Bunton v. Com.
| Decision Date | 19 March 1971 |
| Citation | 464 S.W.2d 810 |
| Parties | Thomas Lee BUNTON and Anthony Newell, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Kenny Grantz, Louisville, for appellants.
John B. Breckinridge, Atty. Gen., M. Curran Clem, Asst. Atty. Gen., Frankfort, for appellee.
Appellants were jointly indicted, tried, and convicted of the crime of armed robbery. Newell's punishment was fixed by the jury at 20 years in prison and Bunton's at 10 years. They appeal and file a joint brief. We affirm.
Only two arguments are presented. First, it is said the trial court erred in denying the joint motion of the appellants for separate trials. Secondly, it is urged that the trial court erred in overruling the motion of appellant Bunton for a directed verdict on the theory that the evidence tending to identify appellant Bunton was insufficient to justify his conviction.
Barney Bryan testified that on May 5, 1969, while working at the O & P Liquor Store in Louisville, Kentucky, he was robbed by two colored men; that one held a gun on him while the other attempted to open the cash register, and failing to do so, found a bag of change containing about $60, grabbed it and took a 'decoy wallet' from him; that they proceeded to make their getaway; and that he could not identify either of them.
Officer McAlister of the St. Matthews police force was first notified of the crime. He was given a description of the two men and the license number of the car. All this information was dispatched by police radio on a frequency used by both the Jefferson County Police Department and St. Matthews Police Department.
Two police officers, Monroe and Craddock of the Jefferson County force, observed a car fitting the description given by radio and gave chase to the car. While they were pursuing the car, an object was thrown from the car being chased which struck the police vehicle. Officer McAlister, being advised that an object had been thrown from the car, investigated the area and found loose change scattered over the highway. Officers Monroe and Craddock continued to chase the suspected vehicle until it turned into the Howard Johnson's parking lot near Shelbyville Road to the east of Louisville and St. Matthews. About this time, the car being chased slowed down and one of the occupants jumped, was thrown, or was kicked out of the car. He ran across a field, pursued by Craddock. The other officer proceeded after the escaping vehicle for a short distance until it wrecked. Officer Craddock, no so fleet of foot, never got closer than seventy-five feet of the man who left the car when it slowed down, but he took a close look at the clothing he was wearing.
The arresting officer testified that after the arrest of Newell he observed, without opening the wrecked vehicle, a revolver and a wallet which were 'in plain view.' This wallet was later identified by the victim, Bryan, as the one taken from him during the robbery.
Shortly after Craddock gave up the chase, Officer Stovall of the Jefferson County Police Department observed a colored male fitting the description given by Craddock. The man was walking along not far from the point where Craddock gave up the chase. This suspect jumped in the weeds and ran, but he was caught and was identified as the appellant Bunton.
During the ride to the police station, appellant Bunton confessed to the crime and involved Newell as the one who planned the crime.
While in the custody of Detective Conway of the Jefferson County Police Department, appellant Newell also confessed to the armed robbery of Bryan but placed the blame on Bunton for having planned the crime.
Appellants rely on RCr 9.16 as authority to support their argument that they were entitled to separate trials, the pertinent part of which we quote:
'If it appears that a defendant * * * is or will be prejudiced * * * by joinder for trial, the court shall * * * grant separate trials of defendants or provide whatever relief justice requires.'
Before a jointly indicted defendant is entitled to a separate trial, he must timely demonstrate to the trial judge that he will be prejudiced by a joint trial. Allee v. Commonwealth, Ky., 454 S.W.2d 336 (1970). It naturally follows that the trial judge is vested with a discretion in determining the question of whether prejudice will result to the defendant by a joint trial.
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