The opinion of the court was delivered by
This is аn appeal in a criminal action from a jury verdict finding Yvonne D. Pink, Regina M. Baldwin and Erick L. Kelly (defendants-appellants) guilty of various felonies. All three defendants were jointly tried and convicted of one count each of first-degree (felony) murder (K.S.A. 21-3401) and two counts each of aggravated robbery (K.S.A. 21-3427). Baldwin and Pink were also convicted of two counts each of kidnapping (K.S.A. 21-3420), while Kelly was acquitted of this charge.
Numerous issues are asserted on appeal. All three defendants *717 contend the trial court erred by failing to disclose the identity of a paid Crimestoppers informant and by failing to grant a motion for judgment of acquittal. They also allege they were prejudiced by prosecutorial misconduct in the opening statement. Baldwin and Kelly contend the trial court erred by admitting certain out-of-court statements of Pink and Baldwin. Baldwin asserts, additionally, that the trial court erred in failing to sever the trials of the three defendants and in sentencing her under the Mandatory Firearm Sentencing Act (K.S.A. 21-4618) and that the sentence pronounced was not in compliance with the journal entry. Finally, Kelly asserts that he was denied his constitutional right of effective assistance of counsel.
At approximately 1:30 a.m. on May 3,1983, a robbery occurred at Church’s Fried Chicken restaurant located at 1302 North Broadway in Wichita, Kansas. The three employees — Julie Rosenhamer, Debra Rogers, and Jerrell Bell — were preparing to close when two armed robbers entered the rеstaurant. One of the robbers wore a purple scarf over the face and the other wore no facial covering. One of the robbers ordered Rosenhamer and Rogers, who were standing in the front part of the restaurant, not to move. Bell, who was working in the kitchen, came to the front when he heard the commotion and saw the robber in the scarf holding a gun on Rosenhamer and Rogers. The second robber pointed a gun at Bell and started to move him to the back of the store. The robber in the scarf ordered Julie Rosenhamer to get the money, but when she started to move the robber shot her in the chest. Julie fell to the floor with what later proved to be a fatal wound inflicted by a .22-caliber bullet.
Bell continued to move to the rear of the store as he was ordered; when he glanced back to the front he noticed the purple scarf had slipped from the robber’s face and so he was able to see the face. The second robber then placed Bell in the cooler, and, soon thereafter, Rogers was placed inside with him. A short time later, one of the robbers ordered Rogers to come out of the cooler and open the cash registers. Rogers opened one register and gave the robber the register tray. The robbers then took her into the office and asked her to open the safe, but she informed them that the only employee who knew the combination was the one who had been shot.
Shortly thereafter, the robbers left by the back door while *718 Rogеrs was still in the office. Upon their departure, Rogers let Bell out of the freezer and they called the police. Before leaving with the police, Bell and Rogers noticed that a key ring which held keys to the restaurant was missing from where it usually hung by the back door. Also missing was Rogers’ purse.
Two cash register drawers and a purse were located adjacent to the Kellogg Street overpass at 1-135 by a member of the Kansas Department of Transportation. These items were submitted into evidence at trial. The cash drawers were identified as the missing drawers from Church’s. Rogers identified the purse as her own. When these items were discovered, the money was gone from the drawers and the purse; also missing from the purse were some рearl earrings and a necklace belonging to Rogers. The total amount of cash taken from the restaurant was $118.29.
Bell and Rogers, in separate interviews with the police, described the robbers as a black male and a black female. Bell described the robber with the scarf who shot Rosenhamer as a female, between 5'4" and 5'6", wearing a purple scarf over her face and a blue bandana over her head. Bell described the robber who had led him to the cooler as a man who might have had a very light mustache wearing a waist-length leather jacket. Bell was able to prepare composite drawings of both robbers.
Rogers also believed the robber in the scarf was a female, but did not recаll that she wore a blue bandana. Rogers described the “man” as wearing a long, brown leather coat. Rogers recalled hearing the robber in the scarf refer to the other as “Earl.” Rogers was able to prepare a composite of the “man” only, as she never saw the face of the other robber.
Both Bell and Rogers were shown photo line-ups on several occasions. One of the line-ups contained pictures of Pink and Baldwin, but neither Bell nor Rogers was able to make an identification from the mugshots. At both the preliminary hearing and at trial, Bell and Rogers each made positive in-court identifications. Bell identified Baldwin as the person in the scarf and Pink as the person in the leather coat. Rogers identified Baldwin as the robber in the leather coat. Both Bell and Rogers testified that after seeing the defendants they realized they had been mistaken in thinking the robber in the leather coat was a man.
Defendant Kelly was present at the preliminary hearing, but *719 neither Bell nor Rogers testified as to having seen him the night of the robbery. After the preliminary hearing, Bell contacted the police to inform them that he remembered seeing Kelly outside Church’s shortly before the robbery. At trial, Bell testified that he was adjusting a mirror in the lobby shortly before the robbery. While adjusting the mirror, he saw the defendant Kelly standing in the lot next to the store; Bell watched Kelly for a while because Kelly was not moving to enter the restaurant. When Kelly saw Bell watching him, he walked away. Bell made a positive in-court identification of Kelly.
On May 16, 1983, a confidential informant contacted the Crimestoppers office. This contact eventually led the investigation in a direction that ended with charges against the defendants. The exact nature of the information and the identity of the informant were never disclosed. The evidence at trial indicated that at some point after receiving the tip, the police contacted Donald Hicks and Kim Walker because their vehicle had been connected with the robbery. Both Hicks and Walker spoke to the detectives about their knowledge of the defendants. Hicks and Walker were living at the Sunset Motel in April and May of 1983. One night Kelly came to their room and asked to borrow their car. Walker remembers that Baldwin and Pink came in shortly after Kelly and all three returned together sometime later. Hicks remembers seeing only Kelly that night. Walker testified that when they returned they were carrying a lot of change wrapped in a newspaper. She observed that Baldwin had a .22-caliber pistol. She also noticed that someone had laid a set of pearl earrings and a drop pearl necklace on the dresser. She saw Kelly with some “green” money with which he and Hicks left in order to purchase drugs. Walker testified that while the men were gone, she heard Pink say to Baldwin, “I said don’t move and they moved, so I shot them.” Baldwin’s only response was to shrug her shoulders. Later, after the men had returned, they all watched television. When the news report on the Churсh’s Chicken robbery was broadcast, someone turned up the volume.
Walker admitted that she had been sleeping off the effects of amphetamines and alcohol when these events took place. Both she and Hicks were uncertain as to the day and time the events occurred.
On May 18, 1983, the police went to a liquor store owned and *720 operated by Baldwin’s mother to contact Baldwin and Pink for questioning. Broken keys on a key ring, later identified as the restaurant’s missing keys, were found in a pocket of Baldwin’s waist-length, brown leather jacket. When Pink was interviewed, she provided an alibi that at the time of the robbery she was with Baldwin after having helped her close the liquor store; she denied ever having ridden with Kelly and Baldwin in Hicks’ car. When police contacted Baldwin’s mother, she said Pink never worked in the liquor store.
Baldwin consented to a search of her home, which produced a blue bandana that Bell later testified looked very much like the scarf the robber who shot Rosenhamer had worn over her hair.
None of the defendants testified at trial. Testimony was received from several State’s witnesses as to self-incriminating statements made by Pink and Baldwin. The contents of such testimony and any additional facts will be developed when necessary to discuss the issues raised.
I.
Each of the three defendants challenge the court’s refusal to compel the State to disclose the identity of the Crimestoppers confidential informant. They claim disclosure is requirеd by K.S.A. 60-436 and that failure to disclose violates their constitutional right to confront witnesses.
The term “Crimestoppers” is used to describe the Wichita Crime Stoppers Program Inc., a not-for-profit Kansas corporation organized in 1980. Private funding supplies money which is used to pay rewards for information about crime. The media is used to inform the public of unsolved crimes and to inform them of the reward program. The advertising emphasizes that the informer need not give his or her name in order to collect the reward for information helpful in solving a crime. Officers of the Wichita Police Department answer all calls.
In the case at bar, a confidential informant reported information about the Church’s Chicken homicide-robbery. The informant did not give his or her name to the detectives who answered the call, although one of the detectives recognized the informant from a prior contact. At a pretrial discovery hearing, the court received testimony from the two detectives and heard argument from counsel. The court then made an in camera inspection of the telephone logs of the Wichita Police Depart *721 ment, audio tapes of conversations of the informant with police, and a written transcript of these conversations. The court found that the information provided by the informer was used for no other purpose than to focus the investigation in a direction that led to the arrest of these defendants. The information was not used as any part of the probable cause basis for thе arrest warrant, nor was any search warrant utilized based on this information. The informant was not endorsed as a witness. The informant received a total reward of $1,000 for the information.
Based on all the information, the court denied the discovery request, but ordered that if the informer became a witness at trial then the fact that such person was a Crimestoppers informant, along with all statements relating to this case by such informer, would be furnished to the defendants.
The “informer’s privilege” is codified in K.S.A. 60-436, which provides:
“A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representativе of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his or her identity is essential to assure a fair determination of the issues.”
The defendants on appeal claim that under subparagraph (b) of the statute, and under various constitutional provisions, they have been denied a fair trial. We disagree.
The rationale for the “informer’s privilege” was discussed in the leading case of
Roviaro v. United States,
The
Roviaro
court noted that two varieties of informers exist: those who provide the police with information that establishes probable cause, and those who actually participate in or observe criminal activity. Generally, the court is not required to disclose
*722
the identity of informers in the first category. See
McCray v. Illinois,
It has long been the rule of this court that it is incumbent upon the defendant to show that the identity of the informer is material to his defense.
State v. Braun,
Although this evidentiary burden which is placed on the defendants appears to be very harsh, it is eased by the
in camera
disclosure to the court. If the judge had found a reasonable probability that the informant could give needed testimony, the government would have been required to disclose the informant’s identity.
Knox, 4
Kan. App. 2d at 99. However, the judge found
in camera
that the informant’s
testimony was
not needed on the issue of guilt or innocence. This matter was properly within the discretionary power of the trial court. The decision will not be overturned absent an abuse of that discretion.
State v. Nirschl,
Also, it is immaterial that a judge other than the one who presided at trial ruled on this preliminary matter.
We are satisfied that the informant was a mere “tipster” whose information precipitated the investigation that led to the defendants’ arrest. That fact alone is insufficient to compel disclosure of the information.
United States v. Buras,
II.
Each of the defendants allege they were prejudiced by certain statements made by the prosecutor in his opening argument. Each defendant frames his or her argument in a different manner and each complains of different comments made by the prosecutor.
Pink’s argument is simply that she was prejudiced by these comments. Baldwin argues the court erred in overruling the defendants’ motion to preclude the prosecutor from making comments about out-of-court statements of Pink and Kelly. Kelly argues that the comments denied him his constitutional right to confront witnesses. Basеd on these arguments, we must determine if the comments made by the prosecutor, when taken as a whole, were so prejudicial as to deny any of the defendants a fair trial.
Each of the defendants complains about the following comments: that Kelly made some unspecified statements to a man named Archie Henderson “about his, Erick Kelly’s, involvement”; a contact by codefendant Baldwin to the Alcohol, Tobacco and Firearms Agency on the evening of May 2 about a gun belonging to codefendant Kelly which was for sale; the relationship by which Baldwin related to Pink “basically as a man.” Additionally, Pink complains of the prosecutor’s statement that a scarf found in Baldwin’s room was recognized by Bell and that *724 there would be evidence that the codefendants borrowed a car on the night of the robbery. Baldwin objects to the comments about Pink admitting to having shot someone (these statements were admitted into evidence at trial). Kelly additionally complains that he was prejudiced by the statements concerning Bell’s observation of him the night of the robbery and by the summarization of Bell’s and Walker’s testimony in final argument.
Prior to the opening statement, Pink’s counsel requested the court to order the prosecutor not to mention anything which might be inadmissible under the Bruton rule and counsel for Baldwin joined in the motion. The court overruled the motion.
The State argues that the defendants have not preserved this issue for appeal as they failed to make contemporaneous objections during the prosecutor’s opening statement and final argument. We cannot agree as to the opening statement. The defendants did not know which comments the prosecutor would fail to establish through the evidence at trial; therefore, they could not have known when to object. However, defendant Kelly also complains of certain statements made during closing argument. His failure to contemporaneously object to statements in the final argument precludes his complaint on appeal.
State v. Watkins,
Having reviewed the prosecutor’s opening statement, we find there was no prejudice to any of the defendants caused by the opening statement. The jury was instructed that statemеnts of counsel were not to be considered as evidence. We must assume the jury followed this instruction and disregarded any remarks of counsel which were not later established by the evidence.
State v. Fleury,
Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor’s reference in his opening statement to matters not provable or which he does not attempt to prove during the trial.
State v. Woods,
*725
Baldwin objects to comments concerning statements made by Pink to third parties about a shooting. These statements were offered and entered into evidence at trial. There is no prejudice suffered by the defendant (Baldwin) in regard to these comments which were established by the evidence.
State v. Hill,
III.
The codefendants Baldwin and Kelly each challenge the admission of out-of-court statements made by Pink and Baldwin respectively. The admissibility of these statements has been challenged upon grounds of hearsay and the confrontation clause within the meaning of
Bruton v. United States,
Kim Walker testified that after the three defendants returned on the night they borrowed her husband’s (Hicks’) car, she heard Pink say to Baldwin, “I said don’t move and they moved so I shot them.” Walker further testified that Baldwin responded by shrugging her shoulders. The court instructed the jury that this testimony was to be considered only in regard to the charges against Pink. Both Baldwin and Kelly objected at trial and claim error on appeal.
Youlanda Burrell, defendant Pink’s cousin, testified that Pink told Burrell that she (Pink) had done something she should not have done — she had shot someone. Sоon after saying this, Pink told Burrell she had been lying. Burrell also testified that Pink later told her that when she closed her eyes she could see the girl fall. Karen Sherman, Burrell’s roommate, testified that Pink made a similar statement to her about seeing a girl fall. The trial court again instructed the jury that these statements could only be used in considering the charges against Pink. Both Baldwin and Kelly objected and now claim error.
Kelly also objects to the testimony of David Strong. Strong’s *726 testimony was that sometime after the robbery, he had gone with Pink and Baldwin to retrieve a gun which belonged to him and which some man had. The man wanted $200 for the gun. Strong refused to pay that amount and Baldwin told him that the gun was “hot” and that the gun had been used and that Baldwin needed Strong to get the gun back. Strong asked why the gun was “hot” and Pink told Baldwin she shouldn’t be talking. Strong then exclaimed that the next thing Baldwin would tell him was that the gun was used at Church’s. Baldwin said “no” and left. The trial court instructed the jury that these statements could only be used in its deliberations against Baldwin.
Defendants Baldwin and Kelly argue that these statements are highly incriminating to them, that it is impossible for the jury to follow the limiting instruction, and, therefore, their right to confrontation has been violated within the meaning of
Bruton v. United States,
In Bruton, the statement admitted was a post-arrest confession to the police in which the codefendant stated the defendant (Bruton) had been his accomplice in an armed robbery. In reversing Bruton’s conviction, the court reasoned:
“[B]ecause of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of . . . [the] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.”391 U.S. at 126 .
The court also stated that “[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions . . . . [Citations omitted.] It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information.”
In the case at bar, it is undisputed that the statements admitted were hearsay. However, they fall within an exception to the hearsay rule and, accordingly, were properly admissible against the declarants as statements against interest. This exception is found in K.S.A. 60-4600) which provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“Declarations against interest. Subject to the limitations of exception (Q, a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable man in the declarant’s position would not have made the statement unless the man believed it to be true.”
Each of the statements was inadmissible hearsay to the codefendants other than the declarant. Recognizing this, the court limited the jury’s consideration of the statements to the respective declarant.
Up to this point, Bruton is indistinguishable: Bruton involved a confession which was admissible against the declarant but not against the codefendant, so the court admitted it along with a limiting instruction. However, in Bruton, the statements admitted explicitly referred to and incriminated the codefendant. It is this point that distinguishes Bruton. In none of the statements admitted in the present case did the declarant mention either of her codefendants.
Bruton
rights are violated only by admission of extrajudicial statements
implicating
the complaining defendants. In a case such as this where a statement does not directly allude to the defendants, no rights are abridged.
United States v. Heffington,
Baldwin’s contention that she was prejudiced by Walker’s testimony deserves a special note. Walker testified that in response to what Pink said about the shooting, Baldwin shrugged. This shrug was clearly a statement against her own interest. Therefore, Walker’s testimony fell within a hearsay exception as to Baldwin. See K.S.A. 60-460(j). Where the incriminating admissions are admissible against the defendant under the rules of evidence,
Bruton
is inapplicable.
Folston v. Allsbrook,
We also note that defendant Kelly’s reliance on
State v. Myers,
The court did not err in admitting the statements.
IV.
Defendant Baldwin alleges the trial court erred in failing
sua sponte
to order severance when the
Bruton
problems became apparent. We have already determined there were no
Bruton
problems. Moreover, the defendant failed to request a severance and under K.S.A. 22-3204 such failure is deemed a waiver to the right of severance.
State v. Pham,
V.
Each of the defendants contend the trial court erred by failing to grant their post-trial motions for judgment of acquittal. All three defendants allege there was insufficient evidence to sup *729 port the verdict as to the element of identity. Defendant Baldwin also claims there was insufficient evidence to support the kidnapping conviction.
In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.
State v. Pham,
234 Kan. at
667-68; State v. Douglas,
Each of the defendants was identified in court by one or both of the victims. In the instructions, the jury was cautioned on the reliability of eyewitness identifications. It is the jury’s function, and not an appellate court’s, to weigh evidence and pass on the credibility of witnesses.
State v. Holt,
Aside from the in-court identifications, considerable evidence, albeit circumstantial, linked the defendants with the crime. A conviction of even the gravest offenses may be sustained by circumstantial evidence.
State v. White & Stewart,
Likewise, we find there was sufficient evidence to support the verdict convicting Baldwin of two counts of kidnapping. The two robbers first placed Bell in the cooler and then Rogers, while they set about robbing the restaurant. They later removed Rogers so she could help them open the cash registers.
K.S.A. 21-3420 provides in pertinent part:
“Kidnapping is the taking- or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
“(b) To facilitate flight or the commission of any crime.
The forcible moving of the victims to the cooler in order to
*730
facilitate the robbery was clearly a kidnapping within the mеaning of the statute and
State v.
Buggs,
VI.
Defendant Baldwin next contends that the sentence pronounced by the trial judge did not match the sentence in the journal entry insofar as the imposition of the Habitual Criminal Act. She alleges the court erred by failing to reform the journal entry and, therefore, she should receive the minimum available sentence.
Defendant Baldwin does not contest the fact that the prosecution requested the application of the Habitual Criminal Act in sentencing, that defense counsel stipulated to the prior felony conviction, or that counsel for defendant and prosecution specifically argued the application and practical effect of the Habitual Criminal Act to the defendаnt’s Class A and Class B convictions.
We have read the statement made by the trial judge in sentencing Baldwin and find it clear that the court doubled the maximum Class B penalties in each of the Class B sentences by virtue of the Habitual Criminal Act, and did not double the Class A penalty because doubling a life penalty would be an exercise in futility. Baldwin argues that the court sentenced without enhancement under the Habitual Criminal Act. The defendant’s position is 'simply not supported by the record. The journal entry correctly reflects the sentence as imposed at the sentencing hearing.
VII.
Defendant Baldwin’s final contention is that the court erred in imposing the provisions of the Mandatory Firearm Sentencing Act as to the murder count. She claims that since evidence demonstrates Pink fired the only bullet, Baldwin was a mere accomplice and did not use a firearm in the commission of this crime as contemplated by the provision of K.S.A. 21-4618 which provides:
“(1) Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of *731 imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. This section shall not apply to any crime committed by a person under eighteen (18) years of age.” (Emphasis added.)
Baldwin was convicted as a principal to the crime of felony murder. The evidence established that both robbers were armed. The sentencing court specifically found that both robbers used a firearm in the commission of these crimes. We will not disturb this finding as it is supported by competent evidence.
State v. Mack,
VIII.
Finally, defendant Kelly raises (for the first time) on appeal that he was denied his constitutional right to effective assistance of counsel. Kelly cites certain acts and omissions which resulted in allegedly inadequate representation including failure to request severance, the waiver of an opening statement, abbreviated closing statements and inadequate efforts in cross-examination.
The State maintains that since the trial court was never given an opportunity to consider this issue, it is not properly before the appellate court. This rule is stated in
State v. Porter, Green & Smith,
In the recent case of
Chamberlain v. State,
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
“(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assist *732 anee, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performаnce must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
“(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable prоbability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.”236 Kan. 650 , Syl. ¶ 3.
In
Strickland,
the court said that the first component of the test — determining whether counsel’s performance was deficient - need not be considered before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
Here, it appears the mistakes complained of were slight and that, even without the alleged mistakes, the defendant would have been convicted based upon the evidence against him. Specifically, the failure to request severance was harmless error because the five grounds for severance recently stated in
State v. Martin,
Therefore, we find that the result of this proceeding would have been the same even without the alleged errors. The defendant was not denied his Sixth Amendment right to effective assistance of counsel.
The judgment of the lower court is affirmed.