Jordan v. Com., 85-SC-601-MR

• Decision Date: 05 September 1985
• Docket Number: No. 85-SC-601-MR,85-SC-601-MR
• Parties: Jackie JORDAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 870

703 S.W.2d 870

Jackie JORDAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 85-SC-601-MR

Supreme Court of Kentucky.

Sept. 5, 1985.

Rehearing Denied Feb. 27, 1986.

Paul Isaacs, Public Advocate, Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., W. Bruce Cowden, Jr., Asst. Atty. Gen., Frankfort, for appellee.

GANT, Justice.

Appellant was tried in the Shelby Circuit Court under a single indictment charging him with the offenses of first degree escape, first degree burglary, first degree robbery, first degree unlawful imprisonment, and theft by unlawful taking. He was also charged as a first degree persistent felony offender. On the day of trial, he entered a plea of guilty to the theft charge and was tried on the remaining substantive charges. The jury found him guilty on all those counts, fixing his punishment at 10 years for escape, 15 years on the burglary, 15 years on the robbery, five years on the imprisonment, and fixed his punishment on the guilty plea of theft at five years.

Appellant and four others escaped from the Shelby County jail on August 28, 1983. Appellant and two of the other escapees, named Tipton and Whitten, then embarked on a spree which resulted in the other charges against the appellant. The evidence concerning the conduct of the parties is undisputed and overwhelming, and it is the application of that evidence to the substantive charges which is questioned on this appeal.

Following their escape, Jordan, Tipton and Whitten went to the home of Ray and Hazel McClain. They broke into the dwelling and armed themselves with a Colt 357 Magnum and a Winfield automatic rifle. Utilizing these weapons, they seized the McClains, bound and blindfolded them, and held them captive for about four hours, during which time they took baths, watched television and talked over their predicament. Deciding to leave, they removed the blindfolds from the McClains, rebound them, and left them on a bed in the home. They then took from the home such items as stereos, television, jewelry, and a tool box. Obtaining the keys to an automobile belonging to the McClains, they loaded the car with the stolen property, including the weapons, and fled.

Mrs. McClain was able to free herself and her husband, reported the crimes to the authorities, and the three felons were seen in Louisville by the police. A chase ensued, during which Whitten was killed and after which Jordan and Tipton were apprehended.

On appeal, Jordan does not attack the escape conviction, but contends that his constitutional guarantee against double jeopardy precludes his conviction for all four of the other substantive offenses under the facts of this case. He further contends that in this case the presented facts did not justify a conviction of first degree false imprisonment.

The argument is incessantly made that where the evidence discloses a continuing course of conduct throughout which the elements of more than one statutory offense are present double jeopardy prevents prosecution for more than a single offense. In the vast majority of those cases, as here, the grand jury returned a single indictment charging each of those offenses, and a single trial was held thereon. On appeal from the various previous cases, as in this one, we have never been presented with or considered the arguments based upon Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). We find that case is dispositive of the double jeopardy issues herein. We also note that the Fifth Amendment of the United States Constitution and Sec. 13 of the Kentucky Constitution are identical in the import of their prohibition against double jeopardy.

In Johnson, the Supreme Court tersely condensed the purpose of the prohibition against double jeopardy, stating:

The Double Jeopardy Clause, of course, affords a defendant three basic protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

In the instant case, we do not have an example of a second prosecution after an acquittal. Also, in spite of an allegation we will subsequently dispose of, we do not have a second prosecution for the same offense after a conviction. The only possible issue to which double jeopardy might attach would be any attempt at multiple punishments for the same crime. In order to make a proper resolution of the applicability of this prohibition, we must examine the statutes and the case law.

We first examine KRS 505.020:

505.020. Prosecution for multiple offenses.--(1) When a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense when:

(a) One offense is included in the other, as defined in subsection (2); or

(b) Inconsistent findings of fact are required to establish the commission of the offenses; or

(c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.

(2) A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:

(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or

(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or

(d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission.

This statute clearly contemplates that a single course of conduct may result in and establish the commission of more than one offense but prohibits bifurcating a single crime which is established in statutory degrees into additional crimes, as an included offense, and, by import, prohibits multiple punishments. However, such is not the case herein.

The standard test which has long been applied is prescribed in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The commonly quoted section reads:

A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

A less quoted portion of that case is quite descriptive, and at 284 U.S. 302 reads:

The distinction stated by Mr. Wharton is that ...