State v. Robbins

• Citation: 32 P.3d 171,272 Kan. 158
• Decision Date: 28 September 2001
• Docket Number: No. 82,678.,82,678.
• Parties: STATE OF KANSAS, Appellee, v. CHARLES R. ROBBINS, Appellant.
• Court: Kansas Supreme Court

272 Kan. 158

32 P.3d 171

STATE OF KANSAS, Appellee, v. CHARLES R. ROBBINS, Appellant.

No. 82,678.

Supreme Court of Kansas.

Opinion filed September 28, 2001.

Barry Albin, of Kansas City, argued the cause and was on the brief for appellant.

Terra D. Morehead, assistant district attorney, argued the cause, Nick Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

Charles R. Robbins appeals his jury convictions of aggravated burglary, K.S.A. 1991 Supp. 21-3716; aggravated kidnapping, K.S.A. 21-3421 (Ensley 1988); kidnapping, K.S.A. 21-3420 (Ensley 1988); rape, K.S.A. 21-3502 (Ensley 1988); aggravated criminal sodomy, K.S.A. 21-3506 (Ensley 1988); and aggravated robbery, K.S.A. 21-3427 (Ensley 1988). Robbins asserts 10 distinct claims of error.

Factual background

The crimes were committed on January 25, 1992, but Robbins was not tried until October 1998, because he fled Kansas and was not located until late 1997 in a Florida prison under an assumed name.

The trial testimony revealed that the victims, Mr. and Mrs. G., knew Robbins and his cousin, Terry Sofranski, through relatives. Sofranski lived in the vicinity of Mr. G.'s cousin and Mrs. G. had met Robbins, whom she knew as "Chuck," on several occasions.

On the evening of the alleged crimes, Mr. and Mrs. G. were in bed in their back bedroom with their small dog sleeping near their feet. A backyard light illuminated the bedroom. Sometime after midnight, Mrs. G. heard footsteps in the house, awoke her husband, and then called out, "[W]ho the hell is in my house?"

Mrs. G. testified she saw two figures appear in the doorway. One asked where her husband was and when she said he was not there, she was told that her husband better show himself or he would "blow" her "fuckin' head off." Mrs. G. recognized the voice as that of "Chuck" (Robbins). Robbins came into the bedroom and duct taped Mr. G. and then Mrs. G. She testified that she heard Sofranski saying "wrap `em up, wrap `em up," but she was aware of only Robbins actually coming into the bedroom.

While Mrs. G. lay face down on the bed with her hands duct taped behind her, Robbins sexually assaulted her; he inserted his penis into Mrs. G.'s anus and he later put his finger in her vagina. She testified she was scared and begged him to please stop because he was hurting her. At some point he turned her over and duct taped her mouth, at which time she saw his face. From his voice and face, she had no doubt that it was Robbins who assaulted her.

The robbers found no money and she heard Sofranski's voice coming from the front room, urging Robbins to leave, which they did shortly thereafter.

Mr. G.'s description of events was consistent with his wife's. He heard Sofranski saying, "[W]rap `em up." He rolled over closer to the doorway as he was directed and was duct taped by Robbins with his hands behind his back and over his mouth and nose. He heard the man assaulting his wife and her saying, "you're hurting me."

Mr. G. testified that he had no weapons in the house but said he knew from experience what a pump-action shotgun sounded like and that he heard a noise in the kitchen like a shell being loaded in a pump-action shotgun. Mr. G. testified that he did not own a BB gun at the time of the break-in and only acquired one at a later date.

Mr. and Mrs. G. managed to free themselves from the tape. Their dog's mouth and paws had also been taped, and they freed her as well. They discovered their television, VCR, stereo, and telephone were missing from the house. Their car had also been stolen. They dressed quickly and summoned the police.

Police Officer Timothy Hylton testified that on the night of the incident, Mr. G. told him their home had been broken into and his wife had been raped. He said Mr. G. also told him that one of the intruders said he would kill Mrs. G. unless the Gs complied with their orders. Hylton testified that Mrs. G. consistently described what happened and identified the two intruders by name. The victims told the officer that they believed the weapon held by the intruders was a shotgun.

Mrs. G. received a medical examination where the assisting nurse documented a random pattern of red marks on Mrs. G.'s buttocks and red marks on both of her wrists. The examining doctor found no sperm on a vaginal swab taken for the rape kit, but he testified this was not necessarily inconsistent with what she said occurred.

The victims' car was found later that day, and the television, stereo, and VCR were recovered from a party who had bought the items from Sofranski. The cumulative value of the three items was estimated at trial to be $750, and the purchaser testified that Sofranski had stated he was going to divide the money with Robbins.

Sofranski was arrested shortly after the incident and gave a statement which was used at Robbins' trial. Sofranski was tried in 1992 and was convicted of burglary and theft. At Robbins' trial, Sofranski testified that he had earlier stolen Mrs. G.'s keys and after entry to the house, he told Robbins to go back and make sure the Gs did not come out front while he gathered the items.

Sofranski testified they did not have a weapon, but they found a BB gun in the house which he took and later sold. In an earlier statement to the police, Sofranski had stated he and Robbins had a rifle-type BB gun which he took with him to the back room. Sofranski claimed he did not know what Robbins did in the back room during the time he was gathering items in the living room. In his police statement, however, Sofranski had stated that Robbins said something about taking Mrs. G. into another room and doing what he wanted with her. Sofranski testified that he never saw any duct tape. He said he finally got Robbins to leave with him, and they drove away in the Gs' car.

Robbins testified he went with Sofranski to the Gs' house but assumed they were allowed to be there. He said when he heard a lady yell, Sofranski told him to go in back and keep the people where they were. He claimed to have pulled his sweatshirt up over his face, then stood in the doorway where he saw the Gs in bed and recognized them. He testified he tried to lower his voice when he told them to be quiet. He denied using any duct tape, claimed that he had no weapons and saw no weapons, and denied sexually assaulting Mrs. G. He testified that he left with the items which were sold. After he was given a part of the money, he left for Arkansas a couple of days later. He claimed to have been drinking and that the alcohol affected his judgment, but he admitted that he knew what he was doing.

Robbins was convicted on all counts except an unlawful possession of a firearm charge. After his post-trial motions were denied, and he was sentenced, he appealed. We have jurisdiction under K.S.A. 22-3601(b)(1).

Statute of limitations

Robbins first argues that his prosecution was barred by the 2year statute of limitations found in K.S.A. 1991 Supp. 21-3106(3). Subparagraph (4) of this statute states that the period within which a prosecution must be commenced does not include any period in which the accused is absent from the State. The offenses were committed on January 25, 1992, and Robbins had left Kansas according to the record by January 29, 1992. He was not located until late 1997. His letter from Florida requesting disposition of his case was filed on May 4, 1998. He was returned to Kansas and arrested on May 19, 1998. His trial commenced October 26, 1998. Out of the roughly 6 years and 5 months which passed between the commission of his offenses and the filing of the fourth amended information, he was out of the State for all but, at most, a month and a half. Based on these facts, the argument that the 2-year statute of limitations bars prosecution is spurious.

The speedy trial limits of the Interstate Agreement on Detainers

Robbins next argues the speedy trial limitation of the Interstate Agreement on Detainers found in K.S.A. 22-4401 et seq. was violated. The State argues this issue was waived by not being raised until after sentencing, but even if not waived, this claim has no merit.

There are two methods for disposition of charges pending against a prisoner incarcerated in another state under the Interstate Agreement on Detainers. State v. White, 234 Kan. 340, 342, 673 P.2d 1106 (1983). Under the agreement, a detainer is a notice filed with the confining institution that criminal charges are outstanding in another jurisdiction and that the prisoner is wanted in order to stand trial. State v. Clark, 222 Kan. 65, 68, 563 P.2d 1028 (1977). Once a detainer is lodged, the authorities having custody of the prisoner must promptly inform the prisoner of the source and contents of the detainer and shall inform him or her of the right to request a final disposition thereof. K.S.A. 22-4401, Art. III (d); 222 Kan. at 67.

If the defendant enters a request for disposition under Article III of the Agreement, then the prisoner must be returned to the jurisdiction where the detainer has been filed and must be tried within 180 days after a written notice and his or her request have been delivered to the prosecuting officer and the appropriate court. K.S.A. 22-4401, Art. III(a); White, 234 Kan. at 343; Clark, 222 Kan. at 67. The 180 days does not begin to run until the prisoner's request has been received by both the prosecuting officer and the appropriate court in the receiving state. In re Habeas Corpus Application of Sweat, 235 Kan. 570, 578-79, 684 P.2d 347 (1984); White, 234 Kan. at 344-45. Under Article IV, a prisoner may also be returned pursuant to a request for temporary custody by the state where the charges are pending. If returned pursuant to such a request, then the prisoner must be tried within 120 days of arrival in the receiving state. K.S.A. 22-4401, Art. IV(d); White, 234 Kan. at 342-43; Clark, 222...