Brown v. Com.
| Decision Date | 02 October 1970 |
| Citation | 458 S.W.2d 444 |
| Parties | Thomas Harold BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Terrence R. Fitzgerald, Louisville, for appellant.
John B. Breckinridge, Atty. Gen., James H. Barr. Asst. Atty. Gen., Frankfort, for appellee.
The appellant, Thomas Harold Brown, was tried pursuant to two indictments that were consolidated for trial over his objection. One indictment charged in its first count that appellant committed the offense of armed robbery of a designated business place on October 31, 1968. The second count of the same indictment charged that appellant escaped from custody on November 13, 1968. The second indictment charged in its first count that appellant committed the offense of armed robbery of a designated place of business different from that charged in the first indictment and that this robbery took place on November 9, 1968. The second count of the second indictment charged appellant with the offense of carrying concealed a deadly weapon on November 10, 1968.
The jury found appellant guilty under the first count of the first indictment of an armed robbery that occurred on October 31, 1968. The jury also found appellant guilty of carrying concealed a dealty weapon on November 10, 1968. The charge of escape from custody was withdrawn by the prosecution near the conclusion of the trial and the jury reported that it could not agree concerning defendant's guilt of the armed robbery charged in the first count of the second indictment.
Appellant's punishment was fixed at 15 years in the penitentiary on the charge of armed robbery for which he was convicted and at 3 years in the penitentiary for carrying a concealed weapon. Over the objection of the prosecution, the trial judge declared that the two sentence would be served concurrently.
The appellant claims that prejudicial error was committed because the jury was improperly selected; there was a misjoinder of offenses in the indictments, and he was entitled to separate trials on each offense charged. He also complains that incompetent evidence was admitted to his prejudice. We affirm the judgment.
According to the evidence introduced by the prosecution, Brown, with others, held up and robbed James Naiser, part owner of Dave's Cafe in Louisville, Kentucky, on October 31, 1968. Five thousand dollars was taken in this robbery. Shortly after the robbery, the victim picked Brown's picture from among several others as the man who had robbed him. Naiser also recognized Brown at a lineup the next day. The victim also identified Brown in court and testified, 'there is no question in God's world,' that Brown was the robber. This same witness was also able to identify two of the other three men who participated in the crime.
Brown was arrested on November 1, following the robbery. When arrested he was accompanied by a young girl who was searched by a policewoman at the police station and was found to have $410 in cash on her person.
Although Brown was given all of the information required by the Miranda 1 decision, he thereafter stated to a detective that he had participated in the robbery and offered to return $2500 if the police would not object to a motion that his attorney would make to lower his bond from the $25,000 that had been originally set. Thereafter and while still in custody, Brown made some arrangement and he and a policeman met a woman who delivered $1,000 to the police. Brown then said that he thought he could get another $1500 back after he was released on bail. His bond was subsequently lowered but he did not return he additional $1500.
While Brown was free on bond, he was accused of the commission of armed robbery on November 9, 1968. Again in this instance the victim, owner and pharmacist of the Wintergerst Drug Store, .louisville, Kentucky, positively identified Brown as the man who entered his store, held a gun on him and his young employee and took about $1500 and some narcotics. This witness was also shown photographs by the police soon after the robbery and immediately and without hesitation picked out Brown's picture. This witness also recognized Brown in a lineup conducted approximately 6 hours after the robbery. Approximately 5 hours after this last robbery, the police arrested Brown in an automobile and found a revolver under the front seat at the time of the arrest. Brown was again taken into custody; subjected to a lineup procedure after Miranda warnings; and was again identified as the robber. A detective testified that Brown subsequently escaped from custody and was found in Chicago and returned for trial.
Appellant does not assert that the charges contained in the indictments were duplicitous. Neither the prosecution nor Brown contends that the concealed weapon found in the automobile on the occasion of Brown's second arrest was the same gun used in either armed robbery. Hence, we are not concerned with any problem of duplicity. The thrust of the appellant's contention is that although our Rules of Criminal Procedure permit the joinder of related offenses in an indictment and the consolidation of cases for trial, they must not be permitted to operate so as to subject an accused to a trial situation where evidence of crimes unrelated to the principal offense charged is admitted. Appellant's position is that the trial court should have compelled the prosecution to elect which one of the separate crimes charged should be tried first and that separate trials should have been held as to each separate offense.
RCr 6.18 and RCr 9.12 are relevant to the problem. RCr 6.18 permits the joinder of two or more offenses whether felonies or misdemeanors, or both, in the same indictment in separate counts if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constitute parts of a common scheme or plan. This rule is an adaptation of Fed.R.Crim.P. 8(a). RCr 9.12 permits two or more indictments to be consolidated for trial together if the offenses could have been joined in a single indictment; the language of this rule is the same as that contained in Fed.R.Crim.P. 13. In the cases of Marcum v. Commonwealth, Ky., 390 S.W.2d 884; Schweinefuss v. Commonwealth, Ky., 395 S.W.2d 370; and Russell v. Commonwealth, Ky., 403 S.W.2d 694, the offenses concerned were of the same or similar character and in each of them we found no prejudicial error resulting from a single joint trial of the several offenses.
Our view, as well as that of the federal courts in construing substantially similar procedural rules, is that the trial judge is vested with wide discretion in applying the rule. See for example United States v....
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