State v. Longobardi, 60741

• Decision Date: 24 June 1988
• Docket Number: No. 60741,60741
• Citation: 756 P.2d 1098,243 Kan. 404
• Parties: STATE of Kansas, Appellee, v. Richard Joseph LONGOBARDI, Appellant.
• Court: Kansas Supreme Court

Page 1098

756 P.2d 1098

243 Kan. 404

STATE of Kansas, Appellee, v. Richard Joseph LONGOBARDI, Appellant.

No. 60741.

Supreme Court of Kansas.

June 24, 1988.

Syllabus by the Court

1. The privilege against self-incrimination ends after sentence is imposed where a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it.

2. The length of jury deliberation is no indication of trial error.

3. Failure to object at trial to the court's failure to question a juror about potential prejudice forecloses a defendant's right to appellate review of the issue.

Shannon Crane, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, and Brad L. Keil, Asst. Appellate Defender, were on the brief for appellant.

Jerome A. Gorman, 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.

HERD, Justice:

This is a criminal appeal. Richard Longobardi was convicted of first-degree murder, K.S.A. 21-3401, and aggravated robbery, K.S.A. 21-3427. He was sentenced to life imprisonment for murder and 15 years to life for aggravated robbery, to run concurrently with the sentence for murder.

This is the saga of an extended family and the consequences of its experience in drug dealing. Richard and Cindy Gitchell, with Cindy's three children by a previous marriage, Carey, Lee, and Georgia Payne; Cindy's father, Roscoe Stewart; and Richard Longobardi, Georgia Payne's boyfriend, all lived as one extended family in both units of an up and down duplex in Kansas City, Kansas. Kevin Stewart, the family advisor and brother of Cindy Gitchell, was in the drug rehabilitation unit at Osawatomie State Hospital.

On June 21, 1986, Richard Gitchell asked his 19-year-old stepson Carey Payne to make arrangements for him to buy 20 pounds of marijuana for $13,000. Carey agreed to comply with the request; he knew a supplier from St. Louis. But temptation, sparked by the cash involved, raised its ugly head. Carey began to scheme of a way to steal the money from his stepfather without delivering the marijuana. Carey and Richard Longobardi discussed the opportunity and came up with a plan.

The plan was for Scott Spear, a family friend, to put his two guns in his car and pick up Longobardi, Lee, and Georgia. Spear and Longobardi would hide in some tall weeds near the rendezvous point at the Rosedale State Bank, Lee would drive the car across the street and wait in a Pizza Hut parking lot, and Carey and Gitchell would drive up and stop behind the bank. Carey would walk to the front of the bank, leaving Gitchell in the car, and Spear and Longobardi would come out of the weeds armed and wearing ski masks, and demand the drug money from Gitchell. Carey would, during the robbery, signal the getaway car, and all would escape in Spear's car with the money.

All the preliminaries went according to plan as if all had agreed to it. However, Longobardi claimed he was in the car with Lee and Georgia, fast asleep and oblivious to what was going on, and Lee and Georgia claimed they were unaware of the plan and thought they were going to a movie.

The one hitch in execution of the plan was that before Gitchell could be robbed, he was killed. Spear testified Longobardi shot Gitchell because Gitchell started towards Spear while Spear was searching the car for the money. Spear then turned around and shot Gitchell. Carey testified when he came back behind the bank and saw his stepfather lying on the pavement, he rolled him over and took $800 from his pocket before Longobardi shot him once again in the head.

Carey then found the rest of the money in the car, and headed for Spear's car across the street, stuffing "two grand, maybe three" in his pocket as he ran. When Carey reached the car, Lee drove back to pick up Spear and Longobardi, and all five of them drove off, leaving Gitchell lying on the pavement. They then drove to an isolated area and dumped the guns. Lee, by this time, wanted the advice of his uncle, Kevin Stewart. They drove to Osawatomie to see him, but because it was about 1:30 a.m. when they arrived, they had to talk to him by phone. Carey and Longobardi told Kevin everything that had happened.

Kevin testified Carey did not try to pretend Longobardi was the only one involved in the shooting. Kevin said Longobardi told him he sat in the weeds while Spear was robbing Gitchell and when Gitchell "started going towards Scott," Longobardi tried to shoot warning shots over Gitchell's head, but instead hit him. Kevin testified Carey told him how he got the money from Gitchell's pocket and the car, and that both Carey and Longobardi told him where they had dumped the weapons. With the help of the police, Kevin located one of the weapons in the area Carey and Longobardi had told him about.

On the way back from Osawatomie, Carey divided the money not already in his pocket among the men. He said he did not think anyone saw him put the extra money in his pocket, so he offered a little over $3,000 each to Spear and Longobardi, who accepted it. Spear agreed this is what happened. Carey said he offered some money to Lee, but Lee didn't want "blood money," so Carey kept it.

Several days later, on the night of Gitchell's funeral, Carey got drunk and told his grandfather, Roscoe Stewart, what had really happened. The grandfather had already taken his daughter, Cindy, and his two grandchildren, Lee and Georgia, to the police station to give a more accurate version of events than they had previously given investigators. Cindy admitted for the first time that her husband had arranged with Carey for a drug buy behind the bank, and Lee and Georgia admitted they heard shots, saw their stepfather dead, and drove around while weapons were discarded and money counted, but denied they had known of the plan before it was executed. Neither Lee nor Georgia were charged with the death of their stepfather.

After Carey's confession, Roscoe Stewart encouraged Carey and Longobardi to give statements to the police. The statements given by everyone eventually led to the arrest of Spear, Carey, and Longobardi. Spear's version of events was essentially a straightforward account of events as has been described. He neither tried to shield nor implicate Longobardi. He said they had both waited to rob Gitchell, and they both shot him. Spear pled guilty to second-degree murder, armed robbery, and assault with a deadly weapon and was sentenced to 15 years to life on each count.

Carey's statement was similar to Spear's, except he insisted the plan was originally Longobardi's. Longobardi testified Georgia had talked him into going to the movies with everyone that night, even though he had only had a couple of hours of sleep the night before and was very tired. He said he kept falling asleep in the back seat of the car and did not know what was going on until he heard shots and woke up in the Pizza Hut parking lot. His memory of the rest of the events of the evening generally coincided with the others' testimony, except he said he had never been involved in the robbery or murder, and said he refused to take any of the money.

Neither Carey, Georgia, Lee, nor Spear tried solely to blame Longobardi for the crimes. Carey and Spear nevertheless testified they saw Longobardi shoot Gitchell, and Georgia and Lee agreed they left Longobardi in the weeds behind the bank with Spear and denied he was asleep in the car with them when the robbery and murder took place.

Longobardi was asked on cross-examination why, when he testified he became wide awake after he realized what had happened and could testify perfectly as to where the ammunition and guns had been dumped, he wrote a letter to Georgia saying he was so drunk and drugged he didn't remember anything that took place that night. Longobardi said the letter wasn't true, that he wrote it because Carey asked him to contact Georgia to help Longobardi be Carey's alibi, and this was a signal to her how she should testify. He stated he could not explain, exactly, how the letter would help Carey.

Longobardi and Carey were charged with aggravated robbery and first-degree murder and the cases were severed. Longobardi's first trial ended in a hung jury.

The first issue is whether the trial court erred in allowing Carey Payne to invoke the Fifth Amendment when Longobardi attempted to have him called as a hostile witness. The Fifth Amendment of the United States Constitution provides that "[n]o person ... shall be compelled in any criminal case to be a witness against...