State v. Armstrong

Decision Date16 January 1987
Docket NumberNo. 58468,58468
Citation731 P.2d 249,240 Kan. 446
PartiesSTATE of Kansas, Appellee, v. Robert W. ARMSTRONG, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

In an appeal by defendant from his convictions of two counts of first-degree murder, it is held: Under the facts of this case (1) the trial court did not err in denying the defendant's motion for a new trial on the basis of newly discovered evidence; (2) the record supports a finding that the defendant knowingly and intelligently waived his right to counsel such that the journal entry shall be corrected by a nunc pro tunc order; (3) the defendant was not denied a fair trial due to the loss of evidence; and (4) the trial court did not err in its failure to give jury instructions regarding second-degree murder.

John E. Cowles, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on the brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief, for appellee.

SCHROEDER, Chief Justice:

The defendant, Robert W. Armstrong, directly appeals his convictions by a Sedgwick County jury of two counts of first-degree murder for the murders of Don and Norma Earl. This was the defendant's third jury trial. The first trial ended in a mistrial due to a hung jury. The second trial ended in a mistrial when the trial judge ruled that the defendant was not mentally competent to proceed.

On Saturday, June 2, 1979, Don and Norma Earl made plans to get a drink at the Copacabana, a tavern owned by Cecil Stembridge. Later that evening, Norma Earl called her babysitter and said she and her husband were playing pool at Leroy Willcox's house and would be home in one hour. The Earls were never seen by their family again.

Prior to his death, Don Earl was being investigated by the FBI for involvement in a stolen money order and counterfeit check operation. When questioned by the FBI, Don Earl said the defendant, an employee of NCR, had allowed Don to run checks at NCR. The FBI then questioned the defendant, without telling him Don Earl had informed on him, and the defendant denied any involvement.

Over four years later, in October of 1983, Cecil Stembridge was arrested in Texas on a kidnapping charge which originated in Kansas. At that time, Stembridge was questioned about the disappearance of Don and Norma Earl. After talking with his daughter, Tammy Stembridge, Cecil requested information on the federal witness protection program and agreed to talk about the Earls' disappearance in exchange for a grant of immunity. After showing police where the bodies were located, Cecil Stembridge was granted immunity and was the prosecution's key witness against the defendant.

Stembridge directed officers of the Sedgwick County Sheriff's Department to the grave site located in rural Kingman County, Kansas. The bodies were buried wrapped in yellow shower curtains and found in regular street clothes. The bodies were exhumed and autopsies performed.

Cecil Stembridge stated Don Earl told him in June of 1979 that Don thought people, including the defendant, were after him (Don) because they thought he had snitched on them regarding a check-writing scheme. Cecil stated Don and Norma Earl arrived at the Copacabana some time during the afternoon of June 2, 1979. While at the Copacabana, Cecil spoke with Leroy Willcox, who invited Cecil, Cecil's brother and wife, and the Earls to his home to shoot pool and drink. They proceeded to Willcox's house, where they played pool and had drinks in the basement. When the defendant arrived, Cecil stated Don Earl became quiet. Cecil walked his brother and wife to the door and upon returning to the basement, found Willcox grabbing Don Earl around the waist. A jumper cable was wrapped around Don's neck. Willcox and the defendant strangled Don Earl, each pulling on one end of the cable. Norma Earl, who had observed all of this, stated she wanted to go home. Willcox and the defendant then took the cable off Don and wrapped it around Norma's neck, strangling her. During the struggle, Norma scratched Willcox. Willcox then got some scissors and cut off her fingernails. After having some drinks upstairs, the three men (the defendant, Willcox, and Stembridge) then drove to a department store and bought two yellow shower curtains. They wrapped the bodies in shower curtains, waited until dark, and then loaded them in the trunk of Willcox's car. They drove to the country, where they dug a single hole and buried the Earls together. When they returned to town, they drove Don Earl's car to an apartment complex, where they left it.

The defendant, charged and convicted of two counts of first-degree murder, filed this appeal. Willcox, who was also charged with two counts of first-degree murder, was tried separately and, on his fourth trial, was acquitted of two counts of second-degree murder.

First, the defendant argues the trial court erred in denying the defendant's motion for a new trial on the basis of newly discovered evidence. Following the defendant's conviction, the final trial of Leroy Willcox commenced. Charles O'Hara, one of the defendant's court-appointed attorneys at his third trial, represented Willcox. During trial preparation for the Willcox trial, Assistant District Attorney Greg Waller turned over all his files to Mr. O'Hara. In these files, Mr. O'Hara discovered a memorandum from Major Leo Willey to Assistant District Attorney Waller. Also, as Mr. O'Hara prepared for the testimony of FBI Agent Robert K. Jobe, he discovered Agent Jobe's field notes. These two items, the memorandum and the field notes, are the basis for the defendant's motion for a new trial due to newly discovered evidence.

The memorandum dated January 5, 1984, from Major Willey to Assistant District Attorney Waller, concerns Tammy Stembridge. The memo stated that in December of 1983, after Cecil Stembridge had been granted immunity, Major Willey's office was contacted by an attorney looking for Tammy. The attorney, who represented the natural father of Tammy's child, explained Tammy had apparently contacted the natural father and grandparents to arrange a transfer of custody of her child to the natural father. Tammy then failed to appear in court for the adoption proceeding. At that time, Tammy was staying with her father in protective custody. When Tammy's case was rescheduled, one of the guards assigned to protect Cecil Stembridge transported Tammy to court. Then, in the middle of December, Tammy, who was no longer staying with her father, came to Major Willey's office and said what she thought had been a temporary custody situation for her child had turned out to be a permanent adoption. Tammy said she wasn't sure she was interested in the witness protection plan if she could not have her child. She asked Major Willey to look into the situation. Major Willey sent an officer to talk to the probate judge, who refused to give information to the officer but stated if Tammy had an attorney he would talk to the attorney. Major Willey then contacted an attorney, Stuart Gribble, and asked him, as a personal favor, to talk to the judge hearing the adoption proceeding. It was arranged for Tammy to talk to Mr. Gribble, who then talked to the judge. The judge stated he had explained to Tammy it was a permanent adoption and that she should have an attorney, yet, Tammy insisted on going through with the adoption. Mr. Gribble relayed this information to Major Willey and to Tammy. Several days later, Tammy complained to Major Willey concerning the lack of action taken by his office. He explained that he did not feel his office had any legal obligation to attempt to regain custody of her child for her, that she was not the protective witness, and that his office had done what she had requested. When Willey talked to Cecil Stembridge a few days later, Stembridge stated he realized the sheriff's department had no responsibility in the adoption matter. In conclusion, the memo stated:

"That's the last I heard about the situation until the day that we had the meeting with JOHN CLEVELAND, the Inspector from the Federal Marshal's Office, and JACK WILLIAMS, the Deputy United States Attorney, and GREG WALLER, the Assistant District Attorney for Sedgwick County, myself, CECIL STEMBRIDGE, his son PHILIP, and his daughter TAMMY, at which time TAMMY brought it up again. I am reducing this information to writing for MR. JOHN CLEVELAND of the Federal Marshal's Office and I am sending a copy of it to MR. GREG WALLER, the Assistant District Attorney.

"It is not for general publication and I do not intend for it to be given to anyone else. And my personal opinion is that it has no bearing whatsoever on the criminal prosecutions that MR. CECIL STEMBRIDGE is a witness in. And it is strictly a family matter of his daughter's who is a legal adult in the State of Kansas, TAMMY STEMBRIDGE."

Agent Jobe's field notes concerned the Mother's Day ring, which was one item used to identify the body of Norma Earl. At trial, the defendant argued strongly the bodies found were not those of the Earls. Although Dr. Eckert did not remember seeing a ring on the body's finger at the gravesite, one was present at the autopsy. Cecil Stembridge testified Leroy Willcox took the ring off Norma and kept it. Detective Thompson identified the ring, with three colored stones of yellow, green, and red, as the ring recovered along with the female victim. At trial, Rhonda Jackson, Norma Earl's daughter, identified the ring with the three stones of yellow, red, and green as belonging to her mother. Agent Jobe's field notes concern an earlier statement made by Rhonda Jackson describing the stones as red, blue, and blue. The handwritten notes state the following:

"Rhonda Jackson ... Ring bought her on a Mother's Day [about] 5-6 [years] ago after her real Dad died. [Bought about] '76. Silver. (3) birt...

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