Lynch v. Com.

• Citation: 472 S.W.2d 263
• Parties: Carroll Gene LYNCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 22 October 1971
• Court: United States State Supreme Court (Kentucky)

Page 263

472 S.W.2d 263

Carroll Gene LYNCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 22, 1971.

Frank E. Haddad, Jr., Louisville, for appellant.

John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

Carroll Gene Lynch appeals from a judgment sentencing him to life imprisonment on each of two felony counts enhanced by two previous felony convictions. KRS 431.190.

The first count of the indictment charged that on August 22, 1969, Lynch operated a motor vehicle without the knowledge and consent of its owner, one John L. Peters. KRS 433.220. The second charged him with armed robbery of a bank on the same day. KRS 433.140. The third alleged previous convictions for storehouse breaking (KRS 433.190) in 1960, and both storehouse breaking and possession of burglary tools (KRS 433.120) in 1958.

At about 11:00 A.M. on August 22, 1969, three masked men held up a bank at the corner of Southern Parkway and Woodlawn Avenue in Louisville. They arrived and departed in a yellow 1968 model Mercury Cougar automobile. According to the bank manager, the tallest of the robbers was about six feet two inches tall and was armed with a shotgun.

On the same morning at about 10:45 Officer Lawrence Pilson of the Louisville Police Department, who was off duty, after having been at this same bank to transact some personal business, went to the Hazelwood Shopping Center to pick up some clothing at a dry-cleaner's and then drove east on Woodlawn Avenue to Southern Parkway, where he stopped behind two other cars waiting for the traffic light at the intersection to change. While in this position he noticed a 1968 model yellow Cougar automobile turn the corner from Southern Parkway in front of the bank and proceed westward on Woodlawn Avenue. As it passed, he observed two men in the front seat and one in the back, all wearing 'what looked like little hats with what I would term masks pushed up--something that appeared to be a stocking or towel pushed up around their head.' Pilson got 'a real good look' at the driver and, being suspicious of a holdup or attempted holdup, sought to get the license number of the car but was unable to do so because there was a piece of white paper over the space where the license plate was supposed to be. The officer turned his car around as soon as he could and tried to follow the yellow automobile but could not find it. In the process, he met up with another officer in a police car and together they heard a radio report of the robbery. As they continued searching in the neighborhood for the yellow Cougar someone waved at them and reported 'that the car had gone in behind some apartments there.' They drove into an alley and found the yellow Cougar abandoned behind an apartment house.

Within 30 minutes after these events took place Pilson went to police headquarters and identified Lynch from a group of eight different photographs or 'mug shots.' Early that afternoon he identified him in a police line-up of six persons. Again at the trial he positively identified him as the man driving the yellow Cougar when it passed him on Woodlawn Avenue immediately after the robbery.

Lynch's defense was an alibi. He denied having been in the vicinity of the bank at the time it was robbed, denied any knowledge of or connection with a yellow Cougar automobile, and had witnesses to prove he was elsewhere.

For reasons not revealed in the record the police were on the lookout for Lynch almost immediately after the robbery and this information was promptly communicated to him, whereupon he telephoned police headquarters and voluntarily appeared in the aforementioned line-up during the early afternoon of the same day. Having been identified by Officer Pilson, he was placed under arrest and released under a $25,000 bail bond pending an examining trial in the Louisville Police Court. On August 25, 1969, the date set for the examining trial, the Louisville Police Court pursuant to a motion by the Commonwealth ordered the proceeding 'filed away to Fed . Auth.' Federal officers then arrested Lynch and took him before a United States Commissioner, who released him under a $25,000 bail bond. Later on the federal charge was dropped, after which, on November 26, 1969, the Jefferson County Grand Jury returned the indictment in the instant case.

Relying on the principles announced in Jones v. Rayborn, Ky., 346 S.W.2d 743 (1969), Davis Harris, Ky., 355 S.W.2d 147 (1962), Thomas v. Schumaker, Ky., 360 S.W.2d 215 (1962), and Balsley v. Commonwealth, Ky.,428 S.W.2d 614 (1968), Lynch contends that the discontinuance of the examining trial proceeding in the Louisiville Police Court in deference to the federal authorities effected a forfeiture of the state's right to prosecute him. However, we have held directly to the contrary. See Simpson v. Black, Ky., 471 S.W.2d 739 (decided October 8, 1971; Prather v. Commonwealth, Ky., 368 S.W.2d 175 (1963); and Baker v. Commonwealth, Ky., 378 S.W.2d 616 (1964). These decisions hold that the release of a prisoner from pre-conviction custody followed by an arrest by authorities from another jurisdiction does not constitute arbitrary treatment. Lynch, of course, was not even in custody. Certainly he was in no way abused or prejudiced by the action of the Louisville Police Court.

Lynch's contention that evidence was not sufficient to authorize submission of the motor vehicle charge (KRS 433.220) to the jury has more substance.

Ronald W. Craig, a garageman, testified that on August 22, 1969, 'a yellow Cougar automobile' owned by one John L. Peters and in the witness' custody for purposes of repairs was 'missing' without his knowledge or consent or of the garage company. He was not asked, nor was there any other testimony in this...