261 Kan. 346
(932 P2d 408)
No. 74,582
STATE OF KANSAS, Appellee, v. ROBERT AIKINS, Appellant.
SYLLABUS BY THE COURT
1. When reviewing a trial court's suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. The ultimate determination of the trial court's suppression of evidence is a legal question requiring independent appellate determination.
2. If a warrantless arrest is challenged by a defendant, the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment to the United States Constitution. The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony.
3. Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances. Probable cause exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed.
4. Statements of citizen informers are not viewed with such rigid scrutiny as the testimony of a police informer.
5. Two factors which come into play when evaluating the conduct of the police in making a warrantless arrest are: the seriousness of the alleged offense and the exigency of the situation, as where immediate arrest seems desirable because of the likelihood that the suspect will flee the jurisdiction.
6. In determining whether probable cause to arrest exists, all the information in the officer's possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.
7. Two or more defendants, charged in separate complaints or informations which allege that the defendants have participated in the same act or acts, may be later joined for trial if the defendants could have been charged in the same complaint, information, or indictment. The determination of whether two defendants could have been charged together in the same complaint and thus tried together, even though the defendants were actually charged in separate complaints, is in the trial court's discretion.
8. In order for a trial court to conduct separate trials for defendants who could be joined together in one complaint and trial, actual prejudice stemming from a joint trial must be shown.
9. The usual grounds to show prejudice so that severance or nonjoinder will be granted are as follows: (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed in 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 a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against other defendants; 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.
10. A mere allegation of an antagonistic defense is not enough. Antagonistic defenses occur when each defendant is attempting to convict the other or the defenses conflict to the point of being irreconcilable and mutually exclusive. A mere inconsistency in trial strategy does not constitute an antagonistic defense.
11. A defendant is not entitled to severance simply because separate trials would provide him or her with a better chance of acquittal. Before a trial court may grant severance on this ground, it must be shown that the prejudice which would flow from a joint trial would be beyond the curative power of a cautionary instruction, thereby denying the defendant a fair trial.
12. The purpose of the voir dire examination is to enable the parties to select competent jurors without bias, prejudice, or partiality. The nature and scope of the voir dire examination is within the sound discretion of the trial court.
13. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.
14. Terminating a trial and declaring a mistrial on one of the statutory grounds listed in K.S.A. 22-3423 is largely within the discretion of the trial court. A clear showing of abuse of discretion must be made before the decision of the trial court will be set aside on appeal.
15. Judicial discretion must be considered as exercisable only within the bounds of reason and justice in the broader sense and be considered abused only when it plainly overpasses those bounds.
16. A two-part test evaluates alleged violations of an order in limine. First, there must be a determination whether there was a violation of the order in limine. Second, if the order in limine is violated, there must be a determination whether the testimony elicited in violation of the order substantially prejudiced the defendant. The burden is on the defendant to show he or she was substantially prejudiced.
17. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant's Fourteenth Amendment due process rights. Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. This duty to disclose exculpatory evidence to the defense exists even where no request has been made.
18. There are three classifications regarding a prosecutor's failure to disclose exculpatory evidence: (1) where there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could not have escaped the prosecutor's attention; (2) where there is a deliberate refusal to honor a request for evidence where evidence is material to guilt or punishment, irrespective of the prosecutor's good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that the defense could have put the evidence to significant use.
19. The test to review all exculpatory evidence questions is the same. To grant a mistrial based on evidence withheld by the prosecution, the evidence must be clearly exculpatory and must be material so that its suppression was clearly prejudicial to the defendant.
20. Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. Evidence is also exculpatory if it bears upon the credibility of a key witness on an important issue in the case.
21. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
22. When the prosecution fails to disclose exculpatory evidence to a defendant prior to trial, if the evidence becomes available to the defendant during trial and the defendant is not prejudiced in defending against it, the prosecution's failure to disclose the evidence earlier will not constitute a due process violation or reversible error.
23. The declaration of a mistrial is a matter entrusted to the trial court's discretion. The test of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence. Improper remarks made by the prosecutor on closing argument are grounds for reversal only when they are so gross and flagrant so as to prejudice the jury against the defendant and to deny the defendant a fair trial.
24. 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. 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.
25. 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.
26. When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appeal from Johnson district court; THOMAS H. BORNHOLDT, judge. Opinion filed January 24, 1997. Affirmed.
Joseph L. Dioszeghy, of Overland Park, argued the cause and was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Carla J. Stovall, attorney general, Paul J. Morrison, district attorney, and Donald W. Hymer, Jr., assistant district attorney, were with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the defendant, Robert Aikins, from his convictions of aggravated robbery and felony murder. Aikins was sentenced to life in prison for felony murder and given a concurrent sentence of 206 months in prison for the aggravated robbery conviction. Aikins and a co-participant, Sheldon K. Nash, were both age 18 when the crimes occurred. Aikins and Nash were tried together. Nash's appeal is also decided this day. In his individual appeal, Aikins raises 10 issues.
When viewed as we are required to view it, the evidence is that Aikins, Nash, Damon McGlory, and Paula Hopson lived together in Aikins' studio apartment in Olathe, Kansas. Aikins owned a white two-door Ford Escort. None of the others owned or had access to a car.
Aikins was originally from Parsons, Kansas. Over the 1994 Labor Day weekend, Aikins, Nash, and McGlory went to Parsons. When they returned to Olathe, Terrance Kelly (age 14), also known as T-Money, accompanied them. Kelly brought a sawed-off shotgun with him. Throughout the day of September 7, the four roommates, Kelly, and McGlory's girlfriend, Jessica Smith, "hung out" together in Aikins' apartment. At some point during the day, some members of the group went to Martin's Liquor Store, but the clerk refused to sell them alcohol because they did not have any identification indicating that they were 21 years of age. Later in the night, around 10 p.m., the group, except for Paula Hopson, left in Aikins' car to take Smith home and to rob a liquor store. Aikins drove the group in his car and Kelly brought his shotgun. The group stopped at a liquor store, but decided it was too well-lit and left. The group stopped at a second liquor store, but it was closed. Finally, the group stopped at Martin's Liquor Store, which was located in a strip mall, and Aikins parked the car next to the strip mall with the lights toward the street. Kelly walked to the liquor store with the gun hidden in his clothes. Kelly wore shorts, a shirt, a dark ball cap, and two bandannas. Kelly walked into the store, starting throwing things around, took some money, and shot and killed Gene Martin. Kelly returned to the car and the group drove away. Kelly threw the shotgun in the back seat, and it hit Smith in the eye. The group returned to Aikins' apartment, and eventually Smith was taken home.
At trial, the State argued that Aikins and Nash aided and abetted the aggravated robbery and thus were guilty of aggravated robbery. Further, the State argued that Martin was killed during the course of this aggravated robbery, making Aikins and Nash guilty of felony murder. In his defense, Aikins testified that he did not know Terrance Kelly had brought a gun with him to Olathe from Parsons. Aikins testified that he did not know the group had discussed robbing a liquor store during the day of the robbery. He testified that he did not know Kelly had brought his gun with him when the group got in the car to take Smith home. Aikins further testified that he did not know Kelly had taken the gun into the liquor store with him, nor did he know that Kelly planned to rob the store. Thus, Aikins argued that he did not have the requisite intent to aid and abet an aggravated robbery and could not be guilty of such crime. Since he could not be guilty of aggravated robbery, Aikins argues, he could not be guilty of felony murder.
The jury found both Aikins and Nash guilty of aggravated robbery and felony murder.
POST-ARREST STATEMENT
The day after Martin was murdered, Aikins was arrested without a warrant. Upon his arrest, the police read him his Miranda rights, and he waived these rights. He then gave a statement to the police which was tape-recorded. In this statement, Aikins lied to the police by telling them that T-Money and Terrance Kelly were two different people. When the police confronted Aikins with the fact that T-Money and Kelly were the same person, Aikins responded by stating, "I wondered how long it would take you to figure that out." Also in this statement, Aikins told the police that he did not know where the gun was which had been used in the robbery and murder. Later, Aikins told the police that he did know where the gun was. He voluntarily showed the police where the gun had been thrown out of the car, and the police recovered the gun. In this statement, Aikins also told the police that he was not aware that Kelly had a gun or that Kelly was going to rob the liquor store. Aikins claimed the group went to the liquor store to buy liquor. He stated that he parked the car at the end of the strip mall so that the owner would not be able to see that the car was full of young people and refuse to sell Kelly any alcohol.
Prior to trial, Aikins filed a motion to suppress his post-arrest statement, alleging that it was the fruit of an illegal arrest which lacked probable cause. In an effort to demonstrate that probable cause existed to arrest Aikins and that his subsequent statement was not the fruit of an illegal arrest, the State called Roger T. LaRue as a witness in the suppression hearing. LaRue testified that he had been a police detective with the Olathe Police Department for 23 years. LaRue was involved in investigating the death of Martin as a detective for the City of Olathe and as the lead investigator for the Metro Squad.
LaRue testified that before Aikins was arrested, the police were aware of a witness, Karen Carpenter, who had seen part of the robbery. Carpenter described the vehicle that she believed was involved in the robbery as a small white car. She saw several people in the car, and she saw one individual leave the car and go into the liquor store immediately before the homicide occurred.
LaRue also testified that the police received a phone call from Wynona Hopson before Aikins was arrested. Wynona Hopson's daughter, Paula Hopson, was one of the roommates who lived in Aikins' studio apartment. Wynona Hopson brought her daughter to the police station. LaRue interviewed Paula. Paula said she was living with Aikins and Nash and that other people were also staying in the apartment. Paula explained that six people got in a small white Ford--Robbie Aikins, Sheldon Nash, Damon McGlory, Jessica Smith, T-Money, and herself. Paula told LaRue that Aikins owned the car and drove the car during the robbery. LaRue testified that Paula told him the group drove to Martin's Liquor Store and that they all went in to buy alcohol except for Paula. While in the store, T-Money shot Martin with a shotgun. Paula told LaRue that they all went back to Aikins' apartment after the shooting. Paula gave the officers the correct address of the apartment.
Paula also told LaRue that T-Money wore two bandannas when he robbed the store. Two bandannas were recovered at the scene of the murder. LaRue testified that Paula told him T-Money wore a black baseball cap embroidered with the words "Thug Life." Such a hat was found outside the liquor store. Paula also told LaRue that T-Money threw the gun in the back seat when he got in the car and that it struck Jessica Smith in the eye, giving her a bruise. According to LaRue, this statement turned out to be true. The police had not previously told Paula any of these facts. LaRue testified that, according to Karen Carpenter's and Paula Hopson's statements, the police had consistent information that Aikins was driving the car when the robbery and murder occurred and that some of the people involved in the murder were staying with Aikins. According to the State, this gave the police probable cause to arrest Aikins.
However, on cross-examination of LaRue at the suppression hearing, the defense questioned LaRue about the police report which stated that Wynona Hopson quoted her daughter Paula as saying, "Mama, we didn't go to kill no one. T-Money did that. Nobody knew that was going to happen." According to the police report and LaRue's testimony, Paula also told her mother, "Mama, when I got back in the car, all I could see was blood." Paula told her mother that she, Smith, Aikins, T-Money, and a black male she did not know all went into the liquor store to buy beer. The liquor store did not have the beer they were requesting, and they all returned to the car except for T-Money. Paula then heard a gunshot and saw T-Money running back to the car. LaRue testified that Paula told her mother that the group did not go to the liquor store to rob or kill anybody. LaRue admitted on cross-examination that Wynona's version of what happened, according to what Paula told her, is inconsistent with Karen Carpenter's statement that only one person from the car went into the store. However, LaRue said that at this time in the murder investigation, the police were still trying to put all the pieces of the crimes together.
LaRue also testified that, in second interview, Paula admitted she had been lying to the police. According to Paula's revised version of the facts, she had not been in the vehicle when the crimes occurred. Instead, she had been at Aikins' apartment and was there when Aikins, Nash, T-Money, and Smith returned from the liquor store. LaRue testified that Paula told him that when the group returned from the liquor store, Smith had a black eye and T-Money began counting the stolen money. The group then told Paula about the robbery and murder.
LaRue testified that Paula had initially lied because she did not think the police would believe her story if she did not say she had been in the car when the murder occurred. Paula wanted the police to believe her story because Paula's cousin, who had been seen at Martin's Liquor Store in a white car on the night of the murder, was a suspect in the crimes. Paula came forward because she wanted the police to know that T-Money, and not her cousin, had shot Martin.
LaRue testified that he told the other officers about the information he had received from Paula. At this time, the apartment building that Aikins lived in was placed under surveillance. LaRue was concerned that Aikins and the others might flee the area. LaRue testified that the white car showed up at the apartment building with Aikins, Nash, and Kelly in it, and the three were arrested.
The trial court held that Aikins' statement was not the fruit of an illegal arrest because the arrest was proper in that the police had probable cause to arrest him. In so holding, the court stated:
"I believe that there was probable cause to make the arrest of Mr. Aikins at the time the arrest was made. It's true there turned out to be not only inconsistencies in the information that they received from Paula Hopson via her mother, Wynona, and from Paula Hopson directly, but the one consistency, I believe, that furnished probable cause for the arrest was the participation by Mr. Aikins as the driver."
Aikins appeals the district court's finding that the police had probable cause to arrest him and the court's refusal to suppress his post-arrest statement as the fruit of an illegal arrest.
"When reviewing a trial court's suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. The ultimate determination of the trial court's suppression of evidence is a legal question requiring independent appellate determination." State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995).
A law enforcement officer may arrest a person without an arrest warrant if the officer has probable cause to believe that the person has committed a felony. K.S.A. 22-2401(c)(1).
"If a warrantless arrest is challenged by a defendant, the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment of the United States Constitution. The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony." State v. Strauch, 239 Kan. 203, Syl. ¶ 1, 718 P.2d 613 (1986).
"Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt." State v. Grissom, 251 Kan. 851, Syl. ¶ 22, 840 P.2d 1142 (1992).
"Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances and exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed." State v. Brocato, 222 Kan. 201, Syl. ¶ 1, 563 P.2d 470 (1977).
"It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. It is only necessary the evidence lead the officer to believe that guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information." State v. Curtis, 217 Kan. 717, Syl. ¶ 1, 538 P.2d 1383 (1975).
We hold the State had probable cause to arrest Aikins. Karen Carpenter saw a car, fitting the description of Aikins' car, pull up to the side of the strip mall where the liquor store was located. She saw a person go into the liquor store and come running out. This person jumped into the car, and the car drove off. Paula Hopson gave a similar description of the defendant's car and stated that this was the car used in the aggravated robbery and murder. Both Paula and her mother provided the police with information indicating that the apartment in which the actual triggerman was staying in was rented in Aikins' name.
It is true that Paula's statement contained lies and inconsistencies. However, many of Paula's statements were confirmed. Further, Paula was an ordinary citizen who had come forward, with her mother's help, in concern for society and her own safety. She was not a regular police informant who expected gain from her statement. See State v. Walters, 8 Kan. App. 2d 237, 238, 655 P.2d 947 (1982) ("[S]tatements of citizen informers are not viewed with such rigid scrutiny as the testimony of a police informer."), rev. denied 232 Kan. 876 (1983).
It is also true that almost all of Paula's truthful statements and those of her mother were hearsay. However, it is well established that probable cause may be supported in part by hearsay information. Curtis, 217 Kan. 717, Syl. ¶ 1. Aikins contends that, in this case, the police based their probable cause finding entirely on hearsay, not just in part. This is not the case. While the police did support their probable cause finding with Paula's hearsay statements and with her mother's hearsay statements, they also supported their probable cause finding on the direct evidence of Karen Carpenter.
Finally, "[t]wo other factors which may come into play in evaluating police conduct in making a warrantless arrest are: the seriousness of the alleged offense and the exigency of the situation, as where immediate arrest seems desirable because of the likelihood that the suspect will flee the jurisdiction." State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981). In this case, the alleged offenses were very serious--first-degree felony murder and aggravated robbery. Also, LaRue testified at the suppression hearing that he was afraid Aikins would flee the area. Thus, immediate arrest seemed desirable.
It is true, as Aikins argues, that the police did not have any evidence prior to his arrest that he had planned the robbery or had knowledge of it before it occurred. However, probable cause "does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt." Grissom, 251 Kan. 851, Syl. ¶ 22. It was reasonable for the officers to make a "fair inference," based on the evidence they had, that Aikins knew about the aggravated robbery beforehand or at least knew he was harboring felons after the murder. See Strauch, 239 Kan. at 209 ("In determining whether probable cause to arrest exists, all the information in the officer's possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.").
Thus, based on the known facts and circumstances that the officers had, the practical considerations of everyday life would lead a prudent person to believe that Aikins had committed a felony. Brocato, 222 Kan. 201, Syl. ¶ 1. This evidence alone could not have proven the defendant's guilt beyond a reasonable doubt or even proven the defendant's guilt was more probable than not, but it could have reasonably led an officer to believe that the defendant's guilt was more than a possibility. Curtis, 217 Kan. 717, Syl. ¶ 1. As such, the police officers had probable cause to arrest Aikins, and the warrantless arrest was legal. K.S.A. 22-2401(c)(1). Since the arrest was legal, Aikins' subsequent statement was not the fruit of an improper arrest, and the trial court properly denied Aikins' motion to suppress the statement.
CONSOLIDATION
Aikins and Nash were each charged in a separate complaint with the crimes of aggravated robbery and felony murder. Prior to trial, the State filed a motion to consolidate the cases and try them together. Nash did not object to the consolidation, but Aikins did. After hearing argument, the court ordered the State not to introduce any evidence of Nash's gang activities which might prejudice Aikins. Having done this, the court ruled that there was no reason not to try the cases together because the defendants would not be prejudiced by consolidation and because it would create judicial economy. Using a reverse analogy, the court reasoned that if the defendants had been charged together, it would not have been compelled to grant separate trials. Thus, the court ruled that, under K.S.A. 22-3204, it was proper to consolidate the cases even though the defendants were charged separately.
K.S.A. 22-3202(3) provides:
"Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."
K.S.A. 32-3204 provides:
"When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney."
Aikins contends that these statutes do not apply because Aikins and Nash were not charged together in the same complaint. As such, Aikins takes issue with the trial court's analogy between 22-3204 and the present situation. According to Aikins, just because a court is authorized by 22-3204 to sever the trials of two defendants who are charged together, this does not mean the court has the power to consolidate the trial of two defendants who were charged in separate complaints, without the specific authorization of a statute.
Aikins properly points out that no statute authorizing such consolidation exists. However, Aikins is mistaken in his argument. Under Kansas case law, a trial judge may use his or her inherent authority and join or consolidate two defendants for trial, even if the defendants were charged in separate complaints, if the defendants could have been charged together in one complaint. Thus, "[t]he test for joinder of two or more cases for trial is the same as that for charging two or more defendants in the same complaint, information or indictment." State v. Tate, 228 Kan. 752, 753, 620 P.2d 326 (1980). See State v. Hunter, 241 Kan. 629, 632-33, 740 P.2d 559 (1987) ("Two or more defendants, charged in separate complaints or informations which allege that the defendants have participated in the same act or acts, may be later joined for trial if the defendants could have been charged in the same complaint, information or indictment."); see also State v. Coe, 223 Kan. 153, 157-58, 574 P.2d 929 (1977) ("Although 22-3204 . . . is silent concerning the power of the trial court to consolidate trials on the motion o