Allee v. Com.

• Decision Date: 13 March 1970
• Citation: 454 S.W.2d 336
• Parties: Robert Vernon ALLEE, Roscoe Stacy and James Edward Green, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 336

454 S.W.2d 336

Robert Vernon ALLEE, Roscoe Stacy and James Edward Green, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

March 13, 1970.

As Modified on Denial of Rehearings June 26, 1970.

R. Barry Wehrman, Wehrman & Wehrman, Covington, Sam Neace, Florence, Frank Wichmann, Covington, for appellants.

John B. Breckinridge, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.

STEINFELD, Judge.

Robert Vernon Allee, Roscoe Stacy, James Edward Green and Richard Henry Fitzgerald were indicted for grand larceny (KRS 433.220) which occurred on November 21, 1967. Green and Allee were jointly tried. Green was found guilty but the jury was unable to reach a verdict as to Allee. The court sustained Green's motion for a new trial. Later Green was tried jointly with Allee and Stacy. Fitzgerald was ordered tried separately. Matters concerning him are not involved in these proceedings.

Green, Allee and Stacy pleaded not guilty and on August 22, 1968, trial was held. Prior to the opening statements, and out of the presence of the jury, there was a discussion with the court as to its attitude regarding possible probation in the event of a plea of guilty. After the conference Green changed his plea from 'not guilty' to 'guilty'. The court amended the indictment so that it charged Green with being an accessory to grand larceny. The jury found that three on trial guilty as charged, and fixed their punishment at three years in the penitentiary, however, it recommended probation for Allee and Green. Judgment was entered without granting probation. All three appeal. We affirm.

Allee, Stacy, Green and Fitzgerald plotted to steal goods from a warehouse. Fitzgerald, Stacy and Green were to rent a truck and drive to the warehouse where Allee, an inside employee, was to load the merchandise. Allee attempted to phone his accomplices to tell them he wanted to call off the planned crime, but he could not reach them. He did not participate.

Fitzgerald drove the truck to the warehouse and aroused no suspicions because the dock employee assumed, or was told, that Fitzgerald represented Huey Motor Freight Company which sometimes utilized rented trucks. After approximately $13,000 worth of trousers were loaded, the warehouse employee gave Fitzgerald a bill of lading showing Ohio Valley Area Support Center as the consignee. Stacy and Green viewed the entire episode from a parked automobile and followed the truck away.

The owner suspected that someone in its employ was involved. It engaged a private investigator who obtained other merchandise, then represented to Allee and possibly some other employees, that the goods were illegally obtained by him. Allee accepted an invitation to help dispose of the investigator's merchandise. Later Allee was taken to the office of the Federal Bureau of Investigation, was given the Miranda warnings', ¹ signed a waiver, and was interrogated. First, he denied any knowledge whatsoever of the November 21, 1967, caper. He was then confronted by the private investigator whereupon he admitted knowledge of the theft.

Another interrogation occurred a few days later. At that time Allee was again warned of his rights and he signed another waiver stating 'I have had the above statement of my rights read and explained to me, and fully understanding them, I hereby waive these rights. I do this freely and voluntarily, without threat or promise.' Allee admitted he had set up the theft but claimed he had attempted to stop it; that he was too late and did not learn of the crime until the next day.

Allee argues that the court abused its discretion in denying him a separate trial. RCr 9.16. He contends that a separation is required when there are antagonistic defenses and conflicts of evidentiary and confession matters. 53 Am.Jur. 65, Trials, § 56. For Allee to prevail he must show that the presentation of his recantation defenses was made ineffective because of defenses offered by those jointly tried. 104 A.L.R. 1522. Evidence was admitted and a proper instruction on recantation was given on Allee's behalf. No one denied that Allee tried to withdraw and the others' defenses were not antagonistic. Holding the trial jointly was not error. RCr 9.12.

Stacy contends that he was prejudiced by not having a separate trial because of Green's plea of guilty and Allee's confession. He claims a conflict between the defenses of the others and his defense that he did not physically take the merchandise. It is stated in 54 A.L.R.2d 833 that: '* * * the mere fact that a confession, admission, or similar statement of a codefendant, implicating the moving defendant and not admissible as against the latter, is to be introduced, does not of itself entitle the movant to a separate trial, and that, in the absence of other factors, a denial of the motion is therefore not an abuse of discretion.' We concur in that statement. Boggs v. Com., Ky., 424 S.W.2d 806 (1966).

Stacy admitted he was with Fitzgerald when he rented the truck, followed him to the warehouse, watched the loading and helped store the stolen goods. The evidence in chief against Stacy included his signed statement concerning his participation. 'The fact that the movant has himself confessed the commission of the crime has been held to weaken the contention that the trial court abused its discretion in denying him a separate trial, or that he was prejudiced * * *'. 54 A.L.R.2d 862. Wheeler v. United States, 82 U.S.App.D.C. 363, 165 F.2d 225, cert. den. 333 U.S. 829, 68 S.Ct. 448, 92 L.Ed. 1115 (1947), held that the defendant was not prejudiced by the admission of extrajudicial statements, since the codefendant's testimony was substantially to the same effect as his former statement.

In Manson v. State, Fla., 88 So.2d 272 (1956), the court instructed the jury that the confession of the codefendant could not be considered as evidence except against the one confessing. '* * * It is, therefore, clear from the record that substantially all of this oral testimony would have been admissible against appellant Manson even if he had been tried separately * * *'. A similar admonition was given for Stacy.

Polsgrove v. Com., Ky., 439 S.W.2d 776 (1969), considered separate trial rights and discussed Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and other cases from that tribunal. After Polsgrove, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), affirmed a conviction. The Supreme Court said in substance that while it had held in Bruton that the use of a confession of a codefendant who does not take the stand violates the Confrontation Clause of the Sixth Amendment, nevertheless, in Harrington there was overwhelming evidence of his guilt therefore it was not improper for the California court to determine that the error was harmless and that it did not violate guaranteed due process. It noted that the California reasoning was consistent with the rule announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1966), which held that 'before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' The evidence of Stacy's participation was overwhelming. If there was an error in denying him a separate trial '* * * it was harmless beyond a reasonable doubt' and there was no prejudice.

Allee and Stacy contend that the merchandise, with a bill of lading for it, was voluntarily delivered to Fitzgerald. The plant manager testified it was the intention of the company by those acts to pass title. They argue that title having passed the crime at most was one of obtaining goods by false pretenses because larceny necessitates establishment that goods were taken without the consent of the owner. They cite Davidson v. Com., 219 Ky. 251, 292 S.W. 754 (1927), which we consider inapplicable because in Davidson '* * * there was no direct evidence that defendant either took or carried away the property * * * with or without * * * consent.' Also cited is Hudspeth v. Com., 195 Ky. 4, 241 S.W. 71 (1922), which held that:

'* * * depriving one of property, in order to constitute a larceny, must be against the will, or at least without the consent, of the owner. The act to constitute a larceny must be a trespass, and there can be no trespass where the owner consents to the taking and carrying away * * * with the intention to part with * * * title and possession. * * *. The intention of the taker * * * will not make the offense larceny if the owner consents to parting with both the possession and title to the property * * *.'

We said in Rice v. Com., Ky., 300 S.W.2d 238 (1957):

'Generally speaking, and in the absence of statutory modifications, it is essential to every larceny that there be a simultaneous combination of an unlawful taking, and asportation, and a felonious intent. See, 32 Am.Jur., Larceny, Section 10; Roberson's Ky.Cr.Law, Sections 806 and 807. Furthermore, this Court has held that if the owner of property (or his agent) is induced to part with the mere possession of his property by trick or fraud, the taker at the time having an intention to wrongfully appropriate the property to his own use, the taking by such means is larceny. Hudspeth v. Commonwealth, 195 Ky. 4, 241 S.W. 71; Trotter v. Commonwealth, 169 Ky. 551, 184 S.W. 871, L.R.A.1916E, 768; Roberson's Ky.Cr.Law, Section 821.'

Here the servant had no authority to deliver the goods or bill of lading to Fitzgerald who feloniously by 'trick and fraud' obtained possession of both. The rationale of the Rice case controls. Roberts v. Com., Ky., 317 S.W.2d 181 (1958).

Allee moved for a continuance because his codefendant Green changed his plea of 'not guilty' to 'guilty'. He claims that this...