Opinion filed February 18, 1984.
SYLLABUS BY THE COURT
1. CRIMINAL LAW — Eyewitness Identification — Cautionary Jury Instruction Required When Reliability of Identification an Issue. In any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.
2. SAME — Eyewitness Identification — Reliability. There is no serious question about the reliability of the eyewitness identification where the robber was the only other person in the building besides the victim and was apprehended by the police inside the building before he could escape. Eyewitness identification of the defendant was not a critical part of the prosecution's case.
3. SAME — Jury Instructions — Propriety of Instructions. The propriety of the instructions to the jury are to be gauged by consideration of the whole, each instruction to be considered in conjunction with all other instructions in the case.
Appeal from Sedgwick district court, ROBERT C. HELSEL, judge. Opinion filed February 18, 1984. Affirmed.
Timothy P. Wood, of Wichita, argued the cause and was on the brief for the appellant.
Geary N. Gorup, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, Clark V. Owens, district attorney, and Kimberly Gee Vines, assistant district attorney, were with him on the brief for the appellee.
The opinion of the court was delivered by
Lewis Jones, Jr., defendant/appellant, appeals from convictions of robbery (K.S.A. 21-3426) and kidnapping (K.S.A. 21-3420). A jury trial was conducted on March 28, 1983. The defendant was sentenced under the habitual criminal statute to a term of not less than 45 years to life on the kidnapping charge, and not less than 15 years nor more than 60 years on the robbery charge. The sentences were to run concurrently.
Lori Mead managed the Vickers Gas Station in Wichita, Kansas. On November 29, 1982, she arrived at work at approximately 5:00 a.m. to open the station for business at 6:00 a.m. Just as Ms. Mead was unlocking the front door, a man came running toward her. The man was wearing a maroon and gray jogging suit, a stocking cap and a nylon stocking covering his face. After forcing Ms. Mead inside, the man demanded money from the safe. The robber and Ms. Mead went into the cashier's room where Ms. Mead removed the money from the floor safe. While the man was preoccupied putting the money into a sack, Ms. Mead activated the silent alarm.
After the defendant placed the money in a sack, he ordered Ms. Mead into the back room. The robber told Ms. Mead to remove her clothes and shoes so she could not follow him, but changed his mind after seeing numerous coats the victim could wear hanging on the walls. The defendant, finding the back door was duct-taped shut for the winter, decided to depart through the front door. While taking Ms. Mead toward the front door, the defendant noticed some activity outside. The police had responded to the silent alarm. A police officer ordered the defendant to release the woman or someone would be hurt. Jones grabbed Ms. Mead by the arm and took her to the back room, where he had her take the duct tape off the back door. He opened the door several inches; discovering other officers outside the back door, he quickly shut the back door. Officers outside the rear of the station saw the rear door open and close. Officers demanded that Jones exit the building or he was going to be hurt if he had a weapon. Jones told Ms. Mead to walk to the front window and inform the police that everything was all right, that he was an employee of the station. Ms. Mead walked to the cashier's window in the front of the building and motioned to the police officers that everything was all right. An officer told Ms. Mead to unlock the door and get out of the station. Ms. Mead looked around, saw no one, and escaped.
Police Officers Stolz, Stinson and Wells then entered the station through the front door. A man walked out in the front area of the station and surrendered to the police. The stocking cap and the nylon stocking mask were gone and the man was wearing a light-colored shirt. No other individual was discovered in the station by the officers.
Inside the station, in the back room, police found a grocery sack containing $1,736.78 taken in the robbery. About 5:00 p.m. that evening employees of the gas station found, in the back room of the station, a stocking cap, a nylon stocking, and a gray and maroon jacket with a gun in a pocket.
At the trial Ms. Mead testified the episode lasted 20 to 30 minutes. She did not see another person, except the robber, enter or leave the station during the robbery. Ms. Mead never saw the robber without the stocking mask covering his face prior to her escape from the station.
The defendant argues it was error for the court not to give the eyewitness instruction from State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981), after he requested the court to do so. In Warren, Justice Prager wrote:
"In any criminal action in which eyewitness identification is a critical part of the prosecution's case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony." 230 Kan. 385, Syl. ¶ 1.
The defendant contends the lighting was poor inside the station and police could not see the defendant well enough to identify him from their positions outside the station. A police officer also testified the defendant's clothing was different when arrested than the clothing of the man seen before the arrest. The defendant, who did not testify at the trial, contends someone might have gotten out the back door and hidden in the garbage dumpster outside the station. The defendant had wandered into the station and was mistaken for the robber, and was arrested.
The prosecution argues eyewitness identification was not a critical part of its case. The police surrounded the gas station after the silent alarm was activated. They saw Ms. Mead being forcibly held by a man inside the station. The police captured the defendant after Ms. Mead had escaped. No other person was seen by Ms. Mead or police inside or near the station.
Identification by police from pre-arrest viewing of the robber was not a critical part of the State's case. The defendant was arrested inside the gas station after the station had been surrounded. No other person was seen at or near the station during the occurrence. Testimony identifying the defendant before arrest was not a critical part of the case. The major inculpatory evidence against the defendant was the fact he was caught at the scene of the crime in the station and he was the only possible perpetrator. The State points out the station was surrounded by police and no one could have exited the station and hid in the dumpster after the police arrived. After the police did arrive, a man opened the back door. This man was the same person who robbed the station. The robber had not left the station at this point and could not have left after the building was surrounded without observation by the police. The money taken from the safe, and the outer clothing worn by the robber, were found abandoned inside the station. There is no other Kansas case in which a defendant was the sole subject, was apprehended at the scene inside the building where the crime was committed, and appealed claiming as error the failure to give a Warren instruction.
There is no serious question about the reliability of the eyewitness identification where the robber was the only other person in the station besides the victim and was apprehended by the police inside the station before he could escape. Eyewitness identification of the defendant was not a critical part of the prosecution's case. Under the facts of this case there can be no serious question raised about the reliability of eyewitness identification or the requirement for a Warren instruction.
The defendant contends, under the court's instructions to the jury, all the elements required for a kidnapping conviction were not present. K.S.A. 21-3420 provides in part:
"Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
"( a) For ransom, or as a shield or hostage; or
"( b) To facilitate flight or the commission of any crime."
Defendant argues the trial court's instruction on kidnapping stated the kidnapping was done with the intent to facilitate the commission of aggravated robbery, a crime of which the defendant was not convicted. The defendant was convicted of the lesser included crime of robbery. The court's instruction provided:
"INSTRUCTION NO. 2
"The defendant is charged with the crime of Kidnapping. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That the defendant took or confined Lori Mead by force or threat;
2. That it was done with intent to hold such person to facilitate flight or the commission of Aggravated Robbery;
3. That this act occurred on or about the 29th day of November, 1982, in Sedgwick County, Kansas." Emphasis supplied.
The jury was fully instructed on the crimes of aggravated robbery and the lesser included offense of robbery. The instructions informed the jury that if they found the defendant was guilty of robbery, robbery would be understood to be the crime necessary as one of the elements for the jury to convict the defendant of the charge of kidnapping. The propriety of the instructions to the jury are to be gauged by consideration of the whole, each instruction to be considered in conjunction with all other instructions in the case. State v. Korbel, 231 Kan. 657, Syl. ¶ 6, 647 P.2d 1301 (1982). The jury was properly instructed; therefore, this claim of the defendant has no merit.
Defendant contends any movement of the victim by the defendant was incidental to the robbery. Defendant took the victim to the back room in his effort to depart through the rear door of the station; then out to the lobby of the station; and again to the back room of the station, to escape the police officers covering the front area of the station in his effort to escape the building. He then required the victim to move to the front of the building and inform the officers he was an employee and everything was all right. Such acts are not a part of a robbery.
The two cases most similar factually to this case are State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980), and State v. Williams, 226 Kan. 688, 602 P.2d 1332 (1979). In State v. Weigel, bank robbers forced bank employees into the bank vault. The robbers closed the vault door and turned the handle thinking the vault was locked. The robbers failed to turn the dial on the door, and those inside were able to open the door. The actions of the robbers in forcing the bank employees into a bank vault and attempting to lock the vault door were for the purpose of permitting the defendant and others to flee the scene. Such acts constituted the crime of kidnapping, not robbery.
In State v. Williams, 226 Kan. 688, the victim testified Williams struck and robbed her and then rummaged through her house for valuables. Williams, while armed with a screwdriver, raped the victim, stole her stereo, and threatened to kill her child. The robber forced the victim to tie up her child and then bound and gagged the mother. Williams placed two chairs over the mother and child as they lay on the bed to prevent them from moving.
Applying the test laid down in State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976), to Williams' acts of binding, gagging and securing of his victims by placing chairs over them, then placing a desk across the bedroom door, this court determined Williams' acts were not acts incidental to the crimes of rape or aggravated robbery, nor were those acts inherent in either crime. Williams' acts substantially lessened the risk of detection of his crimes and facilitated flight.
The kidnapping statute is not reasonably intended to cover movements and confinements which are slight and "merely incidental" to the commission of an underlying lesser crime. Thus the "standstill" robbery and the ordinary rape require as a necessary incident some "confinement" of the victim — they are nevertheless not kidnappings solely for that reason. Whether a taking substantially "facilitates" another crime or whether it is "merely incidental" are two different things. The same taking cannot be both. State v. Buggs, 219 Kan. at 215.
Here the confinement was: (1) Not slight, inconsequential and merely incidental to the crime of robbery; (2) not the kind inherent in the nature of the crime of robbery; and (3) significantly independent of the crime of robbery since the defendant's efforts in holding the victim were to facilitate his escape from the police officers surrounding the station.
In this case, the defendant forced the victim into the back room a second time when he noticed police activity outside the station. This act substantially lessened the risk of detection by taking the victim out of police sight. The act was not inherent in the nature of the robbery or incidental to that crime. Whether the defendant's further act of taking the victim from room to room was with the intent to hold the victim as a shield and to facilitate flight was a factual question properly answered by the jury. See State v. Stringfield, 4 Kan. App. 2d 559, Syl. ¶ 2, 608 P.2d 1041, rev. denied 228 Kan. 807 (1980). The jury finding the defendant guilty of kidnapping was correct.