BILLY J. HUTTON v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: APRIL 20, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000051-MR
BILLY J. HUTTON
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 98-CR-00632
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF, AND MILLER, JUDGES.
KNOPF, JUDGE:
Billy Hutton appeals from a December 17, 1999,
judgment of the Kenton Circuit Court finding him guilty, in
conformity with a jury verdict, of complicity to burglary in the
first degree (KRS 502.020 and KRS 511.020) and sentencing him to
twelve and one-half years in prison.
Hutton contends that he has
been convicted of a crime for which he was not indicted; that an
investigating police officer subjected him to an unlawful stop,
the evidentiary fruits of which should have been suppressed; and
that the trial court should have declared a mistrial when a
prosecution witness referred to Hutton’s post-arrest silence.
For the following reasons we are unpersuaded by these allegations
of error and so affirm the trial court’s judgment.
The Kenton County Grand Jury indicted Hutton and two
others, Donald Morgan and Clifford Webster, in the following
terms:
That on or about November 18, 1998, in Kenton
County, Kentucky, the Defendant[s] committed
the offense of BURGLARY IN THE FIRST DEGREE,
a felony, when with the intent to commit a
crime they knowingly entered or remained
unlawfully in a building and while in the
immediate flight from the building one or all
of the above participants in the crime armed
himself with a deadly weapon to wit: a gun,
in violation of KRS 511.020 and against the
peace and dignity of the COMMONWEALTH OF
KENTUCKY.
The Commonwealth alleged that, during the day of
November 18, 1998, Morgan and Webster rode with Hutton in
Hutton’s pick-up truck to the Taylor Mill area of Kenton County.
There Hutton helped the other two to find an unattended
residence.
Webster and Morgan broke into the residence and stole
various items including three hand guns.
The three then made, or
at least attempted to make, their get away in the pick-up truck.
They had not gone far when an officer of the Kenton County Police
Department, acting on a report of suspicious activity in the
area, stopped them.
The burglary thus came to light, and the
indictment just noted soon followed.
Morgan and Webster
eventually entered guilty pleas and testified for the
Commonwealth at Hutton’s trial.
participated in the burglary.
Hutton denied having
He claimed that he and Webster had
been driving through the area looking for the home of a girl
-2-
Hutton knew when they came upon Morgan already in possession of
the stolen property and offered him a ride.
The jury instructions permitted the jury to find Hutton
guilty of complicity to burglary in the first or the second
degree or of facilitation to burglary in the first or the second
degree.
Hutton maintains that, because he was indicted as a
principal, the proof of and the instructions regarding his
alleged complicity impermissibly broadened the case against him
beyond the scope of the indictment.
While this issue was not preserved in the course of
trial, Hutton contends that it implicates the trial court’s
subject matter jurisdiction and so may be raised for the first
time on appeal.
question.
We decline to address the jurisdictional
We need not do so for, even if Hutton is entitled to
review, he is not entitled to relief.
It is true, as Hutton contends, that the case actually
presented against a criminal defendant may not deviate materially
from the indictment:
A variance occurs when the charging terms [of
the indictment] are unchanged, but the
evidence at trial proves facts materially
different from those alleged in the
indictment. . . . In contrast, an amendment
involves a change, whether literal or in
effect, in the terms of the indictment. . . .
A variance rises to the level of a
constructive amendment when the terms of an
indictment are in effect altered by the
presentation of evidence and jury
instructions to such a degree that there is a
likelihood that the defendant may have been
-3-
convicted of an offense other than that
charged in the indictment.1
A constructive amendment, or fatal variance as it is sometimes
called, may also occur when the proof at trial presents a theory
of the crime so different from that contained in or implied by
the indictment as to deprive the defendant of meaningful notice
of the case to be brought against him.2
In the federal courts,
such constructive amendments
are considered prejudicial per se because
they deny the defendant his right to a grand
jury and hamper the ability to prepare
adequately for trial.3
In Kentucky, RCr 6.16 provides for the amendment of an
indictment at any time before a verdict, but only if “no
additional or different offense is charged and if substantial
rights of the defendant are not prejudiced.”
This rule has been
liberally construed, and even constructive amendments within its
scope have been deemed harmless errors.4
Nevertheless, as Hutton
notes, criminal defendants enjoy grand-jury and due-process
rights under the Constitution of Kentucky similar to those
provided by the federal constitution,5 and our courts have
likewise disallowed variances that departed materially and
1
United States v. Flowal, 163 F.3d 956, 962 (6th Cir. 1998) (citations and internal
quotation marks omitted).
2
Lucas v. O’Dea, 179 F.3d 412 (6th Cir. 1999).
3
United States v. McAnderson, 914 F.2d 934, 944 (7th Cir. 1990) (citations omitted).
4
Johnson v. Commonwealth, Ky., 864 S.W.2d 266 (1993); Robards v. Commonwealth,
Ky., 419 S.W.2d 570 (1967).
5
Ky. Const. §§ 11 and 12.
-4-
prejudicially from the indictment.6
Indeed, our highest court
has held that
where an indictment charged one alone with
the commission of a crime, it is error to
instruct that he may be convicted if he aided
or abetted another in its commission.7
The rule is otherwise, however, where the indictment
charges more than one defendant with the commission of the crime.
In that case, each of the defendants is deemed to be on notice
that he or she may be prosecuted as an accomplice of the others,
and evidence or jury instructions to that effect “do[] not
constitute a variance in the proof and the charge.”8
Hutton, of course, was indicted jointly with Webster
and Morgan, so, under the rule just stated, it was proper for the
Commonwealth to proceed against him as either a principal or an
accomplice.
Its proof that Hutton was guilty by complicity
clearly did not take Hutton by surprise or in any way unfairly
compromise his defense.
The trial court, therefore, did not err
by instructing the jury on a theory of complicity, and Hutton’s
conviction on that basis did not exceed the scope of the
indictment.
6
Wolbrecht v. Commonwealth, Ky., 955 S.W.2d 533 (1997).
7
Brown v. Commonwealth, Ky., 498 S.W.2d 119, 120 (1973) (quoting from Rice v.
Commonwealth, Ky., 259 S.W.2d 440, 441 (1955)).
8
Broughton v. Commonwealth, 303 Ky. 18, 196 S.W.2d 890, 892 (1946); Murphy v.
Commonwealth, Ky., 279 S.W.2d 767 (1955). See also United States v. Ellis, 121 F.3d 908 (4th
Cir. 1997) (defendant indicted as a principal was not prejudiced by evidence and instructions that
he participated in crime as an aider and abettor); State of West Virginia v. Petry, 273 S.E.2d 346
(W.Va. 1980) (discussing the stability of this rule from the common law through modern penal
codes).
-5-
Against this result, Hutton relies on Linder v.
Commonwealth9 for the proposition that complicity constitutes a
separate and distinct offense from participation as a principal,
from which he argues that he has been convicted of an offense
different from that for which he was indicted.
Linder, however,
concerned separate and distinct instances of theft, in one of
which Linder participated as a principal and in the other she
participated as an accomplice.
Because the court believed that
there had been two different thefts, Linder’s two convictions for
having participated in both were held not to have violated the
constitutional guarantee against double jeopardy.
Linder does
not state that complicity constitutes an offense distinct from
participation as a principal.
Complicity, rather, is a distinct
manner of committing the same offense.10
For this reason and for
those discussed above, Hutton’s reliance on Linder is unavailing.
Hutton next contends that he was subjected to an
unreasonable investigatory stop by Kenton County police officers
and that the trial court erred by denying his motion to suppress
the evidence gathered in conjunction with that stop.
At the
suppression hearing on this issue, the arresting officer,
Detective Gilvin, testified that on November 18, 1998, at about
1:45 P.M., he had received a dispatch over his car’s radio
concerning a 911 call from a citizen, Lewis Neuspickle, residing
on Kenton Station Road.
A young caucasian man had come to the
caller’s door and had told him that he was looking for someone
9
Ky., 714 S.W.2d 154 (1986).
10
KRS 502.020.
-6-
who lived in a house like the caller’s.
The caller had noticed
two other young caucasian men standing near a white, older model
Mazda pick-up apparently waiting for the young man at the door.
When the young man had left, the caller had seen the three drive
away together in the pick-up and had noted their direction.
The
man called 911 because there were no other houses like his in the
area, a fact that made the young man’s statement ring false and
suggested that he and the two others may have been there for some
other reason.
Detective Gilvin testified that upon hearing the
dispatch he immediately thought the young men may have been
would-be burglars because he had learned in the course of his
work that burglars frequently look for unattended houses simply
by knocking on the door and, if there is a response, offering a
pretext for being there.
The detective and his partner drove to
the area identified in the dispatch and in short order
encountered an older, white Mazda pick-up bearing three young
caucasian males.
As soon as he saw the truck, Detective Gilvin
signaled for it to stop.
The driver, who was Hutton, complied.
Webster was sitting in the bed of the truck where there were also
four gym bags and a speaker box.
After taking Hutton’s license
to his partner to run a license check, Detective Gilvin noticed
the butt of a gun showing from one of the gym bags.
Morgan, who
was in the cab with Hutton, said that the gun was his and claimed
that it was 22-caliber.
With Morgan’s permission, the detective
examined the gun, and when he confronted Morgan with the fact
that it was a much larger 45-caliber, Hutton volunteered that
-7-
Morgan had placed a box with two other guns beneath the
passenger’s seat.
From that point, apparently, the young men
became increasingly confused and inconsistent in their
statements, and it did not take long for the burglary to come to
light.
Hutton does not contend that Detective Gilvin lacked
justification for anything he did after he had stopped the three
men, but he claims that the radio dispatch did not justify the
stop itself.
We disagree.
A police officer’s warrantless, investigatory stop of a
vehicle is lawful under the Fourth Amendment to the United States
Constitution and Section 10 of the Kentucky Constitution only if
the officer has a reasonable and objectively articulable
suspicion that a person or persons in the vehicle are, or are
about to become, involved in criminal activity.11
In determining
whether the officer’s suspicion met this standard, a reviewing
court is to consider the totality of the circumstances presented
to the officer, including the officer’s training and experience,
and to ask whether, given those circumstances and reasonable
inferences from them, an objective suspicion--more than a mere
hunch--focused on the particular vehicle and its occupants.12
Although this Court will defer to the trial court’s properly
supported factual findings, as a general matter determinations of
11
United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981); Taylor
v. Commonwealth, Ky., 987 S.W.2d 302 (1998).
12
United States v. Cortex, supra.
-8-
reasonable suspicion and probable cause should be reviewed de
novo on appeal.13
We agree with the trial court that the circumstances in
this case justified an investigatory stop of Hutton’s pick-up.
The fact that the 911 call was not anonymous suggested that its
factual content was reliable.
That is, the police had little
reason to doubt that the young men had come to Mr. Neuspickle’s
house and that the one who had come to the door had accounted for
their presence in the manner reported.
The caller’s belief that
the young man had offered a mere pretext for having knocked on
the door was objectively based.
The young man’s claim to be
looking for a similar house in that area could not have been
true.
Hutton argues that people often come to strangers’ doors
to ask for directions or other information, so the mere fact that
he, Webster, and Morgan did so can not be the basis of a
legitimate suspicion that they were involved in wrongdoing.
But
a person seeking directions or an otherwise innocent stranger
does not often knock on a person’s door and then lie about why he
or she did so.
do this.
Detective Gilvin had learned that burglars often
The Detective could thus reasonably conclude that the
young men had burglary on their minds.
At least the possibility
that they did was significant enough to permit investigation.
The young men and their truck, moreover, had been described with
sufficient detail to make it very likely that only the men who
had called upon Mr. Neuspickle would answer that description.
13
Ornelas v. United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996);
Adcock v. Commonwealth, Ky., 967 S.W.2d 6 (1998).
-9-
The officer’s suspicion was thus substantial, objectively based,
and particularly focused.
The trial court did not err by deeming
the investigatory stop lawful and by denying Hutton’s motion to
suppress the evidence it produced.
Finally, Hutton contends that the trial court erred by
denying his motion for a mistrial.
During Detective Gilvin’s
testimony at trial the following exchange occurred:
Prosecutor: At some point, I assume we get
everybody back up to the police department.
Gilvin: Yes.
Prosecutor: What happens there?
Gilvin: Mr. Hutton didn’t want to speak with
me. He wanted his attorney. Mr. Webster did
not want to speak with me. He wanted his . .
.
Defense Counsel: Objection your honor, may we
approach?
Under the Fifth Amendment to the United States
Constitution and Miranda v. Arizona,14 Hutton enjoyed a right to
remain silent following his arrest.
He moved for a mistrial on
the ground that Detective Gilvin’s reference to his silence
compromised that right and rendered the trial unfair.
Having
determined that the reference was incidental and not likely to
weigh on the jury’s decision, the trial court denied the motion
but offered to give an admonition.
admonition.
Hutton declined the
He would rely, he said, on his own testimony to
counteract any suggestion that his silence was evidence of guilt.
As Hutton correctly notes, the prosecution is not
permitted to use a defendant’s post-arrest silence as evidence in
its case-in-chief, and violations of that rule have been held to
14
384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
-10-
require relief on appeal.15
the error was harmless.16
Relief is not required, however, if
In making that determination, a
reviewing court “must consider the weight of the evidence and the
degree of the punishment fixed by the verdict.”17
We are persuaded that the error was harmless in this
case.
The prosecution here did not truly use the fact of
Hutton’s silence.
The detective’s statement was not elicited for
that purpose, and the prosecutor made no comment about it.
He
certainly did not suggest that Hutton’s refusal to make a
statement implied his guilt.
Morgan, moreover, had already
testified on cross-examination that neither Webster nor Hutton
made a statement at the police station.
And, in lieu of an
admonition, Hutton testified that he had refused to make a
statement at the police station because by that time he was
frightened and confused and felt that the police had attempted to
put words in his mouth.
The evidence against Hutton, furthermore, was
substantial.
Although Morgan and Webster were testifying in
exchange for plea bargains, their account of the incident--that
the three men had deliberately set out together to commit a
burglary--was simply more plausible than Hutton’s.
Hutton asked
the jury to believe that Morgan had attempted the burglary alone
15
Hall v. Commonwealth, Ky., 862 S.W.2d 321 (1993); Churchwell v. Commonwealth,
Ky. App., 843 S.W.2d 336 (1992).
16
Green v. Commonwealth, Ky., 815 S.W.2d 398 (1991).
17
Hall v. Commonwealth, 862 S.W.2d at 323 (citing Niemeyer v. Commonwealth, Ky.,
533 S.W.2d 218 (1976)).
-11-
and on foot, that he had somehow carried four gym bags and two or
three boxes from the burgled home by himself, and that he had
planned to make his get away by walking until Hutton and Webster
just happened to come along.
Nor does the degree of punishment,
which was far closer to the minimum allowed than to the maximum,
suggest that the jury had been led to exaggerate Hutton’s
culpability.
For these reasons we conclude both that there is no
substantial possibility that the detective’s unsolicited
statement tainted the result, and that the trial court did not
err by denying Hutton’s motion for a mistrial.18
In sum, the indictment against Hutton, Webster, and
Morgan as joint principals in the burglary did not preclude the
Commonwealth’s proceeding against Hutton as an accomplice, nor
did it preclude his being found guilty by complicity.
One
indicted jointly is presumed to be on notice that complicity with
the other indictees may be alleged against him.
subjected to an illegal investigatory stop.
Hutton was not
He and his
companions were the object of legitimate police suspicions and so
were subject to the investigation that took place.
Nor, finally,
should a mistrial have been declared because the arresting
officer referred incidentally during testimony to Hutton’s postarrest silence.
There was no indication of prosecutorial
misconduct and little if any chance of actual prejudice against
Hutton.
18
Grundy v. Commonwealth, Ky., 25 S.W.3d 76 (2000) (mistrial should not be ordered
unless manifestly necessary); Clay v. Commonwealth, Ky. App., 867 S.W.2d 200 (1993) (same).
-12-
For these reasons, we affirm the December 17, 1999,
judgment of the Kenton Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Appellate Public Advocate
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Brian T. Judy
Assistant Attorney General
Frankfort, Kentucky
-13-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
