Queen v. Com.

• Decision Date: 20 May 1977
• Citation: 551 S.W.2d 239
• Parties: Larry QUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 239

551 S.W.2d 239

Larry QUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

May 20, 1977.

Garis L. Pruitt, Ashland, for appellant.

Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.

JONES, Justice.

Larry Queen appeals from a judgment sentencing him to 20 years' imprisonment pursuant to a jury verdict finding him guilty of armed robbery. KRS 515.020(1) (c). Queen claims error as grounds for reversal as follows: (1) there was no evidence that he used or threatened to use physical force with the intent of accomplishing a theft; (2) the trial court erred in refusing to admit the testimony of a co-indictee.

The evidence reveals that about 1 A.M. on Sunday, May 3, 1976, Queen went to the home of Ethel Lyons and her six children. The lights in the house were out except for the light projected by a television set. Ethel Lyons was sitting on a couch with a friend, Thomas Blevins. The children were all in bed. Queen pounded on the door. Ethel asked him to go away. Queen refused and continued to pound on the door. Blevins fired two shots from a .22 caliber pistol to scare Queen away. That did not deter Queen. He kicked in the door and entered the house.

Upon this entrance into Ethel's house, Queen was wielding a knife. He chased Blevins from the house. After this event Queen attempted to get Ethel to go to the toilet. He threatened to strike her if she didn't drink a beer. Ethel attempted to escape from the house but in the struggle her blouse was torn. She went to a neighbor's house to call for help. A short time later, she was hiding behind a car parked near her house and she heard Queen admit finding the purse. She saw him walk out of the house with the purse, which contained $185.00. Carl Brown testified that Queen said, "I dumped the little sons of bitches out in the floor and found it (purse) under the mattress." There was testimony by the Commonwealth that Queen admitted taking the purse.

The Commonwealth introduced letters from Queen to Carl Brown. Queen asked Brown to "change the story around" so that he didn't see anything. The evidence also revealed that Queen and Brown attempted to pay Ethel the $185.00. Queen argues that there was not sufficient evidence in this case to support a jury finding of guilty on a first degree robbery charge. It is the Commonwealth's position that Queen's argument has no basis in either fact or law. It is the theory of the Commonwealth that when Queen wielded a knife forcing Ethel's friend to leave the house, KRS 515.020(1)(c) requires that the person toward whom the use or threatened use is directed must be someone other than a participant in the crime, but he need not be the robbery victim. There is no doubt that Ethel Lyons was put in fear shortly before the taking of the purse. That fear caused her to leave her house and her children.

Ethel was asked on direct examination:

"Q. Did Larry Queen say anything to you about money?

"A. I know Larry Queen steals. I know that.

"Q. No, answer my question. Did he say anything to you about money?

"A. No.

"Q. Tell us what Larry Queen did.

"A. Well, he wanted me to go out to the toilet and I wouldn't go. He wanted me to drink a beer and I wouldn't. I knocked it out of his hand. He threatened to hit me twice. I had to do something so when I run he tore my blouse. Almost tore it off. So I run down to the neighbors. I didn't know what he was after but I figured it was money."

On cross-examination Ethel testified that when Queen was in her house he had a knife but didn't threaten her. She also testified that when Queen was in her home he didn't ask for money or make any demands for her to give him money.

The record reveals that at the close of the Commonwealth's case, Queen made a motion for a directed verdict on the grounds that the Commonwealth had not proven the elements of the charge set out in the indictment. That motion was overruled.

Queen then testified. He admitted that when he was on Ethel's porch a gun was fired three times. He thought Ethel was in danger. He looked through a crack in the wall and saw a man with a pistol. According to Queen, he was afraid the man had shot Ethel and he kicked the door in. The man...