State v. Hatch, 49224

• Decision Date: 01 April 1978
• Docket Number: No. 49224,49224
• Citation: 576 P.2d 687,223 Kan. 783
• Parties: STATE of Kansas, Appellee, v. Curtis Ray HATCH and Durn Smith, Appellants.
• Court: Kansas Supreme Court

Page 687

576 P.2d 687

223 Kan. 783

STATE of Kansas, Appellee, v. Curtis Ray HATCH and Durn Smith, Appellants.

No. 49224.

Supreme Court of Kansas.

April 1, 1978.

Timothy J. Carmody, Kansas City, argued the cause, and was on the brief for appellant Curtis Ray Hatch.

Steven D. Alexander, Kansas City, argued the cause, and was on the brief for appellant Durn Smith.

Dennis L. Harris, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen. and Nick A. Tomasic, Dist. Atty., were with him on the briefs, for appellee.

MEMORANDUM OPINION

PER CURIAM:

This is a direct appeal by the defendants, Curtis Ray Hatch and Durn Smith, from convictions of two counts of aggravated robbery (K.S.A. 21-3427), one count of aggravated assault on a law enforcement officer (K.S.A. 21-3411), and one count of attempted aggravated robbery (K.S.A. 21-3427; 21-3301). Both of the defendants were sentenced under the provisions of K.S.A.1976 Supp. 21-4618, which prohibits probation to a defendant convicted of an article 34 crime in which a firearm is used.

The series of events resulting in the convictions of Hatch and Smith began with the attempted robbery of the desk clerk at the Holiday Inn Motel in Kansas City, Kansas, on the evening of December 25, 1976. Displaying a pistol, the defendant Smith ordered the desk clerk to give him all of the money from the cash drawer. In response to the clerk's reply that there was no money, the defendant Hatch drew his pistol, vaulted the counter, and began searching for the money. As the two defendants held the desk clerk at gunpoint, three young women entered the lobby to request directions to the restroom. The two robbers forcibly divested the three young women of their coats and purses and ran outside to a get-away car.

As the defendants were running to their car, they were observed by police officer Jerry Sipes, who directed them to stop. They ignored his command and proceeded to enter their vehicle, with defendant Smith taking the driver's seat. The car drove away, followed by the police officer in his vehicle. The ensuing high-speed chase by police officer Sipes continued through Kansas City, Kansas, and onto Interstate 70. The defendants hit a guard rail and, for the moment, became stalled on the median strip. As police officer Sipes got out of his patrol car, defendant Hatch raised a firearm. In response, Sipes fired and Hatch returned his fire. Officer Sipes could not determine if any of the shots came from Smith, but observed that as many as ten shots came from the vehicle. Following the exchange of gunfire, the defendants drove off Interstate 70 into a residential area, with the police car in hot pursuit. The gunfire continued coming from the passenger side of the defendants' car. At the crest of a hill, the defendants' car stopped momentarily. Hatch got out. As Hatch ran between the nearby houses, he fired three shots at the approaching police car. Smith drove away and the chase continued until the car driven by Smith went out of control and struck a utility pole. Smith was arrested and taken to the hospital for treatment of injuries sustained in the collision. Following the arrest of defendant Smith, the police searched the area for Hatch. A householder in the neighborhood discovered a .22-caliber pistol in her yard and notified the police. An examination by the police disclosed that the weapon contained five loaded cartridges and one spent shell. Hatch was apprehended without resistance one block from the location where he had left the robbery vehicle. In Hatch's pocket were four .22-caliber bullets. At the trial both Hatch and Smith were identified as the robbers by the four victims of the robbery. Following their convictions by a jury, Hatch and Smith appealed to this court.

Each of the defendants raised three points on the appeal. We will consider each appeal separately.

APPEAL OF CURTIS RAY HATCH

The defendant Hatch contends that the trial court erred in admitting into evidence the .22-caliber pistol found in the area where Hatch had departed from the robbery vehicle. The defendant maintains that the pistol lacked probative value. The weapon was found a few houses away from the scene of the shooting in the direction that Hatch was running. Hatch fired at the police after leaving the automobile and, when apprehended, was carrying four .22-caliber bullets in his pocket. The pistol was properly admitted into evidence since there was a natural, necessary, and logical connection between the evidence and the proof of Hatch's possession of the pistol. (State v. Brown, 217 Kan. 595, 538 P.2d 631 (1975).)

Hatch's next point on appeal is that the trial court erred in denying his motion for a separate trial. Under K.S.A.1976 Supp. 22-3202(3), two defendants may be jointly charged if they are alleged to have participated in the same act or transaction constituting the crime charged. K.S.A. 22-3204 provides that the court may order a separate trial on the request of either of the parties. Whether or not a separate trial is to be granted rests within the sound discretion of the trial court. (State v. Jones, 222 Kan. 56, 563 P.2d 1021 (1977).) Here the testimony of the same witnesses convicted both defendants of the same crimes. The trial court did not abuse its discretion in denying a separate trial to the defendant Hatch in this case.

Hatch next challenges the constitutionality of K.S.A.1976 Supp. 21-4618 which provides in substance that a defendant convicted of a crime under article 34, chapter 21, who used a firearm in the commission of such crime, shall be sentenced to "not less than the minimum sentence of imprisonment authorized by law for that crime" and denied probation. Hatch was sentenced under this statute. The constitutionality of the statute was recently upheld in ...