State v. Antwine

• Decision Date: 29 February 1980
• Docket Number: No. 50906,50906
• Citation: 607 P.2d 519,4 Kan.App.2d 389
• Parties: STATE of Kansas, Appellee, v. James E. ANTWINE and Mitchell McHenry, Appellants.
• Court: Kansas Court of Appeals

Page 519

607 P.2d 519

4 Kan.App.2d 389

STATE of Kansas, Appellee, v. James E. ANTWINE and Mitchell McHenry, Appellants.

No. 50906.

Court of Appeals of Kansas.

Feb. 29, 1980.

Syllabus by the Court

1. The standards for relevancy, identification, and admission of physical evidence are discussed and applied.

2. Subject to well-defined exceptions, a defendant may not present matters or issues on appeal which were not raised before the trial court.

3. A verdict or finding will not be set aside, nor will the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless it appears of record that an objection to the evidence was timely interposed and stated so as to make clear the specific ground of the objection.

4. In considering the sufficiency of evidence to sustain a conviction, this Court looks only to the evidence in favor of the verdict, it does not weigh the evidence; and if the essential elements of the charge are sustained by any competent evidence, the conviction stands.

5. The defendants are entitled to an instruction on their theory of the case even though the evidence introduced thereon is slight and is supported only by defendants' own testimony.

6. The trial court has a duty to instruct on lesser included offenses even though such instructions have not been requested.

7. There must be a rational basis in the evidence from which a finding of guilt on a lesser included offense can be made before it is error not to give an instruction on the lesser offense.

8. Robbery and theft are kindred crimes and the elements constituting theft are necessarily included in robbery.

9. An accused has a right to be present at every stage of his or her trial and when a jury requests information as to any part of the law or evidence arising in the case, it is to be given in open court in the presence of the accused unless the accused is voluntarily absent.

10. The presence of an accused at an in chambers conference that concerns only questions of law is neither constitutionally nor statutorily required.

11. An attorney may waive a client's right to be present at trial when it is shown by the trial record that the accused voluntarily waived the right to be present.

12. An attorney cannot waive the right of an accused to be present at trial without first having discussed the matter with the accused.

13. Such a conference and waiver of right will not be presumed from a silent record.

14. In a criminal prosecution wherein defendants were convicted of robbery, it is held : (1) The trial court did not err (a) in admitting into evidence weapons that had been found in the vicinity of the arrest two days after defendants were arrested; (b) in allowing the State to prosecute defendants for multiple counts of robbery; and (c) in admitting into evidence testimony that money and jewelry seized from defendants had been returned to persons whom the State contended were robbery victims, although defendants contended the property was theirs. (2) The trial court committed reversible error in failing to instruct on the lesser included offense of theft. (3) The trial court erred (a) in permitting the court reporter to enter the jury room and read testimony taken at trial; and (b) in communicating with the jury concerning application of the instructions and in allowing a review of some evidence presented at trial, all out of the presence of the defendants and without their having waived the right to be present.

Patrick Nichols, Topeka, for appellants.

C. William Ossman, Asst. Dist. Atty., Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before PARKS, P. J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge:

This is a direct appeal by the defendants from their conviction of one count of robbery in violation of K.S.A. 21-3426.

The defendants were tried on twelve counts of aggravated robbery and each was convicted on one count of robbing Cecil Weber. From the record before us, it appears that Mitchell McHenry was convicted by virtue of aiding and abetting James E. Antwine. The charges arose out of an incident that occurred at a dice game in Topeka, Kansas. The evidence is highly conflicting, but sufficient evidence was presented to the jury which, if believed, would have supported either conviction or acquittal on all charges of aggravated robbery or the lesser included offense of robbery. The jury obviously disbelieved or rejected a considerable amount of testimony from both sides, and it was not entirely consistent in what evidence it rejected and accepted. Both defendants were sentenced to not less than four nor more than twenty years and are presently incarcerated. This appeal followed.

Defendants raise seven issues which include failure to instruct on theft and self-defense, errors in admission of evidence, insufficient evidence to support the verdict and alleged violation of defendants' statutory and constitutional rights to be present at every stage of their trial. It is impossible in the limited space available to do justice to the conflicting evidence. Twenty-one witnesses testified, many of whom either were involved in an illegal dice game for money or, if not actually engaged in gambling, were in the room and had the opportunity to participate.

The State's evidence generally was that a dice game was in progress at 804 East 15th Street, Topeka, Kansas. Various witnesses who testified estimated that as few as fifteen to as many as thirty-five persons were in the house the night of the crime. The State's evidence was that defendant Antwine produced a sawed-off shotgun and along with McHenry and two other men proceeded to rob at least fourteen individuals of a considerable amount of cash (over $3,000) as well as jewelry consisting of rings and watches. The alleged victims were forced to strip and lie on the floor. Several of the victims were physically assaulted during the alleged robbery. Not all of the victims could identify the defendants as having been present when the robbery occurred.

Evidence from both sides showed that defendants fled the house and a chase ensued on the Kansas Turnpike. A group of heavily armed (handguns, a fully automatic M1 rifle with a 45-round clip, and a shotgun) alleged victims, several highway patrol troopers, local police and a Topeka Police Department helicopter all were looking for a white Cadillac that was seen leaving the vicinity of the alleged robbery. The white Cadillac was stopped by law enforcement officers and was searched. Over $2,000 in cash and two pistols were recovered. Only two men and a woman were in the white Cadillac, and the officers knew four men were involved. The helicopter observed an eastbound Mercury automobile make a U-turn and drive very slowly west. That vehicle was stopped and the two defendants were found to be the sole occupants. They were arrested and the vehicle was then searched. A holster was recovered but no weapons were found in the car. At trial, defendant Antwine testified he had grabbed the holster when the fight broke out. For two and a half hours during the following morning, several officers searched the roadside from the point where the Mercury made its U-turn to where the white Cadillac was stopped. They found nothing. Two days later near the same point, officers found a sawed-off shotgun and two weapons within one foot of the roadway. They appeared to have been deliberately placed there. One of the weapons was a derringer of a size similar to that of the holster. The derringer was not identified as having been used at the alleged robbery, and no one claimed ownership of it or the holster.

The two defendants testified in their own behalf. Their version was that they, two other men and one woman came to Topeka in two cars. Their express purpose in coming was to use "loaded" dice to cheat in a dice game. Defendant Mitchell McHenry was acquainted with at least one of the victims, and both the victim and McHenry testified each recognized the other and they spoke before McHenry entered the dice game. At trial McHenry produced dice of various sizes, shapes and colors. He testified that he observed the dice in use at the gaming table, then went into the restroom and took a similar pair from his dice pouch; his dice would roll only even numbers, thus making it impossible for him to lose. The "loaded" dice were in McHenry's possession when he was arrested. Cecil Weber is the victim who defendants were convicted of robbing, and McHenry identified Weber as the houseman who ran the game and cut the pot. McHenry testified he won a lot of money and that he borrowed a yellow handbag from Weber to put the cash in. He also testified that from time to time he accepted jewelry on pawn from the game's participants and put that in the bag. He stated it was his practice while cheating to stand beside a woman or someone who appeared to him to be an inexperienced dice player, but that he became careless and the woman next to him picked up the "loaded" dice and accused him of cheating. According to McHenry, Weber then pulled a gun and threatened to kill him. The defendant Antwine allegedly hit Weber in the head and another member of the group picked up Weber's gun. Antwine then grabbed their money along with other money that was lying on the gaming table and fled. A witness whom defendants had met in jail testified in their behalf that he was present when the incident occurred at the dice game and verified in part the defendants' version of what occurred.

It is our opinion that several complaints made by defendants are valid, and that because of the errors defendants are entitled to a new trial on the robbery charge.

I. Admission of Guns Into Evidence.

Defendants objected at trial to the admission into evidence of a sawed-off shotgun, a derringer and another pistol that were found along the turnpike near the point where their car had been stopped the night of the alleged robbery....