GARY LLOYD V. COMMONWEALTH OF KENTUCKY
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RENDERED : OCTOBER 21, 2010
TO BE PUBLISHED
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2008-SC-000206-MR
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GARY LLOYD
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APPELLANT
ON APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL BRADEN, JUDGE
NO. 05-CR-00009-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING, IN PART, AND
REVERSING AND REMANDING, IN PART
A circuit court jury convicted Gary Lloyd of both robbery and felony theft
for stealing drugs from a drugstore . Lloyd contends that his conviction on both
offenses for stealing the same items violates double jeopardy principles . Even
though the separate offenses of felony theft and robbery each contains an
element the other does not, we agree with Lloyd because the General Assembly
has made plain its intent that a person may not be convicted of both robbery
and theft by unlawful taking based upon one theft. We reject Lloyd's other
argument that the trial court erred by denying his motion to suppress .
I
I . FACTUAL AND PROCEDURAL HISTORY.
A man walked into a drugstore, pointed a handgun at a store employee,
announced that this was a hold-up, and demanded OxyContin .I Another store
employee unlocked the drug safe, and the robber took drugs from the safe and
put them in a bag. During the robbery, a customer entered the store, observed
someone taking items from the safe, walked outside, and called 911 . The
customer watched the robber flee the store.
Officers heard a description of the vehicle fleeing the robbery as being a
small foreign car, possibly a Toyota or Nissan. Officer Glen Taylor was called to
assist at a traffic stop made by another officer of a car fitting the description.
Officer Taylor later testified that the driver appeared nervous and gave officers
consent to search the vehicle . The officers found Gary Lloyd hiding in the
trunk and carrying a handgun . The officers also found the stolen drugs in the
trunk with Lloyd. One of the drugstore employees identified Lloyd as the
robber .
The grand jury indicted Lloyd on one count of first-degree robbery, one
count of theft by unlawful taking of property valued over $300 (felony theft),
and one count of possession of a handgun by a convicted felon . The trial court
severed the handgun charge and denied Lloyd's motion to suppress evidence .
The robbery and theft charges proceeded to trial. Ajury found Lloyd guilty of
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both robbery and felony theft and recommended a sentence of seventeen years'
imprisonment for the robbery conviction and five years' imprisonment for the
theft conviction . These sentences were to be served consecutively for a
cumulative sentence of twenty-two years' imprisonment . The trial court
followed the jury's recommendations.2 Lloyd then filed this appeal as a matter
of right .3
II. ANALYSIS.
Lloyd raises two issues on appeal. First, he contends that his right to be
free from double jeopardy was violated when he was convicted of both robbery
and felony theft because each conviction was based upon the theft of the
drugs . Second, he contends that the trial court erred by denying his motion to
suppress . We agree with Lloyd's double jeopardy argument, but we reject his
suppression argument.
A. Double Jeopardy Violation.
Section 13 of the Kentucky Constitution provides, in relevant part, that
"[n]o person shall, for the same offense, be twice put in jeopardy of his life or
limb . . . ." This section of our state Constitution is known as the double
3
Lloyd pleaded guilty to an amended charge of possession of a firearm by a
convicted felon and received a sentence of three years' imprisonment to be served
consecutively to the twenty-two year cumulative sentence for the robbery and theft
by unlawful taking convictions. No issue pertaining to that firearm conviction or
the sentence Lloyd received for it has been raised in this appeal.
Ky. Const. § 110(2) (b) . Final judgment on the robbery and theft was entered in
August 2006 . About three years later, we granted Lloyd's motion for a belated
appeal.-
jeopardy clause .4 Lloyd contends that his convictions for both robbery and
-
felony theft violate the constitutional prohibition against double jeopardy. We
agree . 5
In order to determine whether a person may properly be subjected to
prosecution for multiple offenses based upon one act, courts use two main
guideposts --- the Blockburger test and the expressed intent of the legislature .
We find in this case that first-degree robbery and felony theft withstand the
Blockburger test but that the General Assembly has demonstrated its intent
that persons such as Lloyd not be prosecuted for both robbery and theft based
upon the same underlying theft.
1 . Blockburger.
Nearly eighty years ago, the United States Supreme Court issued its
seminal decision in double jeopardy jurisprudence, Blockburger v. United
States.6 In Blockburger, the Court held that "where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not."7 Kentucky
uses the Blockburger double jeopardy test, which we have reduced to this
4
See also U. S . Const. Amend. V.
5
Lloyd did not present his double jeopardy argument to the trial court. But double
jeopardy questions may be reviewed on appeal "even if they were not presented to
the trial court." Terry v. Commonwealth, 253 S.W.3d 466, 470 (Ky. 2008) .
6
284 U.S . 299 (1932) .
Id. at 304.
question: "is one offense included within another?"8 To determine whether
felony theft is included within first-degree robbery, we must closely examine
and compare the elements of those offenses.
Kentucky Revised Statutes (KRS) 514 .030 governs theft. At the time of
Lloyd's indictment and trial, subsection one of that statute provided, in
relevant part, that a person was guilty of theft by unlawful taking if he or she
"unlawfully . . . [t]akes or exercises control over movable property of another
with intent to deprive him thereof . . . ." Subsection two of KRS 514 .030
provided that theft by unlawful taking was a "Class A misdemeanor unless the
value of the property is three hundred dollars ($300) or more, in which case it
is a Class D felony . . .
."9
Lloyd was indicted and convicted of the felony
version of theft. t o
So to commit felony theft by unlawful taking a person must:
(1) Unlawfully (2) take or exercise control over movable property of another
(3) with the intent to deprive the owner, and (4) the value of the property taken
must be at least $300 (now $500) .
Robbery in the first degree, for which Lloyd was indicted and convicted,
is governed by KRS 515.020, which has not been amended since first enacted
in 1974 . KRS 515 .020(1) provides, in relevant part, that a person commits
first-degree robbery when "in the course of committing theft, he uses or
s
Commonwealth v. Burge, 947 S .W .2d 805, 811 (Ky. 1996) .
In 2009, the General Assembly amended KRS 514.030 to provide that the value of
the property must be $500 or more for the offense to be classified as a felony.
2009 Ky. Acts Ch . 106 (H.B. 369) § 6.
io There is no contention that the stolen items at issue had a value of less than $300.
5
threatens the immediate use of physical force upon another person with intent
to accomplish the theft" and "[i)s armed with a deadly weapon ; or . . . [u]ses or
threatens the immediate use of a dangerous instrument upon any person who
is not a participant in the crime ."
So to commit first-degree robbery, a person must: (1) in the course of
committing a theft (2) use or threaten the immediate use of physical force
(3) with intent to accomplish the theft (4) while either (a) being armed with a
deadly weapon or (b) using or threatening the immediate use of a dangerous
instrument upon a person not a participant in the crime .
One can quickly see similarities between robbery and theft. But robbery
contains elements that differ from theft because theft does not require the
perpetrator to use or threaten the immediate use of physical force, nor does
theft require that the perpetrator either to be armed with a deadly weapon or to
use or threaten the use of a dangerous instrument . So first-degree robbery is
not included within theft by unlawful taking .
The commentary to KRS 515.020, the first-degree robbery statute,
provides that "[t]o be convicted under KRS 515.030, an offender must have
intended, with his use or threatened use of physical force, to accomplish a
theft. Through this requirement, all of the elements of the crime of theft as set
forth in KRS 514 .030 are incorporated into this offense."" In fact, precedent
Curiously, this commentary refers to KRS 515 .030, which governs robbery in the
second degree even though the commentary is attached to KRS 515.020, which
governs robbery in the first degree . For purposes of this appeal, however, that
curiosity is irrelevant because robbery in the second degree also clearly contains
an element that theft by unlawful taking does not - namely, in order to be guilty
6
holds that a double jeopardy violation occurs if a person is convicted of both
robbery and theft if he steals the same property. 12 Lloyd cites both the
commentary to KRS 515.020 and precedent to argue that his convictions for
both theft by unlawful taking and robbery violated his right to be free from
double jeopardy.
But the commentary and the precedent Lloyd cites pre-date our decision
in Ten-y. 13 In Term, a defendant contended that several of his convictions,
including one conviction for felony theft by unlawful taking, violated his right to
be free from double jeopardy. In the course of resolving those double jeopardy
claims, we relied upon cases from other jurisdictions to recognize for the first
time in Kentucky that a threshold monetary amount in a criminal statute is an
element of the offense . 14 We reasoned that in order to avoid a directed verdict
on a charge with a threshold monetary amount, the Commonwealth must
adduce proof satisfying that monetary amount. So "[i]f the lack of proof on any
aspect of an offense would lead to a directed verdict of acquittal, that aspect
must be considered an element of the offense for double jeopardy purposes ." 15
of robbery in the second degree a person must "in the course of committing theft, .
. . use[] or threaten[] the immediate use of physical force upon another person with
intent to accomplish the theft." KRS 515.030(l) .
12
13
14
is
See, e.g., McKee v. Commonwealth, 720 S.W .2d 343, 344 (Ky .App . 1986), citing
Jordan v. Commonwealth, 703 S.W.2d 870, 873-74 (Ky. 1985).
253 S .W.3d 466 . Although its holding provides a key to resolve this case, Terry
inexplicably was not cited in the parties' briefs.
Id. at 471 (citing cases from Washington State and the United States Court of
Appeals for the First Circuit).
After Terry, we employ a general principle that a "monetary damage
threshold is a distinct element" of a criminal offense . 16 In,Terry, we applied
that general principle to several specific situations, including holding that the
then-$300 dollar threshold for felony theft by unlawful taking was an element
that distinguished it from first-degree desecration of venerated objects . 17 And
our adoption of the monetary damage threshold amount as an element of the
crime of theft in Terry appears to be consistent with the general viewpoint
expressed by a prominent legal encyclopedia, which provides that "[t]he value
of the item stolen, when used to differentiate between a felony and
misdemeanor offense, is an essential element of the charged crime ." 18
The question becomes whether the rationale of Terry requires us to
disapprove of the commentary to KRS 515.020 and to overrule precedent
16
17
18
Id. at 472 ("When the elements of first-degree desecration of venerated objects are
compared with the elements of theft by unlawful taking over $300, it becomes clear
that Terry's convictions for those offenses did not violate double jeopardy
principles. First, theft by unlawful taking over $300 contains a threshold
minimum monetary property value for the item(s) taken . By contrast, first-degree
desecration of venerated objects contains no such monetary property value
requirement.").
50 Am .Jur.2d LARCENY § 44 (2010) . Even though it specifically applies to larceny,
this section of Am .Jur .2d is applicable to this case because the offense of theft by
unlawful taking in Kentucky law is intended to include all prior offenses involving
unlawful appropriation of property, including grand and petit larceny . See
Commentary to KRS 514.030 .
Although not cited by the parties, we are aware that other courts considering
similar issues have come to a conclusion contrary to the general viewpoint
expressed in Am.Jur.2d. See, e.g., State v. Smith, 884 N.E.2d 595, 599 (Ohio 2008)
("Smith also argues that theft requires proof of the value of the property stolen,
while robbery has no such element. But the elements of theft do not include value .
Rather, value is a special finding to determine the degree of the offense, but is not
part of the definition of the crime . Thus, Smith's position is not well taken .") .
8
holding that a person may not be convicted of both robbery and theft by
unlawful taking based upon one common underlying theft. As will be
discussed below, we believe that our decision in Terry is a proper exposition of
the law but that it does not foreclose Lloyd from obtaining relief because the
General Assembly has shown its intent to prevent prosecutions for both theft
by unlawful taking and robbery based upon the same underlying theft.
Strict application of the Blockburger test in conjunction with our opinion
in Terry would, standing alone, lead to a conclusion that there is no double
jeopardy violation in this case because each offense contains at least one
element that the other does not. But the application of Blockburger is not the
end of our analysis because we must also determine if the General Assembly
intended for one theft to be prosecuted as both theft by unlawful taking and a
robbery .
2. Legislative Intent.
The Blockburger test, although highly useful, is simply "a rule of
statutory interpretation" since "neither the United States nor the Kentucky
Constitution proscribes the imposition of multiple punishments for separate
offenses committed during the course of a single criminal episode." 19
Accordingly, "[t]he rule against double jeopardy in this situation [multiple
criminal charges based upon one underlying act] presume[s] that where two
19
Beaty v. Commonwealth, 125 S.W.3d 196, 210 (Ky. 2003) .
9
statutory provisions proscribe the same offense, . a legislature does not intend to
impose two punishments for that offense ."2 o
As the United States Supreme Court held, "[t]he Blockburger test is a rule
of statutory construction, and because it serves as a means of discerning
congressional purpose the rule should not be controlling where, for example,
there is a clear indication of contrary legislative intent."21 In other words, the
Blockburger test must yield to a contrary expression of legislative intent .22
Although legislative intent may often be difficult to discern, we conclude that it
is discernible in this case because there are sufficient indicia of intent to
prohibit convictions for both first-degree robbery and felony theft arising from
one underlying theft.
First, the General Assembly chose to use prominently the word theft in
KRS 515 .020, the applicable robbery statute . Specifically, KRS 515 .020(1)
provides that a person commits first-degree robbery when "in the course of
committing theft . . . ." The use of the specific word theft in both the robbery
statute and in the theft by unlawful taking statute is surely not coincidental .
We believe that the use of the same term in both statutes evinces the General
20
Id. (quotation marks omitted) .
21
Albernaz v. United States, 450 U.S . 333, 340 (1981) (internal quotation marks
22
Cf. Commonwealth v. Colonial Stores, Inc., 350 S .W.2d 465, 466 (Ky. 1961) ("If the
offering of each package may be considered to be a separate offense there would be
no double jeopardy, because the proof required to sustain one of the indictments
would not necessarily sustain any of the others [i.e., the Blockburger same
elements test has been satisfied] . We think the question is simply one of
determining the legislative intent. Did the legislature intend that in the offering for
sale of a particular commodity in separate packages a separate offense would be
deemed to be committed as to each package?") (citation omitted) .
omitted) .
10
Assembly's intent to define robbery as being theft plus the additional element
of force or threatened force .
This conclusion is readily reinforced by the previously mentioned
commentary to KRS 515 .020, which provides, in relevant part, that "all of the
elements of the crime of theft as set forth in KRS 514.030 are incorporated into
this offense." We believe that commentary, which, of course, may be used as
an aid in construing the statutes of the penal code,23 represents an
unmistakable expression of intent for theft by unlawful taking to be subsumed
into robbery. It would be a clear violation of legislative intent, therefore, for a
person such as Lloyd to be convicted of both theft by unlawful taking and
robbery based upon the same incident of theft.
Although perhaps based upon a different rationale, this conclusion is
consistent with precedent holding that a double jeopardy violation occurs if a
person is convicted of both robbery and theft by unlawful taking if he steals the
same property.24 Likewise, this conclusion does no violence to our holding in
Terry that a threshold monetary amount in a statute constitutes a substantive
element of that statutory offense . Rather, our holding today carves out only a
narrow exception to Terry for cases involving prosecutions for theft by unlawful
taking and robbery based upon the same underlying theft.25
23
24
25
See KRS 500 .100 ("The commentary accompanying this code may be used as an
aid in construing the provisions of this code.") .
See, e.g., McKee, 720 S .W.2d at 344.
Because the issue is not before us, we express no opinion as to whether it is
permissible for prosecutions for robbery and any other type of theft crime to be
based upon the same underlying theft .
In summary, because the General Assembly has specifically shown its
intent that a person in Lloyd's position may not be convicted of both theft by
unlawful taking and robbery based upon the same underlying theft, Lloyd's
double jeopardy argument is meritorious . So Lloyd's conviction for theft by
unlawful taking must be reversed, and the matter must be remanded to the
trial court for dismissal of the theft by unlawful taking charge and entry of a
new final judgment .26
B. No Error in Denial of Motion to Suppress .
The trial court found that the stop and seizure of the vehicle in which
Lloyd was found hidden was supported by probable cause. Lloyd contends
that finding is not supported by substantial evidence. Even though we have
already reversed Lloyd's felony theft conviction, we shall address this issue
because granting relief on it would also necessitate vacating Lloyd's robbery
conviction .
At the brief suppression hearing that was held immediately before trial,
the only testimony was given by Officer Taylor. Officer Jones, who initially
stopped the vehicle in which Lloyd was found, was unavailable to testify.
On direct examination, Officer Taylor testified that the description given
by dispatch of the vehicle fleeing the drugstore robbery was a small vehicle,
26
The remedy for these types of double jeopardy violations is to vacate the conviction
for the lesser offense. Brown v. Commonwealth, 297 S.W.3d 557, 562-63 (Ky.
2009) . Theft by unlawful taking. under these facts is a Class D felony,
KRS 514.030(2) ; robbery in the first degree is a Class B felony, KRS 515.020(2) .
Thus, we vacate the theft by unlawful taking conviction. See McKee, 720 S.W.2d at
344 (affirming robbery conviction and reversing theft by unlawful taking conviction
with directions to dismiss the theft by unlawful taking charge).
12
possibly a Toyota or Nissan.27 Officer Taylor agreed with the Commonwealth's
assertion that the description given by dispatch was of a "little foreign car ."
Officer Taylor then testified that Officer Jones, who stopped the car in question,
stated on the police radio that he was trying to catch a small car that was
attempting to merge onto the interstate at a high rate of speed . Later during
his testimony, Officer Taylor agreed with the Commonwealth when it stated
that Officer Jones had related that the car was traveling 80-100 miles per hour.
When Officer Taylor arrived at the stop to assist Officer Jones, Officer
Jones told Officer Taylor that he had asked the driver of the car for registration
papers ; and the driver had produced registration papers for a boat. Jones also
told Taylor that the driver was "acting very nervous." The driver gave the
officers permission to search the car, and during that search, the officers found
Lloyd hiding in the trunk and holding a gun.
On cross-examination, Officer Taylor again testified that dispatch
described the vehicle associated with the drugstore robbery as being a small
foreign car, possibly a Toyota or Nissan. Officer Taylor testified that he
believed the car in which Lloyd was found was a Honda. Officer Taylor testified
further that he was not sure how Officer Jones had ascertained the speed of
the vehicle in which Lloyd was found.
27
From the parties' briefs, it is unclear how the authorities gained a description of
the getaway vehicle. Presumably, a witness gave the description to the authorities;
but the source of the description is irrelevant to the issues in this appeal.
13
At the conclusion of Officer Taylor's testimony, the trial court denied the
motion to suppress, finding that probable cause existed for the stop and the
search was based upon consent. The case then proceeded to trial .
As we have recently stated:
Motions to suppress are governed by Kentucky Rules of Criminal
Procedure (RCr) 9.78, which provides that a court presented with a
motion to suppress "shall conduct an evidentiary hearing outside
the presence of the jury and at the conclusion thereof shall enter
into the record findings resolving the essential issues of fact raised
by the motion or objection and necessary to support the ruling."
Upon appellate review, [RCr 9 .78 provides that] the trial court's
findings of fact are "conclusive" if they are "supported by
substantial evidence . . . ." "Using those facts, the reviewing court
then conducts a de novo review of the trial court's application of
the law to those facts to determine whether the decision is correct
as a matter of law ."2s
All warrantless searches are presumed unreasonable unless the search
falls within an exception to the warrant requirement.29 The officers in this case
had no warrant. But consent is
a well-recognized exception to the warrant
requirement. 30 And Officer Taylor's testimony that the driver gave consent to
search the vehicle was not rebutted, nor does Lloyd contend that the driver
lacked authority to consent to the search of the vehicle. The propriety of the
search, therefore, is not really at issue . More accurately, the issue is the
antecedent question of whether the initial stop of the vehicle was proper.
28
29
30
McCloud v. Commonwealth, 286 S.W.3d 780, 784 (Ky. 2009), quoting
Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006) (internal footnote
omitted) .
Jones, 217 S.W.3d at 195.
Id. at 198 .
14
It is well-settled that "an officer who has probable cause to believe a . . .
traffic violation has occurred may stop a vehicle regardless of [the officer's]
subjective motivation in doing so."31 It is also well-settled that hearsay
testimony is generally permissible at a suppression hearing.3 2 Actually, a pretrial finding of probable cause may be based upon hearsay even though the
hearsay may not be admissible in an actual tria1 .33 So the fact that the
testimony at the suppression hearing regarding the propriety of the initial stop
of the vehicle was largely, if not entirely, based upon hearsay testimony of
Officer Taylor is not automatic grounds for granting the motion to suppress .
Officer Taylor testified that Officer Jones had radioed that he was going
to stop the car because it was going at a high rate of speed - 80 to 100 miles
per hour. Although cross-examination of Officer Taylor showed that he did not
know Officer Jones's basis for determining the speed of the vehicle, Lloyd
offered no evidence to rebut Officer Jones's observation that the vehicle was
traveling at a high rate of speed. Since a speed of eighty miles per hour, the
31
Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001).
Lloyd's brief contains an extended discussion of an apparent controversy in federal
courts about whether a reasonable suspicion or probable cause standard should
be used in determining the propriety of a stop based on a traffic violation. As may
be gleaned from the quote from Wilson, we use the probable cause standard in
these situations . We need not distract our focus from the issue before us by
enmeshing ourselves into the federal courts' apparent debate over which standard
should be used, however, because Lloyd is not entitled to relief under either
standard .
32
33
Kotila v. Commonwealth, 114 S .W.3d 226, 235 (Ky. 2003), overruled on other
grounds by Matheney v. Commonwealth, 191 S.W.3d 599, 603 (Ky. 2006) .
See, e.g., Greene v. Commonwealth, 244 S.W.3d 128, 134 (Ky.App. 2008) (noting in
course of determining at suppression hearing whether arrest was supported by
probable cause that "[a] finding of probable cause may be based upon evidence,
such as hearsay, which would be inadmissible at trial.") .
15
minimum speed mentioned by Officer Jones, is above the maximum permitted
speed on an interstate in Kentucky, 34 then Officer Jones clearly had probable
cause to initiate a traffic stop of the vehicle in which Lloyd was hiding .
The fact that Officer Jones may have also wanted to stop the vehicle
because it matched the description of the getaway vehicle from the drugstore
robbery is irrelevant at this time because, again, "an officer who has probable
cause to believe a . . . traffic violation has occurred may stop a vehicle
regardless of[the officer's] subjective motivation in doing So."35 So Lloyd's
argument that the description of the getaway vehicle as a Toyota or Nissan
rendered improper the stop of this Honda vehicle is without merit.
In summary, we find no error in the trial court's denial of the motion to
suppress .
III. CONCLUSION .
For the foregoing reasons, the judgment of the circuit court is affirmed as
to Lloyd's robbery conviction and reversed as to Lloyd's theft by unlawful
taking conviction ; and the case is remanded to the trial court with instructions
to dismiss the theft by unlawful taking charge and for the entry of a new final
judgment .
All sitting. Abramson, Noble, Schroder, Scott, and Venters, JJ., concur.
Cunningham, J., concurs by separate opinion.
34
35
See KRS 189 .390 (stating maximum permissible speed of sixty-five or seventy miles
per hour, depending on the location, for interstate highways in Kentucky).
Wilson, 37 S.W.3d at 749 . (Emphasis added) .
16
CUNNINGHAM, J., CONCURRING: I fully concur with the opinion of the
Chief Justice . I add to emphasize a point that supports the decision of the
majority. Theft by unlawful taking is a lesser-included offense of robbery.
Roark v. Commonwealth, 90 S .W .3d 24, 38 (Ky. 2002) . Common sense,
therefore, should dictate that one cannot be convicted of both . However, while
a person cannot be charged and convicted of both, one may still be convicted
for the theft as a lesser included, although the jury may find the defendant not
guilty of robbery.
COUNSEL FOR APPELLANT:
Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentuc
Gregory C. Fuchs
Todd Dryden Ferguson
Assistant Attorneys General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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