Howard v. Com.

• Decision Date: 29 July 1977
• Citation: 554 S.W.2d 375
• Parties: Jerry Lee HOWARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 375

554 S.W.2d 375

Jerry Lee HOWARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

July 29, 1977.

Jack Emory Farley, Public Defender, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.

CLAYTON, Justice.

Jerry Lee Howard appeals from a judgment of conviction entered by the Bullitt Circuit Court finding him guilty of first-degree sodomy, KRS 510.070, and sentencing him to 20 years' imprisonment. There being no purpose to be served in detailing the facts of the incident as the jury determined it to have occurred, we proceed to discuss the eight assignments of error which the appellant alleges merit reversal of his conviction.

The appellant's three initial allegations of error concern the indictment charging him with the offense and the Commonwealth's answer to his requested bill of particulars. He argues the indictment was defective in that its terms charged only the misdemeanor offense of fourth-degree sodomy, and thus it failed to give him notice that he was charged with committing a felony. He further argues the indictment and the Commonwealth's response to his requested bill of particulars failed to notify him of which of the three subsections of KRS 510.070, specifying the circumstances under which the offense can be committed, he was charged with violating, and so failed to protect him from being again placed in jeopardy for the same offense. As a corollary to these contentions, he also argues the instructions given the jury were erroneous because they concerned an offense not charged in the indictment. Because we are of the opinion the indictment herein was sufficient to give appellant notice of the offense with which he was charged, and feel the alleged error regarding the response to the requested bill of particulars has not been preserved for review, we find these arguments meritless. The indictment in question set out the offense charged as follows: "On or about the 10th day of May, 1976, in Bullitt County, Kentucky, the above named Defendant committed first-degree sodomy by engaging in deviate sexual intercourse with (the prosecuting witness), against the peace and dignity of the Commonwealth of Kentucky." In its heading, the indictment designated the number of the statute charged to have been violated, KRS 510.070, and indicated this to be a Class B felony. We thus cannot perceive how the indictment indicates the offense charged to be the misdemeanor offense of fourth-degree sodomy, as appellant alleges. Although we shall assume it would have been preferable for the indictment to have generally indicated the manner in which the offense was committed by designating the appropriate subsection of the statute, in our opinion this omission was not fatal.

Under our Rules of Criminal Procedure, which embrace the principle of notice pleading, an indictment is sufficient if it fairly informs the defendant of the nature of the crime with which he is charged, without detailing the "essential factual elements." Finch v. Commonwealth, Ky., 419 S.W.2d 146, 147 (1967). This the indictment does, and in view of the fact that the appellant's defense at trial was an absolute denial that he had committed the offense, we do not feel he could have been prejudiced by any lack of information or by any misconception of just what he was being charged with. We thus cannot find that the indictment was invalid, RCr 6.12; Wilson v. Commonwealth, Ky., 445 S.W.2d 446, 447 (1969); and there is therefore no need to address the alleged error regarding the first-degree sodomy instruction given the jury. As concerns the matter of the possibility of the defendant's being twice placed in jeopardy as a result of the failure of the indictment to specify which subsection of KRS 510.070 he was charged with violating, we observe there existing no possibility of such occurring, due to the imperfection in the indictment charged by the appellant. If the prosecution below had failed, the Commonwealth could not have then again proceeded against the appellant by a second indictment charging a specific violation of one of the subsections of the statute, because the instant indictment, charging as it did a violation of KRS 510.070 by "engaging in deviate sexual intercourse," was broad enough to cover all possible means of committing the offense. See Wilson, supra, 445 S.W.2d at 448.

In regard to the alleged failure of the Commonwealth's response to the requested bill of particulars to give the appellant notice of which subsection of KRS 510.070 he had been charged with violating, our review of the record indicates the appellant raised no objection to the responses contained in the bill of particulars when they were filed, and that he proceeded to trial where he made no objection when the Commonwealth revealed its theory of the case was that the crime was committed by forcible compulsion. The alleged error was thus not preserved for our review.

By appellant's fourth and fifth assignments of error, he contends the trial court erred in failing to grant his motions for a continuance. The record discloses that appellant moved for a continuance prior to trial, citing as his reasons a lack of time for his court-appointed attorney to prepare a proper defense and his desire to seek out private counsel to represent him, but does not reflect a ruling by the court on this motion. On the day of the trial, counsel for the appellant again asked the court to continue the case, stating as his reasons, "It's just that some things are coming up and I had a short time to prepare the case and after I received the response (to the requested bill of particulars) Monday afternoon, I had only 24 hours to prepare." By separate arguments he now contends the trial court...