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
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.
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.
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
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
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
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
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
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
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,
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
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.
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
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 ...