State v. Pink

• Decision Date: 02 March 1985
• Docket Number: No. 56343,56343
• Parties: STATE of Kansas, Appellee, v. Yvonne D. PINK, Regina M. Baldwin, and Erick L. Kelly, Appellants.
• Court: Kansas Supreme Court

Page 358

696 P.2d 358

236 Kan. 715

STATE of Kansas, Appellee, v. Yvonne D. PINK, Regina M. Baldwin, and Erick L. Kelly, Appellants.

No. 56343.

Supreme Court of Kansas.

March 2, 1985.

Syllabus by the Court

1. The informer's privilege, codified in K.S.A. 60-436, is founded upon public policy and seeks to protect the public interest in effective law enforcement. K.S.A. 60-436 provides that the identity of an informant need not be disclosed unless disclosure is "essential to assure a fair determination of the issues." For purposes of analysis, two varieties of informers exist: those who provide the police with information that establishes probable cause, and those who actually participate in or observe criminal activity. Generally, the court is not required to disclose the identity of informers in the first category. If the informer falls into the second category, the court must balance the public interest in protecting the flow of information against the individual's right to prepare his defense. The burden is on the defendant to show the identity of the informant is material to his defense. Mere speculation on the part of the defendant does not satisfy this burden.

2. A trial court's finding on the necessity of disclosure of the identity of an informant will not be overturned absent an abuse of the exercise of its power of discretion.

3. The "contemporaneous objection rule" does not apply to opening statements of counsel because it is impossible to foresee which comments counsel may fail to establish through the evidence at trial. However, failure to contemporaneously object to statements in the final argument generally precludes review on appeal.

4. Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor's reference in his opening statement to matters not provable or which the prosecutor does not attempt to prove at trial.

5. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United States Supreme Court held that an accused's right of confrontation, secured by the Sixth Amendment to the United States Constitution and applied to the states through the Fourteenth Amendment, is violated when the confession of a codefendant, implicating the accused, is received in evidence in a joint trial, even though the trial court admonishes the jury not to consider the confession in determining the guilt or innocence of the accused. Bruton rights are violated only by admission of extrajudicial statements implicating the accused codefendant. When the extrajudicial statement admitted does not directly allude to the accused codefendant, and a limiting instruction is given, no rights are abridged.

6. Failure to request a severance is deemed a waiver to the right of severance. K.S.A. 22-3204.

7. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.

8. A trial court's finding that the defendant used a firearm in the commission of a crime, within the meaning of the Mandatory Firearm Sentencing Act (K.S.A. 21-4618), will not be disturbed if it is supported by competent evidence.

9. The two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for determining whether a criminal defendant has received effective assistance of counsel under the Sixth Amendment is stated and applied.

Charles A. O'Hara, of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on the brief, for appellant Yvonne D. Pink.

Steven C. Sherwood, Wichita, argued the cause and was on the brief, for appellant Regina M. Baldwin.

Kenton D. Wirth, Wichita, argued the cause and was on the brief, for appellant Erick L. Kelly.

James D. Hall, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Geary N. Gorup, Asst. Dist. Atty., were on the briefs, for appellee.

SCHROEDER, Chief Justice:

This is an appeal in a criminal action from a jury verdict finding Yvonne D. Pink, Regina M. Baldwin and Erick L. Kelly (defendants-appellants) guilty of various felonies. All three defendants were jointly tried and convicted of one count each of first-degree (felony) murder (K.S.A. 21-3401) and two counts each of aggravated robbery (K.S.A. 21-3427). Baldwin and Pink were also convicted of two counts each of kidnapping (K.S.A. 21-3420), while Kelly was acquitted of this charge.

Numerous issues are asserted on appeal. All three defendants contend the trial court erred by failing to disclose the identity of a paid Crimestoppers informant and by failing to grant a motion for judgment of acquittal. They also allege they were prejudiced by prosecutorial misconduct in the opening statement. Baldwin and Kelly contend the trial court erred by admitting certain out-of-court statements of Pink and Baldwin. Baldwin asserts, additionally, that the trial court erred in failing to sever the trials of the three defendants and in sentencing her under the Mandatory Firearm Sentencing Act (K.S.A. 21-4618) and the sentence pronounced was not in compliance with the journal entry. Finally, Kelly asserts that he was denied his constitutional right of effective assistance of counsel.

At approximately 1:30 a.m. on May 3, 1983, a robbery occurred at Church's Fried Chicken restaurant located at 1302 North Broadway in Wichita, Kansas. The three employees--Julie Rosenhamer, Debra Rogers, and Jerrell Bell--were preparing to close when two armed robbers entered the restaurant. One of the robbers wore a purple scarf over the face and the other wore no facial covering. One of the robbers ordered Rosenhamer and Rogers, who were standing in the front part of the restaurant, not to move. Bell, who was working in the kitchen, came to the front when he heard the commotion and saw the robber in the scarf holding a gun on Rosenhamer and Rogers. The second robber pointed a gun at Bell and started to move him to the back of the store. The robber in the scarf ordered Julie Rosenhamer to get the money, but when she started to move the robber shot her in the chest. Julie fell to the floor with what later proved to be a fatal wound inflicted by a .22-caliber bullet.

Bell continued to move to the rear of the store as he was ordered; when he glanced back to the front he noticed the purple scarf had slipped from the robber's face and so he was able to see the face. The second robber then placed Bell in the cooler, and, soon thereafter, Rogers was placed inside with him. A short time later, one of the robbers ordered Rogers to come out of the cooler and open the cash registers. Rogers opened one register and gave the robber the register tray. The robbers then took her into the office and asked her to open the safe, but she informed them that the only employee who knew the combination was the one who had been shot.

Shortly thereafter, the robbers left by the back door while Rogers was still in the office. Upon their departure, Rogers let Bell out of the freezer and they called the police. Before leaving with the police, Bell and Rogers noticed that a key ring which held keys to the restaurant was missing from where it usually hung by the back door. Also missing was Rogers' purse.

Two cash register drawers and a purse were located adjacent to the Kellogg Street overpass at I-135 by a member of the Kansas Department of Transportation. These items were submitted into evidence at trial. The cash drawers were identified as the missing drawers from Church's. Rogers identified the purse as her own. When these items were discovered, the money was gone from the drawers and the purse; also missing from the purse were some pearl earrings and a necklace belonging to Rogers. The total amount of cash taken from the restaurant was $118.29.

Bell and Rogers, in separate interviews with the police, described the robbers as a black male and a black female. Bell described the robber with the scarf who shot Rosenhamer as a female, between 5'4"" and 5'6"", wearing a purple scarf over her face and a blue bandana over her head. Bell described the robber who had led him to the cooler as a man who might have had a very light mustache wearing a waist-length leather jacket. Bell was able to prepare composite drawings of both robbers.

Rogers also believed the robber in the scarf was a female, but did not recall that she wore a blue bandana. Rogers described the "man" as wearing a long, brown leather coat. Rogers recalled hearing the robber in the scarf refer to the other as "Earl." Rogers was able to prepare a composite of the "man" only, as she never saw the face of the other robber.

Both Bell and Rogers were shown photo line-ups on several occasions. One of the line-ups contained pictures of Pink and Baldwin, but neither Bell nor Rogers was able to make an identification from the mugshots. At both the preliminary hearing and at trial, Bell and Rogers each made positive in-court identifications. Bell identified Baldwin as the person in the scarf and Pink as the person in the leather coat. Rogers identified Baldwin as the robber in the leather coat. Both Bell and Rogers testified that after seeing the defendants they realized they had been mistaken in thinking the robber in the leather coat was a man.

Defendant Kelly was present at the preliminary hearing, but neither Bell nor Rogers testified as to having seen him the night of the robbery. After the preliminary hearing, Bell contacted the police to inform them that he remembered seeing Kelly outside...