Ordway v. Commonwealth

• Decision Date: 22 September 2011
• Docket Number: No. 2009–SC–000479–MR.,2009–SC–000479–MR.
• Citation: 352 S.W.3d 584
• Parties: Larry ORDWAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

352 S.W.3d 584

Larry ORDWAY, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000479–MR.

Supreme Court of Kentucky.

Sept. 22, 2011.

Thomas More Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.

Jack Conway, Attorney General, John Paul Varo, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, for Appellee.

OPINION OF THE COURT

Appellant was tried and convicted of a string of robberies, burglaries, and thefts occurring in Christian County during the summer of 2007. One of the robberies occurred at the Ideal Market. The Hopkinsville Police originally began investigating Appellant following a burglary at the Ideal Market which happened prior to the robbery. An anonymous call was made to the Crimestoppers line which implicated Lillian Quarles and a male named “Larry” in that burglary. Police interviewed Quarles, who admitted to burglarizing the store. When asked about a robbery that had occurred at the Ideal Market days after the burglary, Quarles responded that the crime sounded like Appellant's “MO.”

Further investigation led Detective Clayton Sumner to prepare an affidavit for a search warrant of the apartment of Dawn Turnley, Appellant's girlfriend. During the subsequent search, officers found a revolver in a bedroom dresser drawer, along with Appellant's wallet containing his social security card and other identification. The officers also collected various articles of dark-colored clothing, ammunition, bolt cutters, a sledge hammer, and two keys to ATVs. A stolen truck was found behind the apartment building and it was seized.

Turnley was subsequently arrested and interviewed by Detective Sumner. She confessed to three robberies, as well as a number of burglaries, and implicated Appellant in each. Appellant was thereafter indicted on three counts of robbery in the first degree, possession of a handgun by a convicted felon, ten counts of burglary in the third degree, wanton endangerment in the first degree, knowingly receiving stolen property over $300, seven counts of theft by unlawful taking over $300, and nine counts of criminal mischief in the third degree.

The possession of a handgun by a convicted felon charge was tried separately. The jury acquitted Appellant of this charge. A subsequent trial on the remaining charges followed. The primary witnesses were Dawn Turnley; Lillian Quarles; and Joshua Quarles, Lillian's husband.

The first robbery occurred at the Kangaroo Express Pantry store. Turnley testified that she and Quarles drove the getaway car while Appellant conducted the robbery. She also testified that Appellant wore dark clothing and a black tee-shirt tied around his head, revealing only his eyes. Store attendant, Benjamin Kaminski, also testified, explaining that a man wearing dark clothing entered the store and pointed a gun at him. Before taking money from the register, the robber hit Kaminski with the gun several times. At trial, Kaminski identified Appellant by his eyes.

The second robbery occurred at a BP station. Both Lillian and Joshua testified that Lillian drove the two men to the service station around 10:00 p.m. Both men were wearing dark clothes and their faces were covered. The store clerk was walking to her car around 10:15 p.m. when two men dressed in black told her to get back in the store. One of the men had a gun and threatened to shoot her. She unlocked the door, turned off the alarm, and gave the men all the cash contained in the store registers. Joshua testified that Appellant carried the gun.

The final robbery occurred at the Ideal service station. Turnley testified that she drove Appellant to the service station at about 4:30 a.m. and waited in the car for the store to open. Appellant was dressed in dark clothing with his face covered. The Ideal manager testified that a man dressed in all black grabbed him as he approached the store, pointed a gun at his head, and threatened to kill him if he didn't open the store immediately. Because the locks had been changed due to the recent burglary, the manager was unable to open the door. According to the manager, the assailant became angry and hit him repeatedly. Eventually, the manager grabbed a piece of block and broke the glass door. He then entered the store and gave the assailant $2,000 from the store safe. The assailant ordered him to take off his clothes and remain on the floor until after he had left. Turnley testified that Appellant carried a revolver during this robbery.

Turnley provided the bulk of the testimony concerning the remaining charges. She testified to a series of thefts and burglaries involving herself and Appellant. In each incident, Appellant wore dark clothing, gloves, and a face covering, while she drove the getaway car. These additional crimes occurred at a construction site in a residential subdivision, a construction trailer near a vacant lot, a mini storage facility, a sports equipment retailer, and a construction equipment rental store.

The jury found Appellant guilty of three counts of robbery in the first degree, ten counts of burglary in the third degree, six counts of theft by unlawful taking over $300, and receiving stolen property over $300. The jury acquitted Appellant of wanton endangerment and one count of theft by unlawful taking.

During the penalty phase, the jury found Appellant to be a persistent felony offender in the first degree. Appellant was sentenced to twenty years imprisonment for each robbery and ten years for each of the remaining charges. The trial court ordered that the three robbery convictions and one receiving stolen property conviction run consecutively. The remaining convictions for burglary and theft were ordered to-run concurrently. Appellant now appeals the judgment as a matter of right. Ky. Const. 110(2)(b).

Further details will be developed as necessary.

Collateral Estoppel

Appellant first argues that the Commonwealth was collaterally estopped from litigating whether he was armed during the robberies because of his acquittal on the charge of possession of a handgun by a convicted felon. At the former trial, the jury made a finding that Appellant did not possess a handgun in Christian County “on or between May 26, 2007 and August 31, 2007.” Prior to his second trial, Appellant moved to exclude any evidence or testimony that he possessed a handgun at any time between May 26, 2007 and August 31, 2007. The trial court denied the motion.

The doctrine of collateral estoppel applies to criminal cases and generally means that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in a future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). See also KRS 505.040(2) (codifying principle of collateral estoppel). The defendant bears the steep burden of proving that the issue he seeks to foreclose from relitigation was actually decided in the first proceeding. Benton v. Crittenden, 14 S.W.3d 1, 5 (Ky.1999). “If a fact was not ‘necessarily determined’ in the former trial, the possibility that it may have been decided does not preclude reexamination of the issue.” Id. (quoting Montana v. United States, 440 U.S. 147, 152, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)). Stated otherwise, the doctrine extends only to questions of fact distinctly put in issue in the former prosecution and not merely collaterally in question.

Determining which questions were “actually decided” in the first proceeding frequently involves more than simple reference to the jury's verdict, particularly when, as here, the acquittal was based on a general verdict. In such circumstances, the reviewing court must “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge and other relevant matter, and conclude whether a rationale jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration [in the subsequent proceeding].” Benton, 14 S.W.3d at 4 (quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189) (emphasis in original). “The instructions under which the verdict was rendered, however, must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 92 L.Ed. 180 (1948).

Though a general verdict was issued in Appellant's first trial, the limited evidentiary requisites of the charge make it fairly simple to discern the issue upon which the jury based its decision. According to the instructions delivered, the Commonwealth needed only to prove that Appellant knowingly possessed a handgun in Christian County between May 26, 2007 and August 31, 2007, and that he was a convicted felon when he did so. The Commonwealth's theory was that Appellant constructively possessed the gun found in Turnley's bedroom dresser drawer. No evidence concerning the other alleged offenses was admitted.

Naturally, the bulk of the Commonwealth's case focused on Appellant's possession of the handgun, not his status as a convicted felon. The Commonwealth called Turnley to testify that Appellant lived at her apartment and kept nearly all of his belongings there. She also identified the gun found in her bedroom and stated that it belonged to Appellant. Detective Alexander, who executed the search warrant, testified that he found the gun in the same drawer as Appellant's wallet and identification cards. Appellant's parole officer testified that Appellant never listed Turnley's apartment as his address, but that she found him at the residence on at least a few occasions.

Though the defense presented little evidence, Appellant very successfully created reasonable doubt through cross-examination. In many respects, the case was a swearing contest between Appellant and Turnley. She was the Commonwealth's key witness and...