*1 PAYNE, Appellant, Scott Kentucky.
Supreme Court
Feb.
Rehearing Denied Oct. Advocate, Farley, Public Emory
Jack Riddell, Deputy Asst. Public T. Timothy Frankfort, for Advocate, appellant. Beshear, Gen., Atty. K. L. Gail Steven Gen., Frankfort, for Leeco, Atty. ap- Asst. pellee.
STEPHENSON, Justice. convicted of Payne was
Scott wanton degree endangerment first degree, jury fixing his in the second years’ at fifteen confinement. Then at trial, Payne was found stage of first-degree persistent felony being a and on the fixed to a term of imprison- jury was sentenced twenty years. ment at the portrayed trial oc- incident cleaning establishment. dry curred identified employees Payne Three The license number of robber. the armed Payne away drove observed car was police. The car reported was police following seen Payne was apprehended. chase high-speed way arrest After the station, made an oral confes- Payne police signed Payne a written In addition sion. station. police did confession proof. or offer testify trial on the primary As far concerned, Payne argues reversi refused to ble error confession. written This as suppress notation made is based sertion by one of the officers. confession that he was told that the says notation *2 720 had not bearing given jury no on the the had the opportunity
statement to why While not clear charge. instructing felon prior the on confession, the placed notation was guilty the the of jury to find the it reveals that was not in- clearly record if believed he was persist- not to file a promise be a tended to the primary offense. Then of the guilty charge. any event ent “prop- the to went on court was merely statement cumula- the written instructions, where one is indicted as a er tive, testimony of other in our in view and involving similar misdemean- offender third any significant make did not contri- the ors, supporting is evidence there of guilt. bution to the accusation, the to permit jury should return of this significance case is in the The real of guilty or not guilty verdicts possible proceeding. offender Af- charged; or guilty or not crime the a verdict of on jury guilty ter returned the or second third offense viola- of the guilty offense, the second stage of the the tions; the combination of three.” or trial was held. The Common- bifurcated Commonwealth, Ky., v. cited Tuttle Brown two prior convictions. wealth (1959), authority. 891 331 S.W.2d take the stand or offer Payne did Again difficulty is that Tuttle any defense. The appropriate proposition. for this stand persist court instructed on The trial 893, states at “... Tuttle language first degree the ent offender permit the jury should the instruction jury the on persistent to instruct declined verdict, viz., (1) not possible in the second degree. particular princi- or (2) guilty the failure to Payne asserts (3) guilty of a charged, pal offense instruction is reversible error second-degree law, violation or third supported argument by and that “Any combination of the might be.” case the prior examined opin have cases. We added in Brown. is gratuitously three” subject this court con by ions 802, Ky. 125 Coleman made argument by Payne clude that (1939), cited for this proposi- 728 S.W.2d however, are, affirming correct. We However, Coleman tion. that we are of the the reason case for involved holding that both instruc the cases Tuttle, allowing jury Brown should be given overruled. tions must be guilty of the enhanced option and many cases Much has been verdict on pri- after penalty subject of enhancement on considered mary offense. prior felony by proving con- Commonwealth,1 Next, Ky., prevalent topics have most victions. The (1966), held that 886 398 S.W.2d jury necessity instruction been the not to error instruct prejudicial progressive criminal acts clear the to make option appellant to believe it had given and convictions previously convicted on had been a not guilty to find verdict charges, in which event a The theory that convictions. be imposed. could to consider as authority cited for this were Tuttle felony convictions or both of holding. out of Brown v. have evolved seems 399 Ky., S.W.2d Rodgers Then (1966), option another local proceeding involving (1964). There (now repealed previous- had remarking Statute court Criminal Habitual case 532.080, penalties KRS the Persistent enhanced replaced instruction ly decided Statute) law option on the local Felony Offender prior conviction applied option local violation. the Habitual Criminal Act 1. This is third offense years option before held the same rule The court local comply (1973), with substantially the Habitu- we held that where there was no Statute, reversed the erroneous al Criminal Cox was suggesting instructions, “... stating factual every murder, consequently than must be submitted to the question jury, giving evidence to was no there (cid:127) guilt his including innocence under the lower-degree instruction. The same of a *3 counts,” citing and separate quoting in persistent felony obtain of- rule Marcum, supra. This is the reasoning same fender except that Satterly, Satterly arrived at in brings us to second case First-degree result. of- a different Payne, Satterly charge. The is one fact two fender There Ky., 437 S.W.2d proven be must does not convictions in an held the instructions habitual criminal charge down the into two so breaking parts case must advise it has the believe the as to option to defendant has been conviction the absence each on but one of previous
convicted bringing one or both citing some evidence charges, Rodgers. dispute. into convictions for the first time Satterly enunciated a rule at 931: two rationale The evidence was not challenged any way. convictions argued “Though the Common- that the jury We adhere 431.190 does wealth that KRS not create compelled to believe this evidence degrees crime, different we finding but even and make reasonably think the situation analo- case, adhere though we we gous. In a murder not follow that the jury it does has support would a verdict believe de- capricious ignore of a lesser to be fendant included of- believe fense, court must instruct the other conviction where the less- offenses, which are not denied. The er offense or means that two convic- convictions does charge, not have the op- represent with no Commonwealth tions the jury to requiring putting tion of find the or both in issue other evidence of murder evidentiary not guilty defendant basis for instructing there is no If there is reason that rule all. both convictions. against militates same reason limiting the Boyd (a) jury’s choice Satterly. (1975), followed has been convicted of two pre- here, holding Boyd, view of Satter- In felonies, the first having conviction vious Marcum, Rodgers and Brown ly, to commission of the been holding overruled to the cases so convictions prior offense and both to com- conflict with this opinion. extent offense, principal (b) mission is affirmed. judgment The not convicted of that he was of the principal of- prior to commission STEPHENS, C.J., GANT, LEIBSON, fense.” STEPHENSON, VANCE and WINTER- reasoning are of the We JJ., SHEIMER, concur. based must be on the evidence
instructions correct, properly. but It is AKER, J., in part concurs dissents by this court that if the evi- well settled part. instructing on a lesser de- dence warrants Justice, AKER, dissenting. offense, the gree of the instruction must be well given. equally It settled that in- majority opinion as it I concur with lesser degree on a may rejected struction be offense, however, relates does not if the evidence warrant it. This respectfully majority dissent from the in Satterly. is not followed Thus in rule it relates Commonwealth, Ky., 491 Cox v. S.W.2d 834 proceeding. relies on rule majority “that in- degree may rejected
struction warrant it.”
if the evidence rule, major- “well-settled”
applying long line of cases standing
ity overrules well-settled rule —that a
for another felony proceeding giv- must be requested, when option, returning
en has the defendant been con- one of the both or convictions
victed of regardless proof whether
proved, has been contradicted. Satterly *4 Commonwealth, Ky., 437 S.W.2d Rodgers v. Ky., 399
(1968); (1966); Marcum v. Common-
wealth, Ky.,
(1966);
ing is sentence
enhancement. the majority’s reasoning
I understand scholarly treatment applaud of our ease law which the progression opinion, by this overrules. How-
majority,
ever, to have a function where are uncon-
two convictions
tradicted, the proof regarding as group sepa-
these Therefore, I would not overrule the
rately. line
above-mentioned CARWILE, Appellant, Gene
Charlie of Kentucky.
Supreme Court
May Denied Oct.
Rehearing