The sentence imposed
pursuant to K.S.A. 1993 Supp. 21-4624 is vacated, and we remand
[255 Kan. 343]
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