State v. Vincent, 72635

• Citation: 258 Kan. 694,908 P.2d 619
• Decision Date: 08 December 1995
• Docket Number: No. 72635,72635
• Parties: STATE of Kansas, Appellee, v. Carrie L. VINCENT, Appellant.
• Court: Kansas Supreme Court

Page 619

908 P.2d 619

258 Kan. 694

STATE of Kansas, Appellee, v. Carrie L. VINCENT, Appellant.

No. 72635.

Supreme Court of Kansas.

Dec. 8, 1995.

Syllabus by the Court

1. Severance of trials of codefendants in a criminal case lies within the sound discretion of the trial court. The burden is on the movant to present sufficient grounds to establish actual prejudice.

2. The language in K.S.A.1993 Supp. 21-4716(b)(2)(B) of the Kansas Sentencing Guidelines Act focuses the sentencing court's attention, when considering the imposition of a departure sentence, on the defendant's own individual conduct during the commission of the offense.

3. Aider and abettor liability alone is not to be used as the basis for a sentence departure.

4. A killing resulting in a conviction of felony murder, under the facts in this case may not be used as the basis for an upward departure under K.S.A.1993 Supp. 21-4716(b)(2)(B) for a conviction of conspiracy to commit robbery.

5. K.S.A.1993 Supp. 21-4716(b)(2)(B), which authorizes a departure sentence, requires conduct of a defendant "in a manner not normally present in that offense," i.e., conduct going beyond what is minimally needed to satisfy the elements of the offense, to justify an upward departure.

6. The record is examined and it is held: (1) the district court did not err in denying defendant's motion to sever; (2) the admission of and instruction on gang evidence are held to be harmless error; (3) the admission of oral hearsay evidence that the vehicles used by the perpetrators were stolen was harmless error; and (4) the trial court's factual findings are not supported by evidence in the record and do not establish substantial and compelling reasons for an upward sentence departure.

Gunnar A. Sundby, of J. David Farris Law Offices, Atchison, argued the cause, and J. David Farris, of the same firm, was on the brief, for appellant.

Allen A. Ternent, County Attorney, argued the cause, and Patrick E. Henderson, Special Prosecutor, and Carla J. Stovall, Attorney General, were on the brief, for appellee.

SIX, Judge:

Carrie L. Vincent appeals her jury trial convictions of felony murder, K.S.A.1993 Supp. 21-3401(b), aggravated robbery, K.S.A.1993 Supp. 21-3427, and conspiracy to commit robbery, K.S.A.1993 Supp. 21-3302 and K.S.A.1993 Supp. 21-3426, arising from the carjacking and shooting death of Marcus Smith. Vincent was sentenced to consecutive sentences (life for the felony murder with upward departures on the other two offenses).

The incident involved a group of five teenagers, Damon Cox, Stefan Wheeler, Jared Owens, Michael Hayes, and Vincent. Four of the defendants, Cox, Wheeler, Owen and Vincent, were tried jointly as aiders and abettors. Cox and Vincent, each 17 at the time of the offense, were certified to be tried as adults. Cox was convicted of the same offenses as Vincent. (State v. Cox, 258 Kan. 557, 908 P.2d 603 (1995).) Wheeler was convicted of aggravated robbery and acquitted of the other charges. Owens was acquitted of all charges. Hayes was tried separately as the triggerman and convicted on all charges. (State v. Hayes, 258 Kan. 629, 908 P.2d 597 (1995).)

Our jurisdiction is under K.S.A.1993 Supp. 22-3601(b)(1) (off-grid crime conviction). Vincent asserts sentencing error in (a) granting upward departures and (b) imposing an excessive total imprisonment term.

Vincent raises three assignments of error besides the sentencing issues. She contends that the trial court: (1) erroneously allowed the State to introduce gang evidence and gave an erroneous gang evidence instruction; (2) erred in admitting oral hearsay evidence that the vehicles used by the perpetrators were stolen; and (3) erred in failing to sever her trial. The resolution of the first two issues is controlled by Cox. (Severance was not an issue in Cox's case.)

We find no reversible error on issues (1) and (2), no error on issue (3), and affirm the convictions. On the sentencing issues, following Cox, we hold that K.S.A.1993 Supp. 21-4716(b)(2)(B) requires that only the defendant's individual conduct during the commission of the current offense be reviewed when considering the imposition of a departure sentence. Consequently, we vacate the sentence for aggravated robbery. We hold that a killing resulting in a conviction of felony murder may not be used, under the facts of this case, as the basis for an upward sentence departure for a conviction of conspiracy to commit robbery. We also vacate the sentence of conspiracy to commit robbery. We affirm the felony-murder sentence and remand for resentencing on the other convictions.

FACTS

The facts are briefly set out in Cox. Additional facts are referenced in this opinion.

DISCUSSION

We will first consider the severance issue. Vincent contends that the trial court erred in denying her motion for severance.

We stated in State v. Butler, 257 Kan. 1043, Syl. p 9, 897 P.2d 1007 (1995):

"Severance of trials of codefendants in a criminal case lies within the sound discretion of the trial court. The burden is on the movant to present sufficient grounds to establish actual prejudice. Some of the factors to be considered in determining whether there is sufficient evidence to mandate severance are: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants."

Vincent does not assert any of the five grounds listed in Butler. "Any point specified on appeal which is neither argued nor briefed is deemed to have been abandoned." State v. Mims, 222 Kan. 335, Syl. p 6, 564 P.2d 531 (1977). Even if Vincent had argued any of these grounds, none appear applicable. Vincent contends first that only the testimony of Wheeler, one of the codefendants, placed Vincent at the scene of the crime. We do not agree. Vincent's own statement, read to the jury in redacted form, placed her at the scene of the crime. In addition, Wheeler could competently testify against Vincent, regardless of severance.

Vincent's statement provides in relevant part:

"Our vehicles followed Marcus out of King's, east on Division to 8th, south on 8th to Laramie and went on Laramie where Marcus stopped. The dark green Blazer stopped next to Marcus. Marcus was against the north ... curb and we were next to him, both of us headed west. Kilo [Hayes] was driving a black Blazer. He drove in front of Marcus and parked against the north curb, also headed west. Kilo got out of the black Blazer he was in and walked in between Marcus, who was in his car, and I sat in my car. Kilo asked Marcus how much he wanted for the wheels and tires. Marcus said he didn't really want to sell them. I was leaning out the window talking to Marcus when Kilo took a gun from the glove box of my car. The gun was a dark colored revolver handgun. Kilo went to Marcus' window. At that point I got out of my car and went to the black Blazer parked behind Marcus. I didn't want to be around if anything happened so I got into the driver's seat of the black Blazer and drove off."

Vincent gave a second statement to Detective Wilson, which was also read to the jury in redacted form. In that statement, she admitted that she

"saw Kilo get a gun out of the glove box of the dark green Cherokee Jeep. He pointed the gun at Marcus and made Marcus get out of his car. He then made Marcus lay on his stomach on the ground. I watched as he shot Marcus twice in the back. I drove away in the black Blazer and heard several more shots."

Detective Wilson also testified that Vincent described to him the position of the vehicle she was in at the scene of the murder, in relation to Marcus Smith. Vincent also described to Detective Wilson the location of the black Blazer, the vehicle she left the scene in, which was parked behind the victim's vehicle.

Vincent next argues that the testimony of Officer Smith concerning gangs was irrelevant and inadmissible as to her and was only allowed in because Cox was a codefendant. We held in Cox that the admission of Officer Smith's testimony concerning gangs was harmless error. The error was harmless as to Vincent as well, as we discuss later in the opinion, and provides no grounds for severance.

Vincent also argues that her association as a white female with four black codefendants should require severance. Vincent notes that during voir dire, all panel members were asked whether this relationship would influence them and all answered that it would not. Vincent shows no reason why this relationship makes severance necessary. In addition, Vincent fails to show how severance would keep the existence of race from the jury.

Vincent mentions in passing, but does not address in her brief, the question of antagonistic defenses. We have observed:

"Antagonistic defenses do require severance, but such defenses occur only when each defendant is attempting to convict the other. State v. Pham, 234 Kan. 649, 655, 675 P.2d 848 (1984). The existence of antagonistic defenses among codefendants is cause for severance when the defenses conflict to the point of being irreconcilable and mutually exclusive. State v. Martin, 234 Kan. 548, Syl. p 3, 673 P.2d 104 (1984)." State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995).

In this case, Vincent's defense was not antagonistic to the defenses of any of the other codefendants, nor were any of their defenses antagonistic to Vincent's. Vincent and Cox each separately gave...