State v. Prince, 50787
| Decision Date | 19 January 1980 |
| Docket Number | No. 50787,50787 |
| Citation | 605 P.2d 563,227 Kan. 137 |
| Parties | STATE of Kansas, Appellee, v. Robert W. PRINCE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A trial court is required to instruct on a lesser included crime only when there is evidence under which a defendant might have reasonably been convicted of the lesser crime.
2. An instruction on simple robbery is not warranted simply because the gun allegedly used was unloaded.
3. A weapon, commonly known as a BB pistol, although unloaded and therefore incapable of firing a projectile is, nevertheless, a dangerous or deadly weapon within the meaning of K.S.A. 21-3427.
4. The purpose of a Jackson v. Denno hearing is to determine the voluntariness of a statement or confession. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.
5. The endorsement of additional witnesses during the course of trial is within the sound discretion of the trial court. That discretion is abused only where the rights of the defendant were unfairly prejudiced by the endorsement.
6. Notice of an accused's alibi defense must be given within the statutorily prescribed time limit, pursuant to K.S.A.1979 Supp. 22-3218. For good cause shown, a trial court may permit a defendant to endorse additional names of witnesses on such notice.
7. K.S.A. 60-460(j) contemplates that the judge, using judicial discretion, find the statement was at the time of the assertion so far contrary to the declarant's penal interest that a reasonable man in the declarant's position would not have made the statement unless he or she believed it to be true. State v. Quick, 226 Kan. 308, Syl. P 6, 597 P.2d 1108 (1979).
8. Prior to admitting a declaration against interest, pursuant to K.S.A. 60-460(j), a trial judge must make a finding that the character of the declaration was of such nature a reasonable man would not make it unless he believed it to be true. Relevant factors to be considered in making such a determination are the nature and character of the statement, the person to whom it was made, the relationship of the parties, the probable motivation of the declarant in making the statement and the circumstances under which it was made.
9. In a criminal action the record is examined and it is Held : At the Jackson v. Denno hearing, the trial court committed harmless error in failing to require further questioning of the defendant regarding statements made during the defendant's interview with a police officer. The trial court did not err in: 1) failing to give an instruction on simple robbery or possession of stolen property; 2) denying defendant's motion to endorse an alibi witness the day of trial; 3) granting the State's motion to endorse an additional witness; and 4) excluding an extrajudicial statement which did not conform to K.S.A. 60-460(j).
Charles A. O'Hara, of Warner, Bailey, O'Hara, Busch & O'Hara, Wichita, argued the cause and was on brief, for appellant.
James D. Turner, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty., and Marvin R. Cook, Asst. Dist. Atty., were on brief, for appellee.
This is a direct appeal by Robert W. Prince from a jury conviction on three counts of aggravated robbery, (K.S.A. 21-3427) and two counts of kidnapping (K.S.A. 21-3420) arising out of a series of three robberies of Church's Fried Chicken in Wichita. We affirm.
The pertinent facts are that on August 27, 1978, at 9:00 p. m., a black male entered Church's Fried Chicken store at 1305 N. Hillside in Wichita. He was wearing a ski mask exposing his eyes, nose and mouth. After forcing the customers away from the serving window, the robber pulled a gun, jumped over the counter, and ordered Louis Coleman, the manager, and other employees to the back of the store next to the offices. Coleman, following orders, opened the safe and gave the robber the money in five red money bags, marked "Central State Bank and Trust Company," and the money from the cash register. Thereafter, the robber fled the scene.
About a week later, on September 3, 1978, at the same hour, while Coleman and another employee were getting supplies from a storage shed near the store, a man, wearing a bandana over the lower part of his face, approached asking for the time. Coleman recognized the face, voice and hairstyle as that of the person who had robbed him the week before. The man ordered them to enter the store from the rear and get the money from the safe. Coleman demurred, stating he could not enter the store through the back door since he didn't have the keys, so the three went around and entered from the front. The robber brandished his gun, ordered everyone to go into the office and face the wall, and Coleman delivered the store's money contained in the same type bags as were taken in the first robbery. During the course of the robbery, Jeannie Webb, one of the employees, came out of the restroom and went to the office to investigate the disturbance. The robber ordered her to the front of the store to bring the money from the cash registers. Webb complied and returned. The robber obtained the keys to Coleman's car, took Ms. Webb as a hostage, and left. He released her about five minutes thereafter and she returned to the store unharmed.
Apparently, the robber appreciated the service at Church's because he returned again on the evening of September 17, 1978, while the store was experiencing a power interruption. While employee Chris Allen was locking one of the doors, he saw a man wearing a dark raincoat enter the store and approach one of the serving windows. Upon being advised the window was closed, the man turned to Allen, stuck what felt like a gun in Allen's back, and told him to "shut up and turn around." The two went to the back of the store, where Allen attempted to open the cash registers and the safe but was prevented by the power failure. The robber ordered Allen to flip the power switch which restored the electricity. He then opened the safe and handed over six red money bags in addition to Coleman's cassette tape recorder. There was no doubt in Coleman's mind that the robber was the same man who had robbed the store on the two previous occasions. Unnoticed by the robber, Coleman had slipped out and called the police at 7:39 p. m. At 8:00 p. m., while searching the general area for the suspect, Officers Almon and Mouser observed a car matching the general description of the robber's car, a black over green 1969 Ford LTD. It was parked in a driveway at 1552 North Estelle with the dome light on and two men in it. The driver was identified as Robert W. Prince. When Prince stepped out of the car, Almon noticed a bulge in his right pants pocket which was found to be a large roll of currency. Because Prince fit the general description of the man who had robbed Church's Fried Chicken, he was returned to the store where he was identified as the robber. The Miranda warning was given and Prince was returned to his car. The officers requested to search the vehicle. The search produced a small cassette tape recorder and a red money bag with the name, "Central State Bank" or"Central Bank and Trust" written on it. A pistol was removed, examined and placed on the seat. A laboratory investigator, Patric Cunningham, was called to the scene. He photographed the car and the collected evidence.
The cassette tape recorder was later identified by Louis Coleman as the one taken from him. The defendant and his companion were taken to the police station to be interviewed. All other property, including the roll of bills, was taken from Prince, inventoried and placed in the safe.
Defendant was tried, convicted and sentenced to five concurrent terms of not less than five years nor more than life.
Defendant first contends the trial court erred in failing to instruct on lesser included offenses. He believes he was entitled to the instruction because two theories of the case were presented with evidence that would justify a jury conviction of a lesser offense. One theory is that his alibi, if believed, would justify a conviction of possession of stolen property. He also contends that because the gun used was an unloaded, inoperable BB gun, it could not be defined as a dangerous weapon pursuant to K.S.A. 21-3427. Thus, he argues, he was entitled to an instruction on simple robbery. (K.S.A. 21-3426.)
K.S.A. 21-3107(3) states:
"In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to."
The court is required to instruct on a lesser included crime only when there is evidence under which a defendant might have reasonably been convicted of the lesser crime. State v. Taylor, 225 Kan. 788, 793, 594 P.2d 211 (1979). The test for the giving of a lesser included instruction is not whether any theory arises under which a person could be found guilty or innocent, but whether there is sufficient evidence to support the giving of an instruction on the lesser charge. Prince's defense was alibi and the employees testified they saw the robber use a gun. Therefore, the jury had to find him guilty of aggravated robbery or nothing at all. He was not charged with possession of stolen property and that crime is not a lesser included offense of aggravated robbery.
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