State v. Simmons
| Citation | 148 P.3d 525 |
| Decision Date | 15 December 2006 |
| Docket Number | No. 91,659.,91,659. |
| Parties | STATE of Kansas, Appellee, v. Donald L. SIMMONS, Appellant. |
| Court | United States State Supreme Court of Kansas |
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
This case is before us on review of the Court of Appeals' decision to reverse defendant Donald L. Simmons' convictions of aggravated kidnapping and aggravated robbery because the trial court refused to give an accomplice instruction. See State v. Simmons, No. 91,659, 2006 WL 538265, unpublished opinion filed March 3, 2006. Our consideration of the issue of whether reversible error occurred requires determination of whether one who is an accessory after the commission of a crime can be considered an accomplice and, more generally, whether under the facts of this case various witnesses were accomplices.
Our review leads to the conclusion that the trial court appropriately declined to give an accomplice instruction. Because we reverse the Court of Appeals panel on this issue and affirm the trial court, we must also consider two issues not reached by the Court of Appeals panel: whether lesser included offense instructions should have been given and whether the crimes of aggravated robbery and aggravated kidnapping are multiplicitous.
The victim, Dick Baker, was a bricklayer who owned his own business and worked as a subcontractor. John Simmons (John), son of the defendant Donald L. Simmons (Simmons), and his friend, Dan Cornell, were employees of Baker and went to Baker's home to collect their pay for 2 days of work. Baker paid them directly from his wallet, which contained a large sum of cash. After collecting their pay, John and Cornell went to Simmons' mobile home where they began to discuss with Simmons and friends Aris Small and Jimmy Meza that Baker had a large amount of cash which might have been ill-gotten. John testified that this was just "table talk" and that they knew nobody would take it seriously. Similarly, Small, a female teenager who was a friend and roommate of Simmons and was present at his trailer, had the impression that the talk was not serious and that the conversation would go "no farther than the table."
At trial, Meza testified that Cornell and John asked if Meza wanted to "make some money real fast." He responded that he did not want anything to do with it. However, according to the trial testimony of John, Small, and Meza, Simmons stated that he would "do it." At that point, John had second thoughts and expressed that he did not want the robbery to take place. According to John's trial testimony, when he told Simmons that the robbery was a "stupid idea" and that he did not want any part of it, Simmons said it was "too bad." John testified he told his father not to hurt Baker. Then, John and Cornell left Simmon's residence, ostensibly because they did not want to be involved.
Witnesses testified that Simmons put on a hooded sweatshirt, women's sunglasses, a coat and gloves, and proceeded to leave the trailer on foot. Small saw Simmons carrying duct tape. Small and Meza also left; they, however, merely went to eat. Later in the evening, John called Simmons, who told John to come over because he had the money. Simmons told the others that he went over to Baker's trailer on the pretense of getting a job, but he ultimately beat Baker and taped his arms and legs to a table with duct tape. Simmons told the others that just before the attack, he said something like, "Let's party." Later, Simmons called John and Cornell to the back bedroom of the trailer where he gave them each $1,600. Then, he sent them into the living room to pay the others with $100 bills to keep them all from talking about what had happened.
The day after the attack, Michael Eades and Kenneth Williams, other employees of Baker, went to Baker's residence when he did not show up at a job site. Eades and Williams heard mumbling when they knocked on the door and a muffled cry for "help," so they got concerned and entered the trailer through the sliding glass door in the back. They found Baker on the floor, gagged and bound to a coffee table with duct tape. His legs were taped to the table, his arms were behind his back and taped to the table, and he had duct tape wound all the way up his head and over his face. Williams called the police.
Williams testified that the tape was "bound so solid" that he did not know how Baker could breathe. Eades and Williams helped Baker by cutting some of the tape to relieve pressure caused by swelling and to allow him to breathe easier; they also gave him some fluids to drink. Although Baker initially went in and out of consciousness, he ultimately survived. As a result of the attack, Baker sustained nerve damage and kidney problems.
At trial, Baker confirmed that, around 9:30 or 10 p.m., his attacker knocked on Baker's door and inquired about a job. After the two talked for several minutes, Baker turned to go sit down on the couch as the other man was leaving and heard him say, "Let's party." Then, the attacker struck Baker's head, shoved his head into the sofa cushion, and duct-taped him to the table. Baker did not see much of his attacker's face and was unable to identify his attacker. According to Baker's testimony, he had "known of" Simmons for approximately 20 years, just well enough to merely say "hi" to him in passing. Although some aspects of Baker's physical description of the attacker were inconsistent with Simmons' characteristics, including age, height, weight, and the presence of "gold" and "silver" caps on his teeth, Baker described the attacker as a male wearing a hooded sweatshirt, a coat, women's sunglasses, and gloves. Baker also testified that $9,400 was missing from his trailer.
Simmons, John, and Cornell were originally charged regarding this matter. The charges against John were dismissed after the trial court determined at the preliminary hearing that there was insufficient evidence against him to bind him over for trial.
At Simmons' trial, the defense requested a cautionary accomplice testimony instruction with regard to John, but the trial court denied the request. Simmons was convicted of aggravated kidnapping and aggravated robbery.
Simmons appealed his convictions, raising three issues: (1) whether the trial court erred in failing to give a cautionary accomplice jury instruction; (2) whether the trial court erred in failing to give lesser included jury instructions on kidnapping, criminal restraint, robbery, and theft; and (3) whether the crimes of aggravated kidnapping and aggravated robbery are multiplicitous under the facts of the case.
With regard to the accomplice jury instruction, at trial Simmons requested that such an instruction be given as it specifically related to John. The Court of Appeals, however, did not limit its analysis of the accomplice instruction's application to John's testimony. For the first time on appeal, Simmons asserted to the Court of Appeals that an accomplice instruction was warranted because three witnesses—John, Small, and Meza—were allegedly involved in the commission of the crime. (Cornell did not testify at trial.) Thus, the Court of Appeals examined whether those three witnesses were accomplices. The panel concluded that "any of these individuals may have been subject to criminal charges, and their testimony against Simmons should have been viewed as accomplice testimony." Simmons, slip op. at 7.
Noting that the trial court based its refusal to give a cautionary accomplice instruction on its prior determination that John was not bound over for trial based on the State's aiding and abetting theory, the Court of Appeals indicated that the trial court's reasoning "blur[red] the distinction between accomplice liability and other forms of criminal liability," and that the trial court erroneously preferred "consistency with prior rulings on criminal liability of one or more witnesses to an independent determination of whether there is a reasonable basis for accomplice liability of any witness at the trial." Slip op. at 8. The panel further observed that the trial court's discharge of John from criminal liability at the preliminary hearing was introduced at trial; thus, the panel concluded that the refusal to give the cautionary instruction, coupled with evidence of the discharge, may have misled the jury to believe that John's testimony did not need to be viewed with caution. The Court of Appeals concluded that this was "clearly prejudicial." Slip op. at 8.
Finding that the refusal to give the accomplice instruction was reversible error, the Court of Appeals reversed Simmons' convictions and remanded for a new trial. In light of that holding, the panel held Simmons' remaining claims of error were moot. Slip op. at 9.
On our review of the Court of Appeals' decision, the State argues that, in reversing the defendant's convictions, the Court of Appeals erroneously disregarded this court's well-established directives regarding the application of PIK Crim.3d 52.18 (), where we have specified that a cautionary accomplice instruction is necessary only where a witness testifies that he or she was involved in the commission of the crime with which the defendant has been charged. Specifically, the State asserts that neither John, Meza, nor Small fit the PIK Crim.3d 52.18 definition of an accomplice.
A review of the transcript from the jury instructions conference shows that Simmons' request for...
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