Kimbrough v. Com.
| Decision Date | 01 April 1977 |
| Citation | 550 S.W.2d 525 |
| Parties | James L. KIMBROUGH, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Nicholas W. Carlin, Louisville, for appellant.
Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
This appeal arises from an attempted robbery of a Shell service station in Louisville by appellant, James L. Kimbrough, and an accomplice, Roger Lee Bailey, during the late evening hours of November 9, 1974. Appellant and Bailey, wearing nylon-stocking masks, trained a shotgun on Joe McCain while ordering his friend, Joe Suttle, to obtain money from the gas station attendant, threatening harm to McCain should Suttle fail. Suttle attempted to comply with their demands, but the attendant refused to cooperate. Returning to where the two were holding his friend, Suttle advised them he could not get the money; whereupon the two would-be robbers disappointedly drove away from the station, providing their former hostages an opportunity to record the getaway vehicle's license number on the service station wall. A description of the automobile and its license number were given to the police, resulting in the arrest of appellant and Bailey shortly thereafter that same night. A search of the car incident to the arrest produced a loaded shotgun and two nylon stockings.
Appellant was subsequently indicted by the Jefferson County grand jury and charged with one count of armed assault with intent to rob, in violation of former KRS 433.150, and as a habitual criminal within the meaning of former KRS 431.190. He and Bailey were jointly tried in the Jefferson Circuit Court, Criminal Branch, First Division, on March 8 and 9, 1976. Although appellant presented testimony at trial to support his contention that he did not participate in the attempted robbery, but had spent the evening drinking and gambling at various taverns, and attempted to explain the presence of the shotgun in the trunk of his vehicle as necessary for his protection in his job as a security guard at Shawnee High School, the jury found him guilty on both counts of the indictment, sentencing him to life imprisonment on each. Kimbrough now brings this appeal, presenting seven assignments of error.
Appellant first complains the trial court erred in denying his motion for a bifurcated trial, one segment of which would have been the trial on the principal charge and the other directed to his status as a habitual criminal. Although a bifurcated trial is provided for under the applicable section of the present penal code, KRS 532.080, this section does not apply to offenses committed prior to January 1, 1975, which offenses must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if the present code had never been enacted. KRS 500.040(1). Since the principal offense of armed assault with intent to rob, on which the indictment as a habitual criminal was based, was committed on November 9, 1974, we feel the trial court properly applied the provisions of former KRS 431.190, and so was not required to afford appellant a bifurcated trial.
Appellant also insists the trial court erred in permitting the arresting officer to remain in the courtroom prior to his testimony and after a motion for separation of all witnesses pursuant to RCr 9.48 had been made. It is beyond question that the matter of which witnesses will be excluded under this rule from hearing others testify before them lies within the sound discretion of the trial court. Webster v. Commonwealth, Ky., 508 S.W.2d 33 (1974). The record before us does not indicate this discretion to have been abused, nor has it been shown how if so the appellant was prejudiced by the policeman's presence at trial prior to his testimony. We therefore must conclude no ground for reversal exists on this point.
The third assignment of error concerns the trial court's denial of appellant's motion for a continuance. Appellant claims this motion should have been granted so as to avoid trying the case before a jury which possibly had been prejudiced by pretrial statements attributed to a judge of the Jefferson Circuit Court and to a member of the staff of the Jefferson County Commonwealth's Attorney appearing in articles carried by the Louisville Courier-Journal and The Louisville Times on March 5, 1976, to the effect that leniency had unjustifiedly been shown criminal defendants in Jefferson County. He further argues the jurors could also have been prejudiced by statements of similar import made by the same judge at the conclusion of a prior criminal proceeding. In order to determine if any such prejudice had resulted from these occurrences, the trial judge...
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Johnson v. Com.
...Seay v. Commonwealth, 609 S.W.2d 128, 130 (Ky.1980); Miller v. Commonwealth, 77 S.W.3d 566, 577 (Ky.2002); Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky.1977). In the case at bar, Appellant made a general motion for a directed verdict based upon insufficiency of the evidence. Appellant......
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Noe v. Commonwealth
...to sustain the burden of proof on one or more, but less than all, of the issues presented by the case." Kimbrough v. Commonwealth, 550 S.W.2d 525, 529 (Ky. 1977) (citing Columbia Gas of Kentucky, Inc. v. Maynard, 532 S.W.2d 3, 7 (Ky. 1976)).Noakes v. Commonwealth, 354 S.W.3d 116, 119 (Ky. 2......
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Maupin v. Smith
...because his trial counsel had failed to move for a directed verdict at the close of all the evidence as required by Kimbrough v. Commonwealth, 550 S.W.2d 525 (Ky.1977). Maupin then sought to have his judgment vacated on the ground that his counsel was ineffective for failing to move for a d......
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Ray v. Commonwealth
...to preserve an alleged error regarding a failure to grant a motion for directed verdict. The foundation of that jurisprudence is Kimbrough, supra. Defendant Kimbrough was "charged with one count of armed assault with intent to rob, in violation of former KRS 7 433.150, and as a habitual cri......