Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.
1. No separate finding of mental competence, apart from competence to stand trial, is necessary before a defendant may exercise the right of self-representation.
2. Under the facts of this case, because of the trial court's findings relating to defendant's waiver of counsel and the mental health evaluation report, defendant's Sixth Amendment rights were protected.
3. A dual standard is used when reviewing the suppression of a confession. In reviewing a trial court's ruling on a motion to suppress a confession, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard and reviews the ultimate legal conclusion drawn from those facts de novo. The appellate court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicting evidence.
4. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.
5. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
6. The clear language of K.S.A. 2006 Supp. 21-4603d(b)(1) makes restitution the rule, and a finding that restitution is unworkable is the exception. The defendant has the burden to come forward with evidence of his or her inability to pay.
7. A prior conviction is a sentencing factor and not an element of the crime. Thus, the prior conviction need not be presented in the indictment and proved to a jury in order to be used by the court to increase the sentence.
The opinion of the court was delivered by: Marquardt, J.
Before MALONE, P.J., GREEN and MARQUARDT, JJ.
Gregory McCall appeals his convictions and sentences for two counts of identity theft. We affirm.
Detective Kevin Duncan was working on counterfeit identification cases involving store credit accounts and received a call after two men had been taken into custody at J.C. Penney's. Detective Duncan testified that as soon as he saw the counterfeit identifications, he knew these men were involved in previous cases he was investigating. Based on the information provided by one of the arrested men, Detective Duncan obtained a search warrant for a Missouri house where McCall was residing.
After the service of the search warrant, McCall was arrested by the Kansas City, Missouri, police. McCall was Mirandized by a Missouri officer in Detective Duncan's presence. Detective Duncan testified that McCall waived his Miranda rights and answered Detective Duncan's questions. According to Detective Duncan, McCall admitted his involvement in an identity theft ring and provided the names of the two men who had previously been arrested with stolen identities.
McCall was charged with two counts of identity theft. McCall waived his right to a jury trial. Initially, McCall hired Carl Cornwell to represent him. However, Cornwell was allowed to withdraw in August 2003. On December 5, 2003, the trial court held a hearing on the motion to withdraw of Bob Thomas, who was representing McCall at the time. Thomas alleged that McCall threatened his safety. McCall disputed Thomas' assertion and ...