State v. Maybin

• Decision Date: 17 March 2000
• Docket Number: No. 80,134.,80,134.
• Citation: 2 P.3d 179,27 Kan. App.2d 189
• Parties: STATE OF KANSAS, Appellee, v. WILLIAM A. MAYBIN, Appellant.
• Court: Kansas Court of Appeals

27 Kan. App.2d 189

2 P.3d 179

STATE OF KANSAS, Appellee, v. WILLIAM A. MAYBIN, Appellant.

No. 80,134.

Court of Appeals of Kansas.

Opinion filed March 17, 2000.

Janine Cox and Elizabeth Seale Cateforis, assistant appellate defenders, and Jessica R. Kunen, chief appellate defender, for appellant.

Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before GERNON, P.J., MARQUARDT, J., and BUCHELE, S.J.

GERNON, J.:

William B. Maybin appeals his conviction for one count of aggravated robbery.

Maybin was identified as a passenger in an automobile and the perpetrator of a robbery in which he placed his hand over the victim's face, placed a gun to the victim's head, and demanded money. The victim, Marvin Grayson, positively identified the driver, Lamont Anderson, Maybin, and the automobile. Maybin was charged, tried, and convicted of aggravated robbery.

At trial, Grayson and Anderson testified against Maybin. A clerk from a convenience store near the location of the robbery also testified that an individual in a car like Anderson's purchased food items and a beer using a $20 bill at 10:27 p.m. on the night of the robbery. This testimony corroborated the presence of the items seized when Anderson's car was searched.

In his defense, Maybin asserted that Grayson was mistaken because he was high on drugs and alcohol at the time of the incident. Maybin also argued that Anderson was induced to testify against him because of a favorable plea bargain. A jury convicted Maybin as charged, and he appeals his conviction.

LEG IRONS

Maybin first argues that his right to a fair trial was compromised because he was forced to appear before the jury with a leg restraint.

The trial court is ultimately responsible for assuring a fair trial to the accused. State v. Ninci, 262 Kan. 21, 54, 936 P.2d 1364 (1997). In reviewing a trial court's decision to require the accused to be tried while wearing a leg restraint, an appellate court must determine whether the trial court abused its discretion. Ninci, 262 Kan. at 54. Judicial discretion is abused when no reasonable person would take the view adopted by the trial court. State v. Rucker, 267 Kan. 816, 823, 987 P.2d 1080 (1999).

Maybin bears the burden of establishing a record that affirmatively shows that a prejudicial error occurred in his trial. Without such a record, this court must assume the trial court's action was proper. Ninci, 262 Kan. at 53.

In Ninci, the Kansas Supreme Court held that the trial court did not abuse its discretion by permitting the defendant to wear a leg restraint during the trial. The Ninci court noted that the trial court had independently determined that the leg restraint was unobtrusive. The holding focused on the defendant's failure to provide any evidence in the record that the jury knew he was wearing a leg brace or that the leg brace was a restraint. Ninci, 262 Kan. at 53-54.

Here, Maybin presented no evidence that any of the jurors noticed the leg brace or knew it was a restraint. Maybin, however, relies on the holding in State v. Davidson, 264 Kan. 44, 954 P.2d 702 (1998). Davidson can be distinguished. In Davidson, the court held that the defendant was improperly prejudiced by the trial judge's commentary on the purpose of the defendant's leg brace. 264 Kan. at 52. The trial court had stated that the defendant was wearing a leg brace to prevent his escape. The Davidson court did not address the issue of whether the defendant had shown prejudice by the mere act of wearing the brace. Rather, that decision centered on the judge's improper comment about the brace.

MAYBIN'S STATEMENTS

The admission of evidence is subject to the trial court's discretion and will not be overturned unless the trial court abuses its discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999). The defendant must show substantial prejudice before an appellate court will find an abuse of discretion. State v. Grissom, 251 Kan. 851, 931, 840 P.2d 1142 (1992).

At the preliminary hearing, Anderson testified that he did not see a gun during the robbery and that Grayson did not get in the car. At Maybin's trial, however, Anderson's testimony corroborated Grayson's version of the robbery, including the use of a gun. The State questioned Anderson about his motive for providing conflicting testimony. Anderson testified, "Yes, he told me that I should take the CCW [carrying a concealed weapon]—two CCWs and he agreed to the strong-arm robbery.... And we would be able to— we should work together and get out of it like that."

Maybin argues that the trial court improperly admitted Anderson's testimony that Maybin had told him to lie about the involvement of a gun in the robbery. Maybin asserts two points of error for the admission of these statements. First, Maybin asserts that the statements were inadmissible hearsay. Second, Maybin claims that the State failed to disclose his statements to him in accordance with the discovery statute.

Hearsay

Maybin argues that his statements to Anderson were hearsay and did not fall within K.S.A. 60-460(f) or (j) because there is no independent indicia of reliability. This argument fails for two reasons.

First, Maybin's statement to Anderson is not hearsay. It was not offered to prove the truth of the matter asserted. The State was not trying to prove that Maybin would plead to strong-arm robbery if Anderson would plead to the charges for carrying a concealed weapon. Instead, the State was attempting to show Anderson's motive for lying at the preliminary hearing.

Second, even if Anderson's testimony is considered to be hearsay, Maybin's argument confuses the applicable law. K.S.A. 60-460(f) and (j) do not require an independent indicia of reliability as a prerequisite for admission.

K.S.A. 60-460 provides in pertinent part:

"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:

....

"(f) Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.

....

"(j) Declarations against interest. Subject to the limitations of exception (f), a statement which the judge finds was at the time of the assertion ... so far subjected the declarant to civil or criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true."

K.S.A. 60-460(f) requires a voluntariness analysis, not a trustworthiness analysis. Maybin did not raise the issue of whether his statement was voluntary. The trial court does not have a duty to raise the issue of voluntariness on its own initiative. State v. Bornholdt, 261 Kan. 644, 652-53, 932 P.2d 964 (1997). Thus, the issue of voluntariness is not preserved for appeal. The issue of voluntariness is also abandoned because it was not raised in Maybin's brief. See State v. Valdez, 266 Kan. 774, 784, 977 P.2d 242 (1999).

Even though the trial court did not state the basis for admitting Maybin's statement to Anderson, it was not error to admit it. The decision of the trial court is to be upheld if correct even though it may have relied upon the wrong reason. State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).

Discovery Orders

Upon request of a defendant, K.S.A. 22-3212(a)(1) requires the State to permit the defendant to inspect and copy all of his or her written or recorded statements or confessions known to exist by the State.

The State is also required to provide access to memoranda of the defendant's oral confessions, including a list of the witnesses to the confession. K.S.A. 22-3212(a)(4). This duty to disclose continues throughout the course of the prosecution. K.S.A. 22-3212(g). If the court finds that a party has failed to comply with the requirements of K.S.A. 22-3212, the court may prohibit a party from introducing the evidence, or it may enter other orders as it deems just under the circumstances. K.S.A. 22-3212(g).

A trial court's decision to exclude evidence based on the State's failure to disclose is reviewed to determine whether the trial court abused its discretion. State v. Wanttaja, 236 Kan. 323, 324, 691 P.2d 8 (1984). The party asserting an abuse of discretion bears the burden of establishing that abuse. State v. Harris, 262 Kan. 778, 785, 942 P.2d 31 (1997).

We conclude that Maybin's statement to Anderson does not fall within the parameters of K.S.A. 22-3212(a)(1) because the statement was not a written or recorded statement. The statement was made orally. Oral statements fall under K.S.A. 22-3212(a)(4).

Likewise, Maybin's statement does not fall within the parameters of K.S.A. 22-3212(a)(4), which only applies to confessions made through third parties and does not include other types of statements. Given our reading of Kansas law, Maybin's statement is not a confession. See State v. Green, 254 Kan. 669, 683, 867 P.2d 366 (1994).

Maybin did not say that he committed strong-arm robbery. Instead, he bargained with a codefendant to plead to charges for strong-arm robbery. The statement is merely a circumstance that implies guilt. It is not a...