Campbell v. Com., s. 86-SC-665-M

• Decision Date: 02 July 1987
• Docket Number: Nos. 86-SC-665-M,86-SC-573-MR,s. 86-SC-665-M
• Citation: 732 S.W.2d 878
• Parties: James K. CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Robert S. JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 878

732 S.W.2d 878

James K. CAMPBELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Robert S. JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 86-SC-665-MR, 86-SC-573-MR

Supreme Court of Kentucky.

July 2, 1987.

Kathleen Kallaher, Ass't Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant James K. Campbell.

Thomas L. Conn, Sandra Downs-Arnold, Fayette County Legal Aid, Inc., Lexington, for appellant Robert S. Jones.

David L. Armstrong, Atty. Gen., Elizabeth A. Myerscough, Asst. Atty. Gen., Frankfort, for appellee.

WINTERSHEIMER, Justice.

These appeals are from jury verdicts which convict Campbell and Jones of third-degree burglary and theft by unlawful taking. Both received three year sentences for each offense. They were then convicted as persistent felony offenders in the first degree. Each of Campbell's sentences was enhanced to fifteen years and ordered to run consecutively for a total of thirty years. Each of Jones' sentences were enhanced to twelve years and ordered to run consecutively for a total of twenty-four years.

The issues presented by Campbell are whether the jury verdict was unanimous on one of the two methods by which third-degree burglary was alleged to have been committed; whether his convictions of theft and burglary were double jeopardy; whether he was properly sentenced to consecutive terms and whether the jury was duly sworn.

The questions presented by Jones are whether the trial court properly permitted the statements by Jones to police officers to be introduced into evidence and whether the evidence of the value of the stolen property was properly admitted.

Campbell and Jones were discovered by police at the rear of a decorating business at 4 a.m. on December 25, 1985. The scene was reported to police as a burglary in progress. Merchandise taken from the business was found behind a dumpster. After first fleeing, Campbell voluntarily surrendered to police and Jones was apprehended.

At trial, Jones did not testify, but two statements made by him were introduced into evidence through the testimony of the interrogating police officer. The officer testified that Jones was advised of his Miranda rights prior to the questioning and claimed to be under some type of medication and that he was feeling groggy. Jones asked if he could make a statement later. The officer replied that it was standard procedure to take a statement as soon as possible. Jones agreed to make a statement but did not sign a written waiver of his Fifth Amendment rights. A second statement was given by Jones approximately 30 minutes later, after Jones indicated to police a desire to change his first statement. He was not informed of his Fifth Amendment rights before giving the second statement. Both men were found guilty and sentenced accordingly.

This Court affirms the judgments of conviction as to both Campbell and Jones.

The instruction on burglary properly advised the jury that they could find Campbell guilty as either a principal or an accomplice. Campbell and Jones were seen carrying items from the vicinity of the break-in to another location, and they were both observed hiding at one point. When the police arrived, both men fled.

I

Campbell argues that the evidence did not justify submission to the jury of an accomplice instruction and he claims that he could be found guilty only as a principal.

In our view, the jury could reasonably infer from the evidence that Campbell and Jones acted in concert. Under the facts presented here, the jury could find that Campbell had committed the burglary himself or contributed in some way to the commission of the offense. He could have been found guilty both as a principal and an accomplice. Where alternate theories of instruction would support a conviction, both theories should be submitted to the jury. Wells v. Commonwealth, Ky. 561 S.W.2d 85 (1978).

The convictions of theft and burglary are not double jeopardy. Campbell argues the theft merged with the burglary and convictions of both charges constitute double jeopardy. It is undisputed that burglary and theft are separate and distinct crimes for which an accused may be prosecuted. Phillips v. Commonwealth, Ky. 679 S.W.2d 235 (1984) upheld a conviction for burglary and receiving stolen property because there were two distinct offenses. The rationale of Phillips, supra, is applicable to this situation. Campbell was not placed in double jeopardy. This Court has repeatedly held that different elements comprise the crimes of theft and burglary. Tribbett v. Commonwealth, Ky. 561 S.W.2d 662 (1978).

Polk v. Commonwealth, Ky. 679 S.W.2d 231 (1984) is of no assistance to the argument of Campbell. In Polk, supra, the defendants unlawfully entered the home of the victim and then armed themselves with dangerous instruments. In that case the conviction for each offense required proof of a number of separate facts not required in order to prove the other. Here, once the burglary was accomplished by the unlawful entry, the crime was complete. Campbell could have terminated his criminal conduct at that point. Instead he chose to proceed and commit an additional crime of theft. There is no element of attempted theft present in this situation. Both the burglary and the theft were completed individual actions and fit the definition of separate and distinct crimes. Wilson v. Commonwealth, Ky. 695 S.W.2d 854, 860 (1985).

Campbell was properly sentenced to consecutive terms. Both Campbell and Jones were on parole. Campbell argues that this Court should reverse its decision in Devore v. Commonwealth, Ky. 662 S.W.2d 829 (1984) claiming that this Court misinterpreted KRS 503.060(2). The majority of this Court properly rejected the arguments in Devore and again in Jackson v. Commonwealth, Ky. 670 S.W.2d 828 (1984). We are not persuaded to change our mind in this situation.

The contention by Campbell that the jury was not sworn to try the case is unconvincing. The order and judgment of the trial court states that the jury was duly impaneled and sworn to hear the case. There was no motion to correct or modify the record pursuant to CR 75.08, and we are not persuaded by the arguments of Campbell.

II

Jones was not denied due process of law when the trial judge refused to suppress the two statements Jones gave to police officers in which he attempted to explain his presence at the scene of the burglary.

Jones was read his Miranda rights before the first statement was recorded, but he did not sign a waiver of rights form although he acknowledged that he understood his rights. Before giving his statement, Jones told the police officer that he was feeling a little groggy from medication and asked if the statement could be taken later. The detective told him that it was more or less standard police procedure to try to take a statement as soon as possible so that the event was fresh in everyone's mind. The officer said he would prefer to take the statement if Jones wanted to give it at that time. Jones then agreed to make a tape-recorded statement.

After taking Jones' statement, the policeman attempted to question Campbell. During this time, Jones began knocking on the door and told the officer that he wanted to make another statement explaining what "actually happened." The detective then recorded a second statement but did not again give Jones his Miranda rights.

Jones argues that both statements should have been suppressed because they were made involuntarily. He claims that the questioning should have been stopped when he advised the policeman that he was groggy and asked if the statement could be taken later.

Jones was fully aware of his rights and voluntarily waived them. He had the option to give the statement or not and he chose to proceed. There is no indication or claim of any force, compulsion or coercion.

Although the second statement was given without repeating the Miranda warnings, suppression was not necessary. The second statement was taken within 30 minutes of the first and Jones had been fully advised of his rights prior to giving the first statement. The police did not initiate any questioning in order to obtain the second statement. It was Jones who approached the police requesting the opportunity to give another statement.

Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected. Miranda v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When an accused initiates a conversation with the police, nothing in the Fifth and Fourteenth Amendments prohibits the police from listening to the voluntary statement and later using it at trial. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

There is no evidence that medication had an effect on the voluntariness of the statement or Jones' ability to knowingly waive his rights. The actions of Jones and his statements do not indicate a person under the influence of a substance to the point that he cannot make a knowing waiver. Britt v. Commonwealth, Ky. 512 S.W.2d 496 (1974). The trial judge properly allowed the two statements by Jones to police officers to be introduced into evidence.

Jones did not properly preserve the alleged error of incompetent evidence as to the value of the stolen property. McDonald v. Commonwealth, Ky. 554 S.W.2d 84 (1977).

The convictions of both Jones and Campbell are affirmed.

All concur except LEIBSON, J., who dissents by separate opinion.

LEIBSON, Justice, dissenting.

Respectfully, I dissent.

This case graphically illustrates the reason why we have a deplorable credibility gap in criminal sentencing. Campbell and Jones have committed a third rate, nonviolent Class D felony, breaking and entering to commit theft, now classified as burglary in the third degree. KRS 511.040. This offense has a range of punishment from one to five years. KRS 532.020(1)(a).

By splitting the crime into two offenses, Theft and...