State v. Robertson, 50056

• Decision Date: 31 March 1979
• Docket Number: No. 50056,50056
• Citation: 225 Kan. 572,592 P.2d 460
• Parties: STATE of Kansas, Appellee, v. Dale A. ROBERTSON, Appellant.
• Court: Kansas Supreme Court

Page 460

592 P.2d 460

225 Kan. 572

STATE of Kansas, Appellee, v. Dale A. ROBERTSON, Appellant.

No. 50056.

Supreme Court of Kansas.

March 31, 1979.

Syllabus by the Court

1. Where a robber put his hand in his coat pocket and pointed an object in the coat pocket toward his intended victim and announced "This is a robbery. I want all your money.", and the victim gave up his property believing the robber had some type of pistol in his pocket, such evidence raised a reasonable inference that the robber was armed with a dangerous weapon and was sufficient to make a prima facie case of aggravated robbery under K.S.A. 21-3427.

2. In determining whether the term of imprisonment of one convicted of a felony should be increased because of his prior conviction of a felony, as provided by K.S.A. 21-4504, the fact that the prior conviction was of a felony is controlling rather than the punishment adjudged at the time of the prior conviction.

Clarence R. Wietharn, Overland Park, argued the cause and was on the brief for appellant.

Dale Blair Watson, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Dennis W. Moore, Dist. Atty., and Michael D. Reed, Asst. Dist. Atty., were on the brief for appellee.

PRAGER, Justice:

This is a direct appeal from a conviction of robbery (K.S.A. 21-3426). The defendant, Dale A. Robertson, was charged with aggravated robbery (K.S.A. 21-3427) but was convicted of the lesser offense. In sentencing the defendant, the trial court invoked the habitual criminal statute (K.S.A. 21-4504(2)). The defendant appeals from the judgment of conviction and the application of the habitual criminal statute in imposing sentence.

The facts in the case are not greatly in dispute and are as follows: A robbery occurred on December 14, 1977, at a convenience store in Olathe, Kansas. At 11:20 p. m., a man later identified as the defendant, walked into the store and was observed by two store employees, Gary Williams and Larry Williams. As Larry Williams was preparing to take the store receipts to his car, he heard the robber mumble something to Gary. Larry asked the robber what he had said and the robber replied, "This is a robbery. I want all your money." As he said those words, the robber put his right hand in his coat pocket and pointed the coat pocket toward the store employees, acting as if there was a gun in the coat pocket. The robber then stated, "This is serious. It's a robbery. I want all your money." The victim, Larry Williams testified that at the time he believed the robber had some type of gun or pistol in his pocket. In response to this threat, Larry Williams handed the envelope containing the day's receipts to the robber, who then asked, "Is there any more money?" At that time, he was still pointing the object in his pocket toward the two employees. The robber, on being informed that there was no more money, backed out the door warning the employees not to go near the telephone.

After the robber left the store, Larry Williams observed an automobile backing out of a parking space in front of the building next to the store. He was able to identify the defendant as the driver. Larry Williams judged the car to be a 1961 or 1962 white-over-blue Chevrolet Impala. Since the license plate was red and white, Williams assumed they were Missouri tags. In the interim, Gary Williams had called the police, who arrived shortly thereafter. When the police arrived, Larry Williams gave them a description of the robber and the automobile he used. After hearing a police dispatch describing the robber and the automobile, an Olathe police officer immediately suspected the defendant, Dale A. Robertson. The defendant's 1962 white-over-blue Impala with an expired red and white Missouri license plate, was located at his parents' home in Olathe. Larry Williams was transported to that location by the police. It was his opinion that the automobile was identical to the one seen leaving the scene of the robbery. Through a window, Williams observed in the car a jacket similar to that worn by the robber.

After observing the defendant's automobile and jacket, Williams was taken to the Olathe police station and shown four photographs. The back of each of the photographs contained the name and birth date of the person shown. From the photographs, Larry Williams positively identified the defendant as the person who had robbed the store. Williams also made a positive in-court identification of the defendant at the preliminary examination and again at the trial. The defendant was apprehended at Kansas City International Airport the morning after the robbery, while waiting to board the 1:45 a. m. flight to Atlanta, Georgia. At the time of his arrest, Robertson was carrying $529 in cash and a ticket for the Atlanta flight. At the trial, the primary issue was the identity of the defendant as the robber.

As his first point on the appeal, the defendant contends that the trial court erred in...