State v. Wilkins

• Citation: 7 P.3d 252,269 Kan. 256
• Decision Date: 02 June 2000
• Docket Number: No. 189, No. 80, No. 213.
• Parties: STATE OF KANSAS, Appellee, v. FRANK J. WILKINS, Appellant.
• Court: Kansas Supreme Court

269 Kan. 256

7 P.3d 252

STATE OF KANSAS, Appellee, v. FRANK J. WILKINS, Appellant.

Nos. 80,189, 80,213.

Supreme Court of Kansas.

Opinion filed June 2, 2000.

Nicholas M. St. Peter, of Herlocker, Roberts & St. Peter, L.L.C., of Winfield, and Timothy A. Showalter, of Arkansas City, argued the cause, and were on the briefs for appellant, and Frank J. Wilkins, appellant, was on the brief pro se.

Gary L. Foiles, county attorney, argued the cause, and James R. Spring, deputy county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is a direct appeal by the defendant, Frank J. Wilkins, from his convictions for burglary and attempted theft in case No. 96CR460 and conspiracy to commit aggravated robbery, aggravated burglary, kidnapping, and aggravated robbery in case No. 96CR506.

Following his convictions in the robbery case, Wilkins filed a motion to dismiss the burglary case on double jeopardy grounds pursuant to K.S.A. 21-3108(2)(a), which the trial court denied. For purposes of appeal, the two cases were consolidated. The Court of Appeals affirmed Wilkins' convictions in the burglary case and dismissed the substantive arguments on appeal in the robbery case because Wilkins' notice of appeal only stated that he was appealing from his "judgment of sentence." Wilkins filed a petition for review with this court, which we granted.

Shortly after midnight on October 25, 1996, law enforcement officers heard noises coming from a phone drop at Sheldon's Pawn Shop in Arkansas City, Kansas. The officers were unable to determine that any windows or doors at the pawn shop had been entered. Bill Sheldon, owner of the pawn shop, arrived and opened the door. Wilkins and Orval Ray were in the pawn shop. One of them was standing on top of a counter directly under a hole that had been cut in the roof.

Sheldon told the officers that they should "just go ahead and shoot them." This statement is of some importance because it made Wilkins and Ray angry and was part of the conspiracy charge in the robbery case and was a motivating factor for the robbery. Pending trial for the burglary case, Wilkins and Ray were released on bond. Before being released on bond, Wilkins and Ray made incriminating statements to three inmates who testified at trial. Wilkins and Ray told the three inmates that they were in jail for burglarizing the pawn shop and that they had plans to rob the Sheldons when they were released.

While released on bond, Wilkins and Ray went to the Sheldons' house and forced their way inside. They tied Mrs. Sheldon with a cord and tape, and stole jewelry, guns, cash, and travelers checks.

The State brought separate charges for the two incidents. No attempt was made to consolidate the two cases for trial. The robbery case, which occurred while Wilkins and Ray were released on bond for the first case (pawn shop burglary) went to trial first. The jury found Wilkins guilty of conspiracy to commit aggravated robbery, aggravated burglary, kidnapping, and aggravated robbery. Wilkins moved to dismiss the earlier pawn shop burglary case, maintaining that the burglary case violated Kansas and federal constitutional prohibitions against double jeopardy.

Wilkins raises two issues on appeal. He argues that (1) the trial court erred when it denied his motion to dismiss the burglary case on double jeopardy grounds pursuant to K.S.A. 21-3108(2)(a), as the State had presented evidence of the burglary case during the robbery case, and (2) the Court of Appeals erred in dismissing the substantive robbery trial issues raised by Wilkins in his brief but not specifically addressed in his notice of appeal.

Wilkins argues that because evidence of the pawn shop burglary was presented by the State during the robbery case, the trial court erred in denying his motion to dismiss the burglary case in violation of his right to be free from double jeopardy.

K.S.A. 21-3108(2)(a) governs this issue and sets forth:

"(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:

(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely."

K.S.A. 21-3108 is a codification of the double jeopardy rule and contains two parts, the "compulsory joinder" rule and the "identity of elements" rule. In re Berkowitz, 3 Kan. App.2d 726, 741, 602 P.2d 99 (1979). Wilkins' argument on this issue concerns only the compulsory joinder rule.

Under the compulsory joinder rule, if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution. Berkowitz, 3 Kan. App.2d at 742.

The object of the compulsory joinder rule is "simply to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged, and then prosecuting the defendant" in a subsequent trial using evidence presented in the earlier trial. 3 Kan. App.2d at 743. The compulsory joinder rule furthers the constitutional guarantee against multiple trials and is not concerned with multiple convictions or multiple punishments for separate offenses. 3 Kan. App.2d at 743.

Kansas courts utilize a three-prong test when determining whether the compulsory joinder rule applies. As Chief Judge Foth stated in Berkowitz:

"For the Kansas statute to bar a prosecution under the circumstances present in this case three elements must coalesce: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case." 3 Kan. App.2d at 743.

In the present case, the parties agree that the first prong of the Berkowitz test has been met. Although the State argues that the third prong has not been met, as the State would have had to amend the robbery case to include the burglary case, the fact remains that there was nothing stopping the State from doing so. Although the events took place on different nights, the State could have brought the cases together. The third prong of the Berkowitz test has been met. The sole contention at issue in this case is, therefore, whether the evidence presented in the robbery case was sufficient to trigger application of the second prong of the Berkowitz test. If so, the trial court erred in denying Wilkins' motion to dismiss the burglary case.

Wilkins argues that the "State presented the heart of their burglary case at the robbery trial" and that the "State did substantially prove the burglary and attempted theft at the first trial." The State admits that "some evidence of the pawn shop burglary was introduced" in the robbery trial pursuant to K.S.A. 60-455.

Burglary is defined in K.S.A. 21-3715 as "knowingly and without authority entering into or remaining within any: ... (b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein."

The Court of Appeals held that the evidence presented in the robbery case did not substantially prove the burglary case and stated:

"The above testimony merely establishes that Wilkins and Ray were present in the pawn shop. The hole in the roof and the hour imply that they did not have authority to be in the pawn shop. Similarly, Mr. Sheldon's statement that the police should just shoot Wilkins and Ray implies that Sheldon did not give them authority to be in the pawn shop. However, the evidence does not prove the remaining element of burglary, that is, that Wilkins and Ray intended to commit a `felony, theft or sexual battery therein.'

"Although Wilkins and Ray breaking into a pawn shop implies that they intended to commit a theft, it is not inconceivable that the two intended to vandalize the establishment or commit some other misdemeanor. Because the State's evidence did not substantially prove burglary as opposed to some other offense, Wilkins' argument fails."

Lieutenant Ron Fleig, of the Arkansas City Police Department, testified as follows:

"Q. Do you recall where you were at approximately 31 minutes after midnight on October 25, 1996?

"A. Yes.

"Q. Where were you?

"A. I was sitting in the office of the dispatch at the police department.

"Q. Okay. Did you hear anything unusual at that time?

"A. I heard what sounded like a banging sound coming over one of the phone drops.

"Q. Now, what is phone drop?

"A. A phone drop is a speaker at one end in the police department and it's connected to a phone at one of the businesses on the other end. In this situation the phone located on the other site was located in Sheldon's Pawn Shop.

"Q. Are these phone drops only activated on the nonbusiness hours of the businesses?

"A. Yes.

"Q. Upon hearing this banging noise, what did you do?

"A. I advised the dispatcher to send Corporal Scott to provide assistance to me, and we drove to Sheldon's Pawn Shop to determine what the banging sound was.

....

"A. The first thing that we did is we tried to determine if there were any windows broken or any doors that had been pried open. When we didn't find any evidence outside the building that any entry had been made, I had the dispatcher contact the owner of the building to see if he could come to that location with his keys to let us go inside.

....

"A. Officer Arnett was the first one to go inside. And there is a room in the pawn shop that is to the west of the entry way, and Officer Arnett

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