Hockenbury v. Com.

• Decision Date: 02 May 1978
• Citation: 565 S.W.2d 448
• Parties: Murrell Toby HOCKENBURY, III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 448

565 S.W.2d 448

Murrell Toby HOCKENBURY, III, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

May 2, 1978.

Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Barbara B. Edelman, Asst. Atty. Gen., Frankfort, for appellee.

JONES, Justice.

Hockenbury appeals from a judgment sentencing him to imprisonment for 30 years pursuant to a jury verdict finding him guilty of robbery in the first degree under the provisions of KRS 515.020. He was tried on three separate indictments charging him with robbery in the first degree. The jury found him guilty on two of the indictments and fixed his punishment at 15 years each. The jury was unable to agree on the third indictment and the court declared a mistrial. In conformity with the jury's verdict the trial court sentenced Hockenbury to serve the two 15-year sentences consecutively.

Hockenbury asserts that he is entitled to a reversal of his convictions on the grounds: (1) the trial court erred by allowing the prosecutor to question him concerning his silence as to an alibi at the time of his arrest, (2) his identification at trial was based on suggestive out-of-court identification procedures, and (3) the trial court's instruction on reasonable doubt was improper.

So that these issues may be placed in proper perspective, it is necessary for this court to briefly summarize the evidence.

The first indictment charged Hockenbury with committing first-degree robbery on December 6, 1976, at a Junior Food Market in Warren County, Kentucky, by using or threatening the use of physical force upon Ann Hayes while armed with a deadly weapon. The second indictment charged him with first-degree robbery of the Greentree Market on December 29, 1976, when he threatened the immediate use of physical force upon Mark Blankenbaker and was armed with a deadly weapon. A robbery at another Junior Food Market was the basis of the third indictment.

The convictions were on the first and second indictments. The jury was unable to reach a verdict on the third indictment and a mistrial was declared as to that charge.

The evidence adduced at trial was primarily identification testimony linking Hockenbury to the December 16th and December 29th robberies.

Ann Hayes was a cashier at the Junior Food Market on the night of December 16, 1976. At approximately 10:30 to 10:45 P.M., a man later described by Ann as being Hockenbury, entered the store. He asked if he could use the restroom and after so doing, walked over to the magazine rack. Ms. Hayes asked the customer if he needed help. At that point the man placed a silver .25 automatic pistol to her side and told her to put the money in a bag. She testified that the amount of money taken was $600.00. At the time of the robbery Ms. Hayes and Hockenbury were the only persons in the store. In her description to the police she said Hockenbury was wearing a gold jacket, dark pants, and tinted glasses. She positively identified Hockenbury at trial as the robber.

Ms. Hayes had also previously identified Hockenbury at a line-up conducted by the police on January 28, 1977. Subsequently, Ms. Hayes was working at another food store when two men came in. She recognized one of them as being Hockenbury. After the men left one of the other employees recognized Hockenbury's companion and gave his name and address to the police. Acting upon this information the police were able to locate Hockenbury. They conducted a line-up at which time Ms. Hayes identified Hockenbury as the person who had robbed Junior Food Market on December 16, 1976.

Vicky Evans, another employee of Junior Food Market, was sweeping the parking lot at the time of the robbery. She saw the man who committed the robbery, but could not describe him because of poor visibility. At another line-up, however, she testified that Hockenbury looked "most like the man who came to our store that evening."

Detective Lancaster testified that he found Hockenbury at the home of Alan Borders after he received the call from Ms Hayes. Lancaster testified that Hockenbury was informed of his rights in conformity with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and voluntarily agreed to be placed in a line-up. Lancaster testified also that Ms. Hayes positively identified Hockenbury in the first line-up and that Ms. Evans selected him from the second line-up, but could not make a positive identification.

Mark Blankenbaker, a clerk at the Greentree Market, identified Hockenbury in a photographic display on February 2, 1977. Blankenbaker testified that Hockenbury came in the Greentree Market with a group of other persons around 7:26 P.M. on December 29, 1976, and that Hockenbury remained behind when the others left. Hockenbury then asked Blankenbaker about some seafood and then sought permission to use the phone. As Blankenbaker turned around, Hockenbury had a silver-plated gun aimed at him. Hockenbury then took cash and food stamps from the Greentree Market. Blankenbaker described the robber as wearing a floppy hat, vinyl jacket, and dark pants. He further described him as being 6' to 6'1" tall and his weight as approximately 184 lbs. He testified also that Hockenbury had "thick, curly, brown hair," and that he was able to observe Hockenbury for 10 to 12 minutes. Blankenbaker was able to...