State v. Daniels

• Decision Date: 25 June 2004
• Docket Number: No. 87,790.,87,790.
• Citation: 278 Kan. 53,91 P.3d 1147
• Parties: STATE OF KANSAS, Appellee, v. SONJI DANIELS, Appellant.
• Court: Kansas Supreme Court

278 Kan. 53

91 P.3d 1147

STATE OF KANSAS, Appellee, v. SONJI DANIELS, Appellant.

No. 87,790.

Supreme Court of Kansas.

Opinion filed June 25, 2004.

Sandra M. Carr, assistant appellate defender, argued the cause and was on the briefs for appellant.

Bradley R. Burke, assistant district attorney, argued the cause, and Scott E. McPherson, assistant district attorney, and Christine Kenney, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion was delivered by

LUCKERT, J.:

A jury convicted Sonji Daniels of aiding and abetting aggravated robbery, conspiracy to commit aggravated robbery, and endangering a child. In an unpublished opinion, the Court of Appeals affirmed her convictions. State v. Daniels, No. 87,790, unpublished opinion filed October 3, 2003. This court granted her petition for review.

Daniels raises six issues: (1) Did Daniels' sentences violate her right to trial by jury and to due process of law where the jury instructions defining aggravated robbery omitted the element of bodily harm?; (2) Where the jury instructions defining aggravated robbery omitted the element of bodily harm and failed to define bodily harm, were the instructions clearly erroneous?; (3) Was Daniels' right to a fair trial violated by the admission of involuntary statements coerced by police from her 12-year-old son?; (4) Did the district court err in denying Daniels' motion for mistrial based upon the misconduct of a prosecution witness?; (5) Were Daniels' convictions of aiding and abetting aggravated robbery and conspiracy to commit aggravated robbery supported by sufficient evidence?; and (6) Was Daniels' conviction of endangering a child supported by sufficient evidence?

Facts

Daniels accepts the Court of Appeals' rendition of the facts. Those facts are set out below:

"On April 4, 2001, the victim walked the few blocks from his home to the Capitol Federal Savings Bank as he had done frequently in the past. Arriving at the bank, the victim deposited a portion of his paycheck and withdrew $293 in cash, which he placed in the left front pocket of his pants. Directly behind the victim in line at the bank, the defendant waited to withdraw some money from her account.

"After leaving the bank, the victim, who was 78 years old and moved very slowly, turned down the alley connecting 10th and 11th Streets between Vermont and Massachusetts and headed for the post office. Before the victim reached 10th Street, two young African-American males entered the alley from 10th Street, approached the victim, and punched the victim in the chest, knocking him down and causing him to hit his head on a drain pipe. The two men then pinned the victim to the ground while one of them reached into the victim's front left pocket and pulled out the cash the victim had just withdrawn from the bank. Afterwards, the African-American males ran towards 10th Street.

"The victim picked himself up and walked over to a doorway where Salwa Iskandrani witnessed the attack on the victim. She and her son Mohammed helped the victim into the restaurant owned by Mohammed and provided the victim with a wet towel to wipe the blood flow from a cut in the victim's head. The victim remained in the restaurant until the police arrived. Ms. Iskandrani later identified the attackers as African-American males who were both dressed in red-colored shirts and long sweat pants. The victim provided a similar description.

"About 3:30 p.m., Diana Kitsmiller exited her place of employment at the corner of 10th Street and Massachusetts to put money in a parking meter. Kitsmiller had parked next to the alley across from D & D Tire Shop. As Kitsmiller was putting money in the meter, she was startled as two African-American men nearly bumped into her as they ran out of the alley onto 10th Street.

"Kitsmiller continued to watch the men until she lost sight of them shortly after they crossed Massachusetts Street. Kitsmiller then investigated the alley with a fellow employee and discovered that the victim had been robbed. She provided a statement to the investigating officers.

"As Officer Craig Shanks ended his shift and left the law enforcement center at approximately 3:20 p.m., on April 4, 2001, he noticed a blue, 4-door Chevrolet bearing an Illinois license tag, which the officer associated with Dewayne Moss due to a prior traffic stop of the vehicle. The vehicle was parked in the 1000 block of New Hampshire Street on the west side of the street, facing south, but, approximately 2 hours earlier that day, Officer Shanks had seen the same vehicle parked on the east side of the 1100 block of Rhode Island, facing north.

"As he observed the vehicle, he saw Moss and another man running across New Hampshire Street. The officer identified Moss from a distinctive scar running down the left side of his neck. While the officer did not recognize the other person, he noted that both men wore similar clothing. Later, hearing reports of the robbery over the police radio, Officer Shanks informed dispatch of his observations.

"When dispatch broadcast Officer Shanks' report, Officer Leo Souders traveled down Rhode Island Street from 9th Street and observed a dark blue Chevrolet Malibu with an Illinois license. Noting that the tags had expired in March of 1999, Officer Souders made a traffic stop of the vehicle and approached the driver, who was an African-American woman. The vehicle contained only one passenger, an African-American juvenile male.

"Officer Souders identified the driver of the vehicle as the defendant. He requested permission to search the vehicle and the defendant's purse, and the defendant consented. After the officer had completed his search, the defendant requested permission to leave to pick up her children from school.

"Officer Souders and Officer Verbanic followed the defendant to her apartment and requested permission to search the premises. The defendant again consented, but the search provided no evidence of the robbery.

"In the course of investigating the robbery, the police identified and interviewed an employee of D & D Tire Shop, who had witnessed two African-American males emerging from a blue Chevy Malibu and entering the alley at approximately 3:30 p.m. on April 4, 2001. The witness stated that one of the men was approximately 6 feet and wore jeans and a red and white shirt; the other was approximately 5 inches shorter than the first and wore cut-off jean shorts and a dark shirt.

"Because D.D., the son of the defendant, was in the car when the defendant was stopped on April 4th for having expired license tags, the police decided to interview him as a possible witness to the robbery. Detective Lance Flachsbarth and Officer Ryan Sayler first questioned D.D. in the principal's office at D.D.'s school on April 13, 2001. During this interview, D.D. asserted that only his mother and he had been in the vehicle on April 4th and that they had not transported Moss anywhere.

"According to Detective Flachsbarth, however, D.D.'s statements became fraught with contradictions after the detective began exploring D.D.'s initial responses. Consequently, the detective decided to conduct a second interview that same day after picking up D.D. and two of his siblings at the Boys and Girls Club.

"At the second interview, D.D. stated that in the early afternoon of April 4th, his mother and he had visited the law enforcement center. According to D.D., after completing their business, the defendant and D.D. were met by Moss and D.D.'s older brother, Dante. The defendant, the 2 children, and Moss all rode in the car to the bank. D.D. told the detective that his mother, the defendant, then entered the bank. When the defendant returned, she spoke to Moss and Dante outside the car. The defendant then drove around the corner, and Moss and Dante exited the vehicle and walked down the alley.

"After the interview, Detective Flachsbarth requested D.D. to show the police the route that the defendant took from the bank to the place where Moss and Dante exited the vehicle in front of the D & D Tire Shop." Slip op. at 2-7. State v. Daniels, No. 87,790, unpublished opinion filed October 3, 2003.

A jury convicted Daniels of aiding and abetting aggravated robbery, conspiracy to commit aggravated robbery, and endangering a child. Daniels received a controlling sentence of 66 months' imprisonment.

Where the Jury Instructions Defining Aggravated Robbery Omitted the Element of Bodily Harm and Failed to Define Bodily Harm, Were the Instructions Clearly Erroneous?

Daniels' first and second arguments are based upon the trial court's failure to properly instruct the jury on the elements of the underlying crime of aggravated robbery. The jury instruction omitted the element of bodily harm which distinguishes a simple robbery from an aggravated robbery. Robbery is defined as "the taking of property from the person or presence of another by force or by threat of bodily harm to any person." K.S.A. 21-3426. Aggravated robbery is defined as a robbery "committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery." K.S.A. 21-3427.

Neither party objected to the jury instruction as given. It appears that the omission of the bodily harm element was inadvertent as the State argued in closing that the abrasion to the back of the victim's head constituted the bodily harm element of aggravated robbery.

On appeal, Daniels argues that the omission of the bodily harm element violated her right to jury trial and due process and that, because of the omission, the jury instructions were clearly erroneous. Considering the issues in the reverse order submitted by the parties, we first discuss whether the omission of the bodily harm element render the jury instructions clearly erroneous. This issue, which incorporates the clearly erroneous standard, states our standard of review since Daniels did not object to...