State v. McQueen, s. 48790
| Decision Date | 15 July 1978 |
| Docket Number | 49047,Nos. 48790,s. 48790 |
| Citation | 224 Kan. 420,582 P.2d 251 |
| Parties | STATE of Kansas, Appellee, v. Donald McQUEEN, Appellant. STATE of Kansas, Appellee, v. Elmer HARDYWAY, Jr., Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The provisions of K.S.A. 21-3431 are identical to those of K.S.A.1976 Supp. 21-3431, defining criminal injury to persons. The provisions of these statutes are so vague and uncertain they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process.
2. Even though joinder of charges may meet the requirements of K.S.A. 22-3202 the trial court should nevertheless grant separate trials under K.S.A. 22-3204 when severance appears necessary to avoid prejudice and ensure a fair trial to each defendant.
3. When the unlawful possession of a firearm occurs during the commission of a primary crime charged against two defendants it is proper to join with the primary charge a count on unlawful possession of a firearm against the person, or persons, who unlawfully possess a firearm.
4. Terminating a trial and declaring a mistrial on one of the statutory grounds listed in K.S.A. 22-3423 is largely within the discretion of the trial court. A clear showing of abuse of discretion must be made before the decision of a trial court will be set aside on appeal.
5. When a witness called by the state refuses to testify and claims the Fifth Amendment privilege against self-incrimination, the court may hold a hearing in chambers to determine if the claim is justified or on the application of the prosecutor the court may hold inquisition proceedings under K.S.A. 22-3101, Et seq., to determine the validity of such claim.
6. K.S.A. 22-3212 places in the trial court a broad discretion to require disclosure of documents and other tangible objects which may be in the possession or under the control of the prosecution. The motion should be made prior to trial to allow a reasonable time for disclosure and inspection.
7. The state may not split a single offense into separate parts.
Jack Focht, of Smith, Shay, Farmer & Wetta, Wichita, argued the cause and was on the brief for appellant Donald McQueen.
William D. Rustin, of Rustin, Just & Dewey, Wichita, argued the cause and was on the brief for appellant Elmer Hardyway, Jr.
Harold T. Pickler, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for the appellee.
Donald McQueen and Elmer Hardyway, Jr., were jointly charged with participating in eight separate criminal incidents occurring between January 29 and March 9, 1975. The charges originally included 29 counts against one or both of these defendants. The charges arising from three of the eight criminal incidents were severed for separate trials. These two defendants ultimately were tried jointly for participating in five criminal incidents involving a total of 21 counts. Some preliminary background must be given in order to understand the points discussed.
We will refer to the eight criminal incidents as (1) the Berry burglary, (2) the Jones burglary, (3) the Grove IGA robbery, (4) the Pawnee Plaza Mall conspiracy, (5) the McDonalds-Hillside robbery, (6) the McDonalds-Broadway robbery, (7) the Hickory House robbery, and (8) the Willie Stevens murder.
The McDonalds-Hillside robbery, the McDonalds-Broadway robbery and the Hickory House robbery involved a lone bandit. The trial court properly severed all charges arising from these incidents. The remaining charges were tried. A jury was unable to agree on a verdict in the Berry burglary and a mistrial was declared. The jury acquitted both defendants in the Willie Stevens murder. So on appeal we are concerned with convictions in connection with the Jones burglary, the Grove IGA robbery and the Pawnee Plaza Mall conspiracy.
The present case is a sequel to State v. Smallwood, 223 Kan. 320, 574 P.2d 1361 (1978), and State v. Moody, 223 Kan. 699, 576 P.2d 637 (1978). The present defendants along with Smallwood and Moody participated in the Grove IGA robbery and the Pawnee Plaza Mall conspiracy. Smallwood and Moody were tried first and were convicted in separate trials. The fifth participant in these two crimes was Ray Meeks. He became the state's principal witness.
The first seven points on appeal concern both appellants. These seven points were presented in separate briefs but the arguments are identical in both briefs. Our decision on these seven points will apply equally to both appellants. Hardyway raises two additional points which will be treated separately and numbered eight and nine.
The first point involves the appellants' convictions for criminal injury to persons under count thirteen of the information. This count arose out of the Grove IGA robbery. The basic charge was aggravated battery. The trial judge instructed the jury that under this count the appellants might be found guilty of a lesser included offense, criminal injury to persons. The appellants were found not guilty of aggravated battery, but guilty of criminal injury to persons under K.S.A. 21-3431.
The provisions of K.S.A. 21-3431 are identical to those of K.S.A.1976 Supp. 21-3431, defining criminal injury to persons. The provisions of these statutes are so vague and uncertain they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process. The convictions and sentences of both appellants for criminal injury to persons under count thirteen are reversed and set aside.
Appellants urge as their second point that the trial court erred in refusing to grant separate trials. They contend there was a misjoinder of both charges and parties under the guidelines of K.S.A. 22-3202 and 22-3204.
The first of these statutes sets guidelines for joinder of charges. The second provides for severance when two or more defendants are jointly charged. Our initial consideration is whether the joinder of charges was permissible. When joint charges are filed against two or more defendants K.S.A. 22-3202(3) governs. It reads:
If the joinder of charges is proper, then the question of severance and the granting of separate trials must be considered. Severance to avoid possible prejudice is covered by K.S.A. 22-3204 which reads:
"When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney."
Even though joinder of charges may meet the requirements of K.S.A. 22-3202 the trial court should nevertheless grant separate trials under K.S.A. 22-3204 when severance appears necessary to avoid prejudice and ensure a fair trial to each defendant.
We will consider the joinder of charges first.
In State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977), this court examined the provisions of K.S.A. 22-3202(3) and held:
"Two or more defendants may be joined and tried together (1) when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others." (Syl. P 2.)
In the present case after the charges on the McDonalds-Hillside robbery, the McDonalds-Broadway robbery and the Hickory House robbery were severed there remained the charges on the Berry burglary, the Jones burglary, the Grove IGA robbery, the Willie Stevens murder, the Pawnee Plaza Mall conspiracy, and the three firearms charges. Both Hardyway and McQueen were charged jointly and were alleged to be accountable for each of the offenses except for the Pawnee Plaza Mall incident and the three firearms charges. The first four incidents, the Berry burglary, the Jones burglary the Grove IGA robbery and the Willie Stevens murder, were properly joined under State v. Roberts, supra, since each defendant was charged with accountability for each offense.
As to the three firearms charges they arose out of crimes in which both parties participated. In State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395 (1975), this court held it was proper to try two defendants jointly for aggravated robbery and include a charge against one or both of the defendants for unlawfully possessing a pistol. When the unlawful possession of a firearm occurs during the commission of a primary crime charged against two defendants it is proper to join with the primary charge a count on unlawful possession of a firearm against the person, or persons, who unlawfully possess a firearm. Therefore, the firearm charges against the appellants in this case were properly joined with other charges filed against both appellants.
The final question on joinder of charges concerns the Pawnee Plaza Mall conspiracy charge. Initially a complaint was filed charging both appellants with conspiracy to burglarize the Pawnee Plaza Mall. Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1)...
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