Mishler v. Com.

• Decision Date: 16 September 1977
• Citation: 556 S.W.2d 676
• Parties: J. Ted MISHLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. David L. SKAGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 676

556 S.W.2d 676

J. Ted MISHLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

David L. SKAGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Sept. 16, 1977.

Rehearing Denied Nov. 18, 1977.

Jack Emory Farley, Public Defender, William M. Radigan, J. Vincent Aprile II, Edward C. Monahan, Asst. Public Defenders, Frankfort, for appellants.

Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.

STEPHENSON, Justice.

David L. Skaggs was indicted, tried and convicted on two counts of robbery in the first degree, KRS 515.020(1)(b). The first count concerned a robbery of the Foodette Market in Bowling Green, committed on January 2, 1976; the second count concerned a robbery of Moore's IGA Market in Bowling Green on January 7, 1976. Skaggs was sentenced to 20 years' imprisonment on each count, the sentences to run concurrently.

J. Ted Mishler and Leland Henderson were indicted for the offense of "being accomplice to first degree robbery," KRS 502.020(1)(a). Mishler was tried with Skaggs, convicted on the charge and sentenced to 20 years' imprisonment. Henderson was not tried with Skaggs and Mishler.

The Commonwealth introduced witnesses who identified Skaggs as the person who used a pistol to rob the Foodette Market on January 2, 1976. In this appeal, the issues presented by Skaggs and Mishler concern the robbery which took place at Moore's IGA Market.

According to the evidence for the Commonwealth, a clerk at Moore's IGA saw Skaggs and another man enter the store. Skaggs picked up a bag of fritos and walked to the cash register. At the cash register, he pointed a pistol at the clerk, ordered her to "bag it up" and robbed her of cash including a $50 bill and some torn $1 bills. Skaggs was wearing a brown windbreaker and a pair of dark glasses. The owner of the store testified $297 was missing, including a $50 bill and about twenty torn $1 bills. Skaggs and the other man left the store and fled in a purple automobile.

The arresting officers testified they received a radio description of the purple automobile with out-of-state license plates used by the robbers. Five to ten minutes later, the two officers saw an automobile matching the description heard over the radio. They stopped the car which was being driven by Mishler. Money was seen in Mishler's shirt pocket. Skaggs was seated on the passenger side of the front seat; Henderson was seated in the back seat. The officers found a loaded .22-caliber pistol under the seat occupied by Skaggs. The officers also found a loaded automatic in the back seat occupied by Henderson. One hundred and fifty dollars was found on Mishler's person, including twenty $1 bills in his shirt pocket. Ninety-five dollars was found on Skaggs including several old and torn $1 bills.

A police officer testified Skaggs stated that on the day of the Moore's IGA robbery he was high on drugs, that Mishler and Henderson sent him in to rob the store, and that "he wouldn't have done it if it hadn't been for drugs."

A neighbor testified that on the day of the robbery, she observed a purple automobile. It was driven past Moore's IGA and then returned to the store. She saw a man run from the store carrying a paper bag and gave a description of Skaggs' clothing and the dark glasses. The neighbor's daughter identified Mishler as the driver of the automobile, and testified that on the afternoon of the day before the robbery she saw a purple car in the vicinity driven by Mishler with two other occupants.

A statement to the police given by Henderson was introduced. In the statement, Henderson confessed that he, Mishler and Skaggs planned the robbery. At the trial, Henderson recanted the statement explaining that he made the statement implicating Skaggs and Mishler for the reason that his father was on his death bed, that under these circumstances, he would have signed anything and that through a deal with the prosecutor he did sign a voluntary statement relating what the prosecutor wanted to hear. At the trial, Henderson testified that he, Mishler and Skaggs stopped at Moore's IGA to get something to eat, that while in the store, Skaggs without any warning pulled a gun. Henderson testified that he ran from the store and told Mishler "Skaggs done robbed that store"; that Mishler said, " 'What?' "; that he (Henderson) said, "Skaggs just robbed that store let's get going." He testified that upon entering the automobile, Skaggs put money into Mishler's pocket. Henderson testified he was not aware of Skaggs having a pistol and that he, Mishler and Skaggs had not arrived in Bowling Green until dark on the night before the robbery. He denied any plan to commit the robbery.

Henderson's sister testified that Henderson, Mishler and Skaggs left Rising Sun, Indiana, between one and two in the afternoon on the day before the robbery.

Mishler testified substantially the same as did Henderson as to the time of leaving Indiana, denied any plan to commit the robbery, related Henderson's telling him of the robbery, and testified that "I really didn't know what to do, you know. I couldn't very well put him out of the car. I couldn't drive alone. I just couldn't walk away from my own automobile. I didn't really know that there was any robbery supposed to be taking place." He testified he was unaware of weapons being in his car.

Skaggs testified as to leaving Indiana the afternoon before the robbery and arriving in Bowling Green the night before, the purpose of the trip being to paint signs. He testified that he was taking speed and smoking pot the day of the robbery, his memory of events was cloudy, and he did not remember the robbery. He testified as to driving up to Moore's IGA to get something to eat, going into the store, and taking a bag of fritos from a stand and then going to the cash register. He testified he did not remember what happened. His memory returned when he got into the car and he remembered the arrest. He testified Mishler did not know of the pistol he carried, which he said was for self-protection from an individual as a result of an unrelated incident. Henderson testified Skaggs was "all doped up, under these drugs." Mishler testified Skaggs was taking pills on the day of the robbery of Moore's IGA, but did not know the kind of pills.

Skaggs and Mishler appeal with numerous assertions of error on the part of the trial court.

I.

On Skaggs' appeal, we find reversible error in the trial court's refusal to give an instruction on intoxication. KRS 501.080 provides that "(i) ntoxication is a defense to a criminal charge" if such condition "(n)egatives the existence of an element of the offense." An essential element of robbery in the first degree is the element of intent. The trial court erroneously concluded that an instruction on intoxication was not required for the reason the intoxication was voluntary.

If the posture of the evidence is such that an issue of fact is raised showing intoxication to such a degree that the defendant was unable to form the requisite intent where the charge is for a specific intent crime, then the defendant is entitled to an instruction on this defense, this without regard to whether the intoxication was voluntary.

Here the evidence of use of drugs was substantial. The testimony of Skaggs, Henderson and Mishler on the use of drugs would not, in light of the evidence, be sufficient to justify an instruction on intoxication save for that testimony of Skaggs that at the very moment of the robbery he lost his memory and did not know what he was doing. No matter how preposterous Skaggs' convenient loss of memory may appear, it raises an issue for the jury. It is not for us to decide this issue. In light of Skaggs' detailed narration of the events leading up to his entry into Moore's IGA, his narration of his actions in selecting the desired item and proceeding to the cash register, then his memory of events afterward, it is a preposterous story. Nevertheless, it is the privilege of the jury to believe the unbelievable if the jury so wishes.

We observe that on cross-examination of his actions in the store, Skaggs almost stepped over the brink and did himself out of his entitlement to an intoxication instruction; however, he recovered himself and stoutly maintained his fortuitous blackout. In a new trial, Skaggs, if he tells the same story, will be entitled to an instruction on intoxication.

Turning to Skaggs' other assertions of error, he complains of the trial court's not conducting an evidentiary hearing on his competency to stand trial.

Skaggs filed a motion for a mental examination for the purpose of determining his mental competency to stand trial. This motion was granted and Skaggs was sent to a center for evaluation. A psychiatric evaluation and report was made to the trial court before trial but was not made a part of this record. No issue with regard to an evidentiary hearing was...