Fair v. Commonwealth
652 S.W.2d 864
Ky.
1983
Check Treatment

*1 864

The second assertion of error is that The evidence Taylor was over- stand; trial court whelming; committed reversible error he did not take the refusing opinion to declare a mistrial are of the he given when the co- a fair trial. defendant entered a plea guilty. judgment is affirmed.

Taylor relies on that line of cases which hold that it is reversible error for the All concur. Commonwealth to show that a coindictee has already been convicted under the indict

ment. This holding was the in Martin v.

Commonwealth, 477 Ky., (1972), 506 S.W.2d Commonwealth,

and Webster v. 223

369, 3 S.W.2d 754 Likewise Taylor upon

relies Parido v. Ky., (1977), Tipton S.W.2d v. Com Eugene William FAIR a/k/a Bill monwealth, Ky., (1982), 640 S.W.2d 818 Slone, Appellant, which hold prejudicial error for the jury to be informed of a coindictee’s guilty plea. There coindictee entered a Kentucky, COMMONWEALTH of trial, guilty plea before testified for the Appellee. Commonwealth and also that he en Supreme Kentucky. Court of tered a plea guilty. In each of these cases the Commonwealth introduced this 6, 1983. July evidence. Here the guilty plea was taken presence

outside the of the jury, and the

only information conveyed jury

that brought out on cross-examination by

Taylor. opinion We are of the the situation Martin, distinguished

here can be

Webster, Tipton Parido and for the reason

that such plea information about the as the

jury heard Taylor. was from It is an ordi

nary occurrence for a coindictee to enter a

plea before trial and for the testify Com equally customary

monwealth. It is for the

defense to put credibility coindictee’s

issue cross-examination on the deal made

with the Commonwealth. That is precisely

the situation here. Hudson v. North Caroli

na, 363 U.S. 80 S.Ct. 4 L.Ed.2d (1960), upon relied is not by Taylor

applicable to the situation here. There af guilty plea

ter a codefendant entered a during

before the the course of jury

trial, Hudson and another codefendant

left without counsel. Hudson was reversed cautionary

for the reason no admonition given jury primarily to the for the Hud leaving

reason that counsel withdrew

son and the codefendant without remaining of the trial.

counsel for the balance *2 by

convictions for theft unlawful and affirm the remainder the judgment of Perry of the Circuit Court. assignments

The advances two appellant of in opin- error which will review this ion.

The first issue to be discussed concerns suppress the trial court’s failure to state- appellant ments the allegedly made of the rights violation his under Fifth and Sixth Amendments to the United States appellant Constitution. The advances three factual reasons for his that conclusion the interrogation illegal: (1) appellant was was represented by counsel at the time of the (2) interrogation; the interrogating officer did not the clearly appellant inform of his right present to have counsel when ques- tioned; (3) the did appellant not waive rights, his but right instead asserted his to remain silent.

Concerning appellant’s the first fac tual for argument, basis his clear that appellant represented the was indeed interrogation. counsel at the time of the However, it is clear that equally appel represented by lant was counsel for a sepa charge rate that for which he pursuant arrested. He was arrested taking; warrant for theft unlawful he represented by charge counsel for the being for which he was held at the time of charges escape. his The are determining unrelated for purposes legality interrogation. Advocate, Jack Emory Farley, Public Ma- appellant alleges The also that Allison,

rie Advocate, Asst. Public Frank- interrogating officer did not inform clearly fort, appellant. for appellant prior of his rights question Beshear, Gen., Steven L. Atty. W. Bruce interrogating The ing. officer testified Cowden, Jr., Frankfort, Gen., Asst. Atty. appellant rights that was read his as set for appellee. Arizona, forth in Miranda U.S. 1602, 16 Nonetheless, 86 S.Ct. L.Ed.2d 694. AKER, Justice. he appellant contends that was not Fair, The appellant, Eugene proce William The clearly rights. informed his Miranda, Perry convicted in safeguards Circuit Court of second- dural set forth in su degree escape, first-degree burglary, pra, the United States designed three counts of theft unlawful as a means of taking. Supreme prophylactic Court his appeals protecting privilege convictions a defendant’s right. court as a matter of nothing We reverse the There is self-incrimination.

record to indicate that these exacting (which safe- shotgun was in a State Police cruiser guards were not followed. in for repair) were both in the garage Haynes building prior to the theft. The Finally, appellant argues stereo was also Haynes taken from the the Commonwealth failed demonstrate building, though from the bookkeeper’s of- the defendant knowingly and intelli fice and not the garage. apparent It gently waived his privilege against self-in *3 from the record that once Haynes inside the crimination right and his to counsel. The Chrysler building, the thief had access to appellant contends that he not only did not office, the garage, bookkeeper’s and waive his privileges and rights but affirma various other rooms in the building as well. tively right silent, asserted his to remain question The presented by this case is and that it was his asserting statement his whether the theft of the three items consti- right which was introduced at trial against single tutes a offense multiple or offenses. him. The Kentucky fountainhead of case law on being After rights, informed of his Commonwealth, this issue is Nichols v. 78 appellant was asked if he cared to make a Ky. (1879). 180 The court in Nichols held statement. appellant replied, The “You that where property several items of are all, know it there is no use of making any stolen at the same time and the same place kind of written statement or anything, I’m offense, there single is but a whether the in enough it, trouble. You all know I done property belonged to persons. one or several so just take me on.” Apparently the arrest- In explaining its holding the court reasoned ing officers did as the appellant asked— that: there was no further questioning and the is an Larceny offense the public, appellant was taken to Perry County. and the offense is the same whether the Clearly any interrogation after this state- property stolen belongs person one ment would illegal. Nonetheless, have been to several or to jointly, persons, several that does not mean that the statement it- owning each parcels. distinct If a flock self is appellant inadmissible. The five, of sheep five, of which A owns B been informed of his rights and in the same feloniously and C five be asported by one breath with which he declined to make a act, and the same there are three tres- confession he made other statements which passes only but one larceny. propri- Each tended to guilt. indicate his That to do so portion etor of a sheep stolen has goes unwise without saying; a civil injury, may, sustained and indeed amounts to a violation of constitutional must, separately sue for the wrong suf- rights is unsupportable. him; public fered but has sus- tained but one wrong, and cannot main- The second issue raised ap tain more than one prosecution.... Id. peal court, concerns the failure of the trial 181, at 182. upon proper motion, to amend the indict ment to consolidate the three theft charges holding The repeated Nichols has been into one. ly by Kentucky’s highest reaffirmed court. See Eversole v. Ky., 288 The undisputed. relevant facts are The (1956); S.W.2d 58 Commonwealth v. Coloni appellant was sep- indicted and convicted in Stores, Ky., al 350 S.W.2d 465 For arate counts of unlawfully taking three example, the court in Jacobs v. Common items: a by Haynes stereo owned Chrysler wealth, stated S.W.2d Products, Inc., a 1982 Chrysler New Yorker unequivocally that “the of property by Haynes Products, Inc., owned Chrysler of different owners at the same time and shotgun and a owned the Common- ” place the same is larceny.... one wealth of Kentucky. All three items were taken from the Haynes Chrysler building While these cases were prior rendered (as the same night found) and the jury adoption penal code under which person. the same tried, The automobile and the appellant their clear that is applicable rationale to the case at place, bar. “same same time” ex- concept first 514.030, commentary penal KRS has pressed appli- in Nichols a much wider code section under which the expressed cation than that above. indicted, states that “KRS 514.030 is intend- example, For in Jacobs Common ed to include statutory all and common law wealth, supra, the stolen items were taken involving offenses unlawful appropriation scales, from a of a barn consisted set of property.” Grand and petit larceny are cans, a large mowing number of oil a specifically identified in the commentary as machine, each a belonging per to different offenses intended to be included in KRS son. The items were stolen some time dur 514.030. and, ing opposed three-day period as Thus with case on the issue estab- firmly Nichols, the facts in the stolen items were lished, the only question remaining together. not found The court in Jacobs whether the items stolen in this case were dif though held items were owned stolen at “the same time place.” In ferent were not people, type, of the same *4 Nichols v. supra, the de- were in certainly exactly and not located fendants stole twenty-one chickens and sev- barn, the the place taking same in the geese. en The evidence a por- showed that the “at the same the property time and fowl, tion of the though belonging to two place same one larceny.” Id. 84 [was] different people, were taken from the same S.W.2d at 2. place. However, fowl belonging to a third person were taken from a place over two bar, In the at case all three items of hundred yards from where the others were property were stolen from the same build- taken, though on the same “plantation.” ing on the night. way same We can see no All were stolen night. on the same distinguish to the of this facts case from the Thus, in deny

The court held that facts Jacobs. it was error to the fowl of two of the owners “were taken from the place, appellant’s the same motion amend the to indict- although they no doubt one taken ment to consolidate the separate theft one possession thieves, into of the the one. charges into taking of all constituted in law but one concluding,

act.” Id. 78 at Before must address Ky. 182. The court pointed point out that the one fowl to further raised the Common belonging the third owner: regarding wealth this issue. The Common wealth argues the waived

... were taken place, from another belonged any defense to the indictment person, by failing a different and the act of taking timely them was distinct the make a as objection” “defense act of the others as if the required distance RCr 8.18 and RCr How 8.20. separating the two places had been two ever, permitted appellant’s the trial court miles; although there probably motion, argument entertained from both only a short interval of time between the merits, the the counsel on and ruled on two, they are nonetheless in as distinct now error re any motion. To claim point of time as if one act had been garding ruling trial mo the court’s on the one committed on the night and other preserved tion the appel has not been at 183. another. Id. lant For the is somewhat ironic. Com challenge monwealth wished to the actions Had Nichols been the case only on this entertaining of the trial court in the mo might tempted issue we have been af- tion, timely objection should have been appellant’s firm the From convictions. court required by made the below as RCr Nichols, might “single one conclude that the stands, As 9.22. it Commonwealth’s larceny” applies only rule stolen when the objection timely items are similar in in a failure to make a results type and found single However, in a group any small area. waiver claim that motion was have subsequent untimely. cases made clear that

Therefore, judgment Perry regards Circuit Court is reversed as DUDAS, Appellant, John appellant’s convictions for theft unlaw- ful taking and is affirmed in all other re- KACZMAREK, Appellee. Richard spects. This case is remanded for further action consistent opinion. with this Appeals Kentucky. Court of May 1983.

All except WINTERSHEIMER, concur J., who files a dissenting opinion.

WINTERSHEIMER, Justice, dissenting.

I must respectfully por- dissent from that

tion of the which majority opinion reverses taking. conviction for unlawful

I believe it is time for this Court

reexamine the decision in Nichols v. Com

monwealth, Larceny

both an offense public and the

individuals who suffer the loss of their

property. long It is overdue that this Court

carefully review the ancient case defining *5 degree punishment for the theft of 7 geese chickens and more than 104

years ago legal which is the foundation years ago,

this reversal. Less than 4 separate

Court determined that convictions robbery counts for of a hotel

and robbery of the employees proper.

Douglas Ky., 586 S.W.2d I believe the decision in Douglas,

supra, should be extended to the larceny taking aspect

unlawful of the criminal code.

There can be little profit doubt that the net activity criminal is much greater

the field of unlawful and larceny

than it in robbery because the risks are

fewer and the punishment is not as severe.

That situation can be addressed as well legislature.

Court as the