Cooley v. Com.

• Decision Date: 19 December 1991
• Docket Number: No. 90-SC-290-DG,90-SC-290-DG
• Citation: 821 S.W.2d 90
• Parties: Phillip Eugene COOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 90

821 S.W.2d 90

Phillip Eugene COOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-SC-290-DG.

Supreme Court of Kentucky.

Dec. 19, 1991.

Allison Connelly, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.

LAMBERT, Justice.

The issue presented is whether the double jeopardy clauses of the Fifth Amendment of the Constitution of the United States and Section 13 of the Constitution of Kentucky permit multiple prosecutions for receiving stolen property when the evidence reveals that all of the stolen property was received at the same time but retained or disposed of separately. Necessary to such determination is our construction of KRS 514.110, a statute which broadly proscribes receiving stolen property, and consideration of a recent decision of the Supreme Court of the United States, Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

From evidence presented in separate trials which occurred in the Mason Circuit Court and the Bourbon Circuit Court, it was established that appellant came into possession of twenty-six stolen firearms in Mason County, Kentucky. All of the guns were then transported by appellant from Mason County to Bourbon County where twenty-four were disposed of by sale to various persons. Two of the guns, an Uzi machine gun and a .357 magnum pistol, were retained by appellant and taken back to Mason County. In the course of a search of the residence appellant shared with another person, the police in Mason County discovered the two guns appellant had kept and he was indicted for receiving stolen property.

The Mason County indictment charged appellant with receiving the Uzi and the .357 magnum and his possession of these guns formed the basis of the conviction. At trial, however, the evidence showed that these guns and the twenty-four guns disposed of in Bourbon County had been stolen from the Adams County Discount Center in southern Ohio and received by appellant in Mason County.

Shortly after appellant's indictment in Mason County, he was indicted in Bourbon County and it was charged that he "received ... retained, or disposed of handguns ... knowing them to have been stolen ... from Adams County Discount Center". Appellant was first brought to trial in Mason County and he was convicted of receiving stolen property in accordance with the indictment. He was then brought to trial in Bourbon County, and over his plea of double jeopardy, was again convicted of receiving stolen property. It is from the Bourbon County conviction that appellant now appeals claiming a misinterpretation of the receiving stolen property statute and a violation of his constitutional rights under the Fifth Amendment and Section 13.

The beginning point in the analysis of a double jeopardy claim appears to be the statute or statutes under which the defendant was convicted and a determination of whether the Legislature intended to impose multiple or cumulative punishments for the same act or course of conduct. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court examined the Narcotic Act and found that sections one and two created "two distinct offenses" which subjected the violator to punishment for both despite the singular nature of the conduct. Other decisions which include United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); and Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), similarly analyze legislative intent to determine whether two or more statutory offenses or provisions should be punished cumulatively. Decisional law in Kentucky reveals a similar approach. In Jackson v. Commonwealth, Ky., 670 S.W.2d 828 (1984), the Court examined the relationship between KRS 514.030(1)(a), a statute which proscribes theft by unlawful taking, and KRS 514.110, the statute under review here. Relying on the Blockburger test and decisions which predated the penal code, the Court held that one who was convicted of theft by unlawful taking could not also be convicted of knowingly receiving the property he had stolen. The Court reasoned that one who steals property must of necessity have knowledge that the property was stolen and that the offenses merged. Likewise, in Commonwealth v. Day, Ky., 599 S.W.2d 166 (1980), the Court considered the language of KRS 514.030(1)(a) "takes or exercises control over movable property" and held that the Legislature merely intended to describe two means of violating the statute rather than creating separate offenses. The Court employed a similar approach in Jones v. Commonwealth, Ky., 756 S.W.2d 462 (1988), and held that one could not be convicted of robbery and possession of stolen property when the stolen property was the proceeds of the robbery. We said:

"[T]here is no viable distinction between prior cases involving conviction of robbery and theft and the present case involving conviction of robbery and receiving stolen property. Either situation is a violation of that portion of the double jeopardy principle prohibiting cumulative punishments for convictions on offenses that merge." Id. at 463-464.

However, in Phillips v. Commonwealth, Ky., 679 S.W.2d 235 (1984), we recognized that the applicable statutes demonstrated an intent to separately punish burglary and theft of property taken in the course of the burglary. The Court noted that the crime of burglary was complete upon entry into the apartment with the requisite intent and that any other crime committed inside the apartment could be punished as such.

From the foregoing it appears that the accepted methodology for analyzing convictions under one or more statutes is to first determine whether the Legislature intended to create separate crimes or merely identify different means of committing the same crime.

The relevant portion of KRS 514.110(1) is as follows:

"A person is guilty of receiving stolen property when he receives, retains or disposes of movable property of another knowing that it has been stolen...."

The manifest purpose of this statute is to punish one who deprives the rightful owner of property. Hensley v. Commonwealth, Ky., 655 S.W.2d 471 (1983). The crime is complete upon the initial receipt and no additional offense occurs when the property is retained or disposed of by the recipient of the stolen property. In a proper case, however, one might receive property without knowledge that it was stolen but later acquire such knowledge and retain the property nevertheless. In that circumstance, the Commonwealth would be unable to prove knowing receipt, but retention coupled with knowledge would constitute an offense. In another circumstance, one could be guilty of disposing of stolen property by means of an intermediary without ever having actually received or retained the property. Thus, it appears that the statute was broadly drafted in an effort to address various circumstances which might not satisfy a strict definition of knowing receipt.

A number of Kentucky statutes provide alternative means of committing an offense. KRS 514.030(1)(a) provides several different means of committing the crime of theft by unlawful taking or disposition. In another statute, KRS 514.140, one may be guilty of theft of mail matter by obtaining mail by various means or engaging in other conduct which deprives the owner of the property. It could not be seriously contended that doing each of the acts described in KRS 514.030(1)(a) or KRS 514.140 constituted a separate criminal offense.

This Court has long held that "the Commonwealth may not split a single act or transaction into two or more separate offenses ..." (Arnett v. Commonwealth, 270 Ky. 335, 109 S.W.2d 795, 796 (1937)), and in Commonwealth v. Day, supra, we held that the alternative language in the theft statute merely described two ways in which the statute could be violated. While Jackson v. Commonwealth, supra, held that "a conviction for theft precluded a separate conviction for knowingly receiving the same property" (Id. at 833), there is language in Jackson which permits an inference that one could be convicted of theft of property and convicted again for disposing of the same property. We are now of the opinion that any such view is erroneous and that disposing is but one of the three means of violating the statute which proscribes receiving stolen property. If the act of receiving is merged into theft by unlawful taking, the act of disposing must also be merged as under the statute, receiving and disposing are one and the same.

The traditional test for determining whether successive prosecutions are barred by double jeopardy principles is found in Blockburger v. United States, supra. In recent years, however, the Supreme Court has gone beyond Blockburger and extended double jeopardy protections. In Brown v. Ohio, supra, the Court held that:

"[E]ven if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecution will be barred in some circumstances when the second prosecution requires the relitigation of issues already resolved by the first."

In this vein, the Court in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), determined that the second prosecution would be barred if the prosecution sought to establish as an essential element of the second crime the conduct for which the defendant had already been prosecuted. Finally, in Grady v. Corbin, supra, the Court declared that:

"[T]he double jeopardy clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for...