THOMAS W. LEGLER V. COMMONWEALTH OF KENTUCKY
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVI_L PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYINANY OTHER
CASE IN ANY CO URT OF THIS STA TE.
RENDERED : NOVEMBER 23, 2005
NOT TO BE PUBLISHED
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2004-SC-651-MR
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THOMAS W . LEGLER
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APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
2003-CR-3255 & 2004-CR-1411
COMMONWEALTH OF KENTUCKY
-
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Thomas W . Legler, was convicted by a Jefferson County Circuit Court
jury of first-degree robbery, first-degree burglary, and of being a first-degree persistent
felony offender (PFO). He was sentenced to thirty-one years' imprisonment . He now
appeals to this Court as a matter of right, alleging two trial errors . For the reasons set
forth herein, we affirm .
On October 15, 2003, Appellant and Phillip Taylor had been drinking in a
Louisville park when Appellant suggested that they go to the residence of Mr. Shirley
Gammon, an elderly gentleman for whom Appellant had previously performed odd jobs.
While en route to Mr. Gammon's home, Appellant announced his intention to rob Mr.
Gammon, noting that he had both a car and a lot of money.
Upon arrival at the home, Appellant and Taylor asked Mr. Gammon if he had any
work available . They then forced their way into the home ; Mr. Gammon struggled to
prevent their entry . Appellant pulled Mr. Gammon's arms behind his back to restrain
him. In doing so, Appellant mashed Mr. Gammon's hands, causing them to sustain
severe bruising . Eventually, Mr. Gammon complied with their demand for his car keys
and the pair left, also taking about sixty or seventy dollars from Mr. Gammon's person.
As they fled, Mr. Gammon also went outside . Appellant got Mr. Gammon on the
ground and was about to hit him, but Taylor intervened . Mr. Gammon took the
opportunity to escape and was able to flag down a passing public bus. The driver
contacted law enforcement . Appellant and Taylor drove away in Mr. Gammon's vehicle,
heading for Appellant's hometown in Mississippi . The pair eventually returned to
Louisville and abandoned the vehicle at a shopping center . They were later
apprehended .
A Jefferson Circuit Grand Jury returned an indictment charging Appellant with
one count of first-degree burglary and one count of first-degree robbery. Taylor
received similar charges, but entered into a plea agreement in return for his testimony
at Appellant's trial . Appellant was tried before a jury and found guilty of first-degree
robbery, first-degree burglary, and of being a first-degree persistent felony offender
(PFO). He appeals the convictions, raising two issues for review .
Appellant first contends that the evidence of physical injury was insufficient to
sustain a conviction for first-degree burglary or first-degree robbery . The issue is
unpreserved and Appellant seeks relief pursuant to RCr 10 .26, alleging palpable error.
KRS 515.020 (robbery in the first degree) and KRS 511 .020 (burglary in the first
degree) both contain as an element of each offense that the defendant "causes
physical injury to any person who is not a participant in the crime." At trial, the
Commonwealth presented photographic evidence of Mr. Gammon's hands after the
incident which revealed severe bruising . Detective Donnie Tinnell testified that the
photograph was an accurate depiction of Mr. Gammon's hands after the incident,
adding that "it was significant bruising ." Appellant now argues that the bruising to Mr.
Gammon's hands is not "physical injury" within the meaning of KRS 515 .020 and KRS
511 .020.
KRS 500 .080(13) defines "physical injury" as "substantial physical pain or any
impairment of physical condition ." Our case law makes clear that any injury will satisfy
the requirement of physical injury: "The requirements of the statute under these
circumstances are met when any injury results, as the words 'impairment of physical
condition' used in the KRS 500.080(13) definition, simply mean 'injury ."'
Commonwealth v . Potts , 884 S .W .2d 654, 656 (Ky. 1994). See also Meredith v.
Commonwealth , 628 S .W.2d 887 (Ky. App . 1982) (superficial wound on victim's hand
from perpetrator's knife constituted physical injury, even though there was no evidence
that victim suffered substantial pain); Key v. Commonwealth , 840 S .W.2d 827 (Ky. App .
1992) (strike to victim's back with a baseball bat that resulted in bruising to victim's ribs
constituted a physical injury) ; Hubbard v. Commonwealth , 932 S .W .2d 381 (Ky. App.
1996) (victim's pain in her left hip following assault constituted physical injury even
though the hip was not fractured and victim did not seek further medical attention for
the injury) . The significant bruising to Mr. Gammon's hands satisfies the requirement of
physical injury for purposes of first-degree burglary and first-degree robbery. There was
no error.
Appellant also argues that insufficient notice was given that the Commonwealth
would pursue a PFO indictment, which severely prejudiced his ability to prepare a
defense . A brief review of the procedural history of this charge is necessary. On
January 5, 2004, a pretrial hearing was held at which the Commonwealth informed the
trial court and defense counsel that it would seek a first-degree PFO indictment in
addition to the indictment already returned . On January 6, 2004, the Commonwealth
filed its "Response to Court's Order of Discovery" which states that "Defendant Legler is
a first degree persistent felony offender and will be so charged prior to trial ." In its
"Supplemental Response to the Court's Pretrial Order for Discovery and Notice
Pursuant to KRE 404(C)," filed February 11, 2004, the Commonwealth attached a copy
of a 1997 Jefferson County indictment, which levied a first-degree PFO charge against
Appellant . (That indictment resulted in Appellant entering a guilty plea pursuant to
North Carolina v. Alford , 400 U .S. 25, 91 S . Ct. 160, 27 L . Ed . 2d 162 (1970), to one
count of first-degree robbery, one count of first-degree burglary, one count of seconddegree burglary and one count of giving a peace officer a false name . The PFO charge
was dismissed pursuant to the agreement .) According to Appellant, no other mention
of the PFO charge was made until his trial commenced on May 11, 2004, when jury
selection began . When the Commonwealth thereafter announced it was ready for trial,
it also stated that it would proceed with the PFO indictment against Appellant . The
following day, the trial court arraigned Appellant on the PFO indictment. Defense
counsel objected, arguing that the Commonwealth had provided insufficient notice that
it would be trying the PFO indictment. The objection was overruled, and trial on the
PFO indictment began . Appellant was found guilty of being a first-degree persistent
felony offender .
Appellant concedes that he had notice that the Commonwealth originally
contemplated a PFO charge. However, because the Commonwealth never obtained
the indictment until the date of trial, Appellant argues that he had insufficient time to
prepare any defense to the charge. Appellant points mainly to the Commonwealth's
use of a prior Missouri conviction and a federal conviction, stating that defense counsel
was denied the opportunity to investigate the convictions further.
The trial court entertained several objections concerning this matter, ultimately
concluding that defense counsel was aware that a PFO charge was forthcoming based
on the Commonwealth's discovery documents . Furthermore, the trial court noted the
numerous plea discussions between Appellant and the Commonwealth, during which
the PFO issue had been discussed . While defense counsel did seek dismissal of the
indictment, it is of note that defense counsel never requested a continuance . The trial
court refused to dismiss the charge .
"[I]f the Commonwealth seeks enhancement by proof of PFO status, the
defendant is entitled to notice of this before the trial of the underlying substantive
offense ." Price v. Commonwealth , 666 S .W.2d 749, 750 (Ky. 1984) . Here, there is no
doubt that Appellant was on notice that a PFO charge was impending . The
Commonwealth had revealed as much not only in its discovery documents, but also in
its statements to both the trial court and defense counsel during pretrial hearings and
plea negotiations . The question, then, is whether Appellant was denied an opportunity
to prepare a defense by the Commonwealth's decision to seek an indictment on the
PFO charge at the trial of the underlying offenses . The U .S. Supreme Court noted, in
Oyler v. Boles , that "due process does not require advance notice that the trial on the
substantive offense will be followed by an habitual criminal proceeding . Nevertheless, a
defendant must receive reasonable notice and an opportunity to be heard . . . ." 368
U.S . 448, 452, 82 S . Ct. 501, 503, 7 L . Ed . 2d 446, 447 (1962) .
We are convinced that Appellant had reasonable notice that a PFO charge was
forthcoming, and he was certainly afforded an opportunity to be heard ; his due process
rights were satisfied . If Appellant needed more time to prepare a defense to the PFO
charge, a request for continuance should have been made . A party may not decline to
avail himself of a certain remedy, and then argue on appeal that he was prejudiced .
Weaver v. Commonwealth , 955 S .W .2d 722, 726 (Ky. 1977). By failing to request a
continuance, we can only conclude that defense counsel did not believe additional time
was necessary or required . See Price , 666 S .W .2d at 750 .
We further note that Appellant was not prejudiced by the peculiar circumstances
of this case . An alleged error is harmless or non-prejudicial if there is no substantial
possibility that the result of the trial would have been different if the alleged error had
not occurred . Abernathy v. Commonwealth , 439 S .W.2d 949 (Ky. 1969). Though
Appellant argues on appeal that defense counsel was unaware that the Commonwealth
would admit evidence of his prior Missouri and federal convictions, he was most
certainly on notice of the prior Jefferson County felony convictions . Copies of these
convictions were attached to the Commonwealth's "Supplemental Response to the
Court's Pretrial Order for Discovery and Notice Pursuant to KRE 404(C)," filed three
months prior to trial. These convictions alone would have been sufficient to convict
Appellant as a first-degree PFO . Reversal on this issue is not required .
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
affirmed .
All concur.
COUNSEL FOR APPELLANT :
J . David Niehaus
Deputy Appellate Defender
Office of the Louisville Metro Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General of Kentucky
Clint Evans Watson
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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