State v. Jackson, 47966

• Decision Date: 13 December 1975
• Docket Number: No. 47966,47966
• Citation: 543 P.2d 901,218 Kan. 491
• Parties: STATE of Kansas, Appellee, v. David JACKSON, Appellant.
• Court: Kansas Supreme Court

Page 901

543 P.2d 901

218 Kan. 491

STATE of Kansas, Appellee, v. David JACKSON, Appellant.

No. 47966.

Supreme Court of Kansas.

Dec. 13, 1975.

Syllabus by the Court

In a prosecution for three counts of aggravated robbery of a drugstore, one of its employees and a customer, it is held:

1. The trial court did not err in failing to sequester the jury;

2. The three counts, while arising out of one transaction, involved three separate takings of property from three separate persons and were properly charged as three separate crimes;

3. The record does not support appellant's claim of prosecutorial misconduct;

4. Since three robbers participated in the crimes it was proper to give an instruction on each participant's criminal responsibility for aiding and abetting the others; and

5. There is nothing in the record to substantiate appellant's claim that he was denied the right to testify on his own behalf or was otherwise denied the effective assistance of counsel.

Robert A. DeCoursey, Kansas City, argued the cause, and Thomas DeCoursey, Kansas City, was with him on the brief for appellant.

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 brief for appellee.

FOTH, Commissioner:

This is an appeal from a conviction of three counts of aggravated robbery in violation of K.S.A. 21-3427.

On February 23, 1974, three men entered Nelson's Pharmacy in Kansas City, Kansas, and at least two of the three were armed with handguns. After ordering those present onto the floor, the trio robbed the pharmacist on duty of money, drugs, and some deposit slips, all belonging to the pharmacy. In addition, money was taken from a customer, and money and a pocketknife from an employee.

An automatic silent alarm alerted the police who, with the aid of a Kansas City Star reporter present outside the building for an unrelated reason, were able to trace two of the men to a shed in a nearby alley. Appellant David Jackson and a companion were promptly arrested in that shed less than a block from the pharmacy. A search incident to the arrest turned up two small caliber handguns; the pocketknife, three deposit slips and $123.25 in cash were found in appellant's shirt pocket.

Appellant urges five points of error:

I. It is alleged that the trial court erred in failing to sequester the jury. No request for sequestration was made at trial. Actual prejudice is neither alleged nor disclosed by the record. The mere possibility of prejudice is suggested because one of the witnesses was the reporter, who might have written something about the trial, which some of the jurors might have seen.

In State v. Platz, 214 Kan. 74, 76, 519 P.2d 1097, 1100 this court refused to hear a challenge to a fair trial when the 'bald assertion of possible prejudice (was) unsupported by the record' and the defense had neither objected below nor asked for a change of venue. Similarly, in State v. Eldridge, 197 Kan. 694, 421 P.2d 170, cert. den. 389 U.S. 991, 88 S.Ct. 486, 19 L.Ed.2d 483, this court found no prejudice even though newspaper reporting of the trial was so comprehensive as to include statements by the county attorney that certain of defendant's witnesses would be cited for perjury. In that case no evidence was presented to show any juror was cognizant of or influenced by the reports and the jury was presumed to have followed the court's 'admonition.' A proper admonition was given in this case and we reach the same conclusion.

II. Appellant next complains that he was charged three times with the same crime; in other words he contends that the robbery was only one transaction. The contention is without merit:

K.S.A. 22-3202 provides:

'(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.'

While the incident here was one overall transaction, three separate robberies were committed with property of three different persons being taken by threat of bodily harm against three separate individuals.

As appellant correctly points out, the test to be applied in determining identity of offenses is 'whether each requires proof of a fact which is not required by the others.' (State v. Pierce et al., 205 Kan. 433, 469 P.2d 308, Syl. 3.) In that case, which involved extortion charges, counts were quashed which charged exactly the same crime against the same victim. Unlike Pierce, this case involves three victims, each of whom was robbed, and the evidence required to prove the crime is different as to each. Three separate counts were therefore proper. Cf. State v. Bradley, 215 Kan. 642, 527 P.2d 988.

III. Appellant alleges that he was denied a fair trial because the prosecution sought to introduce evidence which he claims it knew to be inadmissible, namely the three deposit slips taken from the druggist. The claim is one of prosecutorial misconduct.

The testimony shows that the three deposit slips were taken from the druggist in the robbery and were found on the person of appellant by the arresting officers. The police returned them to the druggist, who kept them until he brought them to court. No identification marks were ever placed on the slips, however, making it impossible for the police officers to positively identify them. As a result, the trial court found the evidentiary foundation insufficient and refused to admit the slips into evidence.

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