State v. Kelly, WD

• Decision Date: 04 November 1997
• Docket Number: No. WD,WD
• Citation: 956 S.W.2d 922
• Parties: STATE of Missouri, Respondent, v. Ray E. KELLY, Appellant. 52869.
• Court: Missouri Court of Appeals

Page 922

956 S.W.2d 922

STATE of Missouri, Respondent, v. Ray E. KELLY, Appellant.

No. WD 52869.

Missouri Court of Appeals Western District.

Nov. 4, 1997.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Ray E. Kelly appeals his convictions of four counts of first degree robbery and four counts of armed criminal action. Mr. Kelly argues that the trial court abused its discretion in overruling his motion to sever one count of first degree robbery and one count of armed criminal action from the remaining six counts. We agree, and remand for severance and new trials on all counts.

I. FACTUAL AND PROCEDURAL BACKGROUND

Viewed in the light most favorable to the verdicts, the evidence showed the following. On July 21, 1995, Kevin Peoples and Bill Adkins, cable repairmen for Southwestern Bell, were working on 41st Street in Kansas City, Missouri. Around 1:30 that afternoon, Mr. Peoples saw two men approach Mr. Adkins and ask what he was doing. After talking to Mr. Adkins, the men then headed back up the street, and Mr. Peoples lost sight of them. As Mr. Peoples walked around his truck to get some supplies, a man with a gun confronted him and demanded his wallet. Mr. Peoples later identified the man as the appellant, Ray E. Kelly. Mr. Peoples threw his billfold at Mr. Kelly's feet. Mr. Kelly then told Mr. Peoples that he had better run because he was going to shoot him. Mr. Peoples ran to Mr. Adkins' truck, and they drove back to the garage and called the police. When Mr. Peoples told Mr. Adkins what Mr. Kelly was wearing, they realized that Mr. Kelly was one of the men who had earlier approached Mr. Adkins on the street.

Approximately ten days later, shortly after midnight in the early morning hours of July 31, Bryan Tedlock was out in his father's 1983 red Honda Civic. He and his friend, Dave Parker, drove to an apartment complex looking for a party. Mr. Parker saw Mr. Kelly and another man standing in the parking lot and asked them if they knew where the party was. Mr. Kelly and the other man approached the car on the driver's side. Mr. Kelly pulled out a gun. He told Mr. Parker to get in the back seat and told Mr. Tedlock to move over into the front passenger seat. Mr. Kelly then got behind the wheel, and the other man got in the back seat. After driving around for approximately forty-five minutes, Mr. Kelly stopped the car and everyone got out. Mr. Kelly threatened to shoot either Mr. Tedlock or Mr. Parker and told them to stay away from the car. Mr. Kelly and the other man then got back in the car and drove away.

Several hours later, at approximately 4:15 a.m., Mr. Kelly and another man entered a convenience store at 107th Street and Blue Ridge. Mr. Kelly's face was painted red and blue, and he carried a pistol. The other man wore a white mask and carried a shotgun. Mr. Kelly told the clerk behind the counter to "hit the floor" and made another employee open the register. After the robbers removed the money from the register, they left the store. One of the employees noticed the robbers pull away in a red compact car.

The next day, at approximately 1:00 p.m. on August 1, 1995, Mr. Kelly and another man entered the 1/2 Price Store at 87th Street and Blue Ridge. They went to the men's department and began quickly taking clothes off of the racks. Mr. Kelly left the store, got in an older model red Honda Civic, and moved it to the front of the building. He then came back inside, picked up the pile of clothes he had left, and both men quickly headed for the door. When they reached the first set of doors, store employees began to converge on the men, and both robbers began running away. A security officer ran to the car in an attempt to lock it in case the men got away and came back for it later. As the officer was opening the car door, Mr. Kelly approached and pointed a gun at her. The other man came up, and the two ran off and went into an apartment complex next to the store.

Witnesses at each of the robberies identified Mr. Kelly as one of the robbers. Police eventually arrested Mr. Kelly on October 23, 1995, based on outstanding warrants. On November 9, 1995, the State filed an information charging Mr. Kelly with one count of first degree robbery and one count of armed criminal action for the robbery at the 1/2 Price Store. On December 4, 1995, the grand jury returned an indictment charging Mr. Kelly with eight criminal counts. Counts 1 and 2 charged Mr. Kelly with first degree robbery and armed criminal action for robbing Mr. Peoples on July 21, 1995. Counts 3 through 8 charged Mr. Kelly with three counts of first degree robbery and three counts of armed criminal action arising out of events taking place over the course of July 31 to August 1, 1995. On December 15, 1995, the State filed an information in lieu of indictment charging Mr. Kelly with the same offenses. Finally, the State filed a second amended information alleging that Mr. Kelly was a prior offender.

On March 4, 1996, Mr. Kelly filed a motion to sever Counts 3 through 8 from Counts 1 and 2. He argued that Counts 3 through 8 had not been lawfully joined to the first two Counts because they were not of the same or similar character, were not based on the same act or transaction, and were not part of a common scheme or plan. Trial began on March 5, 1996, and the trial judge overruled Mr. Kelly's motion for severance. The jury found Mr. Kelly guilty of all eight counts, and the judge sentenced him to consecutive terms of fifteen years for each of the four counts of first degree robbery. The judge also sentenced Mr. Kelly to terms of ten years for each of the four counts of armed criminal action, to be served concurrently with each other and with the robbery sentences. This appeal followed.

II. COUNTS 1 AND 2 WERE IMPROPERLY JOINED TO THE REMAINING COUNTS

Mr. Kelly's sole argument on appeal is that the trial court abused its discretion in overruling his motion to sever Counts 1 and 2 from the remaining counts. He claims that the first robbery and the later three robberies were not of the same or similar character, were not based on the same act or transaction, and were not part of a common scheme or plan and therefore could not be properly joined. He also argues that he was prejudiced by being tried for the first robbery simultaneously with the later three robberies and that trying them together allowed the State to present evidence that would have been inadmissible in separate trials. Mr. Kelly does not challenge the sufficiency of the evidence.

Appellate review of a claim of failure to sever charges involves a two-step analysis. State v. Kelley, 901 S.W.2d 193, 202 (Mo.App.1995); State v. Tobias, 873 S.W.2d 650, 653 (Mo.App.1994). First, the court must determine whether the initial joinder of the offenses was proper. Id. If the joinder was proper, the court must then determine whether the trial court abused its discretion in refusing to sever the offenses. Id.

Whether joinder of offenses is proper or improper is a question of law. State v. Tripp, 939 S.W.2d 513, 517 (Mo.App.1997); Kelley, 901 S.W.2d at 202. If joinder is found to be improper, prejudice is presumed and severance is mandatory. State v. Simmons, 815 S.W.2d 426, 430 (Mo. banc 1991). In...