State v. Fisher

• Decision Date: 10 March 1995
• Docket Number: No. 70303,70303
• Citation: 257 Kan. 65,891 P.2d 1065
• Parties: STATE of Kansas, Appellee, v. Mario S. FISHER, Appellant.
• Court: Kansas Supreme Court

Page 1065

891 P.2d 1065

257 Kan. 65

STATE of Kansas, Appellee, v. Mario S. FISHER, Appellant.

No. 70303.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. A waiver of trial by jury, voluntarily and regularly made by the defendant in a criminal action who knew and understood what he or she was doing, cannot afterward be withdrawn except in the court's discretion.

2. If there is no substantial question of law or triable issue of fact and the files and records conclusively show that the defendant is not entitled to relief on a motion, then there is no requirement that a hearing be held or that counsel be appointed.

3. Mere conclusions of a petitioner for which no evidentiary basis is stated or appears are not sufficient bases for relief from conviction.

4. The word "facilitate" in K.S.A. 21-3420 means something more than just to make more convenient. A taking or confining of any person, in order to be said to facilitate a crime, must have some significant bearing on making the commission of the crime easier or lessening the risk of detection.

5. If a taking or confining of any person is alleged to have been done to facilitate the commission of another crime, to be kidnapping under K.S.A. 21-3420 the resulting taking or confinement:

(a) must not be slight, inconsequential, and merely incidental to the other crime;

(b) must not be of a kind inherent in the nature of the other crime; and

(c) must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Garry L. Howard, of Slape and Howard, Chartered, Wichita, argued the cause and was on the brief, for appellant.

David Lowden, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

ABBOTT, Justice:

This is a direct appeal by Mario S. Fisher from his convictions for one count of aggravated kidnapping, six counts of aggravated robbery, six counts of kidnapping, and one count of aggravated battery. He was sentenced to a controlling term of life plus 15 years to life.

Fisher contends the trial court erred in refusing to allow him to withdraw his waiver of a jury trial and to appoint different counsel to represent him. He also contends evidence concerning the Spears Restaurant robbery is insufficient to establish the movement required to prove aggravated kidnapping and kidnapping. Two other errors claimed are that the aggravated kidnapping and aggravated battery convictions are multiplicitous and that the trial court abused its discretion in failing to justify on the record a disparity in sentencing between Fisher and two other persons convicted in the Spears Restaurant robbery.

Fisher's convictions arise out of three robberies. Two of the robberies occurred the same morning (Bib & Rib Restaurant and Kentucky Fried Chicken). In both incidents two individuals wearing nylon stocking masks and armed with handguns entered, took money from cash registers and persons present, locked the victims in walk-in coolers, and left. The victims were unable to identify the defendant as one of the robbers in either robbery.

Three days later, the third incident occurred at Spears Restaurant. As with the first two incidents, two men wearing nylon masks and armed with guns entered the restaurant. They took money from the register as well as a money clip from the owner, Randy Spears, and a wallet from a customer, Gary Howard. One of the robbers then ordered the manager, Laurie Traffas, to open the safe. Spears told the men that he could open it. The safe was a cylinder floor safe. To get into the lower portion of the safe a key was needed. The key to open the safe was in the office. One of the robbers said, "Let's go get it." As Spears stood up to get the key, the robber hit him on the head with the butt of a gun. The force of the blow knocked Spears to his knees, and he began bleeding profusely. Traffas and Spears then walked through the waitress station, down a hallway, and through the kitchen to the office with the robber following them. Once in the office, Traffas obtained the key. The robber then picked up Traffas' purse, and the three returned to the front of the restaurant. Spears unlocked the safe with the key and placed money from the safe in Traffas' purse. The robbers then asked where the walk-in freezer was, but after they received no response they left.

Wichita police officers had arrived at the scene and were waiting outside the restaurant. They could see through plate glass windows and observe the front of the restaurant. They watched the two robbers run out of Spears Restaurant and enter a white car parked at the front entrance with its headlights on and engine running. After a vehicle chase, the white car hit a pole and came to a stop. Two men exited the car on the passenger side and one exited on the driver's side. All three were taken into custody after a foot chase. The defendant was identified as the driver of the car and the person sitting in the car while the robbery took place. There was one handgun in the front seat of the car and one in the back seat. Additionally, in the back seat was Traffas' purse and the bank bags from the Spears robbery.

Spears and Traffas both identified two individuals as the ones who robbed the restaurant, but they did not identify the defendant as one of the robbers. Howard was unable to identify any individuals, including the defendant, as the robbers.

The defendant gave a confession to the police. He admitted that he committed the Bib and Rib and Kentucky Fried Chicken robberies with Gilbert Thomas; a man named Randy was driving the white car during those robberies. Both the defendant and Thomas were wearing pantyhose masks and displayed weapons, but the defendant did not think his gun was loaded. The defendant's "job" was to tell everyone to get on the floor, and Thomas told everyone to get into the freezer. They split the money taken in the robberies three ways.

The defendant also admitted to the police his involvement in the Spears Restaurant robbery. He initially told the police he asked for a ride from two strangers in a white car. The two men decided to stop for some food, and they went into Spears while the defendant remained in the back seat of the car. Ten minutes later, the men ran out of the store with guns in their hands, and the driver told the defendant to get into the front seat and drive. The defendant jumped over the split front seat and drove the car away. After the car hit a telephone pole, the men told him to run, and he did. The defendant insisted he did not know either of the men or that a robbery was going to occur. A short time later the defendant changed his story and admitted that he knew the men and that he initially drove to Spears, then moved to the back seat while the two men went inside, and moved back to the front seat to drive away.

The next day the defendant changed his story about the Spears robbery again. He admitted that he was with Andre Jackson and Gilbert Thomas. The three of them stopped at Dillons to buy some gloves and pantyhose. Jackson and Thomas told the defendant to stay in the car and drive around to the front of Spears, which he did while Jackson and Thomas went in with guns. When they came out, the defendant drove off. The defendant admitted that he knew they were planning a robbery, but he denied knowing where the robbery would take place. They intended to split the money from the robbery three ways. The defendant also admitted that he had lied the night before in giving his story.

The defendant gave a different story at trial. He insisted that he was home sleeping on the morning of August 8, 1992, when the Bib and Rib and Kentucky Fried Chicken incidents occurred. He denied being involved in a robbery that day. The defendant's cousins also testified that he was at home during the morning those robberies occurred.

The defendant did admit at trial that he was with Jackson and Thomas on the day of the Spears Restaurant robbery. He testified that he was driving Thomas' girlfriend's car and they were drinking beer and gin. Thomas said he was hungry and told the defendant to pull into Spears. The defendant had no money, so he waited in the car listening to music while Jackson and Thomas went inside. About 10 minutes later they came back acting panicky, and the defendant realized that Thomas had a gun. Thomas told the defendant, "Shut up. Drive, mother-fucker," so the defendant drove away past the police. The defendant testified that at one point during the chase he told Thomas and Jackson he was going to stop the car and run, but Thomas pointed his gun at the defendant's head so the defendant kept driving. After the car hit a telephone pole, the defendant ran away as he was scared of going to jail because of the high-speed chase. The defendant insisted that there was no mention of a robbery before Jackson and Thomas went into Spears. The defendant testified that he only confessed to the police because he was told that if he confessed he would get to go home or get probation, that if he did not confess they would "hang my ass in court," and that Thomas had already implicated him.

Following a bench trial, the court convicted the defendant of two counts of aggravated robbery and one count of kidnapping in the Bib and Rib incident; two counts of aggravated robbery and four counts of kidnapping in the Kentucky Fried Chicken incident; and two counts of aggravated robbery, one count of kidnapping, one count of aggravated kidnapping, and one count of aggravated battery in the Spears Restaurant incident. The defendant was acquitted of robbing Gary Howard of his wallet in the Spears incident because the charging information was insufficient.

The district court sentenced the defendant to 15 years to life for each of the six aggravated robbery...