State v. Hays
| Decision Date | 28 October 1994 |
| Docket Number | No. 69,707,69,707 |
| Citation | 883 P.2d 1093,256 Kan. 48 |
| Parties | STATE of Kansas, Appellee, v. Michael HAYS, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where a trial judge deems it necessary to cross-examine a witness, the judge must exercise great care to prevent giving the jury the impression that he or she is biased against a party and the judge must not forget the function of a judge and assume that of an advocate.
2. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.
3. Permitting jurors to question witnesses lies within the sound discretion of the trial court, and generally a verdict will not be reversed for allowing a juror to ask questions, absent a showing of prejudice.
4. Trial courts which permit jurors to submit questions to witnesses should maintain strict control and should adhere to certain safeguards to minimize the risks associated with the practice. The trial court should not solicit questions and should only permit them for purposes of clarification. The testimony of a witness should not be interrupted by questions from jurors. Jurors should submit questions in writing and without any discussion with other jurors. Counsel should be afforded the opportunity to object outside the presence of the jury. The trial court must determine the relevancy of the questions. The trial court should instruct the jury not to draw any inference if a question submitted is not asked. The trial judge, rather than counsel or jurors, should question the witness. Finally, counsel should be given the right to further examine the witness following the jury's questions.
5. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
6. The word "facilitate" in K.S.A. 21-3420 means something more than just to make more convenient. A taking or confining, in order to be said to facilitate a crime, must have some significant bearing on making the commission of the crime easier.
7. If a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement 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.
8. To constitute the crime of robbery, it is necessary that the violence to the owner of property must either precede or be contemporaneous with the taking of the property. Robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his or her escape.
9. When a victim's possession and control of property is severed by force or threat of bodily harm, the taking is from the victim's "presence" as that term is used in statutes defining robbery, although the taking is not within the victim's immediate view.
10. The prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial.
Charles A. O'Hara, of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on the brief for appellant.
Charles R. Reimer, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellant.
This is a direct appeal by Michael A. Hays from his convictions (by a jury) of aggravated burglary (a class C felony), aggravated robbery (a class B felony), kidnapping (a class B felony), and criminal damage to property (a class E felony). He was sentenced to a controlling term of 30 years to life.
The defendant contends the trial court erred in allowing the jury to submit written questions to be asked of a witness and in the method used in asking the questions. He also contends there is not sufficient evidence to support the convictions for aggravated robbery and kidnapping and that the prosecutor's closing argument was improper.
Shortly before 1:00 a.m. on October 1, 1992, four white males broke into the home of Deborah and Bruce Sauer. Deborah was in the bedroom when she heard a noise at the front door. When she went into the hallway, she observed four men break through the front door. All of the men were wearing jeans and black t-shirts, and three of them had crowbars. Deborah recognized one of the men as Michael Hays, the defendant.
After the four men entered the house, one of the men held Deborah against the wall with a crowbar. Hays and another man went into the kitchen. Deborah was unable to observe them in the kitchen. The fourth man took her Tandy 1000 computer, which was in the living room. He then went outside, and through the window Deborah observed him throw the computer monitor against Bruce's truck. Marks on the monitor and truck were consistent with the monitor having been thrown against the truck. The man then returned to the living room, and Hays and the other man ran out of the kitchen and the three left the house. Deborah again observed Hays as he was leaving. The man holding Deborah against the wall then released her and left.
After the men left, Deborah discovered that her purse, containing identification and some money, was missing. A sander and some cigarettes and a lighter were also missing. Deborah did not see who carried the items out of the house. Deborah's computer was destroyed. There was also damage to the screen door and to Bruce's truck.
After police arrived, Bruce took Officer Herring to a house where he thought Hays might be. Bruce identified Hays' car. Officer Herring observed three or four dark t-shirts on the front and back seats of the car. The hood of the car was warm, suggesting it had been driven recently. Officer Herring knocked on the door of the house repeatedly, but no one answered. However, Officer Herring could see at least six individuals through the window curtains, and he heard an unidentified male voice say not to open the door.
Hays was arrested some two and a half hours later while driving his mother to work in his car. Hays was wearing shorts and no shoes, though he admitted he was wearing jeans earlier in the evening.
Hays was charged with one count each of aggravated burglary, kidnapping, aggravated robbery, and criminal damage to property. The jury convicted him of all four counts. Hays was sentenced to concurrent terms of 5 to 20 years for aggravated burglary and 15 years to life for kidnapping and to concurrent terms of 15 years to life for aggravated robbery and 1 to 5 years for criminal damage to
property. The concurrent sentences imposed for aggravated robbery and criminal damage to property were ordered to run consecutive to the concurrent sentences imposed for aggravated burglary and kidnapping, for a controlling term of 30 years to life.
Hays contends that the trial judge committed reversible error when he asked questions of witnesses and permitted the jury to submit written questions.
Hays points out that while the trial judge may ask questions of witnesses, the judge must take great care and must not act as an advocate or give the impression of partiality or bias. Hays asserts that Judge Watson did not refrain from being biased and that Judge Watson was rude to defense counsel and to a witness who testified that Hays did not commit the crimes. Moreover, Hays points out that Judge Watson's question to Officer Dessenberger concerning the shorts Hays was wearing at the time of his arrest was based on some mysterious, unspoken communication Judge Watson received from the jury.
This court has approved the examination of witnesses by the trial judge.
"[T]he purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant and it is a part of the business of the trial judge to see that this end is attained, even though in accomplishing the full development of the truth it sometimes becomes necessary for him to examine and cross-examine the witnesses." State v. Boyd, 222 Kan. 155, 158, 563 P.2d 446 (1977).
"Where a trial judge deems it necessary to cross-examine a witness, he must exercise great care to prevent giving the jury the impression that he is biased against the defendant and he must not forget the function of a judge and assume that of an advocate."
"If a trial judge believes that additional information should be obtained from a witness in order to clarify the evidence and enable the jury to arrive at the true facts, the better practice is for the trial judge to discuss the matter with counsel outside the presence of the jury and request counsel to pose the questions to the witness." Boyd, 222 Kan. 155, Syl. pp 1-2, 563 P.2d 446.
See State v. Ridge, 141 Kan. 60, Syl. p 3, 40 P.2d 424 (1935).
In State v. Anderson, 243 Kan. 677, 677-78, 763 P.2d 597 (1988) (quoting State v. Hamilton, 240 Kan. 539, Syl. p 5, 731 P.2d 863 [1987], this court set forth our standard of review of claims of judicial misconduct in questioning witnesses:
" 'Allegations of judicial misconduct during trial must be decided on the particular...
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