Gilbert v. Com.
| Citation | 637 S.W.2d 632 |
| Parties | Daniel Duwayne GILBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 06 July 1982 |
| Court | United States State Supreme Court (Kentucky) |
Jack Emory Farley, Public Advocate, M. Gail Robinson, Asst. Public Advocate, Frankfort, for appellant.
Steven L. Beshear, Atty. Gen., R. Thomas Carter, Asst. Atty. Gen., Frankfort, for appellee.
Gilbert was indicted for attempted kidnapping (KRS 506.010), first-degree wanton endangerment (KRS 508.060) and first-degree robbery (KRS 515.020) of Janie Watson. He was also indicted for kidnapping (509.040), first-degree rape (KRS 510.040) and first-degree robbery (KRS 515.020) of Donna Gnau on the same day. A jury found Gilbert guilty on all counts and fixed his punishment at a total of 85 years in the penitentiary. The trial court directed that the sentences run concurrently for a sentence of twenty years. We reverse the convictions for first-degree wanton endangerment and attempted kidnapping and affirm the other convictions.
Watson was working at a Foto Fair when a man, she later identified as Gilbert, came to the booth and said, "this is a hold-up." He laid a gun on the counter with his hand on it. The gun was never pointed at her. Gilbert ordered Watson to put the money in a bag and to go out the door to his car. When he told Watson to get into the car she refused. As she moved back toward the booth, the man held the money outside the car and told her to come and get it. He told her the gun was not real. She went into the booth and after getting the license number of the car Gilbert was driving contacted the police. The detective checked the license number given by Watson and learned it was registered to a Carolyn Jones. He went to the address, the car was not there, but he learned that Gilbert and Jones lived there. He then prepared a photo display and Watson identified Gilbert.
In the meantime, Gnau was working at another Foto Fair when a man she later identified as Gilbert came in and said it was a robbery. He alluded to a gun in his belt. She placed money and checks in a bag, Gilbert then told her to go out and get in the car. He threatened to kill her when she refused. Gnau then got in the front seat on the floor and Gilbert covered her. She saw a Pabst styrofoam cup underneath the seat. Gilbert drove to a wooded area and dragged her through some bushes and proceeded to force her to perform fellatio, raped her, and left her. Gnau contacted the police, gave a description of the car, and the detective interviewing her showed her the same photo display viewed by Watson. She identified Gilbert from the same photo display. The two detectives then again proceeded to the address for the car driven by Gilbert. This time the car was in the driveway. Through the window of the car the detectives observed the styrofoam cup and a blanket. They entered the house through the unlocked front door, saw money and a gun on a table. Gilbert was located in a shower and arrested. The pistol and money were introduced into evidence. The women identified the gun and made an in-court identification of Gilbert.
Gilbert presented an alibi defense.
Gilbert asserts that his arrest without a warrant was illegal and the evidence obtained in the house, the money and pistol, should have been excluded. In support of this assertion Gilbert relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 539, 639 (1980). This opinion discussed two defendants, Payton and Riddick. As to Payton, after two days of intensive investigation, New York detectives had assembled evidence sufficient to establish probable cause to believe Payton had murdered the manager of a gas station. Officers without a warrant of arrest went to Payton's apartment and entered forcibly. Payton was not at home but evidence in plain view was seized. Riddick was arrested in his home without a warrant for two armed robberies almost a year after he had been identified by the victims and two or three months after the police had learned his address. Narcotics were seized and Riddick was subsequently indicted on a narcotics charge. The state courts held that the intrusion into the homes without an arrest warrant was authorized by the New York Code of Criminal Procedure.
The Supreme Court held that the Fourth Amendment to the Constitution of the United States prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. The operative phrase here is "routine felony arrest," those situations where obviously the police have ample time to procure a warrant of arrest. The ruling in both cases is narrow and is based on an absence of exigent circumstances. In Payton's case the court noted that it is arguable that the warrantless entry might have been justified by exigent circumstances, but that the New York courts relied on the statute and not on this justification. We are of the opinion that the warrantless entry here is justified by the exigent circumstances displayed in the factual situation. Thus the action of the detectives is not within the prohibitions of Payton.
We turn now to what we consider to be two errors...
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