KENNETH RAY DILLINGHAM v. COMMONWEALTH OF KENTUCKY and ROBERT JURELL HICKS v. COMMONWEALTH OF KENTUCKY
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AS
KENNETH
RAY
RENDERED:
CORRECTED:
JUNE 17, 1999
JULY 13, 1999
TO BE PUBLISHED
DILLINGHAM
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
98-CR-08
v.
COMMONWEALTH
OF
APPELLEE
KENTUCKY
TO BE HEARD WITH
98-SC-429-MR
ROBERT
JURELL
APPELLANT
HICKS
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
98-CR-12
v.
COMMONWEALTH
OF
APPELLEE
KENTUCKY
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING AS TO 98-SC-428-MR
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING AS TO 98-SC-429-MR
Appellants,
were
convicted
complicity
sentenced
to
to
convictions
Kenneth
Ray
respectively
first-degree
twenty
and
Dillingham
of
first-degree
robbery.
years'
Dillingham's
and
Robert
Jurell
robbery
and
Dillingham
imprisonment.
sentence.
We
and
affirm
However,
Hicks
Hicks,
were
both
because
palpable
error was committed during the sentencing phase of Hicks's trial,
we reverse his sentence and remand for a new sentencing hearing.
The Edmonton State Bank in Center, Kentucky, was robbed at
11:30 a.m. on December 1, 1997.
A
neatly-dressed
man
walked
the bank and handed a note to a clerk, Clifton Thompson.
note read,
the
"This is a robbery.
police."
into
The
Don't push any buttons or call
The man stated that he had a gun.
However,
according to the testimony at trial, no witness actually saw a
weapon.
A bank employee, Bernice Wisdom, emptied
the
teller
drawers
and handed the contents to the robber pursuant to his demands.
The man placed the money in a briefcase with his left hand while
keeping his right hand in his pocket.
The man exited the bank,
got into the passenger side of a waiting light blue Lincoln Town
Car,
and fled the scene.
I.
DIRECTED
VERDICT
Both Dillingham and Hicks argue that they were entitled to a
directed
verdict
of
acquittal.
"On
appellate
review,
the test of
a directed verdict is, if under the evidence as a whole, it would
be clearly unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict of acquittal."
Commonwealth v. Benham,
Ky., 816 S.W.2d
186, 187 (1991).
review of the record, the jury's verdict of guilt for each
appellant
was
not
clearly
unreasonable.
-2-
Upon
DILLINGHAM
Bank
employees
positively
Edmonton
Clifton
identified
State
Thompson
Dillingham
Bank.
Further,
as
and
the
Bernice
man
Wisdom
who
robbed
the
a customer testified that he saw
Dillingham in the bank just prior to the robbery.
Next,
while no
witness testified that he or she saw a weapon, there was
sufficient
evidence
first-degree
adduced
at
trial
to
convict
Dillingham
of
robbery.
Reference
to
a
deadly
weapon
coupled
with
a
contemporaneous
demand for money or other valuables is sufficient to withstand a
motion for directed verdict of acquittal on a charge of firstdegree
(1994).
robbery.
Swain v. Commonwealth, KY.,
887 S.W.2d 346, 348
Dillingham handed Thompson a note that stated, "This
a robbery.
Don't push any buttons or call the police."
testified that Dillingham told him that he had a gun.
is
Thompson
Moreover,
Dillingham kept his right hand in his pocket at all times as if
the pocket contained a gun.
There was no error.
HICKS
Almost $13,000 was stolen from the bank which included a
number of twenty dollar bills in "bait money," which are bills
that the bank keeps a record of the serial numbers.
The bait
money only is to be removed from the drawer during the course of
a robbery in order to facilitate capture of the robber.
Wisdom
testified that on the day of the robbery each of the three teller
drawers at the bank contained $200 in bait money.
-3-
She
further
testified that she emptied all three teller drawers and handed
the contents to the robber.
A search of Hicks's residence uncovered a coffee can filled
with
over
$4,000
in
currency
of
different
denominations.
Included with this currency were thirteen twenty dollar bills,
the serial numbers of which matched the serial numbers of some of
the bait money stolen from the bank.
Additionally,
wallet contained over $1,000 in cash, including
a
Hicks's
twenty
dollar
bill the serial number of which matched one of the serial numbers
on the bait money list.
Finally,
a search of Hicks's vehicle
produced a set of clothes that were identified in court by two
witnesses as being the same or similar to the clothes worn by the
bank
robber.
The search also uncovered a Kentucky road map
folded to show the Edmonton area.
While the evidence against Hicks was circumstantial, it is
well settled that a jury may make reasonable inferences from such
Blades v. Commonwealth, Ky., 957 S.W.2d 246, 250
evidence.
(1997).
A
burglary
evidence
in
Jackson
cert denied,
conviction
v.
was
upheld
Commonwealth,
on
somewhat
similar
Ky., 670 S.W.2d 828 (1984),
469 U.S. 1111, 105 S. Ct.
791,
83 L. Ed. 2d 784
(1985).
The possession of stolen property is prima facie
Where
evidence of guilt of theft of the property.
there is a breaking and entering and property taken
from a dwelling and the property is found in possession
of the accused, such showing makes a submissible case
Because the
for the jury on a charge of burglary.
evidence is sufficient to support a conviction that
appellant stole the property which was taken in a
break-in, it follows that the evidence supports a jury
-4-
finding that said appellant committed
which the property was stolen.
the
burglary
in
Id. at 830 (internal citations omitted).
Hicks was in possession of currency taken during the
robbery.
It was not clearly unreasonable for the jury to find
Hicks guilty of complicity to first-degree robbery on the
evidence
presented.
II.
WITNESS
SEATED
AT
COUNSEL
TABLE
During the course of the trial, Detective Antle sat at the
counsel
table
with
the
Commonwealth
Antle was the
Attorney.
officer in charge of investigating the robbery.
.
Both
Hicks
and
Dillingham argue that Antle should have been separated from trial
pursuant to KRE 615 because the Commonwealth failed to show that
Antle's
presence was essential to the Commonwealth's case as
required by KRE 615(3).
We
disagree.
The error alleged in this case is identical to that raised
in Justice v. Commonwealth, KY.,
Justice,
987 S.W.2d
306 (1999). In
we held that it was proper to allow the lead
investigator in that case to sit at counsel table pursuant to KRE
615(2), which
states:
At the request of a party the court shall
order witnesses excluded so that they cannot
hear the testimony of other witnesses and it
This
may make the order on its own motion.
rule does not authorize exclusion of:
.
.
.
.
An officer or emnlovee of a party which is
(2)
not a natural person desisnated as its
representative by its attornevE.1
Id. at 315 (emphasis added).
There was no error.
-5-
I
NO
III.
INVESTIGATOR
By letter to the trial judge, Hicks
one line request for an investigator.
pertinent
part,
investigator
be
"We
also
appointed
respectfully
for us."
and
Dillingham
made
a
The letter stated in
request
that
a
private
As noted by the trial court,
an ex parte letter to a judge is not a substitute for a properly
presented
motion.
Thus, the issue was never properly before the
trial court and is not preserved for review.
Nonetheless,
we
feel it appropriate to reach the merits of the issue based on the
particular facts of this case.
Even though the trial judge stated that the court only would
entertain
properly
presented
motions, the trial judge did hear
arguments on most of the issues raised in the letter in question.
This was acknowledged by the trial court in writing: "This
case
is before the Court on numerous motions filed by the defendants,
pro se, and letters written to the Court which in some instances
the Court will consider as motions in the above actions."
dated March 3, 1998.
St,
Finally,
Appellants
proceeded
at
Order,
trial
pro
in which case they are not to be held to the same standards
as legal counsel.
Beecham v. Commonwealth, Ky., 657 S.W.2d 234,
226 (1984).
KRS 31.110 states in pertinent part:
(1) A needy person who is being detained
by a law enforcement officer, on suspicion of
having committed, or who is under formal
charge of having committed, or is being
detained under a conviction of, a serious
crime, is entitled:
-6-
(b) To be provided with the necessary
services and facilities of representation
including investigation and other
The courts in which the
preparation.
defendant is tried shall waive all costs.
Under the rule, necessary
reasonably
837,
838
necessary.
(1984),
are
appeal,
Ky.,
that
KY.,
469 U.S. 1040,
670
are
S.W.2d
105 S. Ct.
521,
83
Review of a trial court's denial of funds
under the statute is abuse of discretion.
Commonwealth,
those
Hicks v. Commonwealth,
cert. denied,
L. Ed. 2d 409 (1984).
services
Sommers v.
843 S.W.2d 879, 888 (1992).
Further,
on
our review of a trial court's denial of funds pursuant to
KRS 31.110 is limited to the reasons actually presented to the
trial
395
court.
(1988),
See Simmons v. Commonwealth, KY.,
cert. denied,
746 S.W.2d 393,
489 U.S. 1059, 109 S. Ct.
1328,
103 L.
Ed. 2d 596 (1989).
Even though the standards are relaxed for pro se litigants,
nonetheless,
pro
se "pleadings must give at least fair notice of
the claim for relief to be sufficient."
236.
Beecham,
657 S.W.2d at
In the case at bar, Hicks and Dillingham in no way
established in the letter or in argument before the trial court
that funds for an expert were reasonably necessary.
error.
-7-
There was no
IV.
RIGHT
TO
CONFRONT
OUT-OF-STATE WITNESSES
Hicks moved the trial court to certify four Indiana
residents as material witnesses pursuant to the Uniform Act to
Secure the Attendance of Witnesses from Within or Without a State
in
KRS
Criminal
Proceedings ("the
421.230-270.
The
Uniform Act"),
motion
was
granted,
which is codified at
and
the
certification
was forwarded to the appropriate court in Indiana.
the
certification
included
the
grounds
upon
which
trial court found each witness to be material.
We note that
the
Kentucky
Subsequently,
three days before the trial was to begin, the Superior Court,
Criminal
Division
which found:
of
Marion
County,
Indiana,
entered
an
order
(1) that two of the witnesses were not material; and
(2) that ordering the two witnesses to attend the Kentucky trial
would cause them undue hardship.
Additionally,
the
order
found
that another witness had not been properly subpoenaed by the
Commonwealth.
It is not clear from the order what the Indiana
court meant by this last finding.
the
fourth
witness;
The order makes no mention of
however, that witness did testify at trial.
The Uniform Act is a reciprocal statute that provides a
mechanism for a party to a criminal proceeding to compel
attendance
of
out-of-state
witnesses.
It has been adopted by all
fifty states, Puerto Rico, and the Virgin Islands.
Act
requires, as a first step,
The
Uniform
that a motion be made with the
trial court to certify a witness as being material and necessary
to the proceeding.
KRS 421.250(l).
The proponent of the witness
has the burden of showing materiality.
-8-
Mafnas v. State, 254
S.E.2d 409, 412 (Ga. App. 1979).
The
certification
should
state
the facts upon which the trial court found the witness to be
material
and/or
a
summary
of
the
witness's
anticipated
testimony.
See State v. Closterman, 687 S.W.2d 613, 621 (MO. Ct. App. 1985).
If
certified, the certification is forwarded to a court of record
in which the witness is found.
KRS 421.250(l).
Once the certification is presented to a court of record in
which the witness is found, that court "shall fix a time and
place for a hearing, and shall make an order directing the
witness to appear at a time and place certain for the hearing."
KRS 421.240(l).
While the trial court in the requested state
must make an independent determination as to whether the
witnesses is material and as to whether compelling the witness to
attend
would
cause
undue
"[iln
hardship,
any such hearing the
certificate shall be prima facie evidence of all the facts stated
.*
KRS 421.240(2).
therein."
Hicks argues that the Indiana court failed to conduct a
hearing as required by the Uniform Act, failed
to
make
findings
as required by the Act, and failed to treat the Kentucky trial
court's
certification
the
witnesses'
the
Sixth
of
materiality
materiality.
Amendment's
These
Compulsory
as
"prima
errors,
Process
he
facie
argues,
evidence"
of
violated
Clause.
We cannot consider as error on appeal the actions of a court
from
a
foreign
non-materiality
review.
jurisdiction.
and
Moreover,
undue
The
hardship
Indiana
are
court's
beyond
our
findings
powers
the breadth of a defendant's right to
-9-
of
of
compulsory process is no wider than the jurisdictional reach of
The
the sovereign in which the defendant is tried.
Commonwealth
has no power to subpoena witnesses over which it has no
jurisdiction.
Hev
this
Further,
v.
Emerson,
jurisdictional
Ky.,
135
limitation
S.W.
294
on
state's
a
(1911).
ability
to
compel the attendance of witnesses in a criminal trial does not
violate the right to due process of law under the Fourteenth
Minder v. Georgia, 183 U.S. 559, 562, 22 S. Ct. 224,
Amendment.
225,
46 L. Ed. 2d 328 (1902).
The trial court certified the witnesses in question as being
material and necessary to the criminal proceeding in the case at
bar.
statement
were
the trial court included with the certification a
Further,
of
facts
material.
supporting
its
conclusion
During the trial, Hicks
that
never
the
brought
witnesses
the
Indiana
court order to the attention of the trial court, nor did he
inform the trial court that these witnesses were not present in
court.
There is no action or inaction by the trial court for us
to review.
There is simply nothing for us to c0nsider.l
There
is no error.
V.
WITNESS
IDENTIFICATIONS
The police showed the witnesses to the bank robbery an
array of six photographs, which
Dillingham.
included
a
photograph
of
Dillingham moved the trial court to suppress any
For
I-Of course, Hicks could have preserved the error.
example, he could have requested a continuance pursuant to RCr
9.04, the denial of which would have been within our scope of
review.
-lO-
witness
identifications
extensive
suppression
derived
from
hearing,
the
photo
After
array.
an
the trial court found that the
array was not unduly suggestive and denied the motion.
"A
conviction
based
pretrial
identification
right
due
to
process
on
identification
violates
whenever
the
the
testimony
defendant's
pretrial
following
constitutional
identification
procedure is so 'impermissibly suggestive as to give rise to a
very
substantial
Thispen
V.
Gory,
likelihood
804 F.2d
of
irreparable
misidentification.'"
893, 895 (6th Cir. 19861, cert. denied
sub nom. Foltz v. Thiqnen, 482 U.S. 918, 107 S. Ct. 3196, 96 L.
Ed. 2d 683 (1987),
quoting Simmons v. United States, 390 U.S.
377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968).
determination
testimony
of
whether
violates
First, the
determine
court
whether
due
the
use
process involves
examines
they
in-trial
the
were
a
of
identification
two-step
pre-identification
unduly
The
suggestive.
process.
encounters
Id.
Id.
to
If so, "the
identification may still be admissible if 'under the totality of
the
circumstances
[identification]
Duckworth,
Biqqers,
the
identification
procedure
was
was
reliable
suggestive."
93 F.3d 262, 265 (7th Cir. 19961,
even
Stewart
though
the
v.
quoting Neil v.
409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401
(1972).
In the case at bar, the trial court determined that the
photo array was not unduly suggestive and, thus, it never reached
the second step of the test.
The trial court noted that Ilit
clearly apparent that all six photographs are similar.
-ll-
The
is
individuals in each photo are not only physically similar but are
also clearly in custody."
We
have
reviewed
agree with the trial court's assessment.
the
photographs
the
Further,
and
trial
court noted that the photograph of Dillingham does not include
any information regarding the crime charged or the date of the
crime.
Dillingham's argument on appeal that he is displayed more
prominently in his photograph than the persons in the other
photographs
other
is
persons
not
Nor is his argument that the
persuasive.
depicted
in
the
photo
The
only
evidence
are
substantially
There was no error.
dissimilar to him in appearance.
VII.
array
SENTENCING
presented
during
Hicks's
sentencing
hearing was the testimony of Jerome Melton, an employee of the
Department
of
Corrections.
from
the
Melton's
testimony
National
Crime
relied
upon
Information
a
computer
printout
Center
(NCIC).
The NCIC printout was not certified as required by KRS
422.040.
Nor did the Commonwealth lay the proper foundation to
introduce the contents of the printout as a business record
exception to the hearsay rule.
See KRE 803(6), 902(11).
Further, Melton testified as to both arrests and convictions.
Hicks made no objection to this testimony.
The introduction of the NCIC printout in this manner was
clearly
853,
improper.
854 (1996).
properly
preserved
See Robinson v. Commonwealth, Ky., 926 S.W.2d
By singularly arguing that the issue is not
for
review, the
-12-
Commonwealth
all
but
concedes
error.
This leaves us with the question of whether the error was
palpable.
RCr 10.26.
The jury sentenced Hicks to the maximum sentence of twenty
years'
imprisonment.
The
only
evidence
introduced
during
sentencing phase was the contents of the NCIC report.
the
Of course,
the jury is allowed to consider in the penalty phase any and all
of the evidence introduced during the guilt or innocence phase of
the trial.
conclude
upon review of the entire case, we
Nonetheless,
that
there
is
a
substantial
possibility
that
Hicks
would
not have received the maximum punishment had the NCIC report been
objected
to
and
excluded
Commonwealth, KY.,
from
evidence.
See Partin v.
918 S.W.2d 219, 224 (1996).
For the reasons set forth above, the convictions of
Dillingham
and
Hicks
affirmed.
However,
are
affirmed.
Dillingham's
sentence
is
Hicks's sentence is reversed and the case is
remanded for a new sentencing hearing.
Lambert,
concur.
by
C.J.; Cooper, Graves, Keller, and Stumbo, JJ.,
Wintersheimer,
separate
J., concurs in part and dissents in part
opinion.
-13-
COUNSEL
FOR
APPELLANT
DILLINGHAM:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
100 Fair
Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL
FOR
APPELLEE:
Albert B. Chandler, III
Attorney General of Kentucky
Shawn C. Goodpaster
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL
FOR
APPELLANT
HICKS:
David T. Eucker
Assistant Public advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL
FOR
APPELLEE:
Albert B. Chandler, III
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
-14-
RENDERED:
JUNE 17, 1999
TO BE PUBLISHED
98-SC-428-MR
KENNETH
RAY
APPELLANT
DILLINGHAM
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
98-CR-08
V.
COMMONWEALTH
OF
KENTUCKY
APPELLEE
TO BE HEARD WITH
98-SC-429-MR
APPELLANT
ROBERT JURELL HICKS
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
98-CR-12
V.
COMMONWEALTH
OF
APPELLEE
KENTUCKY
OPINION
BY
JUSTICE
WINTERSHEIMER
CONCURRING IN PART AND DISSENTING IN PART
I concur with the affirmance by the majority of the
conviction of both Dillingham and Hicks, as well as the sentence
imposed
on
Dillingham.
However,
I must respectfully dissent from
that part of the majority opinion that reverses the sentence
imposed on Hicks because I believe there was sufficient evidence
to fix the sentence and that the error described by the majority
is not palpable error as contemplated by RCr 10.26.
I cannot agree that upon a review of the entire case, this
Court should conclude that there is a substantial possibility
that Hicks would not have received the maximum punishment in the
absence
of
the
NCIC
report.
Consideration of the entire case
indicates that there is no substantial possibility that the
result would have been any different if the irregularity is held
to be nonprejudicial. Cf. Abernathy v. Commonwe~alth,
S.W.2d
Ky., 439
949 (1969); RCr 9.24.
As I noted in my dissent to Robinson v. Commonwealth, Ky.,
926 S.W.2d
853 (1996),
it appears that this Court is not quite
ready to fully trust the advances of the electronic age as
demonstrated
by
the
NCIC
reports.
Clearly,
a prudent prosecutor
must now exemplify such printouts pursuant to the decision in
Robinson.
This case was tried in 1998, two years after the
Robinson
decision.
Robinson,
those practicing in the courts of the Commonwealth must
give
it
proper
Although I may not agree with the result of
deference.
-2-
98-SC-428-MR
KENNETH
RAY
APPELLANT
DILLINGHAM
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
98-CR-08
v.
COMMONWEALTH
OF
APPELLEE
KENTUCKY
TO BE HEARD WITH
98-SC-429-MR
ROBERT
JURELL
APPELLANT
HICKS
APPEAL FROM METCALFE CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
98-CR-12
V.
COMMONWEALTH
OF
APPELLEE
KENTUCKY
ORDER
CORRECTING
OPINION
On the Court's own motion, the Opinion of the Court rendered
in the above-styled action on June 17, 1999,
is corrected and the
attached pages 1, 2, 3, and 4 are substituted in lieu of the
original pages 1, 2, 3, and 4.
Said
corrections
do
not
affect
finality of the original Opinion and are made only to correct
misspellings
Entered:
of
the
word
"Edmonton."
July 13, 1999.
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