State v. Lomax

• Decision Date: 05 April 1980
• Docket Number: No. 51129,51129
• Citation: 608 P.2d 959,227 Kan. 651
• Parties: STATE of Kansas, Appellee, v. John LOMAX and Danny Williams, Appellants.
• Court: Kansas Supreme Court

Page 959

608 P.2d 959

227 Kan. 651

STATE of Kansas, Appellee, v. John LOMAX and Danny Williams, Appellants.

No. 51129.

Supreme Court of Kansas.

April 5, 1980.

Syllabus by the Court

1. Where a similar offense is offered to prove identity under K.S.A. 60-455, the evidence, to be admissible, must disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the same person committed both of the offenses.

2. Where a witness who testified at a preliminary hearing of a codefendant refuses to testify at the accused's trial, it violates the accused's right of confrontation to admit into evidence at his trial a transcript of the witness' preliminary hearing testimony where the accused was not provided an opportunity to cross-examine the witness at the preliminary hearing.

3. Ordinarily, where a prosecution witness in a criminal action refuses to testify by responding to all questions with answers such as, "I don't recall" or "I don't know," his prior hearsay statements are not admissible, because the witness is not available for cross-examination as required by defendant's constitutional right of confrontation of witnesses.

Jay H. Vader, of Jenkins, Way, Turner & Vader, Chartered, Kansas City, argued the cause, and Robert E. Jenkins, Kansas City, was with him on the brief for appellants.

Dennis L. Harris, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice:

This is a direct appeal in a criminal action in which the defendants-appellants, John Lomax and Danny Williams, were tried together and convicted by a jury of aggravated robbery (K.S.A. 21-3427) and aggravated battery (K.S.A. 21-3414). A third defendant, Cashley Woods, was tried at the same time, but the district court declared a mistrial after the jury could not arrive at a verdict.

This prosecution arose out of a robbery which occurred at a Kansas City residence on December 9, 1978, at approximately 8:30 p. m. The owner of the house, Leon Smith, was watching television with a young neighbor girl, Mary Ellen Bagby. Smith testified that in response to a knock at the door, he looked out the window and saw the defendant, Lomax. Smith opened the door and three men rushed inside the house. He identified them as Lomax, Williams, and Woods. According to Smith, Woods was the last of the three to enter. He struck Smith in the forehead with a gun, knocking him to the floor. There was some dispute as to whether the other two robbers carried guns. Following their entry into the house, the robbers ransacked the residence, taking clothing, guns, and cash. The only real issue presented at the trial was the identity of the robbers. Lomax and Williams asserted the defense of alibi, claiming that at the time of the robbery they were playing cards at a friend's house. In addition to Lomax and Williams, three other witnesses testified in support of their alibi. The defendant Woods likewise denied that he was one of the robbers and presented his separate alibi. The jury found both Lomax and Williams guilty as charged. Both defendants took a timely appeal to this court.

The defendants' first point on the appeal is that the trial court erred in failing to instruct the jury on the lesser included offenses of robbery and battery. They contend the discrepancies in Smith's testimony raised doubts as to whether or not a gun was used by the robbers, thus requiring the trial court to give lesser included offense instructions. Defense counsel requested such instructions but the request was denied by the trial court on the basis that the evidence was undisputed that a gun was used in the robbery. The trial court concluded that since the only defense was alibi the defendants were either guilty of armed robbery or innocent of all charges. We have concluded that the trial court correctly denied the requested instructions. The evidence was clear that at least one of the robbers had a gun; in fact, Smith identified the weapon as a .38-caliber pistol. In addition, the evidence was undisputed that the victim Smith was struck in the head causing severe bleeding to the extent it was necessary to take him to the hospital. Under K.S.A. 21-3427, aggravated robbery is defined as a robbery committed by a person who is armed with a dangerous weapon or where bodily harm is inflicted upon any person in the course of such robbery. Here it is undisputed that the victim Smith suffered bodily harm in the course of the robbery. Hence, the offense would be aggravated robbery whether or not one of the robbers actually possessed a firearm. It is also apparent that the nature of the assault upon Leon Smith was more serious than the offense of simple battery under K.S.A. 21-3412. Under that statute, battery is described as the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner. Here the application of force was done in a manner whereby great bodily harm could have been inflicted. It follows that there was no reason to instruct on the lesser included offense of simple battery under K.S.A. 21-3412.

The defendants' second point on the appeal is that the trial court erred in admitting evidence of a 1973 conviction of the defendant Lomax of aggravated robbery in order to prove identity under K.S.A. 60-455. Prior to trial, Lomax's motion to suppress the prior crimes evidence was heard and denied. At the hearing on the motion, the State brought to the stand detective Parks of the Kansas City police department who testified that Lomax and two other men were involved in the armed robbery of the Prolerized Steel Company in Kansas City in September of 1973. According to Parks, Lomax was armed with a .32-caliber pistol. Lomax and his two confederates entered the business, ordered the employees to lie on the floor, threatened to kill anyone who did not, and proceeded to rifle the cash register. The court held this charge to be similar to the present case so as to tend to prove the identity of Lomax as one of the robbers in this case. At the trial, the State did not actually call detective Parks to testify but instead introduced the prior testimony of Lomax at the trial of a codefendant in the Prolerized Steel robbery. Lomax testified in substance that, while armed with a pistol, he entered the business, required the employees to lie on the floor, took cash, and left.

The rule is well established in this State that where a similar offense is offered for the purpose of proving identity, the evidence must disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the same person committed both of the offenses. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). There is a comprehensive discussion on the subject of the admissibility of other crimes evidence in the comment to PIK Crim. 52.06 (1980 Supp.) contained in the January, 1980, Kansas Judicial Council Bulletin. This court on several occasions has determined the sufficiency of similarities to justify admission of other crimes evidence to prove identity under K.S.A. 60-455. State v. Gourley, 224 Kan. 167, 578 P.2d 713 (1978); State v. Johnson, 222 Kan. 465, 565 P.2d 993 (1977); State v. Jackson, 222 Kan. 424, 565 P.2d 278 (1977); State v. Bly, 215 Kan. at 177, 523 P.2d 397. In each instance, where other crimes evidence was offered to prove identity, the test applied was whether the factual circumstances of the two crimes were sufficiently similar to raise a reasonable inference that the same person committed both crimes. In ruling that the two crimes were sufficiently similar in this case, the trial court reasoned as follows "There is no doubt that there is a similarity in the two offenses, the prior offense and the present offense. In each instance, there were three individuals involved in the armed robbery acting in concert. In each instance I am looking at State's evidence, and I am assuming that the State's evidence will be substantially what it was at the preliminary hearing. In each instance, at least one of the persons committing the armed robbery were armed with a deadly weapon, to wit: a gun. In each instance, at least one or more of the victims were told to lie on the floor. And in each instance, there was property taken. Also in each instance, the act occurred in Kansas City, Wyandotte County, Kansas. So that there is no doubt that there is considerable similarity, I grant you that the place where the two crimes were committed are different and that one was commercial or wholesale operation and the other was a residence."

We have concluded that the trial court erred in the admission of the evidence as to Lomax's prior conviction of aggravated robbery in 1973. The 1973 offense involved the robbery of a place of business; the robbery in the case at bar involved a residence. In 1973, Lomax went into the Prolerized Steel Company with the pretense of filling out an application for employment and then committed the robbery. In the present case, the three robbers entered the premises forcibly by crashing through the door. The robbery committed in 1973 was committed in the Armourdale district, an industrial district in central Kansas City, Kansas. The present offense was committed in the far northern district of Kansas City, a residential area. In the 1973 offense, only money was taken. Here the house was ransacked and several items of clothing were taken by the robbers. Suffice it to say, the only similarity in the two robberies was that in both at least one of the persons committing the armed robbery had a gun and in each instance at least one or more of the victims was told to lie on the floor. We cannot accept the ruling of the trial court that the crimes were sufficiently similar to raise a reasonable inference that the person who committed one of the crimes committed the other. We hold...