State v. Coe
Decision Date | 22 November 1977 |
Docket Number | No. 48516,48516 |
Citation | 223 Kan. 153,574 P.2d 929 |
Parties | STATE of Kansas, Appellee, v. Bobby D. COE, Jr., Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. When two defendants are separately charged with a crime committed by them
together, one defendant does not have the right to be jointly tried with the other defendant.
2. An indigent defendant in a criminal proceeding has no right to be supplied a transcript of the separate trial of his codefendant.
3. On a proper showing of need, an indigent defendant in a criminal proceeding is entitled to have a transcript of his preliminary hearing or portions of previous trial proceedings prepared at the state's expense, provided the transcript is necessary for the defendant to present his defense and adequate alternatives do not exist.
4. Probable cause for an arrest without a warrant exists when the facts and circumstances known to the arresting officer are sufficient to warrant a man of reasonable caution to believe a crime has been or is being committed.
5. In determining probable cause, all the information in the officer's possession, fair inferences to be drawn therefrom, and observations made by him are generally pertinent, and facts may be considered that would not be admissible on the issue of guilt.
6. Where a witness's credibility is under attack, evidence of the use of drugs is admissible to prove the witness was under their influence at the time of the occurrences to which he testifies.
7. The improper limitation of a witness's testimony, concerning drug usage on the evening of the events which are testified to at trial, may be held harmless error where overwhelming circumstantial evidence exists implicating the accused and the witness was extensively cross-examined to test his recollection of events and statements on the occasion in question.
8. Provided it is within the statutory limits, a sentence fixed by the trial court will not be set aside on appeal, unless it is so arbitrary and unreasonable that it constitutes an abuse of judicial discretion.
9. Upon resentencing, the authority of the trial court is not limited to consideration of the presentence report received as evidence; however, the trial court is restricted to a consideration of prior convictions existing at the time the original sentence was imposed.
10. A new trial should not be granted on grounds of newly discovered evidence, unless the trial court finds the evidence is likely to produce a different result on retrial.
11. In a criminal action where the jury found the appellant guilty of two counts of aggravated robbery under K.S.A. 21-3427 and sentenced him to imprisonment for 45 years to life on each count, with the sentences to run consecutively, the record is examined and it is held : Under all the facts and circumstances presented by the record, the trial court abused the exercise of its power of discretion in sentencing a twenty-year-old defendant to a term of 90 years to life, and the sentence is set aside and vacated, with orders remanding the case for resentencing by a different trial judge.
S. Richard Mellinger of Roach & Mellinger, Emporia, argued the cause and was on the brief for appellant.
Philip E. Winder, Asst. County Atty., argued the cause and was on the brief for appellee.
This is an appeal from a conviction and sentence of the trial court in Lyon County. The jury found Bobby D. Coe, Jr., (defendant-appellant) guilty of two counts of aggravated robbery (K.S.A. 21-3427). The trial court sentenced Coe to imprisonment for 45 years to life on each count and decreed the sentences to run consecutively.
The appellant asserts numerous trial errors on appeal.
Kathy Gibson and her husband own the Maverick Club, a private Class B club, located just outside the city limits of Emporia. At approximately 3:00 a. m. on September 17, 1975, shortly after closing hours two men entered an open front door of the club and took a cash box containing $250, and $29 in cash, a draft card and various identification cards from Charles Stroud, a club musician.
The robbers were described as a black man and a white man or a "salt and pepper" team. They were wearing dark stocking caps and women's hosiery over their heads. The white man carried a sawed-off shotgun. After the robbery, they left in a small, 4-cylinder car.
On September 19, 1975, J. Vernon Humphrey, a KBI agent investigating the robbery, and a local police officer stopped the appellant for speeding in downtown Emporia. Believing the appellant and his passenger, Carl Buckner, to be possible suspects in the Maverick robbery, Agent Humphrey asked them to accompany him to the Emporia Police Station for questioning. After being advised of his Miranda rights, the appellant was questioned and released. During the course of this conversation, he voluntarily allowed the officers to obtain a hair sample.
Early in the morning of September 21, 1975, the appellant, accompanied by Buckner and two women, drove to Utica, Kansas, to the home of a friend, Steven Dimitt. Dimitt testified the appellant feared they were "hot" and asked to stay with Dimitt and his wife for several weeks. While the two were reminiscing about old times, the appellant told Dimitt he had "pulled the Maverick Club robbery." Dimitt, who was on parole at the time, promptly notified local Ness County authorities who contacted Agent Humphrey. After talking with Dimitt and his wife, Agent Humphrey and Lyon County Sheriff Daniel Andrews arrested the appellant and Carl Buckner at the Dimitts' home on September 22, 1975.
A more detailed statement of the facts may be found in the companion case of State v. Buckner, Kan., 574 P.2d 918 (this date decided).
The appellant and Buckner were separately charged with the same counts of aggravated robbery. At the appellant's preliminary hearing, Agent Humphrey testified the appellant, a white man, and Buckner, a black man, developed as possible suspects because a field investigation report from the Emporia Police Department stated these two individuals lived together, associated together, had access to a car similar in description to the one used in the robbery, and a cap had been found with the initials "BDC" on it along with other items known to have been taken in the robbery. Agent Humphrey had obtained a verbal report from the KBI laboratory that they had a possible match-up on hair samples taken from the cap and the appellant on September 19. Further, Humphrey testified following the arrest, he asked the appellant what he had done with the shotgun used in the robbery and the appellant replied he "threw it away."
Subsequently, the appellant and Buckner were bound over for trial. Both men unsuccessfully moved the trial court to consolidate the two cases for trial. The appellant also moved, without success, to suppress as evidence the hair samples and his oral statements made to Agent Humphrey following the arrest, and to obtain a transcript of the suppression hearing.
Carl Buckner was tried prior to the appellant. Prior to Buckner's trial, the appellant moved to obtain a transcript of the upcoming proceedings. This motion was denied as premature. At both Buckner's preliminary hearing and trial Steven Dimitt invoked his Fifth Amendment privilege against self-incrimination, when asked if he was using marijuana at the time the appellant allegedly made incriminating statements to him.
At the appellant's trial none of the witnesses to the Maverick robbery were able to positively identify the appellant, a man 6 feet 3 inches weighing 155 pounds, as the white robber.
Kathy Gibson, who was within fifteen to twenty feet of the men during the robbery, described the white robber as a blond man of fairly small build and average height of 5 feet 8 inches to 5 feet 9 inches, carrying a sawed-off shotgun.
Sheryl York, assistant manager of the Maverick Club, was cleaning tables when the robbery occurred. She testified the black man was "extremely taller than the white man." She too described the white robber as 5 feet 8 inches to 5 feet 9 inches and was unable to identify the appellant as the man in the club. Similar testimony was given by Charles Stroud.
Thus, Steven Dimitt's testimony became especially crucial to the appellant. By oral motion, he unsuccessfully moved to have Dimitt's testimony limited to exclude the remarks relating to the confession of the robbery. The trial court also sustained an objection to the appellant's question to Mr. Dimitt as to whether Mr. Dimitt was smoking marijuana at the time of the conversation. On January 8, 1976, the jury found the appellant guilty of both counts. His motion for a new trial was overruled.
After the appellant had been sentenced and while his case was pending on appeal to this court, his counsel learned of newly discovered evidence and a second motion for a new trial was made. Accordingly, the appeal was stayed and the case remanded to the district court of Lyon County for a hearing on this motion. The evidence consisted of a robbery by a similar "salt and pepper" team which took place in the Emporia area five months prior to the Maverick robbery. The appellant, who was incarcerated at the Kansas State Industrial Reformatory at the time of the earlier robbery, had an iron-clad alibi. The appellant suggested the same "salt and pepper" team committed both robberies. Thereafter, the motion was overruled and the appellant's appeal reinstated.
The appellant first contends the trial court erred in ruling it was without authority to order a joint trial of the appellant and Carl Buckner.
After the appellant and Buckner were separately indicted on charges of aggravated robbery, the two men moved the court to grant them a joint trial. The trial court denied the motion ruling it was without authority to order a consolidated trial.
K.S.A....
To continue reading
Request your trial-
Grayson v. State
...court did not err in denying defendant's motion for the production of portions of the Audison trial transcript. "2 See e.g., State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977); State v. Peterson, 46 Ohio St.2d 425, 349 N.E.2d 308 (1976); State v. Cox, 101 N.J.Super. 470, 244 A.2d 693 (1968); S......
-
State v. McDaniel
...State v. Lovelace, 227 Kan. 348, 354, 607 P.2d 49 (1980); State v. Goering, 225 Kan. 755, 761, 594 P.2d 194 (1979); State v. Coe, 223 Kan. 153, 167, 574 P.2d 929 (1977); State v. Buckner, 223 Kan. 138, 150, 574 P.2d 918 (1977); State v. Steward, 219 Kan. at 256, 547 P.2d 773. Trial judges m......
-
State v. Foy
...constitutional rights are admissible as evidence at his trial. (State v. Cook, 224 Kan. 132, 578 P.2d 257 (1978); and State v. Coe, 223 Kan. 153, 161, 574 P.2d 929 (1977) and cases cited therein.) The statements were voluntarily given and no error has been shown in their admission by the tr......
-
State v. Boyd
...v. Tate, 228 Kan. 752, 753, 620 P.2d 326 (1980); see State v. Hunter, 241 Kan. 629, 632-33, 740 P.2d 559 (1987); State v. Coe, 223 Kan. 153, 157-58, 574 P.2d 929 (1977). K.S.A. 22-3202(3) provides that two or more defendants may be charged in the same complaint if they are alleged to have p......