IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,519
STATE OF KANSAS,
Appellee,
v.
SHAWNDELL MAYS,
Appellant.
SYLLABUS BY THE COURT
1. The standard for appellate review of a district court decision to authorize prosecution of a juvenile as an adult is whether the decision is supported by substantial evidence. Substantial evidence is evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. An appellate court does not reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses.
2. A district court considering a motion to prosecute a juvenile offender as an adult must determine which presumption defined in K.S.A. 38-1636(a) applies. If the presumption of K.S.A. 38-1636(a)(2) applies, as it does in this case, the juvenile respondent is presumed to be an adult and the burden of proof is upon the respondent to rebut the presumption.
3. K.S.A. 38-1636(e) lists factors to be considered when determining whether a juvenile who is accused of a crime should be prosecuted as an adult or a juvenile offender. These factors must be considered even where there is a presumption that the accused is an adult pursuant to K.S.A. 38-1636(a)(2).
4. The Kansas procedure for authorizing adult prosecution under K.S.A. 38-1636 does not violate the Sixth and Fourteenth Amendments to the United States Constitution. Procedural safeguards provided in the juvenile justice system are sufficient to support a determination that certification proceedings of juveniles fall outside the dictates of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
5. K.S.A. 2003 Supp. 22-2902(2) does not require the dismissal of the charge and the discharge of the defendant if a preliminary hearing is not provided within 10 days. This time limitation is directory.
6. The timeliness of a preliminary hearing may be challenged only by a motion to dismiss pursuant to K.S.A. 22-3208 filed no later than 20 days after arraignment. The failure to challenge the timeliness of the preliminary hearing by such a motion constitutes a waiver and precludes review on appeal.
7. Under K.S.A. 22-3423(1)(a), a trial court may declare a mistrial during voir dire and invoke the provisions of K.S.A. 22-3402(4).
8. In reviewing a trial court's decision regarding suppression, 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 with independent judgment.
9. A defendant's waiver of his or her Miranda rights must be knowing, voluntary, and intelligent under the totality of the circumstances. In determining whether a defendant's confession is voluntary, a court looks at the totality of the circumstances. The State bears the burden of proving that a defendant's confession is voluntary and therefore admissible by a preponderance of the evidence. The essential inquiry is whether the statement was the product of the free and independent will of the accused.
10. In determining whether a juvenile's confession is voluntary, the district court should consider the following factors on the record: (1) the age of the minor, (2) the length of the questioning, (3) the minor's education, (4) the minor's prior experience with the police, and (5) the minor's mental state.
11. While a defendant's low intellect and mental condition are factors to be considered in determining the voluntariness of a statement, a defendant's mental condition, by itself and apart from its relation to official coercion, should never dispose of the inquiry into constitutional voluntariness. Mental state is only one consideration when assessing the totality of the circumstances surrounding the waiver of Miranda rights.
12. Where a person inflicts upon another a wound which is calculated to endanger or to destroy life, it is not a defense to a charge of homicide that the victim's death was contributed to or caused by the negligence of the attending physicians or surgeons.
13. If the jury instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
Appeal from Wyandotte district court; THOMAS L. BOEDING and DAVID W. BOAL, judges. Opinion filed March 19, 2004. Affirmed.
Michael G. Highland, of Bonner Springs, argued the cause and was on the brief for appellant. Shawndell Mays, appellant, was on a supplemental brief pro se.
Jerome A. Gorman, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: Shawndell Mays appeals from his convictions and sentences for two counts of first-degree murder, two counts of attempted first-degree murder, two counts of criminal possession of a firearm by a juvenile, and one count of conspiracy to commit first-degree murder. Mays was sentenced to a controlling term of two consecutive life sentences.
On direct appeal to this court, Mays raises eight issues in his brief filed by counsel: (1) Was the juvenile court's decision to authorize prosecution as an adult supported by substantial evidence? (2) Did the juvenile court proceeding used to authorize prosecution as an adult violate Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001)? (3) Did the delay between Mays' arrest and preliminary hearing violate his right to a speedy trial? (4) Did the more than 8-month delay between Mays' arraignment and trial violate his right to a speedy trial? (5) Did the trial court err in failing to suppress evidence of Mays' statement to police because Mays was incompetent to waive his Miranda rights? (6) Did the doctor's testimony regarding the proximate cause of a victim's death negate a necessary element of Mays' conviction of first-degree murder? (7) Did the trial court err in instructing the jury? and (8) Did cumulative error deny Mays a fair trial? In his supplemental brief filed pro se, Mays raises four issues: (1) Did the trial court err in denying Mays' motion for severance? (2) Did the trial court err in denying Mays' motion to suppress his statement to police? (3) Did the trial court err in admitting into evidence the codefendants' redacted statements? and (4) Did the trial court err in admitting a codefendant's statement because it was inadmissible as to Mays and violated his right to confront witnesses?
We affirm his convictions and sentences.
This case involved two separate drive-by shootings in January 2000. The first occurred on the night of January 24, 2000. According to the testimony of Marcus Quinn, he and Joseph Morton were sitting and talking in a car parked in an empty lot across the street from Quinn's home near 20th Street and Longwood in Kansas City, Kansas. While sitting there, Quinn saw a red truck. About 30 minutes later, Quinn saw the same red truck followed by a car. This time the truck stopped and its occupants shot multiple times at the Chevrolet Caprice in which Morton and Quinn were sitting. Quinn testified that the right side of his head was grazed, but he was not seriously injured. Morton ran away from the scene, but later died at a hospital. The second shooting occurred on the afternoon of January 26, 2000. Christopher Union and Lee Brooks were driving a white pickup truck near 30th and Spring when gunshots were fired at the truck. Both Brooks and Union were injured; Union died from his injuries.
The police investigation of the two shooting incidents eventually led to the custodial interrogations of Michael White, Shawndell Mays, Keith Mays, Peter Davis, and Carvell England on January 27, 2000. (Shawndell Mays will be referred to throughout this opinion as Mays; Keith Mays will be referred to by first and last name.) All of them talked to the investigators, describing the events of the two shootings to various degrees, with Mays and White admitting to firing shots during both incidents and all of them admitting to being a witness to one or both occurrences. Mays was 16 years old at the time of the shootings; he turned age 17 on January 29, 3 days after the second shooting.
In the same information, the State charged White, Mays, Davis, Keith Mays, and England with various charges relating to the shootings on January 24, January 26, or both. Three of the codefendants, including Mays, were juveniles. The court authorized the State to prosecute the three as adults pursuant to K.S.A. 38-1636(a)(2). The five codefendants' joint trial lasted nearly 3 weeks, during which 39 witnesses testified. The redacted statements of each of the five codefendants were played for the jury over defense counsels' objections. Generally, all of the codefendants denied the allegations and, through cross-examination of the State's witnesses, sought to create reasonable doubt. Each codefendant also generally relied upon a self-defense theory.
The jury convicted Mays of two counts of first-degree murder, two counts of attempted first-degree murder, two counts of criminal possession of a firearm by a juvenile, and one count of conspiracy to commit first-degree murder. The jury also convicted Davis and White of various charges but acquitted Keith Mays and England of all charges.
This court affirmed the convictions of two codefendants in State v. White, 275 Kan. 580, 67 P.3d 138 (2003), and State v. Davis, 277 Kan. 231, 83 P.3d 182 (2004).
Was the Juvenile Court's Decision to Authorize
Prosecution as an Adult Supported by Substantial Evidence?
In stating his first issue on appeal, Mays recognizes that an appellate court reviews the district court's decision to allow the State to prosecute a juvenile as an adult to determine if the decision is supported by substantial evidence. State v. Jones, 273 Kan. 756, Syl. ¶ 2, 47 P.3d 783, cert. denied 537 U.S. 980 (2002). As we explained in Jones:
"Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. It is not for this court to reweigh the evidence, substitute its evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses." 273 Kan. 756, Syl. ¶ 2.
Our review of whether there was substantial competent evidence to support the district court's decision must be based upon the standards and procedures delineated in K.S.A. 38-1636 which, in turn, governed the district court's consideration of the State's motion to prosecute Mays as an adult. A court considering or reviewing such a motion must determine which statutory presumption created by K.S.A. 38-1636(a) applies. K.S.A. 38-1636(a)(1) provides that the "respondent shall be presumed to be a juvenile unless good cause is shown to prosecute the respondent as an adult." However, if the exceptions specified in K.S.A. 38-1636(a)(2) apply, the "respondent shall be presumed to be an adult." In this case, the district court correctly found that both exceptions applied to the prosecution of Mays. First, because Mays was "14, 15, 16 or 17 years of age at the time of the offense or offenses alleged in the complaint" and the charged offenses were crimes which, "if committed by an adult, would constitute" offgrid or person felonies, the exception stated in K.S.A. 38-1636(a)(2)(A)(i) applied. Second, because Mays was "14, 15, 16 or 17 years of age at the time of the offense or offenses alleged in the complaint" and the crime was "committed while in possession of a firearm," the exception stated in K.S.A. 38-1636(a)(2)(A)(ii) applied.
Because there was a presumption that Mays was an adult, the burden of proof was upon Mays to rebut the presumption. K.S.A. 38-1636(a)(2).
Even where the presumption is that the accused is an adult, the factors listed in K.S.A. 38-1636(e) must be considered. State v. Medrano, 271 Kan. 504, 507, 23 P.3d 836 (2001). Those factors are:
"(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution." K.S.A. 38-1636(e).
At the hearing, after the judge announced that the burden was on Mays and the two other juveniles to show why they should not be prosecuted as adults, Mays and the other juveniles presented evidence. Mays' mother testified that he had experienced difficulty in coping with the shooting death of a 10-year-old cousin which he had witnessed. She indicated his family was unable to obtain counseling or other assistance for Mays other than what those programs provided at a neighborhood center. Jean Bridgewater, the center's minister and director, testified that Mays was a "fairly decent kid" and a follower, and "we could have an effect on him and work with him." Additionally, evidence was presented regarding the programs and facilities in the juvenile justice system. Testimony established that Mays had never been adjudicated as a juvenile offender or had access to any of the programs available in the juvenile justice system; that, if Mays were sentenced as a juvenile offender rather than an adult, he would likely remain in custody until he was 22 and 1/2 years old; and that his mother and others thought he would benefit from the programs available in the juvenile justice system.
At the conclusion of the evidence presented by the three juveniles, the prosecutor moved for a directed verdict arguing that the juveniles had failed to rebut the presumption that they should be tried as adults. After hearing arguments but no additional evidence, the district court found that all three juveniles had failed to rebut the presumption that they should be prosecuted as adults. The judge made the following findings with regard to the factors listed in K.S.A. 38-1636:
"[T]he first three are matters that are . . . clearly in this case, in terms of the seriousness of the offense, whether or not violence was used, and whether it was a person offense . . . those are clearly factors which, from what's before me, are in concert with the presumption that exists. Let me address, for a moment, the issues of factors four and five regarding previous offenses and unadjudicated pending offenses. I find that, with regard to Shawndell Mays, that there are none. . . . With regard to the issue of sophistication, as I have read the cases that have addressed that particular factor, they have to do with whether or not the individual is less or more sophisticated than a person his age. And . . . I'm not convinced that any of them are, in level of sophistication, different from people who are generally of their . . . respective ages. With regard to issue number seven, I suppose that's what I've heard most of the evidence about; and I've heard lots of evidence about what's available, and what has been done, and what hasn't been done. But the factor, as set forth in the statute, that I'm to consider is whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and I have absolutely no evidence, a dearth of evidence on that issue as to the likelihood of rehabilitation. There . . . is no evidence. I'm not suggesting that there . . . could have been. . . . I don't know that there is any evidence . . . of likely rehabilitation, but that's the language of the standard. And finally, the issue of . . . whether . . . the respondent or the community would be better served by a criminal justice prosecution . . . . I have no difficulty in finding, from what I've heard today, that there is not evidence which rebuts the presumption established by the Legislature that [the juveniles] -- in the cases that are before me today -- should, in fact, be determined to be adults for the purpose of prosecution in those cases; and the Court so finds."
In his brief, Mays argues that the district court's decision to authorize his prosecution as an adult was not supported by substantial evidence because the State presented no evidence and relied solely on the complaint. In support of this argument, Mays cites State v. Stephens, 266 Kan. 886, 975 P.2d 801 (1999). In Stephens, this court reviewed a district court's decision to authorize prosecution of a 17-year-old as an adult. The version of K.S.A. 38-1636 in effect at the time of Stephens' hearing required the State to present substantial evidence supporting his prosecution as an adult. See K.S.A. 38-1636 (Furse 1993). Mays was authorized for prosecution as an adult pursuant to K.S.A. 38-1636(a)(2), which places the burden on the respondent to rebut the presumption that he is an adult. Thus, the analysis in Stephens is not applicable.
Furthermore, the holding in Stephens does not support Mays' argument. In Stephens, the district court reviewed each of the eight factors set out at K.S.A. 38-1636(e). As to factor (8), which requires the court to consider whether the interests of the respondent or of the community would be better served by criminal prosecution, the district judge made the following conclusory finding:
"'There's a strong interest in this community to be able to feel safe and if nowhere else certainly in your own home. There's a strong interest in this community that juveniles should be held accountable for their actions, and when juveniles who have the necessary intellect make adult decisions they should receive adult consequences. I see both of the Respondents in this matter had a choice back in November as to what it is they wanted to do.'" Stephens, 266 Kan. at 891.
Noting that the district court had failed to discuss whether the respondents' interests would be served by criminal prosecution, although reference was made to the community, this court found there was not substantial evidence in favor of adult prosecution as to factor (8). 266 Kan. at 892. It is upon this conclusion which Mays relies.
However, the Stephens court held that, despite the lack of substantial competent evidence as to factor (8), the record as a whole reflected substantial evidence to show that Stephens was properly prosecuted as an adult. 266 Kan. at 892. This holding follows from K.S.A. 38-1636(e), which provides: The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue."
Similarly, in this case, insufficiency of evidence as to one or more factors does not, of itself, defeat the district court's conclusion that Mays failed to rebut the presumption that he should be tried as an adult. Clearly, the district court weighed each factor of K.S.A. 38-1636(e). We conclude that the court's decision to try Mays as an adult was supported by substantial evidence.
Did the Juvenile Court Proceeding Used to Authorize
Prosecution as an Adult Violate Apprendi and Gould?
Next, Mays argues that the juvenile court proceeding used to authorize his prosecution as an adult violated the principles set out in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), because it resulted in an increased sentence based upon facts not submitted to a jury or proved beyond a reasonable doubt. Mays acknowledges that his argument was rejected by this court in Jones, 273 Kan. at 777-78, but raises the issue to preserve it for future review in the federal courts.
The Jones court held that "the Kansas procedure for authorizing adult prosecution under K.S.A. 38-1636 does not violate the Sixth and Fourteenth Amendments to the United States Constitution." 273 Kan. at 778. The court explained that while Apprendi involved a trial court making a factual finding to support sentencing a defendant beyond the statutory maximum, K.S.A. 38-1636 does not involve guilt or innocence but only the determination of which system is appropriate for a juvenile offender. 273 Kan. at 778. The juvenile who is tried as an adult will be subject to the statutory maximum sentence only after a jury determines guilt beyond a reasonable doubt. Further, the procedural safeguards of the juvenile justice system are sufficient to support a determination that certification proceedings under K.S.A. 38-1636 fall outside the dictates of Apprendi. Jones, 273 Kan. 756, Syl. ¶¶ 5 and 6. Our application of Apprendi in Gould does not require a different result.
Mays' argument is without merit.
Did the Delay Between Mays' Arrest and Preliminary
Hearing Violate His Right to a Speedy Trial?
Mays was arrested on January 27, 2000. The hearing to authorize his prosecution as an adult was held on March 9, 2000. The preliminary hearing at which Mays was bound over for trial began on April 10, 2000. Mays argues that the delay between his arrest and preliminary hearing violated his right to a speedy trial, as provided in K.S.A. 2003 Supp. 22-2902.
K.S.A. 2003 Supp. 22-2902 provides in relevant part:
"(1) Every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury.
"(2) The preliminary examination shall be held before a magistrate of a county in which venue for the prosecution lies within 10 days after the arrest or personal appearance of the defendant. Continuances may be granted only for good cause shown."
The State accurately points out that this court has interpreted the 10-day time limitation of K.S.A. 2003 Supp. 22-2902(2) to be directory rather than mandatory:
"Unlike K.S.A. 22-3402, which requires the discharge of a person not promptly brought to trial, K.S.A. 22-2902(2) does not require the dismissal of the charge and the discharge of the defendant if a preliminary hearing is not provided within 10 days. State v. Fink, 217 Kan. 671, Syl. ¶ 3, 538 P.2d 1390 (1975). This time limitation is directory. Inconsequential delay beyond the 10 days will not require dismissal of the charges." State v. McClain, 258 Kan. 176, 185, 899 P.2d 993 (1995).
The McClain court further held that the timeliness of a preliminary hearing may be challenged only by a motion to dismiss filed pursuant to K.S.A. 22-3208 and no later than 20 days after arraignment. The failure to challenge the timeliness of the preliminary hearing by such a motion "constitutes a waiver and precludes review on appeal." 258 Kan. at 185. Because McClain failed to file a motion to dismiss, he waived the issue.
Similarly, in this case the record does not reflect that Mays ever filed a motion to dismiss pursuant to K.S.A. 22-3208; therefore, under the holding of McClain, Mays has waived the issue of the timeliness of the preliminary hearing.
Did the More than 8-Month Delay Between Mays'
Arraignment and Trial Violate His Right to a Speedy Trial?
Mays was arraigned on April 12, 2000, and a jury trial was scheduled for July 10, 2000. On June 13, 2000, the State filed a motion for continuance, which was granted. The trial was rescheduled for October 3, 2000. On October 6, 2000, during voir dire, the trial court declared a mistrial because of the unavailability of jurors and rescheduled the trial for January 2, 2001.
Mays argues that the more than 8-month delay between his arraignment and trial violated his speedy trial rights. First, Mays complains that the trial court erred in granting the State's motion for a continuance because the State needed additional time to have its ballistics evidence evaluated. Mays argues the State should have been required to put on some evidence to prove that it had made reasonable efforts to obtain that evidence.
K.S.A. 22-3402(1) provides that a person charged with a crime and held in jail solely because of that crime must be brought to trial within 90 days of arraignment unless the delay is the result of the application or fault of the defendant or the trial court orders a continuance under subsection (3). K.S.A. 22-3402(3)(c) provides that the time for trial may be extended under the following circumstances: "There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days."
The State accurately points out that Mays' codefendant White made the same argument in his direct appeal. This court quoted the trial court's finding that material evidence was unavailable and that the State acted in good faith:
"'If there's over a hundred pieces of ballistics evidence that needs to be examined, that's all very meticulous work, it's very time consuming. Unfortunately, the people that can do that are very few and far between, and it appears to me that there has not been any sort of delay that's caused simply for the purpose of delay, that [the State's] request is based upon a good faith basis.'" White, 275 Kan. at 600.
This court rejected White's argument, finding that the trial court did not abuse its discretion in granting the continuance. 275 Kan. at 600. Mays offers no reason why this court should change its previous ruling.
Next, Mays argues that the trial court erred in declaring a mistrial after the State would not agree to proceed to trial with only 10 jurors. Mays argues that because the jury had not been sworn, there could be no mistrial and the court should have discharged the jury panel and called a new one within speedy trial limits.
The trial court declared a mistrial on October 6, 2000, because of the unavailability of jurors. After 12 jurors were impaneled and 2 alternates selected, 4 jurors were dismissed after they indicated they could not be impartial. The jury had not yet been sworn. While the defendants agreed to proceed with fewer than 12 jurors, the State did not consent. The district court declared a mistrial.
In White, this court ruled that the trial court did not abuse its discretion in granting the mistrial. 275 Kan. at 602. However, the court was not faced with the argument Mays makes here, that a mistrial cannot be granted before a jury is sworn.
In support, Mays cites cases from other jurisdictions which hold that trial does not begin and jeopardy does not attach until a jury is sworn, thus no mistrial can be declared. See Pollard v. State, 175 Ga. App. 269, 270, 333 S.E.2d 152 (1985) (for purposes of determining whether defendant has been absent from trial and has therefore waived his right of confrontation, trial begins when jeopardy attaches; jeopardy had not attached where jury had not been sworn); Brown v. Commonwealth, 28 Va. App. 315, 326, 504 S.E.2d 399 (1998) (mistrial could not be declared based upon juror misconduct where jury had not been sworn, trial had not commenced, and jeopardy had not attached). These cases have no precedential value and involved different issues than the one presented here.
K.S.A. 22-3423(1)(a) permits a trial court to terminate a trial and order a mistrial at any time termination is necessary because it is physically impossible to proceed with the trial in conformity with the law. The statute does not define "trial" or state that a trial begins only when the jury has been sworn and, therefore, that jeopardy has attached pursuant to K.S.A. 21-3108(1)(c). However, other statutes include jury selection within references to trial. For example, K.S.A. 2003 Supp. 22-3405 requires the defendant's presence "at every stage of the trial including the impaneling of the jury."
Furthermore, in State v. Bierman, 248 Kan. 80, 88-89, 805 P.2d 25 (1991), this court held that "brought to trial" for purposes of computing a speedy trial deadline under K.S.A. 22-3402(1) does not mean when a defendant is placed in jeopardy. The issue in Bierman was whether Bierman's right to a speedy trial was violated when voir dire commenced on the 90th day following arraignment but jeopardy under K.S.A. 21-3108(1)(c) did not clearly attach until the 91st day, when the jury was sworn. This court held the speedy trial obligation under K.S.A. 22-3402(1) was not violated. 248 Kan. at 89. The trial court's determination that a mistrial could be granted is consistent with Bierman.
We hold that, under K.S.A. 22-3423(1)(a), a trial court may declare a mistrial during voir dire even before the jury is sworn and jeopardy has attached. Thus, the trial court correctly invoked the provisions of K.S.A. 22-