Ray v. Com.

• Citation: 550 S.W.2d 482
• Parties: Milton RAY, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 18 February 1977
• Court: United States State Supreme Court (Kentucky)

Page 482

550 S.W.2d 482

Milton RAY, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Feb. 18, 1977.

Rehearing Denied June 10, 1977.

Jack Emory Farley, Public Defender, J. Vincent Aprile II, Asst. Public Defender, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.

CLAYTON, Justice.

Mrs. Iveta Sprowles was working in a liquor store in Springfield, Kentucky, on September 26, 1975, when three black men entered, struck her unconscious, and robbed her of personal items and cash, as well as cash and checks from the store's cash register. Mrs. Sprowles subsequently identified as a participant in the robbery the appellant, Milton Ray, Jr., resulting in his indictment and ultimate conviction of first-degree robbery, for which he was sentenced to imprisonment for 20 years. He appeals, alleging three separate grounds for reversal.

Appellant first complains the trial court committed reversible error by overruling his motion to suppress any in-court identification of him by Mrs. Sprowles without first conducting an evidentiary hearing outside the presence of the jury to determine whether such identification was tainted by the prior identification during the police station lineup, which was stipulated by the Commonwealth to have been improper. In denying this motion the trial judge indicated he did so because he felt Mrs. Sprowles' testimony would demonstrate the extent to which her ability to recognize appellant as a participant in the robbery had been influenced by the unduly suggestive lineup, so that any suppression of such evidence in this initial stage of the proceeding he considered to be premature. Although we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant's conviction. The record shows Mrs. Sprowles testified on direct examination regarding her ability to recognize the appellant and was extensively cross-examined on this same point, but it does not indicate her in-court identification was affected by the prior improper identification. As such, we do not consider the trial court to have committed prejudicial error by permitting the witness to identify the appellant in the jury's presence.

Appellant secondly argues the trial court erred in denying his motion for a directed verdict of acquittal, contending the evidence does not indicate appellant committed robbery in the first degree in violation of KRS 515.020, and that there was no evidence of his complicity in the offense to make him liable for the conduct of another under the provisions of KRS 502.020(1). We have reviewed the evidence and conclude that it was sufficiently incriminating to warrant submission of the issue to the jury. Cf. Rogers v. Commonwealth, Ky., 444 S.W.2d 548 (1969). The testimony presented, we feel, was sufficient to support a finding that appellant participated in the robbery with a specific intention to promote or facilitate its commission, and so we hold there to have been no error in the overruling of appellant's motion.

Appellant's final allegation of error concerns the trial court's instruction on the law of complicity liability. The trial court instructed the jury to the effect that if it believed from the evidence beyond a reasonable doubt that (1) Ray "or persons aiding and assisting him" stole a sum of money from the Springfield Liquor Store and (2) in the course of so doing and with intent to accomplish the theft "one of them caused physical injury to Iveta Sprowles by striking her with his hand or fist or some instrument," it should find him guilty of first-degree robbery. Cf. KRS 515.020(1)...