Thomas v. Com.
| Decision Date | 26 September 1996 |
| Docket Number | No. 95-SC-234-DG,95-SC-234-DG |
| Citation | 931 S.W.2d 446 |
| Parties | Kirt D. THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Susan Jackson Balliet, Prospect, for Appellant.
A.B. Chandler, III, Attorney General, Amy F. Howard, Assistant Attorney General, Criminal Appellate Division, Frankfort, for Appellee.
Today we are called upon to review our decision in Stark v. Commonwealth, Ky., 828 S.W.2d 603 (1992), which holds in part that a robbery indictment is void if it fails to specifically allege that a person was robbed. After thoughtful review and for the reasons detailed below, we overrule that portion of Stark.
On January 27, 1987, Kirt D. Thomas was sentenced to life imprisonment for first-degree robbery. This Court upheld Thomas's conviction and sentence on direct appeal. Thomas's subsequent RCr 11.42 motion was denied.
Years later, Thomas filed a pro se motion to vacate the judgment pursuant to CR 60.03, claiming that the indictment underlying his conviction was void pursuant to Stark and therefore his conviction should be set aside. The Bourbon Circuit Court denied Thomas's CR 60.03 motion and the Court of Appeals affirmed that denial. We granted discretionary review of that decision by the Court of Appeals and have reexamined our holding in Stark.
The doctrine of stare decisis is a judicial policy implemented to maintain stability and continuity in our jurisprudence. It is based upon the belief that similar cases should be decided in a similar manner. When a court of institutional review announces a principle of law to apply to a general set of facts, the doctrine of stare decisis requires the court, in the absence of "sound legal reasons to the contrary" to adhere to that same principle in future cases where there is a similar factual pattern. Hilen v. Hays, Ky., 673 S.W.2d 713, 717 (1984).
Washington v. W.C. Dawson & Co., 264 U.S. 219, 238, 44 S.Ct. 302, 309, 68 L.Ed. 646 (1924) (Brandeis, J., dissenting). The principle of stare decisis does not require us to adhere blindly to previous decisions when we determine those decisions were in error.
The strong respect for precedent which is ingrained in our legal system is a reasonable respect which balks at the perpetuation of error, and it is the manifest policy of our courts to hold the doctrine of stare decisis subordinate to legal reason and justice and to depart therefrom when such departure is necessary to avoid the perpetuation of pernicious error. Accordingly, the authority of precedents must often yield to the force of reason and to the paramount demands of justice as well as the decencies of civilized society, and the law ought to speak with a voice responsive to these demands.
In Stark, four counts of a multi-count indictment alleged first-degree robbery accomplished by the threat of physical force upon a business entity rather than the person employed by the business. We noted that the robbery statute, KRS 515.020, provided that a robbery can only be committed against a person. Stark then held that failure to include in the indictment an allegation that force was used or threatened against a person, rather than a business, constituted a failure to state a public offense. Therefore, the Court declared each of those robbery counts of the indictment void and permitted the indictment's sufficiency to be challenged for the first time on appeal. The Court reversed those four robbery convictions, thus vacating 79 years of Stark's 537-year sentence. We now overrule this portion of Stark because it is premised on the former Code of Practice in Criminal Cases and overlooks the changes implemented by the adoption of the Rules of Criminal Procedure.
Stark relied on cases, particularly Duncan v. Commonwealth, Ky., 330 S.W.2d 419 (1959), decided under the old Criminal Code. However, the present-day Rules of Criminal Procedure were enacted long before Stark was decided. The Rules, and cases decided under the Rules, should have formed the basis for our decision in Stark but did not. They do form the basis of our decision here.
The old Criminal Code mandated the use of "fact pleading." For example, Criminal Code § 124 provided:
Facts concerning which it must be direct and certain. The indictment must be direct and certain as regards--
1. The party. The party charged.
2. The offense. The offense charged.
3. The county. The county in which the offense was committed.
4. The circumstances of the offense. The particular circumstances of the offense charged, if they be necessary to constitute a complete offense.
In addition, Criminal Code § 122(2) required that an indictment contain:
A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case. (Emphasis added.)
"Prior to the promulgation of the Rules of Criminal Procedure on January 1, 1963, this court interpreted section 122 of the old Criminal Code of Practice as requiring an indictment to contain every essential element of the crime charged." Fitzgerald v. Commonwealth, Ky., 403 S.W.2d 21, 23 (1966).
Duncan, supra, illustrates the specificity required by fact pleading. There, the indictment charged the defendant with "the crime of Armed Robbery" and stated the crime was committed by "force, violence and arms." The Court reversed Duncan's conviction for armed robbery because of the failure of the indictment to describe the "arms" as a pistol, gun, firearm or deadly weapon, those being the terms used in the armed robbery statute. Although Duncan "may have been fully aware of the details of the charge made against him," the Court could not "indulge that presumption" because of prior cases under the Criminal Code and because of the "plain command of Criminal Code section 124." Duncan, 330 S.W.2d at 423.
As Judge Palmore correctly predicted in Duncan in 1959: "Proposed new rules of criminal procedure now in preparation may relax the traditional requirements applicable to indictments...." Id. The Code of Practice in Criminal Cases was superseded by the Rules of Criminal Procedure which adopted the principle of notice pleading. Finch v. Commonwealth, Ky., 419 S.W.2d 146, 147 (1967). The rules "adopted subsequent to Duncan have substantially liberalized the traditional requirements applicable to indictments." Wylie v. Commonwealth, Ky., 556 S.W.2d 1, 2 (1977). An indictment "under the rules need not be as elaborate and detailed as it was theretofore required to be." Calhoun v. Commonwealth, Ky., 378 S.W.2d 222, 224 (1964).
The notice pleading of the Rules of Criminal Procedure, unlike the fact pleading it replaced, does not require exact, precise details. It is unnecessary under RCr 6.10 "to restate all the technical requisites of the crime of which a defendant is accused, if the language of the indictment, coupled with the applicable statute, unmistakably accomplishes this end result." Runyon v. Commonwealth, Ky., 393 S.W.2d 877, 880 (1965). An indictment is sufficient if it fairly informs the accused of the nature of the charged crime, without detailing the formerly "essential" factual elements, Finch, supra, 419 S.W.2d at 147, and "if it informs the accused of the specific offense with which he is charged and does not mislead him." Wylie, supra, 556 S.W.2d at 2.
The changes brought about by replacing the old Code of Practice in Criminal Cases with the Rules of Criminal Procedure are illustrated by a comparison of Jarvis v. Commonwealth, 231 Ky. 505, 21 S.W.2d 828 (1929), and Wylie v. Commonwealth, Ky., 556 S.W.2d 1 (1977). In Jarvis, the Court held that the Criminal Code, § 122 and § 124, mandated reversal of a conviction for felonious embezzlement because the indictment did not specify that the amount converted was $20 or more, the amount necessary to make the charge a felony. In contrast, after the enactment of the Rules of Criminal Procedure, the Court in Wylie affirmed a conviction for the felony offense of receiving stolen property even though the indictment did not mention that the value of the stolen property exceeded the statutory minimum. As the Court in Wylie pointed out, the defendant was charged with an offense, knowingly receiving stolen property, and was thereby adequately informed of the charge.
Under the former Criminal Code, the sufficiency of an indictment could be challenged for the first time on appeal if the indictment failed to include: 1) the statutory offense charged, § 124(2); 2) factual particulars necessary to constitute a complete offense, § 124(4); and 3) a statement of acts constituting the offense with such certainty as to allow the court to pronounce judgment on conviction, § 122(2). See, e.g. Strunk v. Commonwealth, 302 Ky. 464, 194 S.W.2d 1002 (1946) and Bennett v. Commonwealth, 150 Ky. 604, 150 S.W. 806 (1912). However, under the Rules of Criminal Procedure, the only grounds on which the institution of a prosecution or an indictment can be attacked for the first time on appeal are: 1) "[l]ack of jurisdiction" or 2) failure of the indictment to "charge an offense." RCr 8.18.
Charging an offense was required by the Code of Practice for Criminal Cases, § 124(2), and that requirement was carried over into the Rules of Criminal Procedure. Even under the fact pleading required by the Code, all that was necessary to charge an offense was to name the statutory offense, if it had a name. If the offense charged was a common law offense with no general or statutory name, then a brief general...
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