Commonwealth v. Hillebrand
| Decision Date | 15 March 1974 |
| Citation | 508 S.W.2d 566 |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Robert B. HILLEBRAND and Douglas Lee Powers, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., Frankfort, Edwin A. Schroering, Jr., Commonwealth's Atty., Frank Coryell, Asst. Commonwealth's Atty., Louisville, for appellant.
Frank E. Haddad, Jr., Laurence E. Higgins, Louisville, for appellees.
Appellee Robert B. Hillebrand, Director of Building and Housing for the City of Louisville, was indicted under KRS 432.350 for accepting a bribe; and Appellee Douglas Lee Powers was indicted under KRS 431.160 for having been an accessory before the fact of accepting a bribe. The indictment was returned in November 1971 (the alleged offenses having occurred in September 1971), and the defendants were tried in the Jefferson Circuit Court on May 11, 1973. At the close of the evidence for the Commonwealth and upon motion of defendants' counsel the trial court directed a verdict of acquittal. The Commonwealth now appeals seeking certification of the law. KRS 21.140.
In late August 1971 Powers contacted H. M. Dunn, Jr., then president of American Building and Loan Association (hereinafter American). The two met, and Powers told Dunn that there were structural problems involving property upon which American held mortgages. At a subsequent meeting Powers told Dunn that he (Powers) could remedy the difficulties and would see that official files relating to the American property would be destroyed upon payment of $15,000. Dunn was led to understand that condemnation complaints would be filed against the American property if the money was not forthcoming. Dunn and Powers arranged a meeting with Hillebrand, who was to give assurances that the payment would result in a halt to the condemnation proceedings, at which meeting the payment was to be made.
Meanwhile Powers had contacted Ed Sutherland and had told him that for a certain sum of money paid to Powers, Sutherland could obtain a certain license from the City Building and Housing Department without his taking the usual tests. The sum of money, including two marked twenty-dollar bills, was paid to Powers for the license.
Members of the Louisville Police Department, with Dunn's permission, placed recording devices in the office where the above-mentioned meeting was held on September 25, 1971; and they recorded all conversation during the meeting. At the meeting of Dunn, Hillebrand and Powers, the purpose of which was to pass $15,000 from Dunn to Powers in exchange for assurances from Hillebrand that condemnation proceedings would be stopped and files destroyed, Hillebrand stated that upon payment of $15,000 he would destroy the files and stop the condemnation proceedings. During the meeting Dunn offered the money to Hillebrand who directed that it be given to Powers. Powers, after accepting the money, made statements relative to his ability to control various members of governmental departments. Upon leaving the meeting Hillebrand and Powers were arrested. Powers possessed the $15,000 which had just been paid to him, and Hillebrand possessed the above-mentioned marked twenty-dollar bills, which had been given to Powers by Sutherland.
At trial the court excluded all testimony and evidence relating to the Powers-Sutherland transaction and the marked money as well as all testimony and evidence relating to that portion of the taped conversation in which the parties discussed Powers' ability to control various governmental departments.
The Commonwealth first argues that the trial court should have permitted the introduction of evidence as to the Powers-Sutherland transaction and the marked money. The contention is that such evidence would tend to show a pattern of conduct that was relative to the issue of intent. That is to say that the Commonwealth contends that it would show that when illicit funds were paid to Powers he in turn paid off Hillebrand for Hillebrand's cooperation.
Appellees assert that the trial court's ruling was proper because in all Kentucky cases in which the court has allowed the introduction of such evidence, the evidence has been only of other completed crimes and because evidence that certain money paid by Sutherland to Powers had found its way into Hillebrand's pocket is not evidence of a completed crime. See: Jenkins v. Commonwealth, 167 Ky. 544, 180 S.W 961 (1915); Lee v. Commonwealth, Ky., 242 S.W.2d 984 (1951); and Edwards v. Commonwealth, Ky., 489 S.W.2d 23 (1972).
Appellees are incorrect in their interpretation of Kentucky law. In Lee v. Commonwealth, supra, the defendant was charged with aiding and abetting the obtaining of money under false pretenses (viz., the selling of stolen meat to a store owner). Therein the Commonwealth was allowed to introduce evidence that the defendant, earlier the same day that he committed the offense, had attempted to sell meat which had been described as being similar to the stolen meat, to another store owner. Certainly the evidence was not conclusive as to another crime. It is entirely possible that the first offer was bona fide and that the defendant actually owned the meat he offered to sell to the first store owner. Therefore we will not bind ourselves by such a rule as appellees suggest, and we hold that the trial court erred in not permitting the Commonwealth to introduce evidence relating to the Powers-Sutherland transaction and to the marked money, because such evidence would tend to show a pattern of conduct that was relative to the issue of intent.
The Commonwealth next contends that the trial court improperly excluded evidence relating to statements made by Powers and recorded by police, at the meeting where the $15,000 was paid, immediately preceding the arrest. In response to the Commonwealth's contention appellees assert that Powers' statements did not relate to the crime charged and were properly excluded because they were irrelevant.
In United States v. Matot, 146 F.2d 197 (1944), the Second Circuit Court of Appeals held, per L. Hand, C. J., at 199,
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Com. v. Hillebrand
...The Commonwealth appealed for a certification of the law in that case also, and the certification was made in Commonwealth v. Hillbrand, Ky. (1974), 508 S.W.2d 566. One of the certifications there was that the trial court had erred in refusing to admit evidence as to Hillebrand's and Powers......