Fields v. Com.

219 S.W.3d 742

James Lee FIELDS, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000610-MR.

Supreme Court of Kentucky.

April 19, 2007.

Susan Jackson Balliet, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, James C. Shackelford, Assistant Attorney General, Office of Criminal Appeals, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

On March 26, 2004, a jury found Appellant, James Lee Fields, guilty of: (1) complicity to commit assault in the second degree, and (2) complicity to commit robbery in the first degree. He was sentenced to ten (10) years for the complicity to commit assault and fifteen (15) years for the complicity to commit robbery, both to run consecutively. He now appeals as a matter of right, Ky. Const. § 110(2)(b), alleging the trial court violated his due process rights by: (1) not merging the robbery and assault charges, thus allowing double jeopardy; (2) allowing complicity amendments to be made to his indictment following the close of the evidence; (3) allowing admission of the victim's pretrial identification of Appellant; (4) denying his tendered intentional fourth degree assault misdemeanor instruction; (5) overruling his objection and mistrial motion concerning prosecutorial misconduct in closing arguments; and finally, (6) denying his motion for a new trial regarding juror dishonesty against his co-defendant during voir dire. After a careful review of the record, we affirm Appellant's convictions.

I. Facts

On November 16, 2003, Collin Rogers (Rogers) was hitch-hiking from Letcher County, Kentucky, to Virginia to get some beer when Coley Brown (Brown) pulled over to pick him up. Rogers offered Brown three dollars to give him a ride to Virginia and Brown agreed. On the way, Brown drove by and picked up Appellant. Appellant then took over the driving. They then drove to Virginia, where Rogers bought a case and a half of beer.

Later, they drove back to Letcher County, stopping at Brown's ex-wife's house to drop some things off. By then it was dark. Rogers went inside the house, but became suspicious and tried to leave when Appellant and Brown started talking secretively with Brown's ex-wife. Appellant and Brown, however, followed him and ordered him back into the car. When he hesitated, Brown told him he had a rifle and mace in his trunk and he was going to spray him if he didn't get back in the car.

Back in the car, Brown berated Rogers calling him a "Vietnam pussy," and telling him he was going to kill him. Appellant chimed in that he was going to teach him a lesson. They then drove to a nearby cemetery where they frisked Rogers for weapons, checked his backpack, and looked through his wallet. Soon thereafter, they stopped and let Rogers out of the car.

As Rogers started to leave, Appellant asked for a couple of beers. Rogers returned to the car and gave him several, yet Appellant demanded a different kind. When Rogers ignored him and walked away, Appellant got out and started beating him. During the fray, Rogers taunted Appellant by telling him "his daughter could hit harder than [Appellant] could." Appellant then yelled for Brown to come and help. Brown came over and hit Rogers with a lug wrench. Appellant then told Brown to get Rogers's wallet. As Rogers reached for his wallet; Brown hit him again with the lug wrench. Appellant and Brown told Rogers they were going to bash his head in with the lug wrench and kill him. Believing they would kill him if they got his wallet, Rogers threw the wallet into some nearby bushes, whereupon, Appellant and Brown left him to search for the wallet.

Fortunately, at this moment, Larry Kelly (Kelly) drove by. He saw the parked car and slowed down to look. He immediately heard someone yell, "Please sir, help me! They're trying to kill me! They're robbing me! They're trying to kill me! Please sir, help me!" Rogers was on his knees with his hands behind his head. A man standing behind Rogers told Kelly that Rogers was just drunk. However, Kelly did not leave. Appellant and Brown then left. Kelly took Rogers to the local hospital and testified that Rogers had blood all over his head and hands and was shaking and scared.

Letcher County Deputy Sheriff, Shane Amburgy, responded to the call from the hospital. He testified that Rogers described to him what happened. He told him the assailants' names were Brown and a James Lee, last name unknown. Several days later, the deputy showed him photos of Appellant and Brown. He identified them as his attackers. "James Lee" turned out to be Appellant.

II. There was no merger of the assault charge into the robbery charge and thus, no "double jeopardy."

At the close of Appellant's case, Brown, Appellant's co-defendant, moved for a directed verdict on grounds the assault charge merged into the robbery charge. The trial court denied the motion. Appellant now argues that because there was no merger, he was subjected to "double jeopardy" by being convicted of both counts.

Appellant, however, did not join in Brown's motion regarding merger and argues it now for the first time within the context of "double jeopardy." This issue was therefore not preserved and should only be reviewed under a palpable error standard. Cf. Price v. Commonwealth, 474 S.W.2d 348, 350 (Ky.1971) (where a defendant was being tried along with two co-defendants, and counsel for one of the co-defendants objected to the admission of certain evidence, but defendant did not object to the introduction of such evidence, the defendant failed to preserve the issue of admissibility of the evidence for appellate review). Yet, given our deference to "double jeopardy" issues under the doctrine of Sherley v. Commonwealth, 558 S.W.2d 615 (Ky.1977), we will review the assignment of error, although we have expressed some doubt concerning the appropriateness of such continued review. Cf. Baker v. Commonwealth, 922 S.W.2d 371, 374 (Ky.1996).

In Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996), this Court held that "[d]ouble jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute `requires proof of an additional fact which the other does not."' Id. at 809 (citations omitted). Consistent with this, this Court held in Taylor v. Commonwealth, 995 S.W.2d 355 (Ky.1999), that there was no double jeopardy [when] the defendant was convicted of both assault and robbery, where:

conviction of either the assault or the robbery of [the victim] required proof of an element not required to prove the other. The conviction of robbery required proof of a theft, which was not required to convict of assault. The conviction of assault required proof of a physical injury to [the victim], whereas the conviction of robbery required proof only that the Appellant used or threatened the use of physical force upon [the victim] while armed with a .22 rifle.

Id. at 359.

KRS 508.020, assault in the second degree, states, as pertinent here, that a person is guilty of assault in the second degree when "[h]e intentionally causes physical injury to another person by means of a . . . dangerous instrument." The instruction given by the trial court required the finding of physical injury by [Brown by] means of a "dangerous instrument."

KRS 515.020, robbery in the first degree, states, as pertinent here:

that a person is guilty of robbery in the first degree when in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he: . . . . c) uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.

The robbery instruction given by the trial court required that "[Brown] attempted to steal the wallet" with "intent to accomplish the theft" by threatening the "immediate use of physical force . . . with a `lug wrench,' a `dangerous instrument."'

In this case, the actual infliction of physical injury to Rogers by a dangerous instrument was not required to convict Appellant of complicity to robbery in the first degree; nor was the theft required for conviction of complicity to assault second. Both of these statutes thus had different elements that had to be proved in finding guilt under the respective instructions. Each required proof of an element not contained within the other and thus the doctrine of merger was not applicable. There being no merger, the rule of "double jeopardy" was not violated. That being so, there was neither error, nor "palpable error."

III. Amending the indictment was not error.

Neither the Appellant, nor his co-defendant Brown testified at trial. Brown, however, called two alibi witnesses for his "whereabouts" at the time of Rogers's beating. The Appellant, on the other hand, relied on a "reasonable doubt defense," attacking the accuracy and credibility of the Commonwealth's witnesses.

Following the close of all the evidence, the Commonwealth moved to amend the original counts of assault second and first degree robbery against Appellant to complicity to first degree robbery and assault second.¹ Appellant objected on grounds of lack of notice and due process, but requested no continuance, or right to reopen, to provide additional evidence. He now claims the amendment violated his Fourteenth Amendment due process right to notice. On the facts at hand, we disagree RCr 6.16 permits a court to amend an indictment at any time before verdict, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. If "[n]o additional evidence [is] required to prove the amended offense and [Appellant has] not shown that [he was] prejudiced by the amendment, [then amending the indictment is not] error." Schambon v. Commonwealth, 821 S.W.2d 804, 810 (Ky.1991). "[A]mending the indictment to include...