State v. Holley, s. 57663

• Decision Date: 17 January 1986
• Docket Number: 57664,Nos. 57663,s. 57663
• Citation: 238 Kan. 501,712 P.2d 1214
• Parties: STATE of Kansas, Appellee, v. Mark L. HOLLEY, Appellant.
• Court: Kansas Supreme Court

Page 1214

712 P.2d 1214

238 Kan. 501

STATE of Kansas, Appellee, v. Mark L. HOLLEY, Appellant.

Nos. 57663, 57664.

Supreme Court of Kansas.

Jan. 17, 1986.

Syllabus by the Court

In an appeal from a conviction of aggravated robbery, the record is examined and it is held: The trial court did not err in (1) refusing to admit physical evidence on the ground it was irrelevant; (2) admitting the confession of a codefendant which did not incriminate the defendant without giving a limiting instruction; (3) denying defendant's motion for a separate trial; (4) denying defendant's motion for a mistrial based on juror misconduct; (5) denying a new trial based upon newly discovered evidence which the trial court found lacked credibility; and (6) denying defendant's motion for a judgment of acquittal. It is also held there was sufficient evidence to support the conviction.

S.A. (Tim) Scimeca, Wichita, argued the cause and was on the brief for the appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for the appellee.

SCHROEDER, Chief Justice.

Mark L. Holley (defendant-appellant) appeals from his conviction of aggravated robbery (K.S.A. 21-3427) and from the subsequent revocation of probation in a previous felony theft conviction. The defendant raises numerous issues on appeal, including: whether the trial court erred in refusing to admit certain photographs; whether the court erred in admitting incriminating statements of the codefendant in the absence of a limiting instruction; whether the court erred in refusing to grant the defendant's motion for severance of trials; whether the court abused its discretion by failing to grant the defendant's motion for mistrial; whether the court erred in denying the defendant's motion for a new trial based on newly discovered evidence; whether there was sufficient evidence to support the verdict; and whether the trial court erred in denying defendant's motion for acquittal. The defendant also contends that if his conviction of aggravated robbery is reversed, then the revocation of his probation in the previous case must be reversed.

Since the defendant challenges the sufficiency of the evidence, we turn first to the facts. On June 6, 1984, at about 10:40 p.m., the Ken-Mar Amoco Station at 13th and Oliver Streets in Wichita, Sedgwick County, Kansas, was robbed. The attendant of the station, Roy Davis, said a man wearing stockings over his face and hands and a blue baseball cap forced open a sliding window in the station attendant's booth, waved a knife in Davis' face and demanded money. Davis gave him over $500 in cash along with two personal checks which had been cashed for customers earlier that evening. The robber stuffed some of the money into his pockets and then asked for a paper sack in which to put the rest of the money. The robber then fled. Davis immediately called the police.

Maurice Madison, a customer at the service station, witnessed the robbery. When the robber fled from the station, Madison followed him. The robber ran across a parking lot to the front of a nearby abandoned store. The robber dove into the passenger side window of a car, and the car immediately pulled away. Madison observed that the car was a Cadillac, approximately a 1974 to 1975 model, and that it was dark brown with a lighter top. He also noticed the license plate was red with white lettering. After losing sight of the car, Madison returned to the service station and told the police what he had seen. The police recovered the robber's baseball cap from where Madison had seen it blow off.

Madison then left the crime scene and drove to a nearby fastfood restaurant. Upon leaving the restaurant and heading home, he observed the robber's "getaway" car parked at the gas pumps of a Quik-Trip which was across the street from the Ken-Mar Amoco station. Madison immediately returned to the service station and reported his observation to the police.

Upon investigation, the police found a car which fit Madison's description (a two-toned brown Cadillac with a red and white license plate) parked at the Quik-Trip. Mark Holley, the defendant herein, was standing behind the car and had apparently just finished pumping gas into it. A man named Willie Richardson was seated in the passenger side of the car. The police arrested both men and transported them to the crime scene. Both Davis and Madison were unable to identify either man as the robber.

After obtaining Holley's consent, the police conducted a search of the Cadillac. A paper sack was found in the trunk of the car and a nylon stocking was found on the floorboard. Some of the stolen bills and the two personal checks were found on Richardson. More of the bills were found on the passenger side floorboard of the patrol car in which Richardson had been transported from the Quik-Trip. In all, approximately $503 was found in Richardson's possession.

After being advised of and waiving his Miranda rights at the police station later that night, the defendant told the police that five or ten minutes before 11:00 p.m., he had been on his way to the Quik-Trip when he saw a man called "Chill Will" (a/k/a Willie Richardson) flagging him down near a Hardee's restaurant two blocks west of 13th and Oliver. Richardson had a sack in his hand and he was very insistent about putting it in the trunk. The defendant eventually gave Richardson the trunk key and watched him put the sack in. The defendant then drove to the Quik-Trip where he bought beer and gasoline. The defendant did not mention his wife's presence to the police.

However, at trial, both the defendant and his wife--Rochelle Holley--testified that Rochelle had been with the defendant when he stopped to pick up Willie Richardson while they were on their way to the Quik-Trip. They also testified that Willie had obviously been drinking and was carrying a brown paper sack which they assumed contained liquor. The defendant insisted that Richardson put the container in the trunk because he didn't want to carry an open container in his car. When they arrived at the Quik-Trip, Rochelle and the defendant went inside while Richardson remained in the car. Although Richardson had been sitting in the back seat, the defendant testified that he moved to the front while the defendant and his wife were inside the store. Rochelle testified that she had remained in the store longer than her husband and when she looked outside she saw the police arresting him. She left on foot because she had an outstanding traffic warrant and was afraid she would be arrested. The defendant and Rochelle both testified that they had been together the entire day and evening, and they denied any knowledge of, or involvement in, the robbery.

Following the joint trial of Holley and Richardson, the jury returned verdicts of guilty as to both defendants. Defendant Holley was subsequently sentenced to eighteen years to life. Also, his probation on a 1982 conviction for felony theft was revoked and sentence was reinstated (a condition of probation was that the defendant not violate the law).

The defendant first contends the trial court erred in refusing to admit photographs depicting cars similar to his Cadillac.

The State's case against defendant Holley rested primarily on the testimony of Maurice Madison, who identified the defendant's car as the getaway vehicle. The defendant maintained that the similarity between his car and the robber's getaway vehicle was purely coincidental. To support his contention, the defendant proffered photographs depicting vehicles similar to his own which might have fit Madison's description. The defendant claimed the photographed cars were all located in his neighborhood (near the Ken-Mar Amoco Station) in northeast Wichita. The photographs were apparently taken sometime between the defendant's arrest and his trial.

The trial court excluded the evidence on the ground it was irrelevant to the present case.

Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination is a matter of logic and experience, not a matter of law. State v. Abu-Isba, 235 Kan. 851, 857, 685 P.2d 856 (1984). Subject to certain exclusionary rules, the admission of physical evidence lies within the sound discretion of the trial court, and is to be determined by the court on the basis of the relevancy of the evidence and its connection with the accused and the crime charged. State v. Jakeway, 221 Kan. 142, 558 P.2d 113 (1976). An abuse of discretion exists only when no reasonable man would take the view adopted by the trial court. State v. Wilkins, 220 Kan. 735, 556 P.2d 424 (1976).

In the case at bar, no proffer was made by the defendant connecting the cars pictured with any physical evidence of the robbery. Also, there was no showing that any of those cars were in the vicinity of the robbery on the night in question. Moreover, none of the cars pictured matched Madison's description as closely as does the defendant's car. Although the defendant proffered eleven photographs, only five different cars were pictured (there were various views of each car). The first car (exhibits M-Q) had no license plate; only a partial view was shown of the next two cars (exhibits R and S); a fourth car (exhibit T) had a white and blue Kansas license plate; and the fifth car (exhibits V-W) was gold.

Photographs of the defendant's car were admitted revealing a two-toned brown Cadillac with a red and white Missouri license plate. The defendant's car clearly fit Madison's description of the getaway vehicle. Moreover, physical evidence from the robbery was found in the defendant's car.

After excluding the defendant's proffered evidence, the trial court noted that the jurors were free to use their common knowledge that many cars exist, in a town the size of Wichita, that would fit Madison's description. The...