State v. Whitaker

• Court: Kansas Supreme Court
• Writing for the Court: LOCKETT
• Citation: State v. Whitaker, 255 Kan. 118, 872 P.2d 278 (Kan. 1994)
• Decision Date: 15 April 1994
• Docket Number: No. 69,392,69,392
• Parties: STATE of Kansas, Appellee, v. Donald WHITAKER, Appellant.

Page 278

872 P.2d 278

255 Kan. 118

STATE of Kansas, Appellee, v. Donald WHITAKER, Appellant.

No. 69,392.

Supreme Court of Kansas.

April 15, 1994.

Syllabus by the Court

1. The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.

2. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict.

3. When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.

4. In cases where the crime charged includes some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. K.S.A. 21-3107(3). This duty does not arise unless there is evidence supporting the lesser offense.

5. Although K.S.A. 21-3109 states where there is a reasonable doubt as to the defendant's guilt, defendant "must" be acquitted, it is not reversible error for the trial judge to instruct a jury: "If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty." The better practice, however, as recognized in the recent amendment to the pattern jury instructions, is to instruct the jury that if there is reasonable doubt, it "must find the defendant not guilty." PIK Crim.3d 52.02.

6. Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error. The court has a duty to stop improper argument where counsel refers to pertinent facts not before the jury or appeals to prejudices foreign to the case.

7. Before an objectionable statement made by a prosecutor on matters outside the record will entitle the accused to a reversal of his or her conviction, it first must appear that it was injurious to the accused and was likely to affect the jurors to the accused's prejudice. Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.

8. It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant's background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive.

9. Defendants taking the stand in their own defense who clearly lie under oath can have their sentences enhanced if that fact is relevant to the question of the defendants' individual capacity for rehabilitation. The record must show, either expressly or by implication, that the judge who enhances a defendant's sentence because of false testimony has found the false testimony negatively affects the defendant's capacity for rehabilitation.

Jean K. Gilles Phillips, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

David Lowden, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

LOCKETT, Justice:

Defendant appeals his convictions and sentencing on one count of aggravated robbery, K.S.A. 21-3427, a Class B felony; two counts of kidnapping, K.S.A. 21-3420, Class B felonies; one count of aggravated battery against a law enforcement officer, K.S.A. 21-3415, a Class B felony; and one count of attempted aggravated robbery, K.S.A. 21-3301 and 21-3427, a Class C felony, all of which together resulted in a controlling sentence of 20 years to life. The defendant claims the trial court erred in: (1) erroneously instructing the jury on how a juror is to vote; (2) failing to instruct on robbery as a lesser included offense of aggravated robbery; (3) instructing the jury on the burden of proof necessary to convict; (4) failing to stop prosecutorial misconduct in closing argument; and (5) enhancing his sentence because the judge believed that the defendant gave false testimony.

Donald Whitaker and Aldred Neal were charged with six felonies. The defendants were tried separately.

The State's Version

Neal and Whitaker abducted Donnell Trotter at gunpoint shortly after midnight on May 10, 1991. Neal informed Trotter they were going to rob him. Whitaker drove them to a stockyard where Trotter was forced into a trailer. Neal threatened to shoot Trotter if he refused to tell where his money was. Trotter then told Neal that he had no money but Ford Carr II, who was a bail bondsman and owned a liquor store, had money at Carr's house. Trotter gave directions to Carr's house and told where the money was located. Neal and Whitaker chained Trotter to the wall of the trailer, taped his mouth shut, and left.

Carr woke about 1:30 a.m. when he heard Neal knocking at his door. Carr let Neal in. Neal asked Carr to post a $10,000 bail bond for a friend. Neal sat down at a table to purportedly count out some money he had in a briefcase. Carr heard a door open and turned to see who was coming in. When Carr turned back towards Neal, he saw Neal holding a large caliber handgun. Neal told Carr it was a holdup. Neal then forced Carr to go to the basement. He told Carr that Trotter claimed there was $20,000 in a briefcase in the basement. Carr stated that if Trotter said that, they should get Trotter to show them where it was.

Neal then forced Carr to drive Neal to meet Whitaker. Whitaker, driving another car, then followed Carr and Neal to a parking lot where Whitaker got out of his car and into Carr's vehicle. As they started to drive away, Whitaker told Carr to stop because Whitaker had forgotten a small caliber handgun in the other car. After Whitaker returned with his pistol, Carr then drove to the trailer where Trotter was confined. Neal and Whitaker told Trotter they were going to take him back to Carr's and the money better be where Trotter claimed it was. Trotter then told Neal that Carr had a substantial amount of money in a safe at Carr's liquor store. Neal and Whitaker unchained Trotter, but left him handcuffed. The four men left in Carr's vehicle with Carr driving. Carr noticed that his car was almost out of gas. Neal told Carr to turn down a certain street, where Whitaker got out of the car to get some money.

When Whitaker returned, Carr drove to a convenience store. As Whitaker began pumping the gas into the car, a police car drove into the parking lot. Trotter attempted to get out of the car. Whitaker and Neal grabbed Trotter. The officer, who was talking to another driver, noticed a struggle between two of the occupants in Carr's vehicle. Trotter opened the door, jumped out of the car, and ran towards the police officer. Neal told Carr to drive next to the officer and then slow down. As the vehicle moved towards the officer, Neal rolled down his window and began yelling for help. Carr stepped on the gas, jumped from the vehicle, and ran. As Carr's vehicle moved towards him, the officer heard the person who he had seen fighting with Trotter calling for help in a "mocking" manner. The officer and Trotter took cover behind a dumpster. As the officer reached for his weapon, he was shot in his right arm.

A security guard at a nearby business heard shots and ran towards the sound. He observed a man run away from the area, and called 911. The guard subsequently noticed Carr's vehicle parked in his employer's lot. A search of Carr's vehicle by the police yielded a .32 caliber automatic pistol similar to the pistol Whitaker had carried. Keys found on Whitaker after his arrest matched padlocks found at the stockyard where Trotter had been detained.

The Defendant's Version

Whitaker testified that after he moved to Wichita he lived with Neal's parents for a period of time but moved out the weekend before May 10, 1991. After Neal had picked up Whitaker on May 10, 1991, Neal stopped at some apartments to talk to Trotter. Whitaker heard Neal and Trotter talking about money Trotter owed Neal. Trotter told Neal he had some of the money and "dope" left. Neal and Whitaker left but returned around midnight and again saw Trotter. Neal talked to Trotter. They both returned to Neal's car. Whitaker claimed Neal forced him at gunpoint to assist in taking Trotter to the trailer and...