Commonwealth v. Sego

consent to be delegates intended advice and Kentucky, ap- by vague language which

authorized COMMONWEALTH sophistry. in 93 is Appellant/Cross-Appellee, peal’s Section Among significant most decisions v. Legislative law is Kentucky constitutional Brown, Ky., v. SEGO, Sr., Research Commission Appellee/Cross- R. John (1984),in which this Court under- S.W.2d Appellant. 27 and 28 of rigidly enforce took to Sections and 93-SC-305-DG. Nos. 92-SC-1062-DG Constitution, separation of Kentucky powers provision. Kentucky. Supreme Court of philosophical not abandon the We should by

principles incorporаted that were 31, 1994. Jan. present of our constitution. framers Rehearing on Denial of As Modified powers purpose ‍​​‌​‌​​​​​​‌​​​‌‌‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌​​‌​‌​‌​‌‌‌‌‍separation doc- April 1994. precedents trine uncontroverted. The uni- this court have been established retaining goals by the

form in set out separation powers doc-

framers. The history in the concrete of

trine is set overrule

legal precedent. We will not not, by the fiat of

those cases and we will

judicial legislation, change the clear and

imperative meaning of our constitution. province of

Such action is within the sole

the voters of this Commonwealth. any subject

We conclude that statute scrutiny 27-28 of the Ken- Sections

tucky judged by Constitution should construction of those time-tested

strict

provisions.

Id., at 914.

This case and our recent decision in Ken- Musselman,

tucky Association Realtors (1991), Ky., amounts to

major foregoing principles retreat ‍​​‌​‌​​​​​​‌​​​‌‌‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌​​‌​‌​‌​‌‌‌‌‍from the legislative significant

and authorizes another I

incursion into executive domain. dissented explained

in Musselman and for the reasons

therein, case. The wall I dissent this govern-

separation between the branches being 27 and 28 is

ment declared Sections expressed

dismantled and the determination being ignored. v. Brown is LRC

COMBS, J., dissenting joins in this

opinion. Gorman, Gen., Atty. Gregory

Chris C. Fuchs, Gen., Atty. Appellate Criminal Asst. Div., Frankfort, appellant. fоr Niehaus, Deputy Appellate J. De- David fender Dist. Public Defend- Jefferson er, Louisville, T. Goyette, Daniel Jefferson counsel, appel- Dist. for Public Defender lee.

WINTERSHEIMER, Justice. This from a of the Court appeal is decision judgment of Appeals reversed a Sego conspiracy to against conviction second-degree sen- commit arson. He was years in but was prison tenced to seven years. probated for a term of five are an under- specific issues whether to a con- police agent party can be a cover spiracy an indicted and whether guilty by pleading non-conspirator becomes charge. The Court lesser negative questions answered both by relying on KRS the conviction reversed can- effect a defendant to the the co- conspiracy if ‍​​‌​‌​​​​​​‌​​​‌‌‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌​​‌​‌​‌​‌‌‌‌‍all of not be convicted or dis- have been amounting to charged circumstances 1990, Sego and an June Alcohol, States Bureau agent of the United reached an Firearms Tobacco and $2,490 accepted to burn under which money, Shortly he received after house. 5.04, Commentaries, § Code, Explana- companion Both Penal and a were arrested. complicity tory were indicted for Note second-degree arson. The com- commit panion pled guilty to facilitation to commit co-conspir legal incapacity of a second-degree arson. He was sentenced It is of exonerate the associate. ator will not years’ probation exchange for his three criminal prosecution in the of consequence no testimony against Sego. the actor co-conspirator a conspiracy that crime which is the guilty of the could not be trial, Sego that he intended to

At testified of a lack objective the association because agent police to and he reрort the undercover to take of intent. did not intend to set a fire but rather money Upon and leave town. conviction 506.070(2)(a)-(c) makes a defendant’s KRS arson, second-degree conspiracy to commit upon or culpability dependent his criminal appealed Appeals Sego to the Court of that of his or conduct rather than her own accepted the motion of reversed. This Court 506.070(2) substan- her KRS is associates. discretionary the Commonwealth for review. tially the same as the New York Penal Code Sego Appeals The Court of held that was provides § not a de- 105.30 which that is acquittal entitled to a directed verdict of conspiracy prosecution that fense to a agent cannot be a because necessary party may lack the “mens other party conspiracy conspira- to and an indicted agreement. criminal intent for an rea” or non-conspirator by pleading

tor a becomes Lanni, 4, 95 Misc.2d 406 People See v. charge. guilty panel to a lesser The did not (1978); ‍​​‌​‌​​​​​​‌​​​‌‌‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌​​‌​‌​‌​‌‌‌‌‍Cardosanto, People 1011 v. N.Y.S.2d by Sеgo reach on the other issues raised his (1975). 275, 84 Misc.2d 375 N.Y.S.2d 834 appeal right. granted as a matter a We bringing cross-motion the other issues before 506.070(3) exception is an to the KRS the Court of to this Court. 506.070(2). However, rule in KRS it cannot Sego was not a entitled to directed exceрt conspirator be used to a from a con acquittal verdict of because his codefendant co-conspirator viction if the is ex otherwise facilitation, plea entered a to the offense of empt culpability prosecution from оr under co-conspirator and the fact that his other was 506.070(2). KRS police agent a did not mean that he was 506.070(3) KRS must be read consistent “discharged amounting under circumstances Commonivealth, 725, Ky. with acquittal” Green 264 Sego to an so as to entitle to an (1936), 506.070(3). acquittal S.W.2d 561 which noted that a KRS not entitled to a criminal acquittal directed verdict of is not entitled to dis- 506.070(2) pursuant to charges simply KRS because it is not missal of the because the co- co-conspirator, valid defense that conspirators his have not been convictеd. police agent, truly agree Green, did not to the con supra, required dismissal was be- spiracy. co-conspirators subjected cause all tri- to acquitted al had been and there was no evi- conspiracy Criminal at common law tradi- dence introduсed that she otherwise con- tionally has been considered as an spired with the named not sub- accomplish to involving unlawful act two view, ject emanating to trial. In our the rule persons- or sharing more a “bilateral” or encompass co-conspira- frоm not Green does relationship. “multilateral” Some re- courts subject not tors under indict- quired proof that conspira- at least two of the ment. actually guilty tors were commentary points to KRS 506.070 out Green, problems

that one of the The traditional rule of as еn analysis with this is 506.070(3) conspiracy ap that no not can exist if acted should one of the parties irresponsible plied agent or innocent. this case because the federal Howev- er, the Model Penal prosecution. Code will not indicates that the did nоt and face liability dismissal, actor’s is not requires acquittal affected such factors and are culpability. extraneous to merely non-prosecution. Model plea bargain sought plain arising with the codefendant did was error allegedly weight

not mean that thе giving codefendant was from instructions less conspiracy theory only contemplated as is ‍​​‌​‌​​​​​​‌​​​‌‌‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌​​‌​‌​‌​‌‌‌‌‍KRS to the defense intend- 506.070(3). Commomwealth, Ky. money. agent’s Weber v. ed to take the (1903) merely 72 S.W. 30 observed that arguments find these to be We because a could codefendаnt not be further The collective facts rule al without merit. prosecuted did not mean that testify party’s lows an about individual there was not a between the two mental condition and emotions as manifested warranting conspir of them an instruction on Ford, Ky., to that See Emerine v. witness. Weber, acy. supra, also noted that: event, In any adopt urged by the rule the learned case, overwhelming guilt in this evidence deprive counsel would be to the Common- error, any, nonprejudicial. and the if is RCr of wealth all benefits this section from 9.24. only conspira- two where there were in the jury panel grand that indicted if, event, cy. For in this of the con- one properly the was constituted and trial spirators for was introduced as a witness judge in denying did not err the defendant’s state, con- the the other would never be mоtion to the dismiss indictment. The victed, clearly might guilt however his be Jury empaneled July 1 Grand was on and shown. July drawn the roll of voters. On was from legislature not the We do believe intended 13, KRS 29A.040 became effective which re “acquittal” reference 506.- the to under KRS quired jury the list to be drawn from either 070(3) negotiated plea to mean where the a lists. or both voter and drivers’ license co-conspirator partic- testifies at trial to cross-petition, Sego argues that this mat his in the It con- ipation is more jury pan ter should be reversed becаuse the interpretation to believe that section sistent in the as el was conflict with statute amend (3) adopted merely prevent to inconsis- was ed. tent verdicts. Green. See 6, 1990, August On the administra Although held that a defendant Green procedures the Court tive of of Justice were if co- conspiracy not be of could convicted II, 3, amended Part Section to conform also acquitted, the court were the statute. The with amended amended a co- did not include indicated that such 15, September rule became effective on 1990. for could not be convicted who indictment, Sego’s At the time the statute of the legal as such would not be other reasons jury to the that the was be and rule were to equivalent juror from voter list and that selected the Here, co-conspiratоr the was not given 30-days’ notice. Administrative be See im- merely granted conspiracy. He was Justice, II, Part Procedures the Court by munity from 29A.060(8). 8; power Section in ex- plead to being allowed to facilitation jury selection is mechanics establish the testimony. Consequently, сhange for his inherently v. Common in the court. Trent to a verdict Sego was not entitled directed (1980). wealth, Ky.App., 386 606 S.W.2d entered a acquittal because his co-defendant a conflict between the Even if was the of facilitation. plea to offense statutes, cоurt obligation the interpretation of the law try to harmonize the three is consider the We must now possi- if They give to both statutes Sego. as to effect cross-appeal by so raised on sues Faulkner, 661 S.W.2d Ky., 1) when ble. requested was that a mistrial are: Ledford (1983). should be the statute Therefore opinion that agent stated an any juror on drawn interpreted so that fulfill his that would he was convinced 13, the drivers’ house; 2) July 1990 shall from after a dismissal promise to burn list, registration but theory list or license voter requested on was the indictment may during notified serve jurors previously improperly had returned that it been would 3) Any other construction interim. trial a new grand jury; empaneled 29A.060(8) agreement has no intention of meaningless pro- parties to the make conduct, there can engaging in criminal Transport Motor such duce аn absurd result. Cf Finn, aptly by the conspiracy. As stated Express, Ky., 574 277 be no Inc. v. S.W.2d thing as Appeals, “There is no such Court of proposition This of one.” Sego’s complaint cross-petition final his long ago time v. Com established a Green judge reversible is that the trial committed monwealth, Ky. failing properly allegedly error in instruct (1986), as follows: jury in- jury the format of the prosecution’s theory of structions favored the crime, a con- very nature of the From the theory. This the case over the defendant’s per- committed one spiracy cannоt be properly preserved for issue has not been alone, by two be committed son but must 9.54(2). In appellate pursuant review to RCr reason, it is the persons. For this or more case, particular we find that there is no this charged general rule that one defendant injustice palpable or manifest error conspiracy cannot be with the crime of 10.26, requires review of this RCr disposition of the case convicted where allegation. alleged coconspirators against all of his charge con- that the basis оf the such holding It is the of this Court that spiracy is removed. to a directed ver- defendant was entitled acquittal merely dict of because his eodefend- Id., 95 S.W.2d at 561. guilty plea ant entered a to the offense of underlying crime of con- The reason facilitation. defendant was entitled greater potential for harm acquittal spiracy to a directed verdict of because is the 506.070(2) acting in persons more are under it is not a defense that when two or preventing co-conspirators truly in- a means of one of his did not concert. As law, effect, harm, punishes greater commit the сriminal act he tend to agent. providing accompanied it is government was a The fact that the criminal intent Abramson, Kentucky government agent by an act. 10 did not face overt § To such a discharged does not mean that he was under Practice 3.39-.40 soften rule, hоwever, provides in amounting the law circumstances to an harsh cannot be con- that “a defendant The decision of the Court co-conspira- if all victed of of his judgment of the circuit reversed and discharged been or tors have court is reinstated. amоunting acquittal.” circumstances co-conspir- recognizes that if the This statute STEPHENS, C.J., LEIBSON, discharged, acquitted ator has been REYNOLDS, STUMBO, JJ., SPAIN agreement support is no concur. so, logical, if to conclude It is as not more J., LAMBERT, by separate dissents one of the that no exists when оpinion. police who has no inten- parties is a officer engaging in criminal conduct. tion of Justice, LAMBERT, dissenting. circumstance, simply no basis such a there is entirely may not be clear from the While amounts to punish peremptorily as such ap- majority opinion, person with whom punishment of criminal intent. conspired was an pellant to commit arson alcohol, agent nev- tobacco and firearms who any engaging in criminal

er had intention of word, appellant duped In a

conduct. agent.

the ATF appellant which stands con

The crime of requires agree

victed persons to en

ment between two or more

gage in criminal conduct. When one of

Case Details

Case Name: Commonwealth v. Sego

Court Name: Kentucky Supreme Court

Date Published: Apr 21, 1994

Citation: 872 S.W.2d 441

Docket Number: 92-SC-1062-DG and 93-SC-305-DG

Court Abbreviation: Ky.