State v. Gamble

1

No. 101,880

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DONALD MICHAEL GAMBLE,
Appellant.


SYLLABUS BY THE COURT

1.
In reviewing a trial court's decision regarding the suppression of a confession, an
appellate court reviews the factual underpinnings of the decision by a substantial
competent evidence standard and the ultimate legal conclusion by a de novo standard.

2.
The right to counsel under the Sixth Amendment to the United States Constitution
attaches on the filing of formal charges, indictment, or information; on arraignment; or on
arrest on warrant and arraignment thereon.

3.
The right to counsel under the Sixth Amendment to the United States Constitution
is offense specific, cannot be invoked once for all future prosecutions, and does not attach
to offenses that have not been charged.

4.
Under the facts of this case, where the defendant was in custody for a different
offense and no adversarial proceedings had been initiated against him in the present case,
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there was no violation of the defendant's right to counsel under the Sixth Amendment to
the United States Constitution.

5.
In contrast to the Sixth Amendment right to counsel, the Fifth Amendment right to
counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S.
Ct. 1602, reh. denied 385 U.S. 890 (1966), is not offense specific.

6.
Once a suspect invokes his or her right to counsel under the Fifth Amendment to
the United States Constitution, interrogation must cease. Nevertheless, questioning of the
suspect can be resumed if a lawyer has been made available or the suspect reinitiates
conversation.

7.
Under the facts of this case, where the defendant initiated contact with law
enforcement to give his confession for the offenses that are the subject of the present case
and voluntarily waived his Miranda rights before giving his confession, there was no
violation of the defendant's right to counsel under the Fifth Amendment to the United
States Constitution.

8.
The trial court's refusal to grant a continuance so that a preliminary hearing can be
held, after a defendant has voluntarily waived his right to a preliminary hearing, is
reviewed for an abuse of discretion.

9.
An appellate court reviews the trial court's denial of a defendant's request for a bill
of particulars for an abuse of discretion.
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10.
Under the facts of this case, where the defendant voluntarily waived his right to a
preliminary hearing on the record but then moved for a preliminary hearing 2 days before
trial, there was no abuse of discretion in the trial court's refusal to hold a preliminary
hearing.

11.
Under the facts of this case, there was no abuse of discretion in the trial court's
decision to deny the defendant's motion for a bill of particulars 2 days before trial.

Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed August 6, 2010.
Affirmed.

Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.

Kristafer A. Ailslieger, assistant solicitor general, and Kendra M. Oakes, legal intern, for appellee.

Before STANDRIDGE, P.J., GREEN and CAPLINGER, JJ.

GREEN, J.: Donald Gamble appeals from his jury trial convictions of five counts
of rape in violation of K.S.A. 21-3502(a)(2) and five counts of aggravated criminal
sodomy in violation of K.S.A. 21-3506(a)(1). First, Gamble argues that the trial court
erred in admitting his videotaped confession because his statements were obtained in
violation of his rights under the Fifth and Sixth Amendments to the United States
Constitution. Nevertheless, because Gamble was in custody for a different offense and
because no adversarial proceedings had been initiated against Gamble with regard to the
offenses that are the subject of this case, the admission of Gamble's videotaped
confession did not violate his Sixth Amendment right to counsel. Moreover, where the
appellate record in this case establishes that Gamble initiated the contact with law
enforcement in order to give his confession to the offenses under investigation and that
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Gamble voluntarily waived his Miranda rights before giving his confession, there was no
violation of Gamble's Fifth Amendment right to counsel.

Finally, Gamble argues that the trial court erred in not granting his request for a
preliminary hearing or a bill of particulars. We disagree. In light of the fact that Gamble
had voluntarily waived his right to a preliminary hearing on the record 5 months before
trial and that his retained counsel chose not to examine the prosecutor's file concerning
the allegations against Gamble, we find no abuse of discretion in the trial court's decision
to deny Gamble's request for a preliminary hearing or a bill of particulars, filed 2 days
before the scheduled trial. Accordingly, we affirm.

In September 2007, A.F. (date of birth 01/07/1991) reported to the Anderson
County Sheriff's Office that Gamble had repeatedly sexually assaulted her. A.F., who had
been a friend of Gamble's daughter for many years, testified that the sexual assault began
in 2001 when she was 10 years old and occurred approximately every 2 weeks until she
and Gamble's daughter had an argument and no longer played together.

According to A.F., she and Gamble's daughter mended their relationship in 2003
and, by December 2003, Gamble had convinced her "to go back to the old ways." A.F.
testified that around December 19 or 20, 2003, Gamble performed oral sex on her and
penetrated her vagina with his fingers and his penis. A.F. further testified that Gamble
sexually assaulted her again between January 4 and 7, 2004. According to A.F., Gamble
continued to assault her every week or every other week when she stayed at his house.

When A.F. reported the sexual assaults to the Anderson County Sheriff's Office in
September 2007, she told the interviewing officer that she and Gamble had smoked
marijuana together and marijuana had been used in Gamble's house in the last few days.
Based on this information, Detective Vern Valentine applied for and obtained a search
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warrant for Gamble's house. Officers found marijuana in Gamble's house and car and also
recovered evidence relating to the sex crimes in Gamble's bedroom.

Gamble was arrested on a drug charge by Undersheriff Max Skelton and taken to
jail on September 11, 2007. The Miranda form filled out by Skelton stated that Gamble
requested to have a lawyer. Valentine testified, however, that after Gamble was arrested
on the drug charge, Gamble told Skelton that he was unsure whether he needed an
attorney, so Skelton wrote that Gamble had invoked his right to an attorney.

That same day, after Gamble had told Skelton that he was unsure whether he
needed an attorney, Valentine went to talk with Gamble about A.F.'s sexual assault
allegations. Valentine testified that he talked with Gamble for less than 10 minutes and
did not want to talk about the drug charge. During their conversation, Gamble asked
whether he needed an attorney. Valentine testified that he told Gamble, "If I [were] you,
I'd probably have one." According to Valentine, Gamble stated that he did not know if he
wanted an attorney. Valentine then told Gamble that Gamble should consider whether he
wanted an attorney and that Valentine could get back with him when he had his first
appearance for his drug charge in the next couple of days.

Valentine testified that on September 13, 2007, the day of Gamble's first
appearance on the drug charge, he received a phone call at home that Gamble had stated
that he wanted to talk with Valentine. When he testified in this case, Valentine could not
remember who called him, but he believed it was one of the jailers or a secretary.
Valentine went to the courthouse to talk with Gamble. Valentine testified that he told
Gamble that he was going to be appointed an attorney in the next few minutes but that
Gamble stated, "[T]hat's all right. I still want to talk to you whether I have an attorney or
not. I need to get this taken care of."

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According to Valentine, he then went back to his office and set up recording
equipment while Gamble had his first appearance on the drug case. At the hearing,
Gamble was appointed an attorney to represent him on the drug case.

After Gamble's first appearance on the drug case, the jailer brought Gamble to
Valentine's office. Valentine went over Gamble's Miranda rights, and Gamble waived
those rights. During the videotaped interview, Gamble confessed to repeatedly sexually
assaulting A.F.

On September 25, 2007, the State charged Gamble with 128 separate counts of
rape and aggravated criminal sodomy. In January 2008, Gamble's appointed attorney
requested a determination of Gamble's competency under K.S.A. 22-3202. The trial court
ordered Gamble to submit to an examination and evaluation to determine his competency
to stand trial. The conclusion from the psychological evaluation was that Gamble was
competent to stand trial in that he appeared to comprehend the charges against him and
had the ability to aid his attorney in his own defense.

Gamble later moved to suppress his statements during the September 11, 2007,
interview with Valentine. Gamble argued that the interview was in violation of his rights
because he had previously requested counsel after attempted interviews by law
enforcement and an attorney had been appointed to represent him. Gamble further argued
that he has a low I.Q. and did not understand the Miranda warnings or the impact of his
statements. After holding an evidentiary hearing, the trial court denied Gamble's motion
to suppress.

The trial in this case was held over 3 days in September 2008. On the second day
of trial, the State filed an amended complaint, which listed five counts of rape and five
counts of aggravated criminal sodomy. The dates when the crimes allegedly occurred
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were amended to coincide with A.F.'s testimony. The remainder of the charges against
Gamble were dismissed.

The jury found Gamble guilty of five counts of rape and five counts of aggravated
criminal sodomy. The trial court sentenced Gamble to 778 months in prison.

Motion to Suppress

First, Gamble contends that the trial court erred in admitting his videotaped
interview with a police detective because the statements were obtained in violation of his
rights under the Fifth and Sixth Amendments to the United States Constitution.

Normally, in reviewing a trial court's decision regarding the suppression of a
confession, an appellate court reviews the factual underpinnings of the decision by a
substantial competent evidence standard and the ultimate legal conclusion by a de novo
standard. State v. Cofield, 288 Kan. 367, 369, 203 P.3d 1261 (2009).

Sixth Amendment Right to Counsel

The Sixth Amendment under the United States Constitution provides that "[i]n all
criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his
defence." The Sixth Amendment right to counsel attaches on the filing of formal charges,
indictment, or information; on arraignment; or on arrest on warrant and arraignment
thereon. State v. Appleby, 289 Kan. 1017, 1044, 221 P.3d 525 (2009) (citing Brewer v.
Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925
(1977).

The Sixth Amendment right to counsel is offense specific, cannot be invoked once
for all future prosecutions, and does not attach to offenses that have not been charged.
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Appleby, 289 Kan. at 1044; State v. Pennington, 276 Kan. 841, 845, 80 P.3d 44 (2003).
Therefore, "'"[i]ncriminating statements pertaining to other crimes, as to which the Sixth
Amendment right has not yet attached are, of course, admissible at the trial of those
offenses." [Citation omitted.]'" Appleby, 289 Kan. at 1044 (citing McNeil v. Wisconsin,
501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 [1991]).

The United States Supreme Court in Texas v. Cobb, 532 U.S. 162, 168-69, 149 L.
Ed. 2d 321, 121 S. Ct. 1335 (2001), has recognized that when the Sixth Amendment right
to counsel attaches, it "encompass[es] offenses that, even if not formally charged, would
be considered the same offense under the Blockberger [v. United States, 284 U.S. 299, 76
L. Ed. 306, 52 S. Ct. 180 (1932)] test." The Blockberger test requires a court to evaluate
whether each offense requires proof of a fact that the other does not. Previously charged
offenses do not encompass new or different offenses that are factually related to the
previously charged offenses unless the newly charged offenses pass the Blockberger test.
Pennington, 276 Kan. at 845-46.

Here, Gamble's Sixth Amendment right to counsel had not attached as to the
sexual offenses when he was interviewed by Valentine and gave his videotaped
confession. Gamble had been charged only with the drug offense and not with the sexual
offenses when he was interviewed by Valentine. No adversarial judicial proceedings had
been initiated against Gamble with regard to the sex offenses. Further, the drug offense
and the sexual offenses cannot be considered the same offense under the Blockberger test
because they require proof of different facts. As a result, the admission of Gamble's
videotaped confession did not violate his Sixth Amendment right to counsel.

Fifth Amendment Right to Counsel

"The Fifth Amendment to the United States Constitution guarantees the right
against self-incrimination, including the right to have a lawyer present during custodial
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interrogation and the right to remain silent. [Citation omitted.]" State v. Walker, 276 Kan.
939, 944, 80 P.3d 1132 (2003). In contrast to the Sixth Amendment right to counsel, the
Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S.
436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), is not offense
specific. Appleby, 289 Kan. at 1044. "Once a suspect invokes the Miranda right to
counsel for interrogation regarding one offense, he may not be reapproached regarding
any offense unless counsel is present. [Citation omitted.]" (Emphasis added.) McNeil, 501
U.S. at 177.

Quoting from the United States Supreme Court's decision in McNeil, our Supreme
Court in Appleby explained that a second layer of prophylaxis had been added for the
Fifth Amendment right to counsel as follows:

"Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh.
denied 452 U.S. 973 [1981],
"'established a second layer of prophylaxis for the Miranda right to counsel: Once a
suspect asserts the right, not only must the current interrogation cease, but he may not be
approached for further interrogation "until counsel has been made available to him,"
[Edwards,] 451 U.S. at 484-485—which means, we have most recently held, that counsel
must be present, [citation omitted]. If the police do subsequently initiate an encounter in
the absence of counsel (assuming there has been no break in custody), the suspect's
statements are presumed involuntary and therefore inadmissible as substantive evidence
at trial, even where the suspect executes a waiver and his statements would be considered
voluntary under traditional standards. This is "designed to prevent police from badgering
a defendant into waiving his previously asserted Miranda rights," [citation omitted].'
McNeil, 501 U.S. at 176-77." Appleby, 289 Kan. at 1044-45.

The McNeil Court explained that an accused's assertion of the Sixth Amendment
right to counsel does not invoke the Fifth Amendment right to counsel as a matter of fact.
501 U.S. at 178. "'One might be quite willing to speak to the police without counsel
present concerning many matters, but not the matter under prosecution.'" Appleby, 289
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Kan. at 1046 (quoting McNeil, 501 U.S. at 178); see also Rhode Island v. Innis, 446 U.S.
291, 300, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980) (Miranda's safeguards and procedural
protection of Fifth Amendment rights "are required not where a suspect is simply taken
into custody, but rather where a suspect in custody is subjected to interrogation.").

The Fifth Amendment right to counsel applies only when the accused has
expressed his or her wish for the particular sort of attorney assistance that is the subject of
Miranda. Appleby, 289 Kan. at 1046. "'It requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for the assistance of an attorney in
dealing with custodial interrogation by the police.'" 289 Kan. at 1046 (quoting McNeil,
501 U.S. at 178).

When a defendant argues that he or she asserted the assistance of an attorney, the
timing and the content and context of a reference to counsel may help determine whether
there has been an unambiguous assertion of the right to the assistance of an attorney in
dealing with a custodial interrogation by law enforcement officers. Appleby, 289 Kan.
1017, Syl. ¶ 13.

Gamble maintains that he invoked his Fifth Amendment right to counsel when
Deputy Skelton Mirandized him on September 11, 2007. Gamble contends that once he
invoked this Fifth Amendment right to counsel, Valentine lacked the authority to
question him concerning any of the allegations contained in the probable cause affidavit
submitted in support of the application for search warrant.

The trial court in this case found that Gamble requested to have a lawyer on
September 11, 2007. The trial court looked to the Miranda form filled out by Deputy
Skelton, which states that Gamble requested to have a lawyer. Although Valentine
testified that Gamble had merely told Skelton that he was unsure whether he needed an
attorney, the trial court determined that without Skelton's testimony, the notation on the
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Miranda form that Gamble requested an attorney would be the finding in the case. The
State concedes that the Miranda form provides substantial competent evidence to support
the trial court's conclusion that Gamble requested an attorney on September 11, 2007.

Moreover, the record indicates that Gamble made his statement concerning a
request for an attorney when he was read his Miranda warnings and asked to make a
statement in the drug case. Thus, it appears that Gamble's statement concerning an
attorney was made in dealing with a custodial interrogation type of situation and that
Miranda's safeguards and procedural protections of Fifth Amendment rights were
applicable.

In denying Gamble's motion to suppress his videotaped confession, the trial court
focused on the fact that Gamble had reinitiated contact with Valentine and waived his
right to have counsel present:

"[L]ooking at the totality of all the different circumstances, the fact that Mr. Gamble
initiated his contact with the officer even after the officer advised him in his opinion he
ought to get himself an attorney, Mr. Gamble still took upon himself that he wanted to
talk to the officer and the officer Mirandized him again and Mr. Gamble went ahead and
waived his right to have counsel present and made his statement to the officer. So the
Court would find the statement would be admissible for purposes of this [trial]."

The law is well established that once a suspect invokes his or her Fifth
Amendment right to counsel, interrogation must cease. Nevertheless, questioning of the
suspect can be resumed if a lawyer has been made available or the suspect reinitiates
conversation. Edwards, 451 U.S. at 482, 484-85; State v. Mattox, 280 Kan. 473, 481, 124
P.3d 6 (2005).

In determining whether an accused has waived his or her previously asserted Fifth
Amendment right to counsel, an appellate court must determine whether the accused (1)
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initiated further discussions with law enforcement and (2) knowingly and intelligently
waived the previously asserted right. The State has the burden to show that later events
indicated a waiver of a previously asserted right and that the waiver was knowing,
voluntary, and intelligent under the totality of the circumstances. Walker, 276 Kan. at
946-47. A valid waiver of a previously asserted Fifth Amendment right to counsel cannot
be established by showing only that the suspect responded to further police-initiated
custodial interrogation even if he or she has been advised of his or her rights. Edwards,
451 U.S. at 484. The accused's statements must show a willingness and a desire for a
generalized discussion about the investigation and not merely be a necessary inquiry
arising out of the incidents of the custodial relationship. Oregon v. Bradshaw, 462 U.S.
1039, 1044-46, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983); Walker, 276 Kan. at 946-47.

Here, as the trial court found, the record shows that Gamble initiated the
discussions with Valentine on September 13, 2007, about the alleged sexual abuse.
Although Valentine had previously told Gamble his opinion that Gamble should get an
attorney, Gamble asked to talk with Valentine when Gamble returned to the courthouse
for his first appearance on the drug charge. Upon arriving at the courthouse at Gamble's
request, Valentine told Gamble that he was going to be appointed an attorney in the next
few minutes and asked if Gamble still wanted to talk with him. Gamble said that he did
want to talk with Valentine. Thus, not only did Gamble initiate the conversation with
Valentine, but Valentine also made sure that Gamble still wanted to talk with him even
without Gamble's appointed attorney.

When Gamble was later brought to Valentine's office after his hearing on the drug
charge, Valentine obtained a knowing and voluntary waiver of Gamble's right to counsel.
Gamble specifically told Valentine that he was willing to talk to Valentine without an
attorney even though he had been appointed an attorney. Gamble stated that he had
"thought about this a lot and if it's going to help me and others, yes I want to talk about
this." Valentine read Gamble his Miranda rights, and Gamble signed a written waiver of
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those rights. Gamble then proceeded to talk freely and openly with Valentine about his
repeated sexual abuse of A.F. Gamble's initiation of the conversation with Valentine and
his statements to Valentine, especially those before the videotaped confession, show
Gamble's willingness and desire for a discussion with law enforcement about his repeated
sexual abuse of A.F.

Nevertheless, Gamble argues that his videotaped confession given on September
13, 2007, was tainted by Valentine's contact with him on September 11, 2007, which was
in violation of his Fifth Amendment rights.

As the State points out, however, Gamble's taint argument was never properly
presented to the trial court. Before the trial court, Gamble seemed to argue that his
September 13, 2007, videotaped confession should be suppressed because his right to
counsel, on that date, had been violated. Gamble emphasized that he had invoked his
right to counsel and that counsel had been appointed when he was interviewed on
September 13, 2007. While that may be a similar theory, Gamble never raised his current
theory with the trial court that Valentine's contact with Gamble on September 11, 2007,
tainted any and all later contact with law enforcement about the sexual abuse allegations,
even when Gamble initiated the contact with law enforcement. Because Gamble never
gave the trial court an adequate opportunity to consider his current argument, we will not
consider this issue. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (Issues
not raised before the trial court cannot be raised on appeal.); State v. Gant, 288 Kan. 76,
82, 201 P.3d 673 (2009) (Constitutional grounds for reversal asserted for the first time on
appeal are not properly before the appellate court for review.).

Moreover, even if this court were to address Gamble's "taint" argument, it would
fail because Gamble cites no authority for his argument that Valentine's brief encounter
with him on September 11, 2007, after he had invoked his Fifth Amendment right to
counsel rendered his September 13, 2007, videotaped confession inadmissible. In our
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research, we have found cases where our Supreme Court has applied a "taint" analysis
when an accused has given a statement, which was coerced or obtained in violation of
Miranda, to law enforcement officers and then later waives his or her Miranda rights and
gives another statement. See State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005); State v.
Hebert, 277 Kan. 61, 82 P.3d 470 (2004).

Here, law enforcement officers never obtained any statements from Gamble
concerning the alleged sexual abuse before he voluntarily contacted Valentine on
September 13, 2007, and gave his videotaped confession. Even assuming that Valentine's
attempt to talk with Gamble on September 11, 2007, about the alleged sexual abuse was
improper, Valentine ended the contact after Gamble questioned whether he needed an
attorney and Valentine gave his opinion that Gamble should get an attorney. The contact
between Valentine and Gamble on September 11, 2007, was brief, and Gamble never
provided any information about the alleged sexual abuse. Valentine made no further
contact with Gamble until 2 days later when Gamble sent his message that he wanted to
talk with Valentine. Even though he was appointed counsel in the drug case, Gamble told
Valentine that he wanted to talk with him about the alleged sexual abuse and executed a
written waiver of his Miranda rights.

In light of the fact that Gamble voluntarily initiated the contact with Valentine on
September 13, 2007, followed by the giving of proper Miranda warnings 2 days after any
contact had been made with him about the alleged sexual abuse, we find that Valentine's
contact with Gamble on September 11, 2007, did not taint his videotaped confession on
September 13, 2007. See Peterka v. State, 640 So. 2d 59 (Fla. 1994), cert. denied 513
U.S. 1129 (1995) (holding that even if an officer's questioning violated the appellant's
right to remain silent, no taint carried over to the appellant's later statements to law
enforcement where the appellant initiated the contact). Our Supreme Court has held that
where a suspect on his or her own initiative requests an opportunity to give a statement, it
cannot be said to be either a response to or a product of the police officer's words or
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action. State v. Dudley, 264 Kan. 640, 645, 957 P.2d 445 (1998). Gamble freely and
voluntarily initiated the contact with Valentine on September 13, 2007, and decided to
give his confession after he was advised of his Miranda warnings. As a result, the trial
court properly denied Gamble's motion to suppress his statements.

Motion for Preliminary Hearing or Bill of Particulars Standard of Review

Finally, Gamble argues that the trial court violated his right to a fair trial by
refusing his request for a preliminary hearing or a bill of particulars.

The trial court's refusal to grant a continuance so that a preliminary hearing can be
held, after a defendant has voluntarily waived his right to a preliminary hearing, is
reviewed for an abuse of discretion. State v. McCollum, 209 Kan. 498, 500-01, 496 P.2d
1381 (1972). Further, an appellate court reviews the trial court's denial of a defendant's
request for a bill of particulars for an abuse of discretion. State v. Young, 26 Kan. App. 2d
680, 683, 11 P.3d 55 (1999). Judicial discretion is abused when judicial action is
arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety
of the action taken by the trial court, then it cannot be said that the trial court abused its
discretion. Gant, 288 Kan. at 81-82.

Preliminary Hearing

The record in this case demonstrates that Gamble appeared before the trial court in
April 2008 and voluntarily waived his right to a preliminary hearing. The trial court
addressed Gamble personally and clearly informed him that he had a right to a
preliminary hearing on the felony charges in this case. Nevertheless, Gamble chose to
waive his right to a preliminary hearing. See K.S.A. 22-2902(4) (defendant may waive
preliminary hearing); McCollum, 209 Kan. at 500. Gamble acknowledged that he was
16

waiving his right to a preliminary hearing freely, knowingly, and voluntarily and upon
advice of his counsel.

Nearly 5 months after he waived preliminary hearing and 2 days before Gamble's
scheduled trial, Gamble moved for a preliminary hearing. Gamble argued that his waiver
of preliminary hearing was made on the advice of his previous court-appointed counsel
and was not knowingly and intelligently made, that a preliminary hearing would be useful
to all parties and would serve judicial economy, and that a preliminary hearing might lead
to a plea agreement.

The day after Gamble moved for a preliminary hearing, the trial court held a
hearing. Gamble's attorney further argued that, in the complaint, the alleged incidents had
not been narrowed down to a particular day and that he had not been able to access some
of the evidence and discovery in the case turned over to him by Gamble's previous
defense counsel. The State argued, however, that there was substantial authority that the
alleged sexual abuse did not have to be narrowed down to a single day.

In questioning defense counsel about the necessity for a preliminary hearing or for
a bill of particulars, the trial court learned that defense counsel had not gone to the county
attorney's office to look at the file and determine whether he had everything that was
needed in the case. The trial court found that there was a valid waiver of preliminary
hearing by Gamble at the hearing in April and denied Gamble's motion for a preliminary
hearing.

Based on the appellate record in the present case, we find no abuse of discretion in
the trial court's denial of Gamble's request for a preliminary hearing. The fact that
Gamble retained counsel late in the case (retained counsel entered an appearance less
than 1 month before trial) and that the retained counsel had not adequately prepared for
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trial did not make Gamble's waiver of preliminary hearing invalid. Gamble had entered a
knowing and voluntary waiver of his right to a preliminary hearing at the April hearing.

Moreover, Gamble's decision to waive his right to a preliminary hearing could
likely have been a strategic decision to enter into plea negotiations. If a preliminary
hearing was held and the evidence warranted being bound over on additional or more
serious charges, Gamble would have been in a less advantageous position during plea
negotiations. See State v. Pioletti, 246 Kan. 49, Syl. ¶ 4, 785 P.2d 963 (1990) ("Under
K.S.A. 22-2902, a magistrate may bind a defendant over on any felony he or she has
probable cause to believe has been committed whether or not that particular felony has
been charged in the information upon which the preliminary hearing was held.").

Because Gamble voluntarily waived his right to a preliminary hearing, a
preliminary hearing was not required, and there was no abuse of discretion in the trial
court's decision. See McCollum, 209 Kan. at 501 (holding that trial court's failure to grant
a continuance on the morning of trial so that a preliminary hearing could be held was not
abuse of discretion; preliminary hearing was not required where defendant had
voluntarily waived his right to preliminary hearing and continuance would serve no
useful purpose).

Request for Bill of Particulars

K.S.A. 22-3201(f) gives the trial court discretion, on written motion of the
defendant, to require the prosecuting attorney to provide the defendant with a bill of
particulars:

"When a complaint, information or indictment charges a crime but fails to
specify the particulars of the crime sufficiently to enable the defendant to prepare a
defense the court may, on written motion of the defendant, require the prosecuting
18

attorney to furnish the defendant with a bill of particulars. At the trial the state's evidence
shall be confined to the particulars of the bill."

Here, in denying Gamble's request for a bill of particulars, the trial court found
that the complaint was sufficient. The trial court found that the complaint stated each
crime in the language required by the statute for that particular offense. Further
determining that defense counsel had the opportunity to review the State's file to
determine whether the evidence complied with the complaint, the trial judge stated as
follows:

"If for whatever reason defense counsel hasn't chosen to go and view the county
attorney's file to make sure the evidence is there to match up on those particular dates, I'm
not going to get involved in telling defense counsel how to do his job.
"Do not ask for a bill of particulars if you're not going to look at the file and
discover it. I think what you have to find out is whether or not it complies with the
complaint. You're asking in your motion for an amended complaint or bill of particular
and time and place of the alleged crime, yet you're telling the Court that you haven't
looked at the evidence. The Court's going to deny the motion for bill of particulars."

We find no abuse of discretion in the trial court's denial of Gamble's request for a
bill of particulars. In Young, 26 Kan. App. 2d at 683, this court held that the trial court
correctly concluded that a bill of particulars was unnecessary when the defendant had
access to all of the State's evidence. This court noted that the Johnson County District
Attorney's Office had an "open file" policy and that the defendant had requested a bill of
particulars 6 months into the case and after full discovery. Here, the record demonstrates
defense counsel had access to the Anderson County District Attorney's file, but yet no
request for a bill of particulars was made until 1 year after Gamble was charged and 2
days before trial was scheduled to begin. As the State points out, it became clear at the
hearing on the motion to suppress that defense counsel simply had not made any effort to
review the State's file. As a result, Gamble's argument on this issue fails.
19


Affirmed.