The opinion of the court was delivered by
This is a direct appeal by Mario S. Fisher from his convictions for one count of aggravated kidnapping, six counts of aggravated robbery, six counts of kidnapping, and one count of aggravated battery. He was sentenced to a controlling term of life plus 15 years to life.
Fisher contends the trial court erred in refusing to allow him to withdraw his waiver of a jury trial and to appoint different counsel to represent him. He also contends evidence concerning the Spears Restaurant robbery is insufficient to establish the movement required to prove aggravated kidnapping and kidnapping. Two other errors claimed are that the aggravated kidnapping and aggravated battery convictions are multiplicitous and that the trial court abused its discretion in failing to justify on the record a disparity in sentencing between Fisher and two other persons convicted in the Spears Restaurant robbery.
Fisher’s convictions arise out of three robberies. Two of the robberies occurred the same morning (Bib & Rib Restaurant and Kentucky Fried Chicken). In both incidents two individuals wearing nylon stocking masks and armed with handguns entered, took money from cash registers and persons present, locked the victims in walk-in coolers, and left. The victims were unable to identify the defendant as one of the robbers in either robbery.
Three days later, the third incident occurred at Spears Restaurant. As with the first two incidents, two men wearing nylon masks and armed with guns entered the restaurant. They took money from the register as well as a money clip from the owner, Randy Spears, and a wallet from a customer, Gary Howard. One of the robbers then ordered the manager, Laurie Traffas, to open the safe. Spears told the men that he could open it. The safe was a cylinder floor safe. To get into the lower portion of the safe a key was needed. The key to open the safe was in the office. One of the robbers said, “Let’s go get it.” As Spears stood up to get the key, the robber hit him on the head with the butt of a gun. The force of the blow knocked Spears to his knees, and he began bleeding profusely. Traffas and Spears then walked through the waitress station, down a hallway, and through the kitchen to the office with the robber following them. Once in the office, Traffas
Wichita police officers had arrived at the scene and were waiting outside the restaurant. They could see through plate glass windows and observe the front of the restaurant. They watched the two robbers run out of Spears Restaurant and enter a white car parked at the front entrance with its headlights on and engine running. After a vehicle chase, the white car hit a pole and came to a stop. Two men exited the car on the passenger side and one exited on the driver’s side. All three were taken into custody after a foot chase. The defendant was identified as the driver of the car and the person sitting in the car while the robbery took place. There was one handgun in the front seat of the car and one in the back seat. Additionally, in the back seat was Traffas’ purse and the bank bags from die Spears robbery.
Spears and Traffas both identified two individuals as the ones who robbed the restaurant, but they did not identify the defendant as one of the robbers. Howard was unable to identify any individuals, including the defendant, as the robbers.
The defendant gave a confession to the police. He admitted diat he committed the Bib and Rib and Kentucky Fried Chicken robberies with Gilbert Thomas; a man named Randy was driving the white car during those robberies. Both the defendant and Thomas were wearing pantyhose masks and displayed weapons, but the defendant did not think his gun was loaded. The defendant’s “job” was to tell eveiyone to get on the floor, and Thomas told everyone to get into the freezer. They split the money taken in the robberies three ways.
The defendant also admitted to the police his involvement in the, Spears Restaurant robbery. He initially told the police he asked for a ride from two strangers in a white car. The two men decided to stop for some food, and they went into Spears while the defendant remained in the back seat of the car. Ten minutes later, the men ran out of the store with guns in their hands, and
The next day the defendant changed his story about the Spears robbery again. He admitted that he was with Andre Jackson and Gilbert Thomas. The three of them stopped at Dillons to buy some gloves and pantyhose. Jackson and Thomas told the defendant to stay in the car and drive around to the front of Spears, which he did while Jackson and Thomas went in with guns. When they came out, the defendant drove off. The defendant admitted that he knew they were planning a robbery, but he denied knowing where the robbery would take place. They intended to split the money from the robbery three ways. The defendant also admitted that he had lied the night before in giving his story.
The defendant gave a different story at trial. He insisted that he was home sleeping on the morning of August 8, 1992, when the Bib and Rib and Kentucky Fried Chicken incidents occurred. He denied being involved in a robbery that day. The defendant’s cousins also testified that he was at home during the morning those robberies occurred.
The defendant did admit at trial that he was with Jackson and Thomas on the day of the Spears Restaurant robbery. He testified that he was driving Thomas’ girlfriend’s car and they were drinking beer and gin. Thomas said he was hungry and told the defendant to pull into Spears. The defendant had no money, so he waited in the car listening to music while Jackson and Thomas went inside. About 10 minutes later they came back acting panicky, and the defendant realized that Thomas had a gun. Thomas told the defendant, “Shut up. Drive, mother-fucker,” so the defendant drove away past the police. The defendant testified that at one point during the chase he told Thomas and Jackson he
Following a bench trial, the court convicted the defendant of two counts of aggravated robbery and one count of kidnapping in the Bib and Rib incident; two counts of aggravated robbery and four counts of kidnapping in the Kentucky Fried Chicken incident; and two counts of aggravated robbery, one count of kidnapping, one count of aggravated kidnapping, and one count of aggravated battery in the Spears Restaurant incident. The defendant was acquitted of robbing Gary Howard of his wallet in the Spears incident because the charging information was insufficient.
The district court sentenced the defendant to 15 years to life for each of the six aggravated robbery convictions, 15 years to life for each of the six kidnapping convictions, life imprisonment for the aggravated kidnapping conviction, and 3 to 10 years for the aggravated battery conviction. All sentences were imposed concurrently except the life sentence for aggravated kidnapping, which was imposed consecutively. A motion to modify sentence was denied.
I. JURY TRIAL AND NEW COUNSEL
A jury trial was initially scheduled for November 9, 1992. It was continued to November 30, 1992, upon the defendant’s motion and later to December 7, 1992, again upon the defendant’s motion. On December 3, the defendant requested another continuance. The motion noted that defense counsel had never before tried to a jury a case involving a class A or B felony and sought more time in which to prepare for trial. A hearing on the motion was held on December 4, 1992. The defendant’s counsel
The defendant made an oral motion to waive jury trial on December 4, 1992. The following colloquy occurred:
“THE COURT: Mr. Fisher, have you had an opportunity to visit with Mr. Seaton [defense counsel] about this waiver of a jury trial today?
“THE DEFENDANT: Yes.
“THE COURT: And is it your desire to waive a jury trial?
“THE DEFENDANT: Yes.
“THE COURT: You understand, sir, that you have a right under both the Federal and State Constitutions to have a jury trial in this case?
“THE DEFENDANT: Yes.
“THE COURT: And you understand that if you waive a jury trial you give up your right to a jury trial and you will not have a jury trial in this case?
“THE DEFENDANT: Yes.
“THE COURT: And you understand that what will happen, sir, will be that a judge, sitting alone, will hear tire evidence and will make a determination whether you are guilty or not guilty, having held the State to the burden of proof beyond a reasonable doubt? It’s a long question. Do you understand a judge will decide whether you’re guilty or not?
“THE DEFENDANT: Yes.
“THE COURT: And that the judge will use the standard of beyond a reasonable doubt in evaluating the evidence that’s presented?
“THE DEFENDANT: Yes.
“THE COURT: Is it your desire to waive your jury in this case, Mr. Fisher?
“THE DEFENDANT: Yes.”
Judge Royse apparently granted the motion, though the court made no ruling on the record. The defendant then requested a December 31, 1992, bench trial setting. Defense counsel stated, “I’m not really trying to buy time as opposed to just waiving the jury trial based on some negotiations that the District Attorney and myself have entered into, frankly, and I need some time to
On December 29, 1992, the defendant filed a pro se motion seeking to withdraw his waiver of jury trial and to appoint new counsel to represent him. The motion was drafted by defense counsel at the defendant’s request. The defendant provided the following reasons in support of his motion:
“1. That his attorney, Richard H. Seaton, Jr., forced him into a waiver of jury trial entered December 4, 1992.
“2. That said Waiver of Jury Trial was not a knowing, willful and intelligent waiver.”
Judge Clark denied the defendant’s pro se motion summarily.
The defendant argues the trial court abused its discretion in denying his motion to withdraw jury trial waiver and to appoint new counsel.
In
State v. Anderson,
The defendant points out that Judge Royse made no findings on the record that his waiver was knowing and voluntary. He reasons that the circumstances of his waiver show it was not knowing and voluntaiy; rather, the waiver was done after a motion for continuance was denied and was done because defense counsel was unprepared for trial the following week and the waiver had the convenient effect of ultimately giving counsel more time to
In Anderson,
The defendant distinguishes Anderson from the case at bar because here, “not only was the motion for withdrawal of waiver of jury [trial] not heard at any time, but that, to compound the original error, this defendant was twice denied his right to read a statement to the court which most probably dealt with this issue.”
The State asserts that the trial court did not abuse its discretion in denying the defendant’s motion to withdraw his waiver of jury trial. The State argues that the reasons given by the defendant in support of his motion to withdraw waiver were conclusory in nature and therefore did not require a hearing before the court ruled on the motion, citing
State v.
Jackson,
In
Jackson,
The record here reflects that the defendant’s waiver of his right to a jury trial was knowing and voluntary at the time it was made. The defendant had the opportunity to consult with counsel about the waiver. He was informed that he had the constitutional right to a jury trial and that by waiving the jury trial a judge would determine whether he was guilty under a standard of proof beyond a reasonable doubt. The defendant indicated that he desired to waive his right to a jury trial. The defendant’s pro se motion to withdraw the waiver asserted that he was forced by defense counsel into waiving his jury and that the waiver was not knowing, willful, and intelligent. However, the defendant set forth no evidentiary basis for his assertions. There is no evidence in the record, other than the defendant’s conclusory statements, that his waiver was not knowing and voluntary.
The defendant was present at the hearing on his motion to waive jury trial. He engaged in a brief colloquy with the court
The trial court’s failure to conduct a hearing before denying the defendant’s motion to withdraw the waiver was not an abuse of discretion in light of the defendant’s failure to raise a substantial issue of fact concerning the waiver. The record shows a knowing and voluntaiy waiver of the right to a jury trial. The defendant’s allegation that he was forced into waiving his jury is not supported by the record. The defendant has not shown that the trial court abused its discretion in denying his motion to withdraw his waiver of a jury trial.
II. KIDNAPPING AND AGGRAVATED KIDNAPPING
Prior to trial, the defendant moved to dismiss the charge of aggravated kidnapping in the Spears Restaurant incident. He argued the movement of Randy Spears to the office to obtain the key to the safe was only incidental to the crime of robbery and was not sufficient to support a conviction for aggravated kidnapping. The trial court denied the motion, finding that the movement of Spears from behind the cash register, through a waitress station, through a hallway, through the kitchen, and into the office was not slight or inconsequential and that the movement lessened the risk of detection and made the crime easier of commission.
The defendant renewed his motion at trial. The parties briefed the issue, and the court heard argument. The court again denied the motion.
On appeal, the defendant argues that the evidence was insufficient to support a conviction for the aggravated kidnapping of Randy Spears and also for the kidnapping of Laurie Traffas. He reasons that the movement of Spears and Traffas from the safe
K.S.A. 21-3420 defines kidnapping in relevant part as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person . . . [t]o facilitate flight or the commission of any crime.” Aggravated kidnapping is kidnapping where bodily harm is inflicted upon the person kidnapped. K.S.A. 21-3421. The State charged that the kidnapping of Traffas and the aggravated kidnapping of Spears were done to facilitate the commission of the crime of robbery or aggravated robbery.
Both the defendant and the State cite
State v.
Buggs,
“The word ‘facilitate’ in K.S.A. 21-3420 means something more than just to make more convenient. A taking or confining, in order to be said to ‘facilitate’ a crime, must have some significant bearing on making the commission of tire crime ‘easier.’ ”
“If a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of a kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”219 Kan. 203 , Syl. ¶¶ 9, 10.
In
Buggs,
the victims were accosted outside a Daily Queen at the fringe of the parking lot, where they were subject to public view. The defendants forced them to return to the relative seclusion of the inside of the closed restaurant, although the robbery could have been accomplished outside the store or without forcing the victims into the store. This court held that the movement from outside the restaurant to inside the restaurant substantially
“For example: A standstill robbery on the street is not a kidnapping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnapping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnapping; locking him in a cooler to facilitate escape is.”219 Kan. at 216 .
The defendant argues that the movement in this case is indistinguishable from “[t]he forced direction of a store clerk to cross the store to open a cash register,” which Buggs said is not a kidnapping.
The State, conversely, contends the Buggs example and the case at bar are distinguishable: In the case at bar, the robbers moved Spears and Traffas through three or four doors to an area not readily accessible to the public 100 feet away, giving the robbers access to money from the safe and Traffas’ purse. The State reasons that the movement was not slight or inconsequential or inherent in the crime of aggravated robbeiy because the aggravated robbery could have been completed without moving Spears and Traffas to the office. The robbers had already taken money from the cash register and could have foregone the money in the safe or retrieved the key from the office without taking Spears and Traffas to the office. Moreover, the State reasons, the movement and confinement made the crime regarding the safe substantially easier of commission and substantially lessened the risk of detection because the safe would have been virtually impossible to open without the key and because the robbers spent less time in the restaurant.
Both parties also cite
State v. Pink,
Examples of cases where this court found that a kidnapping occurred include the following:
State v. Alires,
In
Kirtsey v. Florida,
“There was insufficient evidence of incidental acts, separate from simultaneously occurring attempted robbery, to establish kidnapping where confinementand movement of robbery victims was limited to interior of restaurant where robbery occurred; though acts of confinement and movement were not inherent in offense of robbeiy, and may have made attempted robbery easier to commit, acts were slight and merely incidental to robbery offense.”
The evidence here was not sufficient to support the crimes of kidnapping and aggravated kidnapping distinct from the crime of aggravated robbery in the Spears incident. The events at the Spears Restaurant do not rise to the level discussed in the cases above where this court found that kidnapping did occur.
Buggs
requires that the movement “have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.”
The movement of Spears and Traffas neither made the crime substantially easier of commission, nor did it substantially lessen the risk of detection. The forced direction of Spears and Traffas through the restaurant was merely for the purpose of convenience, not to make the crime substantially easier of commission. It was more convenient to have Traffas and Spears, who knew where the key to the safe was located, obtain the key rather than the robber alone looking for the key and rather than attempting some other means of entry into the safe. Moreover, Spears and Traffas were not forced to remain in the back office, out of sight of any passersby, to lessen the risk of detection; rather, they returned to the front of the store. Indeed, while one robber walked with Spears and Traffas to the office, the one who remained in the front area of the store with the other victims was fully visible through the window of the restaurant. (The officer responding while the robbery was taking place observed the other robber through the window.)
This case is no different from “the forced direction of a store clerk to cross the store to open a cash register” described in Buggs. Under all the factual circumstances presented in the record, the.crimes of aggravated kidnapping and kidnapping distinct from the crime of aggravated robbeiy were not established. The defendant’s convictions for aggravated kidnapping and kidnapping arising out of the Spears Restaurant incident must be reversed.
During the Spears Restaurant robbery, one of the robbers hit Randy Spears on the head with the butt of his gun, causing injury. That act of force and injury provided the basis for the charge of aggravated battery and also provided the requisite harm to make the kidnapping of Spears aggravated. The' defendant argued in the trial court that the charges for the aggravated kidnapping and aggravated battery of Randy Spears were multiplicitous because they were premised on the same injury. The trial court disagreed. This court need not reach the issue because we have held there was no aggravated kidnapping. There was an aggravated battery, and that conviction is affirmed.
IV. SENTENCE
The defendant argues that the district court abused its discretion in sentencing him to a controlling term of life plus 15 years to life because the sentence exceeds that imposed on his coconspirators in the Spears Restaurant robbery and the trial court gave no reasons for imposing a longer sentence. This issue is now moot by reason of our reversal of the aggravated kidnapping charge which is the basis of the life sentence.
The State has not raised and neither party has briefed the issue of whether this court has authority to vacate the remaining sentences, or at least the sentences for the offenses arising out of the Spears Restaurant incident, and remand for resentencing. The law in Kansas and other states concerning sentences has generally been stated as follows: “Where a valid sentence has been pronounced in a criminal case and has been put into execution, the trial court is without authority to set such sentence aside and impose a new sentence.”
State v. Lyon,
A line of cases in other jurisdictions considers what happens when one or more sentences imposed as part of a sentencing package are vacated because the defendant for whatever reason could not be convicted of or sentenced for one or more of the crimes the defendant was sentenced for committing. Basically,
Neither party has requested, raised, or briefed the issue of re-sentencing, and we decline to raise the issue on our own.