State v. Manning, 70510

• Decision Date: 10 March 1995
• Docket Number: No. 70510,70510
• Citation: 891 P.2d 365,257 Kan. 128
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Bruce J. MANNING, Appellant.

Page 365

891 P.2d 365

257 Kan. 128

STATE of Kansas, Appellee, v. Bruce J. MANNING, Appellant.

No. 70510.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. Where, during its deliberation, the jury advised the court it was confused as to what claims the State was required to prove, the trial court's response is considered and held to be appropriate under the circumstances herein.

2. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant's background, the facts of the case, the public safety, and the statutory guidelines for sentencing.

3. Where the sentence exceeds the minimum, the legislature intended that the sentencing judge place on the record a detailed statement of the facts and statutory sentencing factors considered by the court. Failure to do so may constitute reversible error, depending on the facts of the particular case.

Rebecca E. Woodman, Asst. Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with her on the brief for appellant.

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

McFARLAND, Justice:

Bruce J. Manning appeals his jury trial conviction of aggravated robbery (K.S.A. 21-3427).

For his first issue, defendant contends that the trial court's response to a question submitted by the jury constituted an abuse of judicial discretion. We do not agree.

Instruction No. 6 provides:

"The defendant is charged with the crime of aggravated robbery. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

1. That the defendant intentionally took property from the person or presence of Voris Bailey;

2. That the taking was by force or threat of bodily harm to Voris Bailey;

3. That the defendant was armed with a dangerous weapon; and

4. That this act occurred on or about the 25th day of July, 1991, in Wyandotte County, Kansas."

Instruction No. 7 provides:

"The State has the burden of proving the defendant is guilty. The defendant is not required to prove he is not guilty. You must assume the defendant is not guilty unless the evidence convinces you of the defendant's guilt.

"Your determination should be made in accordance with these instructions, and this is the test you should apply: If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the State, you should find the defendant not guilty."

The presiding juror submitted the following question:

" 'Claims' referred to in item 7

" 'If you have ... any of the claims....' What does 'claims' refer to?

"1. The entire testimony presented by the state

"2. The questions on # 6

"3. Other."

Upon receipt of the question, an in-chambers proceeding was had. Present were the trial judge, prosecutor, defendant, and defense counsel. The trial judge read the question and then stated:

"It would be my intention to call them out and tell them that the claim referred to in item seven are those elements set out in Instruction No. 6 of the charge. The claims are not anything else but the things that must be proved beyond a reasonable doubt of those elements set out in Instruction No. 6."

The State agreed, stating that the jury was "obviously confused" and needed the court to give additional instructions. Defense counsel disagreed and objected to the court's answer, contending that the court should advise the jury to decide the case based upon the instructions and to reread the instructions if it had any questions concerning them.

The trial court recalled the jury and stated as follows:

"Mr. Belt, you sent me a question as follows: It's got claims referred to item seven. If you have any of the claims, what does claims refer to? One, the entire testimony presented by the State; two, the questions on No. 6; or three, other. Instruction No. 7, when you get down to the part you're referring to, your determination should be made in accordance with these instructions and the test you should apply is this:

"If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the State, you should find the defendant not guilty. The claims, as that word is used in Instruction No. 7, is referring to the elements in Instruction No. 6. Instruction No. 6 sets out four particular elements that you must find each and every one of those elements beyond a reasonable doubt to make the finding that's guilty of that charge. So the word claims refers back to those four items in Instruction No. 6.

"Mr. Belt, does this answer your question?

"MR. BELT: Yes."

K.S.A. 60-248(e) provides:

"If, after the jury has retired for deliberation, it desires further information as to any part of the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court in the manner directed by the court, following which the court, after notice to counsel for the parties, may consider and make such provision for a response to the request of the jury as the court finds to be required under the circumstances."

In State v. Bandt, 219 Kan. 816, 549 P.2d 936 (1976), a theft case, the jury advised that it was confused as to when the defendant had to have knowledge that the items he received had been stolen. The court allowed the prosecutor and defense counsel to discuss their points of view on the matter, but the court declined to give the jury further instruction.

We found the trial court's refusal to clarify its original instructions reversible error, stating:

"In view of the confusion of the jury the trial court had a positive duty to clarify its former instructions by instructing the jury that the defendant must have had knowledge that the property was stolen at the time it was delivered to him by Trammel. The failure of the trial court to give to the jury this additional information was clearly prejudicial and denied to the defendant a fair trial. We wish to make it clear that instances may sometimes occur in the course of a trial where the jury raises questions which are irrelevant or which are already adequately covered by the original instructions. Under those circumstances the trial court may decline to answer such questions and direct the jury to reread the instructions already given. A trial court is vested with a great amount of discretion in answering questions directed to him by a jury after the jury has begun its deliberations. The important consideration is that the jury be properly instructed on the essential issues presented at the trial and this is particularly true in a criminal proceeding where the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried." 219 Kan. at 823-24, 549 P.2d 936.

In State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978), we held:

"When by a jury's questions to the trial court it becomes apparent that the jury is confused as to the essential elements of the various offenses of which the defendant may be convicted, it is the duty of the trial court to give the jury guidance by answering the questions accurately or by clarifying its prior instructions on the subject."

The jury herein was clearly confused as to what "claims" the State had to prove beyond a reasonable doubt if the jury were to convict. The trial court accurately explained that "claims" used in Instruction No. 7 meant the elements set forth in Instruction No. 6. Defendant's appellate contention that the trial court's answer to the jury's question prevented the jury from properly evaluating the credibility of the complaining witness is without merit. We find no abuse of discretion in this issue.

For his final issue, defendant contends the trial court abused its discretion in imposing the maximum sentence upon the defendant without proper consideration of the sentencing policy and factors set forth in K.S.A. 21-4601 and K.S.A. 21-4606. The sentence imposed was 15 years to life.

The facts may be summarized as follows. On the evening of July 25, 1991, Voris Bailey was stopped at a red light at 5th and Troup in Kansas City. He was forced out of his automobile at gunpoint by a lone robber. The robber took money from Bailey, struck Bailey with the gun, and moved the Bailey vehicle. A second gunman approached Bailey from the rear and demanded more money, taking Bailey's wallet. The second gunman left in a Cadillac parked across the street, with the first gunman following in Bailey's vehicle. The wound to Bailey's head required 12 stitches to close.

Later that evening the Cadillac was stopped by police officers. Defendant and Phillip Thomas, later identified by Bailey as the two gunmen, were in the vehicle.

The trial herein occurred on March 2-3, 1992. Sentencing took place...