ROBERT HIBSHMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
MARCH 31, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-001071-MR
ROBERT HIBSHMAN
APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 02-CR-00164
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY, SCHRODER, AND VANMETER, JUDGES.
SCHRODER, JUDGE:
This is a direct appeal from a judgment in
which appellant was convicted of extortion over $300, guilty but
mentally ill, and possession of a handgun by a convicted felon.
Appellant argues that the trial court erred in failing to
suppress a book about how to be a hit man and a book about
disguises found in appellant’s home, and in failing to forward a
recusal motion to the Chief Justice.
We cannot say that the
trial court abused its discretion in allowing the books to be
admitted into evidence.
As to the motion for recusal, we
adjudge there was no error in failing to forward the motion to
the Chief Justice as it was a motion brought pursuant to KRS
26A.015.
The remainder of the alleged errors were not properly
preserved for review and did not rise to the level of palpable
error.
Hence, we affirm.
On November 14 or 15, 2002, appellant, Robert
Hibshman, left a note on Butch Bloom’s shop door asking him to
come speak with him about something that was very urgent and
important.
Butch Bloom is a wealthy, prominent citizen of
Powell County, Kentucky.
A couple days later, Bloom,
accompanied by Mike Lockard, a deputy sheriff in Powell County,
visited Hibshman at Hibshman’s home.
According to Bloom,
Hibshman invited them inside and began telling them the
following story:
Hibshman stated that sometime between 1986 and 1989 he
had been at the bedside of a sick child hospitalized in Florida.
Another patient in the same room with the child Hibshman was
visiting was the son of Terry Woods, and this child was in need
of a bone marrow transplant.
According to Hibshman, he donated
the bone marrow for this child and the child ultimately
recovered.
Hibshman continued that by unusual coincidence, Woods
was recently traveling in Breathitt County, Kentucky, when he
observed a trailer with “Bandit” painted on the side.
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Because
“Bandit” was Hibshman’s known nickname, Woods thought the owner
of the trailer might be Hibshman.
When Woods approached the
driver, the driver stated that he had purchased the trailer from
Robert “Bandit” Hibshman, who had been diagnosed with cancer and
had been experiencing financial difficulties.
Hibshman stated
that Woods wanted to help him get back on his feet financially,
so Woods, who was trained as a sniper in the Army, devised a
scheme to get three wealthy men to give Hibshman $1,000,000 a
piece.
According to Hibshman, if these men did not give
Hibshman $1,000,000 by November 22, they would be killed by
Woods.
Hibshman stated that Woods had picked three wealthy men
- Bloom, an unidentified man in Western Kentucky, and a man in
Pennsylvania who had already been killed by Woods because he
refused to give the money.
Hibshman then showed Bloom an
obituary for a Pennsylvania man who Hibshman claimed was the man
that Woods had killed.
Hibshman also mentioned that a man from
another state who had a family might possibly be killed if Bloom
did not pay the money.
When Bloom inquired whether he thought
Woods was serious, Hibshman responded that he indeed was and
that Woods knew where Bloom lived, the distances between roads
to his house, and the garages he used.
Hibshman told Bloom that
if he did not give the money, he should install bulletproof
glass in his pickup truck.
Before leaving, Bloom told Hibshman
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that he had to think about the situation and that he would get
back with Hibshman later.
Bloom thereupon contacted the FBI and described the
situation.
The FBI told Bloom to contact the Kentucky State
Police (“KSP”).
KSP Detective Timothy Gibbs interviewed Bloom
and decided to conduct a sting operation.
Two days later,
Detective Gibbs wired Bloom and had Bloom and Lockard pay
another visit to Hibshman.
During this second meeting, Bloom
asked Hibshman if he (Hibshman) could just tell Woods that he
had received the money so that Woods would forget about it.
Hibshman replied that Woods would want to see the money.
Hibshman then stated that he had left a package for Bloom in
Bloom’s garage.
When Bloom returned home, he found a package
under his shop door which he promptly delivered to Detective
Gibbs.
Gibbs opened the package and found a copy of Psalm 143,
two thank you notes, two letters and a copy of a trust document
which was from a trust Hibshman’s parents had set up for
Hibshman in 1981.
One of the letters appeared to be to Woods
asking him to abandon his plan to harm Bloom if he did not give
the money.
The other letter was to Bloom regarding the trust
document.
The letter suggested that Bloom may need the trust
document in the event he needed to set up a trust for his
family.
One of the thank you notes was addressed to Terry Woods
and stated on the envelope, “Butch if you see him first!?”
-4-
The
note read, “You owed me nothing but your THANKS!
doing is wrong.”
What you are
The second thank you note was addressed to
Bloom and read:
Thank you for at least giving me the respect
of stepping over. I know what I have to do.
I hope what I have left will help you. You
know if a man can’t work he isn’t a MAN!
Much less if he puts others in DANGER! –
Can’t Do it!
The note was signed, “Your Friend ‘Bandit’”.
After the second meeting, Detective Gibbs had Bloom
remove $5,000 from the bank which Gibbs thereafter photocopied.
On November 21, 2002, Bloom was again wired and Lockard and
Bloom paid another visit to Hibshman at his house.
Bloom
offered Hibshman $5,000 and asked if that sum of money would
pacify Woods.
Hibshman accepted the money, stating that he
would see if that would satisfy Woods.
Lockard and Bloom then
left Hibshman’s house and reported back to Gibbs.
KSP officers
thereupon went to Hibshman’s house and executed a search warrant
and arrested Hibshman for extortion over $300, possession of a
handgun by a convicted felon, and possession of drug
paraphernalia.
During the search, officers seized the $5,000 in
cash, a Ruger Mini-14, a Mossbert 20 GA shotgun with pistol
grip, a Smith & Wesson .45 automatic, a tazer, ammunition, lock
picks, an instruction book on how to commit murder, a book on
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disguises, a book about explosives, a book on ordering birth
certificates, and various drug paraphernalia.
On December 18, 2002, Hibshman was indicted on the
following charges:
theft by extortion over $300; possession of
a firearm by a convicted felon; possession of burglar’s tools;
possession of drug paraphernalia; and persistent felony offender
in the second degree (PFO II).
Hibshman was tried by a jury on
April 5 and 6, 2004, and was found guilty of theft by extortion
over $300 but mentally ill, and possession of a handgun by a
convicted felon.
The jury recommended a sentence of five years
on the extortion charge and ten years on the possession of a
handgun by a convicted felon charge, to be served consecutively.
On the same day, Hibshman pled guilty to possession of drug
paraphernalia.
On May 15, 2004, Hibshman was sentenced to ten
years on the possession of a handgun by a convicted felon charge
and five years on the extortion charge, to be served
consecutively, and twelve months on the possession of drug
paraphernalia charge, to be served concurrently with the felony
charges, for a total of fifteen years.
This appeal by Hibshman
followed.
Hibshman’s first argument is that the trial court
erred in denying his motion to suppress certain books found in
Hibshman’s house.
One of the books was a book on how to commit
murder for hire.
The cover page for this book had been torn off
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so the title of the book was unknown.
The other book was called
Methods of Disguise, a book on how to disguise oneself for
purposes of surveillance or committing a crime.
Hibshman argued
that since the crime was extortion and not murder or attempted
murder, the books on disguise and how to commit murder were not
relevant and were highly prejudicial.
A suppression hearing was
held on March 12, 2004, after which the court stated that it
would read the books and take the issue under advisement.
On
March 31, 2004, the court entered its opinion and order denying
the motion to suppress the murder for hire and Methods of
Disguise books.
The crime of theft by extortion as relates to the
present case is defined in KRS 514.080(a) as intentionally
obtaining property of another by threatening to “inflict bodily
injury on anyone or commit any other criminal offense . . . .”
KRE 401 provides, “‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.”
Under KRE
402, all relevant evidence is admissible unless otherwise
provided by statute, the Kentucky Rules of Evidence, the United
States or Kentucky Constitution, or by other rules of the
Supreme Court of Kentucky.
Pursuant to KRE 403, relevant
evidence may be excluded “if its probative value is
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substantially outweighed by the danger of undue prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of
cumulative evidence.”
A trial court’s ruling on the
admissibility of evidence will not be overturned unless the
court abused its discretion.
Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 577 (Ky. 2000).
“The test for abuse of
discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Id. at 581.
We believe the trial court’s ruling allowing the
two books at issue to be admitted into evidence in the present
case was not an abuse of discretion, as it was well-reasoned and
supported by sound legal principles.
Thus, we adopt the
following portion of the trial court’s order as our own:
Count I of the indictment charges the
defendant with theft by extortion when he
obtained $5,000.00 in cash from Butch Bloom
by threatening to inflict bodily injury upon
him. The commonwealth maintains that the
book on being a professional hit man seized
as evidence herein contained several
highlighted passages which indicate the
defendant’s preparedness to carry out the
threats if he was not paid the money, and
that said book is relevant and admissible
evidence in the above-styled action. The
first paragraph of Chapter 1 states: “[a]s
a first class mechanic, you will be an
expert in your profession. Becoming an
expert entails research – reading, observing
and asking questions – as well as
development of a wide range of physical
abilities and weapons expertise.” The
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commonwealth contends that when the
defendant was arrested he had reading
material on disguises, mixing poisons,
explosives and a brochure on ordering false
identification cards and false birth
certificates; and that the defendant had the
material to research on becoming a
professional killer, which is relevant to
the aforementioned charge. Pages 10-11 of
said book suggest that a hit man may find
employment by reading the local newspapers
to find potential employers or victims. It
states that someone who has recently been
arrested for dealing drugs would be willing
to pay to have witnesses eliminated; a
politician may pay to eliminate the
competition; or a wealthy couple filing for
divorce may mean employment by either spouse
of someone who offers discrete [sic]
professional services. The bottom of Page
18 to the top of Page 19 states, “[T]his
book stresses the importance of using
disguise and false identification to foil
positive identification.” The defendant
possessed a brochure on ordering false
identification cards and false birth
certificates. Chapter 2 begins by stating,
“[a] hit man without a gun is like a
carpenter without a hammer. Not very
effective.” The defendant was well armed
when his residence was searched as a Ruger
mini-14 rifle, a shotgun and a semiautomatic pistol was [sic] seized. Page 26
details the disadvantages of using a
revolver. For purposes of this section of
the book the difference in a fully automatic
and a semi-automatic pistol are immaterial.
The book states that a revolver will emit
powder all over the hands of the shooter.
However, an automatic (and the commonwealth
submits a semi-automatic) is more tightly
sealed so that less powder and less evidence
will be on the hands of the shooter. Page
27 suggests that a hit man should own
handcuffs, as they may be needed to restrain
the mark. The defendant had a handcuff key
and admitted to owning two sets of handcuffs
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when he was arrested. Pages 28-29 discuss
using disguises. The defendant had a book
called “Master of Disguise”. Pages 30-32
discuss uninvited entry by use of lock
picks. The defendant possessed lock picks
when he was arrested. Page 53 discussed the
possible need to torture. The defendant had
two tazers which would torture anyone
subjected to the voltage they produce.
Pages 54-55 discuss the use of explosives.
The defendant had a manual on explosives.
Pages 58-63 discuss the use of poisons,
stating, “[P]oison is one of the hit man’s
best friends.” The defendant had a manual
on poisons. Pages 64-66 discuss how to make
a reluctant victim talk. The two tazers
could be very persuasive. Pages 71 to the
top of Page 81 discuss the need for
collecting accurate information on the mark
or victim. The defendant knew Butch Bloom
was a prominent citizen and a family man; he
knew Bloom was married and had children and
grandchildren. The defendant[’]s scheme
included telling Mr. Bloom that if he didn’t
pay the money that not only he, but also
possible [sic] someone else in California or
Oklahoma, who was also a family man, would
be killed. The bottom of Page 83 through
the remainder of the chapter discuss the
need for surveillance. The defendant stated
that Terry Woods knew how far it was from
the road to Mr. Bloom’s residence. The
commonwealth submits that the defendant had
surveilled Mr. Bloom’s property. Chapter 6
is titled “Opportunity Knocks”. It talks
about how much a hit man should be paid, and
about the expenses associated with the
profession. The defendant’s plan was that
Butch Bloom would pay him not to be killed.
Page 97 discusses the need to give false
information. The defendant possessed a
brochure concerning false identification.
Pages 121-123 discuss false identification.
The commonwealth submits that the book
is a how to guide on killing for profit.
The commonwealth maintains that the
defendant extorted money from Butch Bloom
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under a scheme wherein he would profit from
persuading Mr. Bloom that he would be killed
if he did not pay. The commonwealth argues
that the similarity between the book and the
other evidence is not coincidental and it is
apparent that he defendant had read the book
and had used it in preparation for the
extortion. The commonwealth contends that
the book is relevant evidence and that its
probative value is not outweighed by its
prejudicial effect.
Based on the foregoing, this court
finds and Orders that the defendant’s motion
to suppress the book on How to Murder/being
a professional hit man and the book Master
of Disguise is denied. The court finds that
the foregoing passages as set forth by the
commonwealth are relevant to the pending
charge of extortion and that the admission
of said evidence is not substantially
outweighed by the danger of undue prejudice,
confusion of the issues or misleading the
jury or by considerations of undue delay or
needless presentation of cumulative
evidence.
In sum, we agree with the trial court that the ability
to carry out the threatened crime, and the evidence of that
ability, was highly relevant to the crime of extortion and was
not unduly prejudicial.
Given the evidence of how prepared
Hibshman was to carry out his threat, if the police had not
intervened in this case when they did, it is likely that the
books would have ultimately been relevant to the actual crime of
murder.
Hibshman’s next argument is that the trial judge erred
when he failed to give notice to the Chief Justice of the
Kentucky Supreme Court of Hibshman’s motion for recusal.
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On
March 10, 2004, Hibshman filed a motion for Judge Larry Miller
to recuse himself from the case, alleging that Judge Miller and
the victim in the case, Bloom, had a close relationship such
that Judge Miller’s impartiality would be called into question.
Specifically, the motion alleged that Judge Miller flew, free of
charge, in an airplane owned by Butch Bloom on a fishing trip
and that Bloom and Judge Miller were close friends.
on the matter was held on March 12, 2004.
A hearing
At the hearing, Judge
Miller denied having any personal relationship with Bloom.
Judge Miller stated that the only personal contact he has ever
had with Bloom was when Bloom’s two sons had divorce cases in
Miller’s court and he may have seen him outside the courtroom
and said, “hello”.
As to the issue of the plane trip, Judge
Miller stated that he once rode on a chartered plane which Bloom
owned a one-half interest in, for which flight Judge Miller paid
$500.
According to Judge Miller, the person who made the
transportation arrangements was the other owner of the plane and
Miller had no knowledge at the time the flight was booked that
Bloom had any interest in the plane.
Judge Miller stated that
Bloom was not present on that flight and was not present at the
destination.
The Judge conceded that a complaint had been filed
against him with the Judicial Retirement and Removal Commission
by another litigant in a separate matter concerning the airplane
flight.
Judge Miller stated that he had been vindicated in that
-12-
matter.
The court then denied the motion for recusal, and
Hibshman asked for no further relief.
Hibshman argues that under KRS 26A.020, his motion for
recusal was required to be forwarded to the Chief Justice of the
Kentucky Supreme Court to decide if recusal was warranted.
KRS
26A.020(1) provides in pertinent part:
If either party files with the circuit clerk
his affidavit that the judge will not afford
him a fair and impartial trial, or will not
impartially decide an application for a
change of venue, the circuit clerk shall at
once certify the facts to the Chief Justice
who shall immediately review the facts and
determine whether to designate a regular or
retired justice or judge of the Court of
Justice as special judge.
KRS 26A.015(2) provides in pertinent part:
Any justice or judge of the Court of Justice
or master commissioner shall disqualify
himself in any proceeding:
(a) Where he has a personal bias or
prejudice concerning a party, or
personal knowledge of disputed
evidentiary facts concerning the
proceedings, or has expressed an
opinion concerning the merits of the
proceeding;
In Nichols v. Commonwealth, 839 S.W.2d 263 (Ky. 1992),
our Supreme Court recognized that the above are two separate
remedies when a party is seeking recusal of a sitting judge.
KRS 26A.020(1) “allows a complaining party to file an affidavit
with the circuit clerk who certifies the facts to the Chief
Justice who then reviews the facts and determines whether to
-13-
designate a special judge.”
Id. at 265.
KRS 26A.015 relief is
sought via a motion filed with the sitting judge seeking to have
that judge disqualify himself or herself.
Id.
The document
filed by Hibshman in the present case was styled “motion to
recuse and change of venue” and requested that the judge recuse
himself.
Although the motion alleged facts as support for the
motion, the document was clearly a motion for KRS 26A.015 relief
asking the sitting judge to rule on the motion and not an
affidavit for purposes of having the Chief Justice rule on the
recusal under KRS 26A.020(1).
Accordingly, the trial court
properly ruled on the motion, and there was no error in failing
to forward the motion to the Chief Justice.
Hibshman next argues that the Commonwealth failed to
sufficiently prove that he had been convicted of a prior felony
for purposes of proving the charge of possession of a handgun by
a convicted felon.
Specifically, Hibshman complains that the
document used to prove a prior felony conviction in Florida was
only certified by the court clerk in Florida via an embossed
seal and was not properly certified by the court pursuant to KRS
422.040.
Hibshman admits this argument was unpreserved, as it
was never raised before the trial court by way of an objection
to the evidence.
RCr 9.22.
Nevertheless, Hibshman urges us to
review the issue for palpable error under RCr 10.26.
Palpable
error is error that “affects the substantial rights of a party”
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and will result in “manifest injustice” if not considered by the
court.
RCr 10.26.
If upon consideration of the whole case, the
reviewing court does not conclude that a substantial possibility
exists that the result would have been different, the error
complained of will be held to be nonprejudicial.
Jackson v.
Commonwealth, 717 S.W.2d 511 (Ky.App. 1986); Schoenbachler v.
Commonwealth, 95 S.W.3d 830 (Ky. 2003).
Hibshman does not deny
that he was, in fact, convicted of the felony in question in
Florida.
Accordingly, we cannot say that the alleged error was
palpable.
The next assignment of error propounded by Hibshman is
in regard to the jury instructions submitted in the sentencing
phase.
Hibshman maintains that the jury instructions
erroneously failed to define the terms “consecutively” and
“concurrently” relative to how his sentences should be served.
This alleged error was likewise unpreserved with an objection to
the instructions or the tendering of the desired instruction.
RCr 9.54(2); Fulcher v. Commonwealth, 149 S.W.3d 363 (Ky. 2004).
Again, Hibshman asks that we review the matter for palpable
error pursuant to RCr 10.26.
There is no indication in the
record that any juror in this case was confused about the terms
“consecutively” and “concurrently” and needed definitions of
those terms.
Hence, we adjudge there was no palpable error.
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Hibshman’s final argument is that the trial court
erred when it incorrectly instructed the jury on the verdict
“guilty but mentally ill.”
Again, this claimed error was not
preserved with an objection or a tendered instruction (RCr
9.54(2)), and Hibshman seeks review under RCr 10.26.
The
instruction at issue provided:
If the Defendant is found not [sic] guilty
but mentally ill under this Instruction, he
will receive a sentence for the offense of
which he has been found guilty. However,
treatment shall be provided to the Defendant
until those providing the treatment
determine that such treatment is no longer
necessary or until the expiration of his
sentence, whichever occurs first.
KRS 504.150 provides:
(1) The court shall sentence a defendant
found guilty but mentally ill at the
time of the offense to the local jail or
to the Department of Corrections in the
same manner as a defendant found guilty.
If the defendant is found guilty but
mentally ill, treatment shall be
provided the defendant until the
treating professional determines that
the treatment is no longer necessary or
until expiration of his sentence,
whichever occurs first.
(2) Treatment shall be a condition of
probation, shock probation, conditional
discharge, parole, or conditional
release so long as the defendant
requires treatment for his mental
illness in the opinion of his treating
professional.
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According to Hibshman, the jury should have been
instructed of the possibility that if the defendant was found
guilty but mentally ill, he may not receive any mental health
treatment at all, citing Brown v. Commonwealth, 934 S.W.2d 242
(Ky. 1996) wherein the defendant challenged the constitutionality
of the guilty but mentally ill (GBMI) verdict.
While the Court in
Brown was critical of GBMI verdicts in general, the Court stopped
short of finding reversible error in a GBMI instruction that
parroted the language in KRS 504.150(1) because the record
contained insufficient evidence to strike down the GBMI
instruction or the GBMI verdict.
Id. at 246.
The instruction in
the present case was identical to the instruction in Brown (absent
the clerical error), and Hibshman did not challenge the GBMI
verdict or instruction at trial.
Hence the instruction was not
palpable error.
For the reasons stated above, the judgment of the
Powell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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