Wolbrecht v. Com.

• Decision Date: 30 October 1997
• Docket Number: Nos. 95-SC-229-M,95-SC-230-MR,s. 95-SC-229-M
• Citation: 955 S.W.2d 533
• Parties: Peggy Ann WOLBRECHT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Arthur FEAKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 533

955 S.W.2d 533

Peggy Ann WOLBRECHT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Arthur FEAKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 95-SC-229-MR, 95-SC-230-MR.

Supreme Court of Kentucky.

Oct. 30, 1997.

Hugh B. Bishop, Elizabeth E. Vaughn, Henderson, Frank X. Gliozzo, Coral Gables, FL, for Appellant Wolbrecht.

Kevin A. Francke, Henderson, for Appellant Feakins.

A.B. Chandler, III, Attorney General, Matthew D. Nelson, Joseph R. Johnson, Assistant Attorneys General, Frankfort, for Appellee.

OPINION

STEPHENS, Chief Justice.

Appellants, Peggy Ann Wolbrecht and Arthur Feakins, were convicted of murder by complicity, as defined by KRS 507.020 and 502.020, and were each sentenced to 20 years imprisonment. They appeal to this Court as a matter of right. While appellants raise numerous issues in their appeals to be reviewed by this Court, the main issue this Court will address is whether the trial judge erred by: (1) permitting the Commonwealth, over defense counsels' objection, to amend the indictment enlarging the basis for their conviction midway through the trial; and (2) failing to grant a sufficient continuance to allow the defendants to adequately prepare a new defense.

Robert Wolbrecht [hereinafter "Robert"] was shot and killed in the early morning hours of September 1, 1985, in Henderson County, Kentucky after being badly beaten and shot three times with a .22 caliber weapon. His widow, Peggy Ann Wolbrecht, his son-in-law, Arthur Feakins, and his nephew by marriage, Bobby Taylor, were indicted on March 2, 1993, for his murder.

The indictment charged Peggy Ann Wolbrecht, Arthur Feakins and Bobby Taylor with Murder by Complicity under KRS 507.020 and 502.020, and read as follows:

That on or about September 1, 1985, in Henderson County, Kentucky, the defendants, Peggy Ann Wolbrecht, Bobby Gene Taylor, and Arthur Feakins, committed the offense of murder by shooting Robert J. Wolbrecht with a pistol, or by soliciting, aiding, counseling, or engaging in a conspiracy with the remaining defendants named herein as a result of which one (1) of the defendants shot and killed Robert J. Wolbrecht with a pistol.

The Bill of Particulars filed with the trial court on December 13, 1993, read as follows:

The approximate date, time and location of the murder occurred on September 1, 1985, at 2:00 o'clock a.m. at 334 Walnut Lane, Henderson, Kentucky. The solicitation, aiding, counseling, or engaging in a conspiracy regarding said murder occurred prior to this date and time in Hollywood, Florida. Possible eyewitnesses to the murder or who can place defendant in the vicinity of the murder are Arthur Raymond Feakins and Bobby Gene Taylor.

Prior to trial, local counsel for the defendants moved to withdraw, stating a conflict of interest and requesting co-defendant, Bobby Taylor's trial be separated from the trial of Wolbrecht and Feakins. Consequently, the co-defendant, Taylor, was not present during the trial of Wolbrecht and Feakins.

Wolbrecht's and Feakins' trial commenced on January 24, 1995. During voir dire and opening statements, both the Commonwealth and defense counsel read the indictment to the jury, focusing on the specific charges set out in the indictment. Testimony elicited at trial indicated that Robert Wolbrecht came from Hollywood, Florida to Henderson, Kentucky for the spring-summer racing meet at Ellis Park. He was a 46 year-old jockey who during the race meet lived in a sparsely furnished house owned by Peggy Ann Wolbrecht's brother, Robert Fambrough.

Robert Wolbrecht was an "older" jockey and had not had a winning season. However, on August 31, 1985, he won the fourth race on a horse named Dixie Flyer. Dixie Flyer paid $24.80 to win. On that same evening Robert Wolbrecht and some other "track people", including other jockeys, trainers, and owners, were at the Ramada Inn Starting Gate Lounge, located in Henderson, Kentucky. Some were celebrating the birthday of a jockey, but Robert was celebrating his "big win" that day. In fact, he flashed a stack of one-hundred-dollar bills and bought drinks for everyone, including a man named Elvie Cobb. Cobb had been evicted from the track for suspicion of booking and gambling on August 31, 1985.

Robert Wolbrecht was also seen at another bar that night. However, witness testimony varied regarding the actual time he was present at the two establishments. One witness testified that he saw Robert's truck leaving the Black Horse Lounge parking lot between 1:45 and 2:00 a.m. Another witness testified Robert left the Starting Gate Lounge with Elvie Cobb and a blond jockey around 2:00 a.m. Sgt. John Ricks saw him at the Black Horse between 11:00 p.m. and midnight.

Wolbrecht's body was discovered about 2:00 p.m., Sunday, September 1, 1985, by Robert Fambrough's son, Marty Fambrough. His body was found badly beaten, shot three times and his feet were crossed at the ankles. Marty immediately notified the police.

When Robert left Florida for Kentucky, Peggy Ann Wolbrecht was operating a nursing home out of their residence. The business netted approximately $4,000 per month. Testimony indicated that Robert was not pleased that his wife was operating a nursing home out of their residence.

The Commonwealth's theory was that Robert was planning to return to Florida after the Ellis Park racing season to "clean house," which apparently meant getting rid of the older people living in his house, as well as Feakins and Taylor, who were also living there. Feakins was and is married to the Wolbrechts' older daughter, Melodie. Feakins testified that Robert once threatened to shoot certain parts off of him when it was announced that Melodie was pregnant and that she and Feakins were planning to be married. Feakins and Wolbrecht both testified that at that time, Robert went to get his gun and Feakins, subsequently, left. Robert still fired the pistol even though Feakins had left. Nevertheless, after Melodie and Feakins were married, Robert helped Feakins get started in the lawn mowing business. The two frequently worked together and Robert gave Feakins his confirmation name in the Roman Catholic Church.

During 1984 and 1985, a number of home invasion robberies occurred in south Florida. Feakins was involved in some of these robberies and entered into a plea agreement in the state of Florida. Others convicted in these crimes were Anthony Caracciolo [hereinafter "Caracciolo"] and Jay Richitelli [hereinafter "Richitelli"], Richie Fererro, Scott Richitelli, Frank Zucarello, Ronny Morano, and unnamed others. Feakins cooperated with Florida authorities in solving these crimes and Caracciolo and Richitelli were subsequently convicted for the robberies as well as for the murder of a Miami contractor. It was never suggested that any of these people, other than Feakins, were involved in Robert's murder until after the indictment was amended, and particularly in the Commonwealth's closing argument.

The Commonwealth transported Richitelli and Caracciolo from their jail cells in Florida to the Henderson County Detention Center in Henderson, Kentucky to testify on behalf of the Commonwealth at the trial of Wolbrecht and Feakins. Caracciolo testified that sometime in March, 1985, he purchased a .22 High Standard pistol for Richitelli who was under age at the time.

Both Richitelli and Caracciolo, testified that the pistol, equipped with a silencer, was "loaned" to Feakins. Richitelli testified that Feakins and Richard Fererro approached him sometime before the Labor Day Weekend in 1985, and asked him if he had a .22 caliber weapon with a silencer they could borrow. Richitelli testified that Feakins told him that they wanted the gun to kill Robert. Wolbrecht was not present during this meeting, but Richitelli stated that he talked with her via the telephone during the meeting and she told him he would be "accommodated for the weapon." Richitelli stated that Feakins and Fererro left the building with the gun. Richitelli stated he next saw the gun after Labor Day weekend, 1985, when both Feakins and Fererro returned the gun to him and told him they did not use the weapon. Both Richitelli and Caracciolo testified that in early January, 1986, in Caracciolo's apartment, Wolbrecht commented that Robert would not be coming back to Florida to clean up her house because she had "taken care of it."

Wolbrecht testified at the trial that she filed for divorce in 1973, but she and Robert got back together three to four weeks later. She claimed that she never met any of the people who had implicated her in the murder and never said "I took care of that". She testified that at no time did she ever ask for a gun with a silencer and stated that she did not plan the murder of her husband with anyone. She testified that she did not aid or abet having her husband killed and did not solicit anyone to kill him.

Not one witness placed either Wolbrecht, Feakins or Taylor anywhere near the vicinity of Robert's murder in Henderson, Kentucky during the Labor Day weekend of 1985. Testimony at trial indicated that both Wolbrecht and Feakins were in Florida on that weekend, although Richitelli testified that Feakins told him he had been "present" at Robert's murder.

The trial in this case was initially scheduled to begin on September 20, 1984. However, the Commonwealth filed a Motion for Postponement and the trial ultimately began on Tuesday, January 24, 1995. On the fifth day of the trial, Friday, January 31, 1995, the Commonwealth moved to amend the indictment pursuant to RCr 6.16, after Richitelli was called to the stand, but before completion of the Commonwealth's examination. Major Don Farris of the Henderson Police Department, was the only witness called by the Commonwealth after completion of Richitelli's testimony.

Defense counsel strongly objected to the Commonwealth's Motion to Amend and a lengthy hearing was conducted in chambers. The trial court eventually granted the...