State v. Roberts

• Decision Date: 05 November 1977
• Docket Number: No. 48519,48519
• Citation: 223 Kan. 49,574 P.2d 164
• Parties: STATE of Kansas, Appellee, v. Charles D. ROBERTS, Robert Crittenden, James E. Smith and Robert L. Taylor, Appellants.
• Court: Kansas Supreme Court

Page 164

574 P.2d 164

223 Kan. 49

STATE of Kansas, Appellee, v. Charles D. ROBERTS, Robert Crittenden, James E. Smith and Robert L. Taylor, Appellants.

No. 48519.

Supreme Court of Kansas.

Nov. 5, 1977.

Syllabus by the Court

1. A conspiracy to commit a crime is not established by mere association or knowledge of acts of the other parties. There must be some intentional participation in the conspiracy with a view to the furtherance of the common design and purpose.

2. Two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.

3. If two or more defendants have been tried together and none of the requirements in the preceding paragraph have been met a misjoinder results and is an absolute ground for reversal and separate trials.

4. A defendant's statement or confession may be used for impeachment purposes when the defendant takes the stand even though the statement is not admissible in the state's case in chief because the state failed to have a hearing in camera to determine its voluntariness (State v. Osbey, 213 Kan. 564, 517 P.2d 141) or because Miranda warnings were not given (State v. Boone, 220 Kan. 758, 556 P.2d 864).

5. When a confession or statement by a defendant has been found involuntary it is unreliable and untrustworthy and it does not then satisfy the legal standards necessary for admissible evidence. It must then be excluded whether offered in the state's case in chief or for impeachment purposes.

6. K.S.A. 60-460(i ) addresses a third party situation. Its requirements apply when the party (defendant) and the declarant (coconspirator) were participating in a plan to commit a crime and a third person (witness) is called to testify as to the coconspirator's statements made outside the presence of the defendant concerning the conspiracy for the purpose of establishing defendant's participation in the conspiracy and crime.

7. The record in a criminal action where four defendants were jointly charged in a five count information with various crimes arising from two separate incidents is examined on appeal and it is held: (1) The appellant James E. Smith should have been and is hereby acquitted on the charge of conspiracy to commit robbery for lack of evidence; (2) the judgment and convictions of Charles D. Roberts are reversed on appeal and his case is remanded for further separate proceedings; and (3) the judgment and convictions of Robert Crittenden and Robert L. Taylor are reversed on appeal and their cases are remanded for further proceedings.

James W. Wilson, of Hodge, Wood & Wilson, Wichita, argued the cause and was on the brief for appellant Charles D. Roberts.

Lewin E. Timmerman, of Timmerman & Kratzer, Wichita, argued the cause and was on the brief for appellant Robert Crittenden.

Willard B. Thompson, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the brief for appellant Robert L. Taylor.

Roger K. Wilson, of Arn, Mullins, Unruh, Kuhn & Wilson, Wichita, argued the cause and was on the brief for appellant James E. Smith.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Stephen E. Robison and Richard T. Ballinger, Asst. Dist. Attys., were with him on the brief for appellee.

FROMME, Justice:

Charles D. Roberts, Robert Crittenden, James E. Smith and Robert L. Taylor were jointly charged in a five count information with various crimes arising from two separate incidents which occurred on February 12 and 13 respectively. At trial each defendant was represented by separate counsel. The joint trial resulted in one or more convictions against each defendant. On appeal one record of the trial was filed but each appellant filed a separate brief raising various points on appeal. The 33 points raised do not affect the convictions of all appellants and in the interest of brevity we will discuss only those points necessary to dispose of the appeals and which will necessarily arise on retrials.

The first incident which gave rise to four of the five counts will be referred to as the Fletcher incident. It occurred on February 12 and involved all four appellants. Myrl (Tex) Fletcher, the victim, was living in an apartment building in Wichita. Gary Adams and Cindy Fanning were living together in a separate apartment in the same building. Gary and Cindy were previously acquainted with defendant Roberts and they were present in the Fletcher apartment when Roberts quarreled with Myrl (Tex) Fletcher on the evening of February 11. Gary and Cindy were awakened at 3:30 a. m. on February 12 by all four defendants. The four defendants sat in Gary Adams' apartment and talked for some time. Roberts began "talking about going over to Tex's house." Cindy had previously agreed to clean the Fletcher apartment and had a key to the apartment. She gave the key to Roberts. Roberts knew where Fletcher kept a pistol in his apartment. He took the key and left. When he returned he had the pistol and a bottle of wine. Cindy testified that "they" were talking about robbing Tex. She did not want to remain in Gary's apartment so arrangements were made for appellant Smith to take her and Gary to a friend's home some distance away.

Fletcher testified that he was awakened between three and five a. m. on February 12 by a noise in his living room. He saw two people in the shadows, one taller than the other and both in men's clothing. The two ran into the kitchen and poked "something" around the corner. They told him to get down on his hands and knees. He thought the "something" was a shotgun. He was told "Don't worry, we have already got your gun." At that time he saw the television, tape deck and turntable were gone from his credenza. The intruders took about $38.00 from his trouser pocket, cautioned him to remain on the floor and then left. He heard the front door open and close. The door glass was shattered. A car started outdoors and left the area. He noticed it was 4:15 a. m. when he called the police. Fletcher identified the articles taken from his apartment which included the pistol.

The second incident which gave rise to the fifth count in the information will be referred to as the Wishing Well incident. On February 13, 1975, shortly after 12:00 a. m. two men entered a bar in Wichita called the Wishing Well. One man was wearing a mask and carrying a shotgun. The other was carrying a pistol similar to the one taken from the Fletcher apartment. The man with the pistol had the manager, Braxton Bailey, empty the contents of the cash register into a canvas bag. Approximately $135.00 was obtained from the register. The robbers took Bailey's wallet containing identification and credit cards. Although the witnesses in the Wishing Well could not make positive identification of the robbers, appellants Crittenden and Taylor were later stopped and frisked. Crittenden had the contents of Bailey's wallet on his person.

As a result of these two incidents one information was filed. Roberts, Crittenden, Smith and Taylor were charged with aggravated robbery and with conspiracy to commit aggravated robbery in connection with the Fletcher incident. Roberts alone was charged with aggravated burglary and misdemeanor theft of the pistol in connection with the Fletcher incident. In addition Crittenden and Taylor were charged in count five with aggravated robbery in connection with the Wishing Well incident.

We will first consider the appeal of appellant Smith. He was charged and found not guilty of the aggravated robbery of Fletcher. He was charged and found guilty of conspiracy to commit aggravated robbery in connection with the Fletcher incident.

Our conspiracy statute provides:

"A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator." (K.S.A. 21-3302(1).)

In State v. Daugherty, 221 Kan. 612, 562 P.2d 42, this court holds:

"Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy." (Syl. 4.)

To prove a conspiracy it must be established that the conspirators had a mutual understanding or tacit agreement, a meeting of the minds, for the accomplishment of the common purpose. This meeting of the minds may be expressed or implied from the acts of the parties. (15A C.J.S. Conspiracy § 40, pp. 734-735.) However a conspiracy to commit a crime is not established by mere association or knowledge of acts of the other parties. There must be some intentional participation in the conspiracy with a view to the furtherance of the common design and purpose. (15A C.J.S. Conspiracy § 39, pp. 733-734.)

After carefully reviewing the evidence in the present record this court cannot find any mutual understanding or tacit agreement by Smith for the accomplishment of the aggravated robbery of Fletcher. It is true he accompanied Roberts, Crittenden and Taylor when they arrived in the apartment of Gary Adams. Smith was present and knew of the plans which were thereafter made. However, when Cindy Fanning, the state's principal witness to the conspiracy, was asked if Mr. Smith said anything during the planning stages her answer...