Pankey v. Com.

• Citation: 485 S.W.2d 513
• Parties: Carl Sims PANKEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Thomas Leonard POPE and Leonard Daniel Spears, Appellants, v. COMMONWEALTH of Kentucky, Appellee. Verser Joseph SWAITE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 12 May 1972
• Court: United States State Supreme Court (Kentucky)

Page 513

485 S.W.2d 513

Carl Sims PANKEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Thomas Leonard POPE and Leonard Daniel Spears, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Verser Joseph SWAITE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 12, 1972.

As Modified on Denial of Rehearing Oct. 6, 1972.

Donald M. Heavrin, Foster V. Jones, Jr., Glenn McDonald, J. Daniel Davis, Stuart Lyon, David Kaplan, Edward Brady, Jr., Kaplan, Lyon & Brady, Don H. Major, J. Bruce Miller, Carroll & Miller, Louisville, for appellants.

John B. Breckinridge, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for appellee.

VANCE, Commissioner.

Carl Sims Pankey, Thomas Leonard Pope, Leonard Daniel Spears and Verser Joseph Swaite, hereinafter referred to as Pankey, Pope, Spears and Swaite, respectively, appeal from judgments sentencing each of them to life imprisonment for armed robbery and sentencing each of them to death for murder. They were indicted jointly, tried together, and their appeals have been consolidated for consideration in this court.

On September 1, 1967, a supermarket in Louisville, Kentucky, was robbed at gunpoint by three men. They took $3,000.00 from the store including approximately twenty rolls of quarters and twenty rolls of nickels. They fled from the scene of the crime in an automobile which was stolen on the morning of the robbery.

William Meyers, a police officer, was sitting in his police cruiser near the store. He was notified immediately of the robbery by the store manager who pointed out the getaway car. Officer Meyers gave chase to the fleeing robbers and followed them directly to a parking lot adjacent to the Nolan Building. Apparently this parking lot was a prearranged transfer point and the robbers met at least one confederate there. The automobile used to escape from the scene of the robbery was abandoned on the Nolan Building parking lot. One of the four men jumped into a white Ford automobile and attempted to escape. While Officer Meyers was firing his pistol at the escaping white Ford, he was shot and killed by one of the remaining bandits, all of whom then escaped in a green Chrysler automobile.

In the haste to escape, the driver of the green Chrysler entered the Watterson Expressway near the scene of the robbery in an extremely reckless manner. This reckless operation of the vehicle was noticed by the driver of another automobile who took the license number of the green Chrysler. In a matter of minutes this alert motorist heard a radio broadcast concerning the robbery and the shooting of the police officer and he immediately notified the police of the reckless manner in which the green Chrysler departed the vicinity of the crime and gave the police the license number.

On the basis of this information a multistate alert was broadcast advising all persons to be on the lookout for a green Chrysler automobile bearing Illinois license plate number NW 5014. The appellant, Pope, was apprehended in this automobile on the following morning in Vincennes, Indiana. The automobile was registered in his name. A shaving kit containing twenty-four rolls of quarters and sixteen rolls of nickels was found in the trunk of the car.

Shortly thereafter a 1967 while Ford automobile, similar to the one used as a getaway car by one of the bandits, was recovered near Springfield, Illinois. This automobile had a bullet hole in the right-rear door and a crease on the trunk deck. A 38-caliber bullet was removed from the right-rear door which proved to have been fired from Officer Meyers' gun. Fingerprints found on the car were identified as those of Spears.

Pope was identified by employees of Hertz-Rent-A-Car as having rented a 1967 white Ford automobile on August 31, 1967, the day before the robbery and murder. This car bore a Kentucky license plate the last three digits of which were 561. A Kentucky license plate, the last three numbers of which were 561, was recovered and turned in to the police officers at Springfield, Illinois. Testimony was introduced that the license plate was recovered near the place where the white Ford was discovered.

Pope and Spears did not testify in their own behalf. Pankey and Swaite offered the alibi that on the day of the robbery and murder they, along with one Richard Blassick and Hollis Pruitt, were in Belvedere, Illinois, and committed a robbery of the Pacemaker Market in that city. The Pacemaker Market in Belvedere was, in fact, robbed on September 1, 1967.

Pankey and Swaite attempted to bring Richard Blassick to Louisville as a witness for them but he was unable to appear for the reason that he was on trial in another city for the robbery of yet another supermarket (not the Pacemaker Market in Belvedere). Richard Blassick's wife, Sandra, appeared as a witness and to some extent corroborated the alibi of Pankey and Swaite concerning their presence in Belvedere, Illinois. She testified that her husband's business was armed robbery; that he had planned the Pacemaker robbery and that Pankey and Swaite were in Belvedere on September 1, 1967, to participate therein.

Each of the appellants was identified by at least one eyewitness either as a participant in the robbery or as one of the four men who fled from the Nolan Building parking lot. In addition to the eyewitness' testimony, Spears was implicated by fingerprints and Pope by ownership of the green Chrysler and the evidence that he rented the white Ford getaway car.

Numerous grounds of error have been asserted by one or more of the appellants. We shall discuss each of the grounds separately and where necessary discuss further the evidence relating to the alleged error.

1--DENIAL OF EXAMINING TRIAL

The appellants alleged prejudicial error in that they were denied a preliminary hearing and thereby were deprived of the right to discover certain evidence. The evidence in this case was submitted directly to a grand jury and no examining trial was held. An examining trial is not designed as a discovery procedure for an accused but rather as a protection to prevent his detention in the event that probable cause is not shown. We have frequently held that when an indictment results from direct submission of evidence to a grand jury there is no cause for or right to an examining trial and the failure to conduct an examining trial is not erroneous. Jenkins v. Commonwealth, Ky., 477 S.W.2d 795 (decided March 3, 1972); Commonwealth v. Watkins, Ky., 398 S.W.2d 698 (1966) and Maggard v. Commonwealth, Ky., 394 S.W.2d 893 (1965).

The appellants also claimed error in that they were not permitted to appear as witnesses before the grand jury which indicted them. We do not find in the record a request on their part that they be permitted to appear before the grand jury but in any event the denial of such a request would not have been error. It is not the function of the grand jury to determine guilt or innocence but only to determine whether the evidence offered by the state is sufficient to warrant putting the accused to trial. The accused has no constitutional right to appear as a witness before the grand jury or to examine other witnesses who appear. 38 C.J.S. Grand Juries § 39.

2--ALLEGED IMPROPER CONDUCT AT LINEUP

The appellants Pope and Spears alleged that the testimony of an eyewitness was tainted as a result of an improperly conducted police lineup. They rely upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Wade dealt with a situation in which an indigent accused, without benefit of counsel and without having waived counsel, was subjected to a police lineup. In this case the accused were represented by counsel who were present when the lineup was conducted and Wade is not applicable. The circumstances of the conduct of the lineup about which appellants complain were presented to the jury and the jury had ample opportunity to judge the credibility of the testimony.

3--DENIAL OF MOTIONS FOR SEPARATE TRIAL

All of the appellants contend that the court erred in not sustaining their motions for separate trial.

RCr 9.16 provides:

'If it appears that a defendant or the Commonwealth is or will be prejudiced by a joinder of offenses or of defendants in an indictment or information or by joinder for trial, the court shall order separate trials of counts, grant separate trials of defendants or provide whatever ther relief justice requires. * * *.'

Whether a motion for separate trial should be granted is a matter which addresses itself to the discretion of the trial court. Hoskins v. Commonwealth, Ky., 374 S.W.2d 839 (1964) and Underwood v. Commonwealth, Ky., 390 S.W.2d 635 (1965).

Appellants assert their defenses were antagonistic to each other which fact was prejudicial in a joint trial. Two of the appellants offered defenses. The other two did not. The defenses were not antagonistic or incompatible. All appellants pleaded not guilty and no appellant presented a defense which refuted a defense of any codefendant. Although the quantity of proof against some of the appellants was greater than against others we believe that the jury was able to separate the evidence which was competent as to each defendant and to render a verdict as to each based upon evidence which pertained to him. The fact that one of the appellants was impeached by proof of a past conviction of felony would not as a matter of law require a separation of trials. Alford v. Commonwealth, Ky., 432 S.W.2d 414 (1968).

The trial court did not abuse its discretion in denying appellants' motion for separate trials.

4--QUALIFYING JURY AS TO DEATH PENALTY

All appellants objected to the procedure whereby many jurors who indicated they could not impose the death penalty in any case were stricken for cause. The specific objection was that the inability of particular jurors to return a verdict of death under any circumstance was not clearly evidenced by a voluntary expression of the...