State v. Maxwell

• Court: Kansas Supreme Court
• Writing for the Court: HOLMES
• Citation: State v. Maxwell, 234 Kan. 393, 672 P.2d 590 (Kan. 1983)
• Decision Date: 02 December 1983
• Docket Number: No. 55205,55205
• Parties: STATE of Kansas, Appellee, v. Rheadis Osby MAXWELL, Jr., Appellant.

Page 590

672 P.2d 590

234 Kan. 393

STATE of Kansas, Appellee, v. Rheadis Osby MAXWELL, Jr., Appellant.

No. 55205.

Supreme Court of Kansas.

Dec. 2, 1983.

Syllabus by the Court

1. The granting or denial of a continuance in a criminal case is a matter which rests in the sound discretion of the trial court. Absent a showing of prejudice to the defendant, and an abuse of the court's discretion, the ruling of the trial court will not be disturbed on appeal. (Following State v. Thompson, 232 Kan. 364, 654 P.2d 453 [1982].)

2. Where the consent to enter any of the structures or vehicles listed in K.S.A. 21-3715 and 21-3716 is obtained by fraud, deceit or pretense, the entry is not an authorized entry under the statute in that it is based on an erroneous or mistaken consent. Any such entry is unauthorized, and when accompanied by the requisite intent is sufficient to support a burglary or aggravated burglary conviction.

3. An information charging burglary is defective in form unless it specifies the ulterior felony intended by an accused in making the unauthorized entry.

4. If the ulterior felony intended in a burglary is made clear at the preliminary hearing or by the context of the other charge or charges in the information the failure to allege the specific intended felony does not constitute reversible error. Such failure cannot result in surprise or be considered prejudicial to the defendant's substantial rights at trial when the intended felony was made clear in advance of trial.

5. When an instruction has not been objected to at trial, this court's scope of review is limited to a determination of whether the instruction is clearly erroneous. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict. (Following State v. Stafford, 223 Kan. 62, Syl. p 2, 573 P.2d 970 [1977].)

6. It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids, or abets in the commission of an offense may be charged, tried and convicted in the same manner as though he were a principal.

7. A physical lineup which contains only four persons is not, per se, unconstitutional as being in violation of the fundamental fairness doctrine of the Fourteenth Amendment.

Michael Redmon, of Kansas City, argued the cause and was on the brief, for appellant.

J. Dexter Burdette, 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.

HOLMES, Justice:

Rheadis Osby Maxwell, Jr. appeals from his conviction by a jury of one count of aggravated burglary (K.S.A. 21-3716), two counts of aggravated robbery (K.S.A. 21-3427), and two counts of kidnapping (K.S.A. 21-3420). We affirm as to all counts.

Mr. Paul Clark, one of the victims, is an antique dealer in Kansas City. On the afternoon of December 27, 1981, Mrs. Clark answered the doorbell at their residence and found two men who wanted to talk with her husband ostensibly about a watch one of the men, later identified as defendant Maxwell, held in his hand. Mr. Clark indicated he would look at the watch and the two were admitted to the Clark home. The other man asked Mrs. Clark if he could use the bathroom and also asked for a drink of water. After he emerged from the bathroom Mrs. Clark showed him to the kitchen and then she retired to her bedroom. He followed her to the bedroom with a knife obtained from the kitchen. When Mrs. Clark screamed he told her to shut up or he would kill her. Mr. Clark, having heard his wife scream, demanded to know what was going on and Maxwell pulled out a knife, held it to Mr. Clark's throat and replied, "This is a hold-up. If you scream or anything, I will kill you." He then forced Mr. Clark to the bedroom where he and his cohort tied Mr. and Mrs. Clark to the bed. They then ransacked the house stealing money, jewelry, Mrs. Clark's purse and numerous other items of personal property and then departed with a third person who had appeared during the robbery.

Early the next morning one Katherine Speed was arrested on an outstanding bench warrant and as a result of an altercation or skirmish she had with another woman earlier in the evening. When arrested Ms. Speed had in her possession Mrs. Clark's stolen identification. She then advised police she had information about the Clark robbery and named the defendant as one of the participants. She also turned over to police a clock, camera and several other items later identified as having been stolen from the Clarks. She also advised the police that Maxwell would be in municipal court later that morning and that he was wearing a ring stolen from Mr. Clark. Maxwell was arrested and at the time was wearing the Clark ring which he claimed he had purchased on the street for ten dollars. At trial the defendant testified in his own behalf and asserted an alibi defense.

Appellant's first point on appeal is that the trial court erroneously refused to grant a continuance necessary to secure the presence of a witness who would impeach Ms. Speed. Defendant testified that on the night of Ms. Speed's arrest she had stated that she tried to kill someone but at trial Ms. Speed denied any such statement. One of the police reports pertaining to her arrest indicated she told Officer Griffin of the Kansas City police department that she had tried to kill the person with whom she had the altercation earlier in the evening. Officer Griffin was not called by the State and on the second morning of trial, defense counsel attempted to have a subpoena served on Officer Griffin but was unsuccessful. Later, after the completion of the defendant's case, counsel asked for a continuance to try to locate Officer Griffin. The State opposed the motion pointing out that their files had been open to defense counsel, that defense counsel knew from the jury voir dire that Griffin would not be a witness and further that the area of questioning was a collateral issue and was not relevant or material to the case being tried. The court, having been advised that a subpoena had been issued early the morning of the second day of trial granted a continuance of fifteen to twenty minutes prior to conferring with counsel about the instructions. The defendant made no objection to the court's ruling although it was raised in defendant's motion for a new trial which was overruled.

Under K.S.A. 22-3401 a continuance may be granted either party for good cause shown. In State v. Thompson, 232 Kan. 364, 654 P.2d 453 (1982), we said "The granting or denial of a continuance in a criminal case is a matter which rests in the sound discretion of the trial court. Absent a showing of prejudice to the defendant, and an abuse of the court's discretion, the ruling of the trial court will not be disturbed on appeal." 232 Kan. at 368, 654 P.2d 453.

In addition to the failure of the defendant to object to the trial court's ruling, we find no abuse of discretion by the court.

Appellant next claims there was insufficient evidence to support the aggravated burglary conviction under K.S.A. 21-3716 because the Clarks voluntarily allowed him into their home, thus consenting to the defendant's entry. K.S.A. 21-3716 provides:

"Aggravated burglary is knowingly and without authority entering into or remaining within any building, mobile home, tent or other structure, or any motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is some human being, with intent to commit a felony or theft therein."

It appears to be a question of first impression in this State whether entry obtained by fraud, deceit, or pretense is an unauthorized entry sufficient to support a burglary or aggravated burglary conviction. Defendant points to decisions in other states holding that if a criminal defendant is in any manner voluntarily allowed to enter a private dwelling before committing crimes therein, even if the entry is gained under false pretenses, it is nonetheless "authorized" and will not support a burglary conviction. See People v. Peace, 88 Ill.App.3d 1090, 44 Ill.Dec. 365, 411 N.E.2d 334 (1980). On the other hand, in State v. Ortiz, 92 N.M. 166, 584 P.2d 1306 (App.1978), cert. denied 92 N.M. 79, 582 P.2d 1292 (1978), the New Mexico Court of Appeals held that where consent to enter is obtained by fraud, deceit or pretense, the entry is trespassory because it is based on an erroneous consent and therefore is similar to constructive breaking at common law and constitutes an unauthorized entry sufficient to sustain a burglary conviction.

Blackstone, in his early commentaries, stated:

"[T]o knock at the door, and upon opening it to rush in, with a felonious intent: or, under pretence of taking lodgings, to fall upon the landlord and rob him; or to procure a constable to gain admittance, in order to search for traitors, and then to bind the constable and rob the house; all these entries have been adjudged burglarious, though there was no actual breaking; for the law will not suffer itself to be trifled with by such evasions ...." 4 Blackstone's Commentaries on the Laws of England, p. 226 (Christian's 15th Ed.1809).

In 13 Am.Jur.2d, Burglary § 13, we find:

"Constructive breaking within the law of burglary occurs where the entry is accomplished by means of fraud or threats, or by confederacy with servants residing in the house. This is so because the law regards force and fraud with equal abhorrence, and an invasion, for the purpose of stealing, of the tenant's possession by one means or the other, is all one in the eyes of the law. It is also to be observed that the fraud included in a theft does not necessarily involve fraud in the entry, for where the owner gives an open license to all comers to...