Armstrong v. Com.

Citation517 S.W.2d 233
PartiesHarry L. ARMSTRONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date25 October 1974
CourtUnited States State Supreme Court (Kentucky)

Thomas Osborne, Keith, Scent, Osborne & Deatherage, Hopkinsville, for appellant.

Ed W. Hancock, Atty. Gen., George Geoghegan, III, Asst. Atty. Gen., Frankfort, for appellee.

PALMORE, Justice.

Willie D. Robinson and Harry L. Armstrong were jointly indicted, tried, convicted and sentenced to 5 years' imprisonment each for selling heroin. KRS 218A.010(10), 218A.050(2), and 218A.990(1). Armstrong appeals.

Armed with a search warrant, police officers of the City of Hopkinsville found and seized a quantity of heroin in a local motel room occupied by a man named James Michael White, whom they arrested . On the next day White told Captain James Boyd, a police detective, that he had obtained the heroin from a person in nearby Nashville, Tennessee, and indicated that he could get some more from the same source. The officers took White back to the motel. When they arrived, there was a message at the desk for White to call someone named Danny. From his room at the motel and in the presence of the officers he placed a call to a telephone in Nashville listed in the name of Harry's Gulf service station. The officers heard him ask for Danny and then speak to someone he called by the name Danny, identifying himself as Michael. White's end of the conversation, as heard by the officers, was about as follows: 'Do you have any stuff? I want some . . .. About two spoons . . . Same place . . .. O.K .' After hanging up the telephone he told the officers that the person to whom he had been talking would arrive in about two hours.

The officers furnished White with $450 in identified bills, searched the room and bathroom to establish the absence of any narcotics and occupied an adjoining room into which they later withdrew when they observed the approach of two black men.

The two men in question were Robinson and Armstrong. White admitted them into his room, and the officers heard one of them say that 'the stuff' was downstairs, whereupon White left the room for a few minutes and then returned. At a prearranged signal from White the officers entered the room, where they found Robinson in the process of counting $410 of the money they had provided to White. Shortly thereafter they recovered 17 packets of heroin secreted in the ceiling over the bathtub. This was the same hiding place in which heroin had been discovered during the previous search, and it had been checked out by the officers before they left the room as Robinson and Armstrong approached.

Testifying in his own defense, Armstrong said he had a date on the evening in question with a lady friend who worked at Fort Campbell and that he was going there to pick her up. Robinson worked part-time at his service station and asked for a ride. Armstrong acquiesced and took Robinson to Hopkinsville, where Robinson said he was going in order to get some money. Armstrong was to bring Robinson back to Fort Campbell, where Robinson planned to take a bus and return to Nashville. Armstrong did not know White, but accompanied Robinson to his room. Armstrong's automobile was a $10,000 1973-model Cadillac Fleetwood. He owned and operated a gasoline service station and his wife earned $600 per month. He said he was buying the automobile mostly out of the wife's earnings. He disclaimed any knowledge that Robinson's meeting White had a criminal purpose.

Armstrong's first contention is that the evidence was not sufficient to support his conviction. We think it clearly was. He brought Robinson to Hopkinsville and was with him when the sale was made. The jury was not bound to believe his explanation of these otherwise inculpatory circumstances.

The second point is that the testimony of the police officers relating their transactions with White and the substance of White's end of the conversation on the telephone was inadmissible hearsay. White did not testify at the trial. Both the trial court and the Commonwealth relied on Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969), by reason of the fact that White was in the local jail and in that sense was 'available' for cross-examination. That is an utter misconception. Jett has no application for the simple reason that White did not in fact testify and thus no foundation could be laid as required by CR 43.08. See Jett at 436 S.W.2d 792. There is, nevertheless, a good and sufficient reason why the evidence in question was competent, and that is because the words as well as the acts of White were...

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18 cases
  • Willoughby v. Simpson
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • August 29, 2014
    ...and prosecutors in turn.Page 72 Willoughby relies on Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982) and Armstrong v. Commonwealth, 517 S.W.2d 233 (Ky. 1974) for the proposition that "[t]he Kentucky Supreme Court has held that this kind of personalized vouching for the integrity of the pol......
  • Brown v. Com., 2003-SC-0235-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • June 16, 2005
    ...cited by Appellant indicates that the prosecutor vouched for the credibility of Kaylor's testimony. Compare Armstrong v. Commonwealth, 517 S.W.2d 233, 236 (Ky.1974) (prosecutor's closing argument was improper bolstering where he told jury that he had known and worked with witness for a long......
  • State v. Harriston, 13933
    • United States
    • Supreme Court of West Virginia
    • April 10, 1979
    ...(1968); Hilligoss v. State, 253 Ind. 443, 255 N.E.2d 101 (1970); State v. Bittner, 209 Iowa 109, 227 N.W. 601 (1929); Armstrong v. Commonwealth, Ky., 517 S.W.2d 233 (1974); State v. Lewis, 250 La. 876, 199 So.2d 907 (1967); State v. Fernald, Me., 248 A.2d 754 (1968); People v. Buero, 59 Mic......
  • White v. Com. of Ky., 2014-SC-000725-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • August 24, 2017
    ...Commonwealth merely summarized Mr. Ellington’s testimony in a way that was persuasive to their position. Compare Armstrong v. Commonwealth, 517 S.W.2d 233, 236 (Ky. 1974) (improper bolstering occurred when the prosecutor informed the jury that he had known and worked with the witness before......
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