State v. McDaniel

Decision Date14 June 1980
Docket NumberNo. 51395,51395
Citation612 P.2d 1231,228 Kan. 172
PartiesSTATE of Kansas, Appellee, v. Joe McDANIEL and Boyd S. Owens, Jr., Appellants.
CourtKansas Supreme Court

Syllabus by the Court

1. Acts done or declarations made before, during or after the happening of the principal occurrence may be admissible as part of the res gestae where the acts are so closely connected with it as to form in reality a part of the occurrence.

2. Voluntary intoxication is not a defense to a general intent crime, although it may be used to demonstrate an inability to form a particular state of mind necessary for a specific intent crime.

3. Aggravated robbery is not a specific intent crime; it requires only general criminal intent.

4. A person is criminally responsible for a crime committed by others if that person intentionally aids and abets the others in the commission of the crime.

5. When the evidence indicates a defendant could only be found guilty of aggravated robbery as an aider and abettor, specific intent is an issue, and voluntary intoxication may indicate an absence of the required intent and be a defense.

6. It is improper for a prosecutor to inject into closing argument his personal belief as to the guilt of the defendant. However, the rule is well settled that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection is lodged.

7. A state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation and if persons similarly situated with respect to the legitimate purpose of the law receive like treatment.

8. K.S.A. 1979 Supp. 21-4618, which denies the privileges of probation and parole and requires mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime is not constitutionally impermissible as denying equal protection of the law.

9. In light of the Kansas sentencing statute, K.S.A. 1979 Supp. 21-4501(b ), the provisions of K.S.A. 1979 Supp. 21-4618 denying probation and parole privileges to a defendant convicted of an Article 34 crime in which the defendant used a firearm in the commission of the crime of aggravated robbery is not such a restriction on the judicial power of the sentencing judge as would constitute an impermissible legislative usurpation of the court's prerogatives.

10. Section 9 of the Kansas Bill of Rights may be invoked against an excessive or disproportionate sentence. The nature of a sentence as cruel or unusual encompasses duration.

John Michael Redmon, Overland Park, argued the cause and was on brief, for appellant McDaniel.

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

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

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict which found Joe McDaniel and Boyd S. Owens, Jr., (defendants-appellants) guilty of one count each of aggravated robbery (K.S.A. 21-3427). Alleged trial errors are asserted on appeal.

About 3:15 p. m. on January 20, 1979, Leonard Martin, Jr., assistant manager of the Collins Oil Station, 164 South 18th Street, Kansas City, Wyandotte County, Kansas, was the victim of a robbery at gunpoint. Martin testified that he observed a car containing two adult white males drive up to the full service island in front of the station building. Martin was told by the driver, McDaniel, to fill the tank. McDaniel exited the car, went inside the station, then called out and told Martin to check the oil. Martin asked the passenger, Owens, to turn off the car's engine. Owens first refused, but when Martin relayed McDaniel's order to check the oil Owens complied and shut off the car engine. Martin filled the gas tank, added two quarts of oil, and then began washing the car windows. McDaniel asked Martin if he could break a $50 bill; Martin responded in the negative. When Martin was washing the passenger side window, he was asked about breaking a $20 bill. Martin replied that he would have to go inside the station to do it. The transcript does not clearly indicate which appellant asked Martin about the $20 bill.

When he finished washing the windows Martin returned to the driver's window and asked for $13.20. McDaniel reached inside his coat pocket as if to retrieve money, but brandished a gun instead. Martin described the gun as a .32- or .38-caliber pistol. When McDaniel displayed the gun he demanded, "Give me it. . . . You know, give it here." Martin told McDaniel he had only the money changer because the shift had just begun. Martin surrendered the money changer and turned his pockets inside out to show he had no more money. McDaniel then drove the car away from the station.

Martin observed the car's license tag number and wrote it down. Martin's wife had arrived shortly before the robbery; she also observed and remembered the license tag number. The police were given the license tag number and a description of the car. At about 4:15 p. m., one hour after the robbery, policemen located a Chevy Nova fitting the description of the suspect vehicle. The car was parked at a private club and bore a license tag with the number reported by the Martins. The police entered the club and observed two men fitting the suspects' descriptions. The suspects, the appellants, were arrested and searched. A .32-caliber pistol was recovered from Owens' coat pocket. Later that day, Martin and his wife identified the car at the club, and selected both appellants from lineups.

Police investigation revealed that the automobile the appellants used was owned by Owens' girl friend, Deana Green. The appellants borrowed Ms. Green's car about 2:00 p. m. the day of the robbery. Ms. Green had not yet purchased a license tag for the car. The license tag affixed to the car the day of the robbery was registered to Mrs. Mary Rogers. About 7:00 a. m. on January 20, 1979, Mrs. Rogers and her husband discovered the license tag had been stolen from her vehicle during the preceding night. Mrs. Rogers reported the theft of the license tag to police the same day, the day of the robbery.

Both appellants testified on their own behalf at trial. They admitted the crime occurred, but asserted the defense of voluntary intoxication. Ms. Green testified that she, the appellants, and McDaniel's girl friend, consumed two fifths of schnapps, one quart of premixed vodka screwdrivers, and one case of beer the day of the robbery.

McDaniel asserts four issues on appeal. He contends that (1) the trial court erred in admitting Mrs. Rogers' testimony; (2) the prosecutor committed prejudicial error by remarks made in closing argument; (3) an instruction on presumed intent was erroneous; and (4) the sentence was cruel and unusual. The appellant Owens asserts two issues on appeal. He contends the trial court erred in (1) admitting Mrs. Rogers' testimony; and (2) in its instruction on the voluntary intoxication defense.

Both appellants assert one common issue on appeal, that the trial court erred in admitting Mrs. Mary Rogers' testimony. Mrs. Rogers was called as a State's witness. Shortly after Mrs. Rogers took the stand the following exchange occurred between court and counsel:

"MR. JESERICH: Anticipating what this evidence is going to be, I'm assuming what Dennis is going to show here is that somebody took these tags from this car. I'm going to object to any further testimony because I believe it's irrelevant and unnecessary and could be prejudicial to my client simply because the jury might draw an inference that they that Joe McDaniel along with Steve Owens stole this tag. Mr. Harris already got in evidence this was the tag on the car when it was found and that the tag was on the car at the time of the robbery. I think that's all. That is sufficient as to the relevance of the robbery charge. Anything additional is going into

"THE COURT: I don't know what she saw. She see these guys take it?

"MR. HARRIS: No.

"THE COURT: She just say

"MR. HARRIS: The tag was on her car when she went to bed. On the 20th when she got up in the morning, it was gone.

"MR. JESERICH: If she doesn't have any knowledge, I think it's irrelevant and that's why I'm objecting. I think the jury might draw an unfair reference from it.

"THE COURT: Objection overruled.

"MR. JENKINS: I have the same objection for the record."

Mrs. Rogers then testified that she and her husband discovered the theft of the license tag the same day of the robbery and reported the theft to the police.

The appellants contend the trial court erred in admitting Mrs. Rogers' testimony over their objections. They argued that the admission of the evidence violated the pretrial order and constituted unfair surprise. The pretrial order recited that the State did not intend to use evidence of prior crimes. The appellants also contend the court erred in failing to conduct a hearing before admitting Mrs. Rogers' testimony. The trial court held no hearing to weigh the probative value of the evidence against its prejudicial effect. Finally, the appellants contend neither the State nor the trial court specified the material fact concerning which the evidence was probative, as required by K.S.A. 60-455, and no limiting instruction was given.

The State contends the evidence was admissible independent of K.S.A. 60-455 as part of the res gestae.

On its face, Mrs. Rogers' testimony is evidence of a crime committed by some person(s). In conjunction with other testimony the clear inference is that the appellants stole the license tag. That evidence could have created an inference that the appellants were disposed to commit the robbery. K.S.A. 60-455...

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  • State v. Scott, No. 83,801.
    • United States
    • Kansas Supreme Court
    • May 16, 2008
    ...consider the constitutionality of that statute under our own state constitution. In support, Scott cites State v. McDaniel & Owens, 228 Kan. 172, 185, 612 P.2d 1231 (1980), in which this court found § 9 of the Kansas Constitution Bill of Rights allowed a proportionality analysis after the S......
  • State v. Dunn, 58965
    • United States
    • Kansas Supreme Court
    • July 8, 1988
    ... ... See State v. Williams, 229 Kan. 646, 661, 630 P.2d 694 (1981); State v. Payton, 229 Kan. 106, 111, 622 P.2d 651 (1981); State v. McDaniel & Owens, ... Page 731 ... 228 Kan. 172, 178, 612 P.2d 1231 (1980); State v. Wilson & Wentworth, 221 Kan. 359, 367, 559 P.2d 374 (1977); State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972) ...         In a criminal action, when the defendant challenges the sufficiency of the ... ...
  • State v. Hobson, 54720
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    • Kansas Supreme Court
    • October 21, 1983
    ...person is furthering the success of the venture. See State v. Williams, 229 Kan. 646, 661, 630 P.2d 694 (1981); State v. McDaniel & Owens, 228 Kan. 172, 178, 612 P.2d 1231 (1980); Comment, PIK Crim.2d 54.05. To establish the crime of conspiracy under K.S.A. 21-3302 two essential elements mu......
  • State v. Davis, 69477
    • United States
    • Kansas Supreme Court
    • October 28, 1994
    ...found in the vehicle did not belong to him and was not in the vehicle before it was stolen. The State cites State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (1980). This court's opinion in McDaniel & Owens is on point. In McDaniel & Owens, the victim of an aggravated robbery reported ......
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1 books & journal articles
  • Just say no excuse: the rise and fall of the intoxication defense.
    • United States
    • Journal of Criminal Law and Criminology Vol. 87 No. 2, January 1997
    • January 1, 1997
    ...551 N.E.2d. 673, 677 (Ill. App. Ct. 1990). (263) See State v. Caldwell, 385 N.W.2d 553, 557 (Iowa 1986). (264) See State v. McDaniel, 612 P.2d 1231, 1237 (Kan. (265) See La. Rev. Stat. Ann. [Sections] 14:15(2) (West 1986). (266) See Hook v. State, 553 A.2d 233, 235-36 (Md. 1989). (267) See ......

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