State v. Warren

635 P.2d 1236, 230 Kan. 385, 23 A.L.R. 4th 1070, 1981 Kan. LEXIS 290
CourtSupreme Court of Kansas
DecidedNovember 9, 1981
Docket52,753
StatusPublished
Cited by90 cases

This text of 635 P.2d 1236 (State v. Warren) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Warren, 635 P.2d 1236, 230 Kan. 385, 23 A.L.R. 4th 1070, 1981 Kan. LEXIS 290 (kan 1981).

Opinions

The opinion of the court was delivered by

Prager, J.:

This is a direct appeal in a criminal action in which the defendant, John M. Warren, was convicted of aggravated robbery (K.S.A. 21-3427) and acquitted of felony theft (K.S.A. 1980 Supp. 21-3701[a]). The case arose out of the theft of a television set at Griffith Construction Company and the armed robbery of the Chateau Briand Restaurant in Wichita. Two robbers were involved in the Chateau Briand robbery, one of whom [386]*386was Timothy McGuire, who testified against the defendant at the trial.

The circumstances surrounding the robbery were undisputed. The only issue in the case was the identity of Warren as the other robber. The following facts were undisputed: Timothy McGuire met defendant Warren about the first of October 1979, when both were working for the Griffith Construction Company. McGuire moved in defendant’s trailer house on November 1, 1979. McGuire testified that he quit working for Griffith Construction Company on November 12, 1979. What happened thereafter is hotly disputed between McGuire and the defendant. McGuire testified that, when he moved in with Warren in his trailer, Warren told him that he, Warren, had stolen a television set from the Griffith Construction office. Warren and his girl friend, Wanda Hurt, a legal secretary, testified that when McGuire moved in the trailer, McGuire brought the television set with him and gave it to Warren in lieu of rent. The owner of the television set testified that it was stolen from the Griffith Construction office on September 17,1979. Both McGuire and Warren, as employees, had access to the office where the television set was located.

McGuire testified that, during the fourteen days he was living in Warren’s trailer, Warren suggested that the two of them rob the Chateau Briand and that they committed the robbery on November 8, 1979. Defendant Warren denied that he had any prior knowledge of the robbery or that he committed it. Shortly after McGuire moved out of defendant’s trailer home, McGuire was arrested and charged with committing two robberies. He was caught in the act while committing an armed robbery of a convenience store. McGuire was released on bail a day or two after November 14, 1979, and returned to the Warren trailer house to retrieve his clothing. He then went to his parents’ home in Coffeyville. While there he talked to an FBI agent, who advised him to make a deal with the Wichita Police Department. About four months later, McGuire returned to Wichita and talked to a Detective Anderson, informing him that the defendant had participated with him in the robbery. For the two robberies McGuire pled guilty to theft receiving a suspended sentence with a two-year probationary period. It was McGuire’s testimony that a bank bag taken in the Chateau Briand robbery was in the defendant’s trailer hidden under a couch in the living room where defendant had placed it. Defendant Warren testified that he did not know [387]*387the bank bag was in the trailer until he was advised by McGuire it was there, which was the same time McGuire told Warren about the stolen television set. McGuire testified that he did return later to get his clothing and at that time did take the bank bag and television set. Warren testified that the reason he did not report this information to the police was that he was afraid of McGuire. Warren, age 24, had a spotless record and no prior criminal convictions.

At the time the robbery occurred at the Chateau Briand restaurant, the robbers took money from the cashier, Tammie Moss. Anthony Miller, owner of the restaurant, was also present and observed the two men involved in the robbery at the cash register. One of the men pointed a gun at him and said, “You don’t want anything, fellow.” The robber then grabbed the bank bag, and the two robbers left with their loot. At the preliminary hearing defendant Warren was identified by Tammie Moss. Her identification was highly questionable after cross-examination by defense counsel. Tammie Moss did not testify at the trial. Anthony Miller testified at both the preliminary hearing and the trial. Anthony Miller identified defendant Warren as being the robber who pointed a gun at him and who grabbed the bank bag from under the counter. The circumstances surrounding the identification by Miller will be discussed in detail later in the opinion.

As noted above, the defendant was tried for aggravated robbery of the Chateau Briand and for felony theft of the television set. The jury acquitted the defendant on the charge of theft of the television set, but convicted him of aggravated robbery. Following his conviction, the defendant appealed to this court claiming prejudicial trial errors.

The defendant raises four points:

(1) The trial court erred in refusing to grant a mistrial when the prosecutor, in his cross-examination of the defendant, stated before the jury that the absent witness, Tammie Moss, had identified defendant as the robber;

(2) The trial court erred in denying the defendant’s motion to admit the expert testimony of Dr. Elizabeth F. Loftus, an expert in the field of eyewitness identification;

(3) The trial court erred in refusing to give a requested instruction on the subject of eyewitness identification; and

(4) The trial court erred in failing to give a cautionary instruction on accomplice testimony as requested by defendant. [388]*388In considering each of these points, we will do so with the understanding that they are interrelated on the issue of identification, the only contested issue in the robbery case.

We will consider first'the defendant’s contention that he was denied a fair trial and that the trial court erred in refusing to grant a mistrial as a result of the prosecutor’s statement on cross-examination that an absent witness, Tammie Moss, had identified Warren as the robber. As noted above, Tammie Moss was the cashier of the Chateau Briand restaurant at the time the robbery took place. At the beginning of the trial, defense counsel called to the court’s attention the fact that Tammie Moss had gone into the hospital that very day to undergo dental surgery and would be unable to testify. Defense counsel wanted Tammie Moss to testify at the trial and requested a continuance, since she was one of the persons present when the robbery occurred. He wanted her to testify because of her conflicting statements in regard to the description of the robbers, which he thought would be beneficial to the defense. The State objected, and the trial court denied the defendant’s request for a continuance to have Tammie Moss present.

The trial then proceeded. The State presented its case and rested. Then defendant Warren took the stand and testified in his own defense. On cross-examination, the defendant denied that he committed the robbery at the Chateau Briand and then the following cross-examination took place on questions propounded by the prosecutor:

“Q. Are you acquainted with Tammie Moss?
“A. No, I’m not.
“Q. You’d never met her before in your life, had you?
“A. No.
“Q. You’d never seen her before in your life, had you?
“A. No, I haven’t.

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Cite This Page — Counsel Stack

Bluebook (online)
635 P.2d 1236, 230 Kan. 385, 23 A.L.R. 4th 1070, 1981 Kan. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-warren-kan-1981.