GEORGE KENNETH RANKIN v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 22, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001371-MR
GEORGE KENNETH RANKIN
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 98-CR-00073
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE:
CHIEF JUDGE GUDGEL, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, George Kenneth Rankin, appeals from
a conviction of one count of kidnapping and one count of firstdegree robbery.
As appellant was entitled to the application of
the kidnapping exemption statute, KRS 509.050, we reverse the
kidnapping conviction.
Although the prosecutor's use of an out-
of-court statement made by appellant's non-testifying codefendant violated appellant's right to confrontation, it was
harmless error.
Hence, we affirm appellant's conviction for
first-degree robbery.
The facts of the case are as follows.
On December 31,
1996, at approximately 9:30 p.m., Roger Adkins exited the
building of his employer, Ohio Valley Wholesale (Ohio Valley),
located in Ashland, Kentucky.
As Adkins walked to his car in the
parking lot, he was approached by an individual, later identified
as Zeke Davidson.
As Adkins began to unlock the car, Davidson
told him to turn around and go back inside.
Adkins testified
that he saw something "silver plated" that he believed to be a
gun.
Adkins turned around, walked to the door, unlocked it, and
went back inside Ohio Valley followed by Davidson.
Once inside,
Davidson forced Adkins to walk down a narrow hallway, and as they
passed by offices, Davidson would ask “is there anything in
here?”, to which Adkins would reply no.
As they got near the end
of the hallway, Davidson heard voices and asked Adkins how many
people were there, and Adkins replied that there were three or
four.
Davidson then noticed a motion detector at the end of the
hall, and asked Adkins if it was a camera.
Adkins said that it
was, and at that point Davidson turned and ran from the building.
Later that night, Officer James Crisp, a policeman with
the City of Russell, stopped a car driven by Hugh Lee Myers, in
which appellant and Davidson were passengers.
Appellant was
wearing a stainless steel Rossi .38 special in a holster on his
belt.
The three were charged with intoxication offenses and
taken to the Russell Police Department where they were
interviewed by Lieutenant Charles Carter and two other officers
of the Ashland Police Department.
The three's involvement in the
Ohio Valley robbery came to light when Davidson, while “bragging”
to Lieutenant Carter about other burglaries he'd committed,
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mentioned that he hadn't “been nowhere except that one thing
tonight”, and then asked if they had his face on video camera.
On August 13, 1998, appellant and Myers were indicted
by the Boyd County grand jury each for one count of kidnapping,
KRS 509.040, and one count of first-degree robbery, KRS 515.020.
Davidson entered a guilty plea encompassing the Ohio Valley
robbery and other burglaries, agreeing to testify against
appellant and Myers.
Appellant and Myers were tried jointly in a
jury trial which commenced on May 25, 1999.
Appellant and
Davidson presented conflicting versions of the events at trial.
Davidson testified that he, appellant, and Myers originally
planned to burglarize Ohio Valley that evening.
He stated that
they parked in the lot of a nearby gas station, and while Myers
and appellant waited in the car, he walked over to Ohio Valley
planning to smash the window out with a brick, but when he got
there, he saw a man (Adkins) enter the building.
Davidson said
he walked back to the car, told appellant and Myers he saw a man
go into Ohio Valley, borrowed appellant's gun, walked back over
to Ohio Valley and waited for the man to come back out.
When
Adkins emerged from the building, the robbery commenced.
Appellant's defense at trial was that he was not part
of any plan to rob Ohio Valley.
He testified that the three men
had been riding around in the car, and stopped at the gas station
to get something to drink.
Appellant stated that Davidson had
asked to “see” appellant's gun, and when appellant went into the
gas station, Davidson walked over to Ohio Valley with appellant's
gun and committed the robbery, unbeknownst to appellant.
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Myers
did not testify at trial.
His counsel presented a defense that
Myers was a person of low intellectual functioning and unable to
form the requisite intent.
Appellant was convicted of kidnapping
and first-degree robbery, and sentenced to a ten-year term for
each offense, with the sentences to run concurrently for a total
of ten years' imprisonment.
Myers was found not guilty on both
charges.
On appeal, appellant first argues that the trial court
erred in overruling his motion for a directed verdict, as there
was insufficient evidence to convict him of kidnapping.
Appellant further argues that he was entitled to a dismissal of
the kidnapping charge under the kidnapping exemption statute, KRS
509.050.
KRS 509.050, “Exemption”, states, in pertinent part:
A person may not be convicted of unlawful
imprisonment in the first degree, unlawful
imprisonment in the second degree, or
kidnapping when his criminal purpose is the
commission of an offense defined outside this
chapter and his interference with the
victim's liberty occurs immediately with and
incidental to the commission of that offense,
unless the interference exceeds that which is
ordinarily incident to commission of the
offense which is the objective of his
criminal purpose.
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The application of the kidnapping exemption statute is
tested on a case-by-case basis.
Harris v. Commonwealth, Ky., 793
S.W.2d 802, 807 (1990), cert. denied, 499 U.S. 924, 111 S. Ct.
1319, 113 L. Ed. 2d 252 (1991); Gilbert v. Commonwealth, 637
S.W.2d 632, 635 (1982), cert. denied, 459 U.S. 1149, 103 S. Ct.
794, 74 L. Ed. 2d 998 (1983).
In order for the exemption statute
to apply, a three-prong test must be satisfied.
S.W.2d at 807.
Harris, 793
First, the criminal purpose must have been the
commission of an offense defined outside KRS Chapter 509; second,
the interference with the victim's liberty must have occurred
immediately with and incidental to the commission of that
offense; and third, the interference must not have exceeded that
which is ordinarily incident to commission of the offense in the
first prong.
Id., Griffin v. Commonwealth, Ky., 576 S.W.2d 514
(1978); KRS 509.050.
We believe appellant satisfies the three prongs of the
test, and was therefore entitled to the application of the
kidnapping exemption statute.
First, his criminal purpose was
the commission of first-degree robbery, KRS 515.020.
Second, the
interference with Adkin's liberty occurred immediately with and
incidental to the robbery, lasting only for the time Davidson
forced Adkins to walk from the car to the door, unlock it, and go
down the hall with Davidson.
Third, the interference was not in
excess of that which is ordinarily incident to first-degree
robbery.
Adkins was accosted in his employer's parking lot, and
compelled at gunpoint to let Davidson in the building and assist
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him in looking for valuables.
The crime of first-degree robbery
encompasses the situation in which a person is threatened with a
gun for the purpose of committing a theft, which is precisely
what occurred in the instant case.
KRS 515.020.
Adkins was
released immediately when the robbery ended, and was not used as
a hostage or shield.
As such, the restraint was not in excess of
that which generally accompanies first-degree robbery.
The Kentucky Supreme Court has stated that, with regard
to the second and third prongs, in order for the exemption
statute to apply, the restraint must be "close in distance and
brief in time."
241 (1977).
Timmons v. Commonwealth, Ky., 555 S.W.2d 234,
Adkins testified that the entire incident lasted for
only five or six minutes.
Further, we feel it is significant
that Adkins was never removed from his employer’s premises, thus
distinguishing the instant case from others in which a victim
restrained for a brief time and moved a short distance was
nevertheless found to have been kidnapped.
For example, in
Bishop v. Commonwealth, Ky. App., 549 S.W.2d 519 (1977), a
kidnapping was found where a supermarket clerk was forced at
gunpoint to carry the proceeds of the robbery out of the store,
through the parking lot, and about fifty feet into the woods.
This Court held that taking the victim from the "safety of the
well lighted supermarket" into a dark wooded area exposed him "to
a much greater risk of death or serious bodily injury, and the
interference with his liberty was far in excess of that which
ordinarily accompanies a robbery in the first degree".
522.
Thus KRS 509.050 did not apply.
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Id. at
See also Commonwealth v.
Seay, Ky., 609 S.W.2d 128 (1980) (Kidnapping found where victims
were tied up and forced from their own apartment into nearby
apartment, and one victim taken from her apartment and compelled
to help robbers get into neighbors' apartments.
Court held
restraint on liberty went far beyond that necessary to carry out
robberies, which precluded application of KRS 509.050).
In the
instant case, Adkins was not forced from his employer's premises
or into a more dangerous area, but back inside the building,
where other employees were working.
In fact, Adkins testified at
trial that he felt more secure after he was taken inside the
building than he did in the parking lot.
For the aforementioned
reasons, we believe appellant satisfies all three prongs of the
test and was entitled to the application of KRS 509.050, thus,
his kidnapping conviction must be reversed.
Appellant next argues that the trial court erred in
refusing to sever his case from that of his co-defendant Myers.
Appellant contends that this resulted in the Commonwealth's
introduction of an out-of-court statement by Myers which
incriminated appellant, thus violating appellant's right to
confrontation.
The Commonwealth wished to introduce a statement
Myers made to police, "[T]hey wanted to try to hit Ohio Valley",
to prove Myers knew a robbery was planned.
As Myers was not
testifying, the court found that, per Bruton v. United States,
391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the
statement could not be introduced in its raw form without
violating appellant's confrontation rights, as the pronoun "they"
clearly referred to appellant and Davidson.
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Hence, the court
instructed the Commonwealth to paraphrase Myers's statement,
which was introduced at trial through the testimony of Lieutenant
Carter as follows:
Commonwealth:
Did Mr. Myers indicate to you
that he, Mr. Myers, was aware that there was
a plan to rob Ohio Valley that night?
Lieutenant Carter:
Yes sir, he did.
Appellant contends that the paraphrased version
nonetheless incriminated him, because other evidence at trial
linked him with Myers and Davidson that evening.
Appellant
further contends that the trial court's admonishment of the jury
was insufficient to cure the violation, as it did not
specifically instruct the jury not to consider Myers's statement
against appellant.
At the close of the trial, the court
admonished the jury as follows:
I admonish the jury that any of the evidence
that you have heard over the course of the
trial that you may or may not find as
incriminating toward Mr. Rankin, you shall
not consider that evidence as having any
weight or any affect against Mr. Myers.
And
likewise, any evidence or testimony that
you've heard during the course of this trial
that you may or may not find having been
incriminating as to Mr. Myers, you shall not
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treat that evidence or give it any weight as
being incriminating towards or prejudicial to
Mr. Rankin.
Which is probably a fancy way of
saying you consider them separately as you
evaluate the evidence as it may apply to
each.
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620,
20 L. Ed. 2d 476 (1968) held that “in a joint trial the admission
of a non-testifying co-defendant's confession which ‘expressly
implicated’ his fellow co-defendant, was a violation of the
Confrontation Clause of the Sixth Amendment”.
Commonwealth, Ky., 992 S.W.2d 183, 185 (1999).
Rogers v.
However, in
Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d
176 (1987), the Court considered the issue that appellant
advances in the instant case - “whether Bruton requires the same
result when the codefendant's confession is redacted to omit any
reference to the defendant, but the defendant is nonetheless
linked to the confession by evidence properly admitted against
him at trial.”
Richardson, 481 U.S. at 202, 107 S. Ct. at 1704.
The Court held that, in such a situation, "the Confrontation
Clause is not violated by the admission of a nontestifying
codefendant's confession with a proper limiting instruction
when, . . . the confession is redacted to eliminate not only the
defendant's name, but any reference to his or her existence.”
Richardson, 481 U.S. at 211, 107 S. Ct. at 1709; Rogers, 992
S.W.2d at 185.
“[A] joint trial utilizing a properly redacted
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statement is appropriate where given the totality of the
circumstances no substantial prejudice will result.
It is
appropriate where the statement does not provide details that
point unerringly to the nonconfessing defendant”.
Cosby v.
Commonwealth, Ky., 776 S.W.2d 367, 370 (1989), cert. denied, 493
U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), overruled in
part on other grounds by, St. Clair v. Roark, Ky., 10 S.W.3d 482
(1999).
Myers’s statement as admitted contained no reference to
appellant's existence, did not point unerringly to appellant, and
was accompanied by a proper limiting instruction by the trial
court.
Id.; Rogers, 992 S.W.2d at 186.
Accordingly, the
admission of Myers’s out-of-court statement as paraphrased was
not in error.
Appellant further contends that the most damaging use
of the statement, and a violation of his confrontation rights,
occurred in the following exchange later during Lieutenant
Carter's testimony:
Commonwealth:
. . . Is it a reasonable
inference that Mr. Rankin, being in the car
with Mr. Davidson and Mr. Myers, and knowing
that Mr. Myers indicated he was aware of a
plot to commit this robbery of plan, is it a
reasonable implication that that's what Mr.
Rankin understood as well?
Lieutenant Carter:
Yes sir.
was.
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I felt that it
We agree with appellant that this exchange was
improper, as the prosecutor was clearly attempting to use Myers's
out-of-court statement to prove appellant was in on the plan to
rob Ohio Valley.
A prosecutor is not permitted “to undo the
effect of the limiting instruction by urging the jury to use [the
nontestifying co-defendant's] confession in evaluating [the other
co-defendant's] case.”
at 1709.
Richardson, 481 U.S. at 211, 107 S. Ct.
However, a Bruton violation
“need not constitute
reversible error if the evidence introduced through the
confession or statement of the non-testifying co-defendant is
cumulative and other evidence of the guilt of the accused is
overwhelming.
In such a case only harmless error occurs and the
conviction may be upheld.”
Butler v. Commonwealth, Ky., 516
S.W.2d 326, 328 (1974).
In the instant case, we adjudge the violation of
appellant's confrontation rights to be harmless error.
In light
of Davidson's testimony as to appellant's role in the robbery,
the prosecutor's use of Myers's statement against appellant was
cumulative.
Testimony of police officers, and appellant himself,
placed appellant with Davidson and Myers throughout the evening
of the robbery.
Appellant's gun was used to commit the crime,
and an illegal police scanner was found in the car in which the
three men were arrested.
Additionally, appellant had made
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statements to police that he knew what Davidson “was going to do”
and that he “walked to try to stop [Davidson] from doing it”,
from which the jury could have inferred he meant the robbery.
Finally, the trial court did not err in refusing to
sever the trials of appellant and Myers.
“The trial judge has
broad discretion to determine whether the risk of prejudice
requires severance and such a decision will be overturned only
upon a clear showing of an abuse of discretion.”
Commonwealth, Ky., 809 S.W.2d 835, 838 (1990).
Epperson v.
Having found only
harmless error, we cannot say the lower court abused its
discretion or that appellant was prejudiced by the joint trial.
For the aforementioned reasons, the judgment of the
Boyd Circuit Court is reversed with regard to the kidnapping
conviction and affirmed as to the first-degree robbery.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael C. Lemke
Louisville, Kentucky
A. B. Chandler, III
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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