State v. Davis

• Decision Date: 28 October 1994
• Docket Number: No. 69477,69477
• Citation: 256 Kan. 1,883 P.2d 735
• Parties: STATE of Kansas, Appellee, v. Derrick D. DAVIS, Appellant.
• Court: Kansas Supreme Court

Page 735

883 P.2d 735

256 Kan. 1

STATE of Kansas, Appellee, v. Derrick D. DAVIS, Appellant.

No. 69477.

Supreme Court of Kansas.

Oct. 28, 1994.

Syllabus by the Court

1. The primary test of admissibility of evidence is its relevancy to the issue in question. Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact.

2. Admission or exclusion of evidence rests within the sound discretion of the trial judge, subject to exclusionary rules.

3. In order to constitute the defense of compulsion, the coercion or duress must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The doctrine of coercion or duress cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act without undue exposure to death or serious bodily harm. In addition, the compulsion must be continuous, and there must be no reasonable opportunity to escape the compulsion without committing the crime.

4. Evidence of events subsequent to an arrest is generally not relevant to show that an individual was compelled to commit the prior criminal acts.

5. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, a reviewing court presumes that the action of the trial court was proper.

6. The exposure of a witness' motivation in testifying is a proper and important function of cross-examination.

7. The partiality of a witness is subject to exploration at trial and is always relevant as discrediting the witness and affecting the weight of the witness' testimony.

8. The harmless error analysis applies to the improper denial of a defendant's opportunity to impeach a witness for bias. A variety of factors is considered in the harmless error analysis, including the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and 9. The harmless error standard of review requires us to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result at trial.

of course, the overall strength of the prosecution's case.

10. Evidence that has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction and is not rendered inadmissible because it may disclose other or independent offenses. The law allows the admission of evidence as part of the res gestae of acts committed before, during, or after the principal event.

11. A trial court's affirmative duty to instruct on lesser included offenses exists notwithstanding a defendant's failure to request the instruction. However, the duty does not arise unless there is evidence supporting the lesser offense.

12. When a sentencing judge imposes a sentence greater than the minimum, the judge should make on the record a detailed statement of the facts and factors considered by the court. However, failure to make such a statement on the record does not necessarily indicate abuse of discretion in sentencing. Whether abuse occurred is to be determined on a case-by-case basis.

13. Generally, disparity in the sentences of codefendants does not amount to abuse of discretion where the trial court considers the individual characteristics of the defendant being sentenced, the harm caused by that defendant, and the prior criminal conduct of that defendant.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the brief, for appellant.

Michael A. Russell, Asst. Dist. Atty., argued the cause, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by Derrick Davis following his convictions and sentencing for nine counts of aggravated robbery. He was sentenced to a controlling term of 45 years to life. His claims of error include exclusion of evidence, admission of evidence, denial of his right to confront witnesses, limitation of cross-examination, failure to give instructions on lesser offenses, and improper sentencing.

The charges arose from four separate incidents in Wyandotte County. Davis substantially admitted that he was involved in each incident. He denied having played a major role in the incidents and contended he was coerced into participating because his codefendants made threats to harm him or his family.

The following is a summary of what occurred with the facts set forth most favorably to the prevailing party, as we are required to do. More facts will be added as the individual issues are considered.

A white Ford Explorer was taken from its owner in an armed robbery by three black males displaying handguns. That robbery is not involved here, and the victim was unable to identify the persons who committed the robbery. The white Ford Explorer figured in three of the four robberies that followed.

The first incident occurred at a "Shop-n-Go" store. Three black males, two of them wearing ski masks and all of them armed with handguns, robbed the store clerk and a customer. They left in a white Ford Explorer.

The next series of robberies occurred at a Hardee's restaurant. There were five victims. Three black males, all wearing ski masks and all armed with and displaying handguns, participated. One shot was fired and the perpetrators left in a white Ford Explorer.

The next event occurred at a Best Western motel, and two women were robbed. Three black males drove up in a white Ford Explorer. Two of them exited the Explorer. One robbed Dorothy Eberhard and took her car keys, her purse, her tote bag, and her car. The other male, identified as Davis by both victims, put a handgun to Amanda Radley's head and took her purse and car.

The last incident occurred outside Wyandotte High School. Three black males driving Eberhard's stolen car stopped two Wyandotte Several hours after the Wyandotte High School incident, following a car and foot chase, Davis was arrested. A gun, identified by several victims as resembling the gun used to rob them, was discovered in an abandoned house nearby. The .25 caliber Raven handgun had one round of ammunition in the chamber and six in the magazine. Elbert Roddy, a codefendant in the Wyandotte High School incident, testified that Davis threw the gun during the foot chase. When apprehended, Davis was wearing the Wyandotte High School victim's black L.A. Kings jacket, which had four .25 caliber cartridges in a pocket.

High School students. Two of the males in the stolen Eberhard vehicle exited the car, and one of them broke a victim's nose and stole his jacket. Davis was identified as pointing a gun at the second victim and taking that victim's L.A. Kings starter jacket.

Davis gave several statements to the police admitting his involvement in each of the incidents. These statements were read to the jury at trial. Davis admitted that Gregory Wells and Robert Thomas picked him up in the white Ford Explorer and took him to the "Shop-n-Go" but claimed he did not know the others planned to rob the store until the robbery was announced. He did admit that he had a chrome .25 caliber automatic gun in his hand and that he remained in the middle of the store wearing his Miami Hurricanes jacket inside out during the robbery.

Davis claimed that several days after the Shop-n-Go incident, Wells and Thomas again picked him up in the Explorer and took him to Hardee's, where the three put on ski masks and he was told they were going to rob the restaurant. Davis had a chrome .25 caliber handgun and again turned his green Miami Hurricanes jacket inside out before going into the store. The others were also armed. Davis admitted that after one of the others took a woman's purse, it was handed to him and that two of the employees who were robbed gave their wallets to him.

Davis also admitted in his statement to police that he was involved in the Best Western incident with Wells and Thomas and that he had a .25 caliber automatic weapon in his pocket. He denied pointing his gun at the victim's head. He claimed that he drove the Explorer from the scene.

Regarding the Wyandotte High School incident, Davis denied that he knew the automobile he was riding in was stolen. Elbert Roddy spotted a jacket he wanted, and Roddy, Davis, and Wells exited the car. Roddy fought with a man in an Atlanta Hawks starter jacket and obtained the jacket. Davis denied having a gun, but stated he put his hand in his pocket "[t]o fake like I had a gun or somethin'," and he took the other victim's jacket.

Roddy testified that Davis pulled a gun and took a jacket. Roddy indicated that the gun was the one Davis usually carried.

At trial, Davis denied he had a gun at the Shop-n-Go robbery. He denied displaying his gun at Hardee's, although he admitted he had a gun in his pocket. He denied taking an active role in the Best Western incident altogether. He claimed he remained in the Explorer and only drove it away because otherwise he would have been stranded. He denied pretending to have a gun in the Wyandotte High School incident. He insisted that he did not even ask the victim for his jacket but that the victim just took the jacket off and handed it to Davis.

Davis also raised the defense of compulsion at trial. He claimed he was threatened that the people he was with would drive by his house and "shoot whoever's in there." He insisted he would not have committed any of the crimes but for the fear or compulsion of Wells, Thomas, and Roddy. He did admit that he did not tell anyone about the threats...