Kendricks v. Com.
| Decision Date | 28 October 1977 |
| Citation | 557 S.W.2d 417 |
| Parties | Harry Melvin KENDRICKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Stephen R. Veth, David Kaplan, David M. Lewis, Louisville, for appellant.
Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
On June 3, 1976, Harry Melvin Kendricks was convicted of the offenses of first degree robbery and of being a persistent felon. In conformity with the jury's verdict, Kendricks was sentenced to a term of 27 years' imprisonment. From that judgment Kendricks appeals. Upon Kendricks' motion, this court ordered an appeal from an order overruling a motion to vacate the judgment pending in the Court of Appeals transferred to this court. These appeals involve one of the same issues and are considered together. In support of his argument for reversal, Kendricks alleges five errors: (1) he was denied the right to properly confront his accuser; (2) he was entitled to a "missing witness" instruction; (3) the Commonwealth's Attorney refused to disclose exculpatory evidence; (4) the Commonwealth's Attorney misused a prior felony conviction for grand larceny to his prejudice; (5) the evidence failed to establish that he was a persistent felony offender beyond a reasonable doubt.
The pertinent facts are as follows: On January 7, 1976, Dan Schnorbus was employed as a parking lot attendant at the Jewish Hospital in Louisville. It was his duty to take the tickets from those leaving the lot and collect the fees. Schnorbus was performing these duties, "at about to approximately 5:30 (P.M.) . . . a man approached me . . . and asked if he could have change for . . . $5.00 bill in quarters." Schnorbus said, "Well, I don't give out any money . . . ." At that point, the robber pulled a gun, threw Schnorbus a paper bag and told him to put all the money in the bag. The robber demanded Schnorbus to "hurry up, hurry up or I'll blow your head off."
Schnorbus did as he was told. He tried to lay down in a small cubicle in which he worked. The assailant took the money, about $75.00, and left by way of the emergency exit at Jewish Hospital. Schnorbus faced his assailant from a distance of three feet, and observed him for approximately 20 seconds.
Schnorbus called the police. He identified his assailant as being about 6 feet in height, weighing approximately 150 pounds and about 40 years old. He described the robber as having a mustache. He was wearing a brown suede coat and brown pants.
Sometime between 9:00 and 10:00 P.M., the police took Schnorbus to the police station. From the time of the robbery until he went to the police station, the police had apparently apprehended Kendricks by the description Schnorbus gave them. Schnorbus identified Kendricks from one picture out of many shown him. Subsequently, he identified Kendricks as his assailant in a police line-up of six black males.
Kendricks' defense was an alibi. He, and three witnesses testified that they were at the home of Kendricks' sister, "socializing" (drinking, listening to music, and playing cards) from 5:30 P.M. until 10:00 P.M. or later.
Kendricks first contends he was denied the right of confrontation due to his inability to cross-examine Schnorbus about his Navy background. On direct examination Schnorbus revealed that he had some training in identification procedures while in the Navy. Schnorbus declined to describe fully his Navy experience for the reason that it concerned classified military information. Kendricks argues that this constituted a denial of his right of confrontation. He contends that Schnorbus was presented as one specially qualified to make identifications and was allowed to give opinion testimony.
Kendricks' argument is unfounded. Schnorbus was testifying as an eyewitness. He was not asserting an opinion, but was testifying to what he had observed during the robbery. Schnorbus identified a photograph of Kendricks from one out of many presented him. Likewise, he identified him in a police line-up. At trial he positively identified Kendricks as the man who robbed him.
The fact that the Commonwealth's Attorney did not call the investigating police officer to the stand is merely a matter for a weak and futile argument. There is absolutely no authority for a "missing witness" presumption or an instruction on this presumption.
There is no merit in Kendricks' argument that the failure of the Commonwealth's Attorney to produce the "squawk" report, which is a term used by the police to identify the initial police report, constituted error. At a pre-trial hearing, Kendricks' attorney stated there was an initial report which was sent out by the police at 5:45 on January 7, 1976, a short time after the robbery. He also indicated that there was a later clearance report. Counsel for Kendricks was given the second report, but not the first. As a matter of fact, there is nothing in the record that shows but the...
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Johnson v. Com.
...the strict direct evidence standard of proof enunciated in Hon and reinstated the general standards set forth in Kendricks [v. Commonwealth, 557 S.W.2d 417 (Ky.1977)]." Moody v. Commonwealth, 170 S.W.3d 393, 397 (Ky.2005) (citing Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky.2000)). Now, t......
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Cantrell v. Com.
...could infer Cantrell's first offense occurred when he was well past the age of eighteen (18) years. We agree. See Kendricks v. Commonwealth, 557 S.W.2d 417, 419-20 (Ky. 1977) ("[I]f he had been 18 at the time he committed the first offense, it is unlikely that any court would wait six years......
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Finnell v. Com.
...official records of convictions to be read to the jury. E.g., Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky.1999); Kendricks v. Commonwealth, 557 S.W.2d 417, 419 (Ky.1977). However, as Justice Combs pointed out in his dissent in Commonwealth v. Mixon, 827 S.W.2d 689 (Ky.1992), there must b......
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Hill v. Commonwealth, 2008-SC-000100-MR (Ky. 8/27/2009)
...393 (Ky. 2005); Shabazz v. Commonwealth, 153 S.W.3d 806 (Ky. 2005); Martin v. Commonwealth, 13 S.W.3d 232 (Ky. 1999); Kendricks v. Commonwealth, 557 S.W.2d 417 (Ky. 1977).5 However, a jury presented with circumstantial evidence must still be able to arrive at the elements of the crime reaso......