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STATE v. PECKHAM

May 27, 1994.

STATE OF KANSAS, Appellee,
v.
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 Supp. 21-4624(1).
  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 maintains that

[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 arraignment.

  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 arraignment.

[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 Peckham's arraignment.

  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 requirement.

  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 Constr.

[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 stated:
"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 statutory

[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 to 60-205(e).

  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 programs

[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 (1990).
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, rather

[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 evidence of

[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 court."
  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 earlier hearing.

  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.

  V. COMPETENCY

  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 murder trial."

  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 ...


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