State v. Murrell
| Decision Date | 15 June 1974 |
| Docket Number | No. 47187,47187 |
| Citation | 523 P.2d 348,215 Kan. 10 |
| Parties | STATE of Kansas, Appellee, v. DeWayne MURRELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record is examined in an action wherein the defendant was convicted of aggravated robbery and for reasons appearing in the opinion it is held that prejudicial misconduct on the part of the prosecuting attorney is not shown and that the trial court did not err in refusing to grant a new trial on the basis of misconduct during the state's final argument.
Charles E. Worden, Deputy Defender, argued the cause, and David J. Phillips, Topeka, was with him on the brief for appellant.
Gene M. Olander, Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellee.
The defendant, DeWayne Murrell, was convicted of aggravated robbery growing out of a stickup of the Ramada Inn at 420 East 6th Street, Topeka, Kansas. Pursuant to applicable provisions of law Murrell was sentenced to the custody of the director of penal institutions for a period of not less than seven years to a maximum of life. He has appealed.
The robbery occurred about 5 a. m., February 2, 1971. At that hour, two individuals entered the motel, one armed with a double barreled shotgun, and the night auditor was ordered to open the safe. The auditor complied, and some two thousand dollars thus fell into the hands of the robbers who thereupon beat a hasty retreat to their car and thence proceeded to follow the lead of a second automobile leaving the Ramada premises.
An alarm was turned into the police department and an alert was broadcast. The alarm was heard by a Topeka officer cruising on Fourth Street. He proceeded to the vicinity of the Ramada Inn. As he approached Fourth and Madison he observed two Oldsmobiles speeding north across Fourth on Madison Street. He fell in behind the two cars, followed them onto U.S. Highway 70 and stopped the rear vehicle. It contained two individuals, Glenn Edward Burnett and Lari Wofford. The lead Oldsmobile got away.
Four men were eventually charged with the holdup, Burnett, Wofford, Terry Lee Miles and this defendant, DeWayne Murrell. At Murrell's trial the principal witness for the prosecution was Glenn Edward Burnett, who had already entered a plea of guilty to the crime and was serving a sentence in the Kansas State Industrial Reformatory. Burnett testified in substance that on Friday night, Feburary 2, he and Murrell were together for some time at a Manhattan club; that later, about 1:30 a. m., Murrell picked him up at his home and the two of them, together with Miles, drove to Junction City to get Wofford; that all four men drove back to Manhattan and picked up a 1959 Oldsmobile at Murrell's home, plus, for good measure, a shotgun and a pistol; that the fearless four proceeded in the two Oldsmobiles to the Ramada Inn in Topeka, where Murrell showed Burnett and Wofford the way to go into the inn and the way to come out; that after the robbery was consummated he and Wofford followed Murrell and Miles in the other car to the location where they were stopped, while the lead car sped into the distance.
Murrell offered an alibi to the effect that he, Miles, and a third party by the name of Starnes drove to Junction City around midnight where they spent the next four or five hours making the rounds of pool halls, beer taverns and such, and leaving Junction City between five and five thirty.
Originally three points were designated on appeal: (1) a defense motion for discharge was erroneously overruled, (2) the verdict was contrary to the evidence, and (3) the county attorney was guilty of misconduct in his closing summation. The first two specifications of error have been abandoned, leaving only the third for our consideration.
Specifically, Murrell complains of the folowing remarks of the prosecutor on final argument:
No objection was interposed to Mr. Olander's last utterance.
The defendant argues in effect that Olander's first remark was outside the evidence and thus improper; that he continued making improper and prejudicial comments after objection was made thereto and after the statement had been withdrawn and the jury instructed to disregard the same; and that such conduct was prejudicial in view of the weakness of the state's case against him except for the testimony of Burnett. As to his failure to object to Mr. Olander's second utterance, the defendant argues he was placed in a dilemma, 'having to choose between the one evil of endurance and passive silence, and the unknown evil of making objections which would probably result...
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