Cobb v. Commonwealth of Kentucky
| Decision Date | 21 August 2003 |
| Docket Number | 2002-SC-0052-MR. |
| Parties | LONNIE COBB, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE. |
| Court | United States State Supreme Court (Kentucky) |
Emily Holt, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
A.B. Chandler III, Attorney General,
Brian T. Judy, Assistant Attorney General, Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
Appellant, Lonnie Cobb, was convicted in the Fayette Circuit Court of first and second-degree robbery, fourth-degree assault, and of being a first-degree persistent felony offender. He was sentenced to seventy years imprisonment and appeals to this Court as a matter of right.
Appellant's convictions stem from crimes he committed between October 3, 2000, and October 21, 2000, in and around Lexington, Kentucky, with the help of his then-girlfriend, Melissa Frost. In December 2000, Appellant was indicted on nine counts of first-degree robbery, one count of second-degree robbery, first-degree assault, and for being a first-degree persistent felony offender. Following a trial, the jury convicted him of four counts of first-degree robbery, two counts of second-degree robbery, fourthdegree assault, and of being a first-degree persistent felony offender. The jury recommended a total of 240 years imprisonment, which was reduced to seventy years pursuant to the aggregate limitation in KRS 532.110.
Appellant first claims that the trial court erred in denying his motion to sever, and that he was prejudiced by the improper joinder of all charges for trial.
RCr 6.18 states:
Two (2) or more offenses may be charged in the same complaint or two (2) or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment or information in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.
Appellant relies on RCr 9.26 which provides:
If it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment, information, complaint or uniform citation or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever other relief justice requires ....
The trial court has broad discretion in granting or denying a motion for separate trials, and Appellant must show prejudice and a clear abuse of discretion to reverse the trial court's decision on appeal. Commonwealth v. Collins, Ky., 933 S.W.2d 811 (1996); Sherley v. Commonwealth, Ky., 889 S.W.2d 794 (1994); Rearick v. Commonwealth, Ky., 858 S.W.2d 185 (1993). Offenses of the "same or similar character" may be properly joined for trial. RCr 6.18; Cargill v. Commonwealth, Ky., 528 S.W.2d 735 (1975). "Offenses closely related in character, circumstances and time need not be severed." Sherley, supra, at 800; see also Carding v. Commonwealth, Ky., 623 S.W.2d 895 (1981). Joinder of charges is prejudicial when it is "unnecessarily or unreasonably hurtful." Romans v. Commonwealth, Ky., 547 S.W.2d 128, 131 (1977).
A significant factor in determining whether joinder would be prejudicial is whether evidence of one offense would be admissible in the trial of the other offenses. Rearick, supra, at 187. However, in Marcum v. Commonwealth, Ky., 390 S.W.2d 884, 886 (1965), our predecessor Court noted:
[T]here is no prejudicial effect from joinder of crimes for trial when evidence of each crime is simple and distinct even though such evidence might not have been admissible in separate trials. This rule rests upon the assumption that a properly instructed jury can easily keep such evidence separate in their deliberations and therefore the danger of cumulative of evidence is substantially avoided.
In this case, the ten robberies for which Appellant was indicted and tried all occurred in a period of less than three weeks, involved drug-related characteristics, and were committed under like circumstances. The crimes were similar enough to be tried in a single proceeding, yet sufficiently distinct for a jury to keep the evidence of each offense separate, as demonstrated by its acquittal on four of the first-degree robbery charges. Therefore, the trial court did not abuse its discretion by denying Appellant's severance motion.
Appellant alleges that at the time of their arrest on the morning of October 22, 2000, both he and Frost were suffering from the effects of cocaine intoxication. As such, Appellant claims that his subsequent confession should have been suppressed as having been involuntarily obtained.
At the suppression hearing, the lead investigator, Sergeant Douglas Lamb, testified that he first attempted to interview Appellant at approximately 1:17 p.m. Sergeant Lamb advised Appellant of his Miranda rights, and asked if he wished to waive such rights. Appellant responded that he first wanted to speak with Frost. Sergeant Lamb agreed and allowed Appellant and Frost to speak with each other. Thereafter, Sergeant Lamb interviewed Frost, and recorded her statements.
Around 3:00 p.m., Sergeant Lamb again advised Appellant of his Miranda rights and asked if Appellant would like to make a statement. Appellant responded, "I guess so," and thereafter admitted to the robberies of Jo-Ann Fabrics, Speedway, Bill Hardy Stereo, and The Gold Mine. Sergeant Lamb did not record Appellant's interview, nor did he obtain a signed confession. Sergeant Lamb testified that he ended the interview when Appellant refused to answer any more questions.
A defendant must knowingly, intelligently, and voluntarily waive his right not to incriminate himself for his confession to be admissible in court. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 93 L.Ed.2d 694 (1966). "An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979); see also Connecticut v. Barrett, 479 U.S. 523, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). Similarly, a confession need not be recorded to be admissible. Brashars v. Commonwealth, Ky., 25 S.W.3d 58 (2000), cert. denied, 531 U.S. 1100 (2001).
The Commonwealth bears the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily. Mills v. Commonwealth, Ky., 996 S.W.2d 473 (1999), cert. denied, 528 U.S. 1164 (2000); Crawford v. Commonwealth, Ky., 824 S.W.2d 847 (1992); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The trial court considers the "totality of the circumstances" to determine the voluntariness of a confession. Allee v. Commonwealth, Ky., 454 S.W.2d 336, 341 (1970); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957).
While intoxication may be a factor to be considered, Jones v. Commonwealth, Ky., 560 S.W.2d 810 (1977), a confession is involuntary by self-induced intoxication only if the defendant "was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements." Peters v. Commonwealth, Ky., 403 S.W.2d 686, 688 (1966), see also Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974). Sergeant Lamb testified that Appellant was alert, calm, and coherent, and appeared to fully understand his Miranda rights. Further, Appellant showed no sign of mania and seemed to understand the meaning of his statements, even bargaining with Sergeant Lamb about speaking with Frost before he would give a statement.
"A trial court's ruling that a confession is voluntary will not be disturbed on appeal unless the ruling is clearly erroneous." Allee, supra; see also Henson v. Commonwealth, Ky., 20 S.W.3d 466 (1999). Furthermore, "[i]f supported by substantial evidence the factual findings of the trial court shall be conclusive." RCr 9.78. We conclude the trial court correctly found that Appellant's confession was voluntary.
Appellant takes issue with the trial court's denial of his motion to suppress an out-of-court identification which he believes was tainted. We conclude that no error occurred.
During the course of the robbery investigation, the Fugitive Task Force disseminated to various Lexington businesses photographs of Appellant and Frost with information that they were suspects in the string of recent robberies. Norma Summers, the general manager of the Lexington Motor Inn, was shown the photographs on October 20, 2000. The following day, a man walked into the Inn's office with a shotgun and threatened to shoot Summers if she moved. While pointing the gun at Summers, he proceeded to fill a bank bag with money from the cash drawer. Summers subsequently identified Appellant as the perpetrator from a photo line-up, as well as identified the coat he wore and the shotgun he carried during the robbery. Summers also again identified Appellant at trial.
Appellant argues that because Summers was shown his photograph prior to the robbery of the Lexington Motor Inn, any future identification of him by Summers was tainted. We disagree. Summers was shown Appellant's photograph as a routine part of the task force's investigation of the robberies. Summers was not singled out, rather she happened to an area business employee. It is rather ironic, of course, that Appellant chose to rob the motor inn the next day. Nonetheless, if we were to adopt Appellant's argument, warning the public about criminal suspects would effectively become illegal, or at least an impediment to the legal process if any subsequent identification were deemed tainted.
It was within the province of the jury to determine whether Summers was credible and...
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