State v. Shoemake

• Citation: 618 P.2d 1201,228 Kan. 572
• Decision Date: 01 November 1980
• Docket Number: No. 51857,51857
• Parties: STATE of Kansas, Appellee, v. Joe SHOEMAKE, Appellant.
• Court: Kansas Supreme Court

Page 1201

618 P.2d 1201

228 Kan. 572

STATE of Kansas, Appellee, v. Joe SHOEMAKE, Appellant.

No. 51857.

Supreme Court of Kansas.

Nov. 1, 1980.

Syllabus by the Court

1. Where, in the course of the robbery of a business establishment, several employees are held at gunpoint and compelled by force to deliver to the robber property in the possession or custody of the employee, a separate and distinct aggravated robbery occurs with the taking of property from each victim. A separate charge of robbery cannot be sustained as to an employee from whom no property was taken.

2. The record on appeal is examined in a criminal action in which the defendant was charged with theft and aggravated robbery and it is held that the district court did not err (1) in admitting into evidence photographs of property taken in the robbery; (2) in ruling that the evidence was sufficient to sustain certain verdicts of guilty; (3) in refusing to give certain requested instructions; and (4) in permitting the prosecutor to make certain statements to the jury in his summation. It is further held that the district court erred in submitting to the jury a charge of aggravated robbery where no property was actually taken from the alleged victim.

David R. McLain, Kansas City, argued the cause and was on the brief for appellant.

John J. McNally, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

PRAGER, Justice.

This is a direct appeal in a criminal action from convictions of three counts of aggravated robbery (K.S.A. 21-3427) and two counts of felony theft involving two automobiles (K.S.A. 1979 Supp. 21-3701). The facts in the case are undisputed and essentially are as follows: Some time during the night of August 21, 1979, a yellow 1972 Ford Torino was stolen from a residence in Kansas City, Missouri. On August 25, 1979, a green 1972 Ford Torino was stolen from a parking lot in Wyandotte County. Around 7:00 p.m. on August 25, John Lucas was seen by an employee of Nigro's Supermarket driving a yellow Torino through the parking lot of the supermarket in Kansas City, Kansas. Shortly thereafter, Lucas was seen sitting in front of the supermarket in a green Torino. Lucas subsequently entered the supermarket, approached the manager, brandished a pistol, and demanded money. The manager delivered money from one cash register to Lucas who then took money by force from another store cashier at a different cash register. The manager was then forced into the store's office and more money was taken there. The monies were placed in a sack provided by a carry-out boy who had earlier seen Lucas in the Yellow Ford. Lucas thereupon left the store and drove away in a green Torino. The store's employees gave accurate descriptions of both the yellow and green Torinos and all positively identified Lucas as the robber. In addition, two store customers identified Lucas as the robber.

A Kansas City police officer, having received a police dispatch description of both automobiles, attempted to stop a yellow Ford Torino matching the description. The automobile failed to respond to the officer's red light and siren, and a ten-minute, high-speed chase ensued. The chase ended when the yellow Torino collided with some parked cars and became disabled with a flat tire. Defendant Shoemake was the driver of the vehicle. John Lucas was the only passenger. In the car the police found currency, food coupons, receipts, and checks payable to Nigro's on the floorboard on both the driver's and passenger's side. A pistol was found under the driver's seat. In the rear of the car, the police found a slidehammer, an instrument used in automobile body work and frequently used by car thieves to remove ignitions. An ignition was still attached to the slidehammer. The key to the yellow Torino operated the attached ignition. The green Torino was found two blocks from Nigro Supermarket with the engine still running. Both cars, when recovered, were without their ignition switches and could be started without keys. Shoemake and Lucas were charged as codefendants on two counts of felony theft involving the yellow and green Ford Torinos and three counts of aggravated robbery of three persons at the Nigro Supermarket. The cases were severed for trial. On November 16, 1979, a jury found defendant Shoemake guilty on all five counts. The defendant appealed.

The defendant's first point is that the trial court erred in admitting into evidence photographs of the currency and other property recovered from the yellow Ford Torino. In support of his position, the defendant maintains that the foundation for the admission of the photographs was insufficient because it failed to comply with K.S.A. 1979 Supp. 60-472 which provides for the admissibility of photographs of property taken in a criminal prosecution for theft where the property is returned to the owner. That statute provides in substance that the photograph shall bear a written description of the property alleged to have been wrongfully taken, the name of the owner of the property taken, the location where the alleged wrongful taking occurred, the name of the arresting law enforcement officer, the date the photographs were taken, and the name of the photographer. The statute requires that the writing shall be made under oath by the arresting law enforcement officer and the photograph identified by the signature of the photographer. Defendant claims that the foundation for admission of the photograph was insufficient under the statute because the photograph bore only the case file number and the photographer did not testify that the currency pictured was the currency recovered from the vehicle. We have concluded that the point is without merit. The 1979 version of the statute was, by its term, applicable only in theft cases. While the 1980 version now includes all property which is wrongfully taken and not just property taken in theft, the 1980 amendment was not applicable when the theft occurred. In our judgment, however, the foundation was more than sufficient to identify the currency and other property depicted as that taken from Nigro Supermarket and recovered in the automobile. One police officer testified that he had removed the items from the yellow Torino and that, in making his report, he listed each bill by denomination and serial number. He identified the photograph of the currency as accurately depicting the currency he recovered by comparing the serial numbers revealed in the photographs with the serial numbers listed on his report. Another police officer testified that he was present when the photograph was taken and that the case number was included in the photograph and corresponded with the number on the case file. We have held on a number of occasions that photographs are admissible upon proper foundation and identification if they accurately represent matters relevant to the issues in the case. State v. Hollaway, 214 Kan. 636, 639, 522 P.2d 364 (1974). In Hollaway, the defendant's complaint that photographs were inadmissible because they were not identified by the photographer was rejected. It was held that the foundation was sufficient where a police officer was present at the time the photographs were taken and testified that they accurately portrayed what was depicted. Here the evidence was clear and undisputed as to the items taken in the robbery of Nigro's Supermarket. The foundation for the admission of the photographs in this particular case was substantial. Even if the provisions of the statute were not strictly complied with, the admission of the photographs could not have prejudiced the rights of the defendant.

The defendant also complains that the...