Blankenship v. Commonwealth

740 S.W.2d 164, 1987 Ky. App. LEXIS 587, 1987 WL 4058
CourtCourt of Appeals of Kentucky
DecidedOctober 23, 1987
DocketNo. 86-CA-2270-MR
StatusPublished
Cited by4 cases

This text of 740 S.W.2d 164 (Blankenship v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blankenship v. Commonwealth, 740 S.W.2d 164, 1987 Ky. App. LEXIS 587, 1987 WL 4058 (Ky. Ct. App. 1987).

Opinion

GUDGEL, Judge:

This is an appeal from a judgment entered by the Johnson Circuit Court after a jury convicted appellant of robbery in the first degree. Appellant in essence contends that the trial court erred (1) by admitting into evidence a handwritten note which was seized during a warrantless search of the vehicle he drove on the night of the alleged robbery, (2) by failing to grant his motion for a mistrial after a deputy sheriff testified that appellant requested an attorney subsequent to his arrest, (3) by failing to instruct the jury concerning the offense of terroristic threatening, (4) by excluding certain evidence indicating that he was previously acquainted with the alleged victim, and (5) by failing to reopen the case and permit him to adduce additional evidence. We disagree with all of appellant’s contentions. Hence, we affirm.

During the early morning hours of October 13, 1984, a robbery allegedly occurred at a gas station in the Paintsville area. Appellant, the alleged robber, was found at the scene with two gunshot wounds to his head. He and the station attendant, Charles Dollarhide, were the only witnesses to the occurrence.

Dollarhide testified that appellant entered the station, pointed a gun at him and demanded money. Dollarhide gave appellant $125 and he left. Dollarhide proceeded, however, to press a silent burglar alarm and obtain a weapon. The appellant then returned to the building and began shooting. Dollarhide returned the gunfire, and appellant fell on the porch after being hit twice in the head. Dollarhide denied knowing appellant prior to this incident.

Appellant testified that he and Dollarhide had known one another for some years and had partied together on numerous occasions. On the afternoon before the alleged robbery, they drove to another county so that appellant could purchase marijuana. Appellant gave some of it to Dollarhide, with the understanding that he would be paid for it that night while Dollarhide was at work. When appellant arrived at the gas station that night, Dollarhide acted as if he did not know him, refused to pay him [166]*166the money and pulled a gun on him. Appellant returned home, obtained his own gun and went back to the station. He got out of his car, concealed the gun in his pants, and walked toward the building. However, Dollarhide surprised him and shot him.

At the conclusion of the trial, the jury returned a guilty verdict and a judgment was entered accordingly. This appeal followed.

First, appellant contends that the court erred by admitting into evidence a handwritten note which was seized during a warrantless search of the vehicle he drove on the night of the robbery. We disagree.

It appears from the evidence that appellant was unconscious from the time he was shot until a week or ten days later. It was uncontroverted at trial, however, that he carried no identification when he was injured, and that his identity was still unknown by law enforcement and medical personnel when the deputy sheriff entered the vehicle. Further, there was no indication that when he entered the vehicle, which had been towed to another location, the deputy sheriff sought anything besides something to disclose either appellant’s identity or that of a family member. Moreover, it was uncontroverted that the note, which read “[b]e cool, give me all the money,” was then plainly visible on the car’s dash, although the deputy sheriff did not notice it before he entered the vehicle.

Clearly, seeking the identity of a injured person is a task which may cause a law enforcement official to have extensive noncriminal contact with an automobile driven by the person, and a search of the vehicle for that purpose without a warrant is not necessarily unreasonable. See Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Cf. Kuzmiak v. Flowers, Ky., 580 S.W.2d 226 (1979) (taking a blood sample from a person killed in an automobile accident was part of the state trooper’s accident investigation and did not amount to unreasonable search and seizure.)

Here, the investigating officer responded to appellant’s shooting in a manner in which we would expect any officer to respond when dealing with an unidentified, seriously injured person. We do not believe, in view of the exigent circumstances present in the instant action, that the officer’s entry into the vehicle was unreasonable merely because he did not obtain a search warrant. See Dombrowski, supra. Once in the automobile, the officer’s seizure of the note which was then in his plain view was clearly not illegal. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

Appellant also argues that the note seized was inadmissible into evidence because it was irrelevant and because it constituted evidence of other crimes. However, these objections to the admission of the note were not raised at appellant’s trial. Hence, they were not preserved for our review. Moreover, we are not persuaded, in view of the evidence adduced, that any manifest injustice resulted from the note’s admission into evidence.

Next, appellant contends that the trial court erred by failing to grant him a mistrial after a deputy sheriff testified that appellant requested an attorney subsequent to his arrest. We disagree.

The testimony about which appellant complains was given in response to a question as to whether appellant made any statement at the time of his arrest, some several months after the robbery occurred. The witness stated that appellant “was advised of his rights. He asked to see an attorney. He made a short voluntary statement, completely on his own on the way to Paintsville.” (Emphasis added.) Appellant immediately objected and moved for a mistrial. Although the court denied the motion for a mistrial, the jury was admonished not to consider the officer’s remark concerning appellant’s request for an attorney.

Appellant, citing Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), argues that it was fundamentally unfair and violative of his due process [167]*167rights for the witness to testify that appellant sought to exercise his Miranda rights by asking to speak with an attorney. However, appellant’s reliance on Doyle is misplaced. Doyle involves the prosecution’s improper use of a defendant’s postarrest silence to impeach that defendant’s subsequent exculpatory story. The mere mention of a postarrest decision to request an attorney, by contrast, does not inherently create a comparable level of doubt as to the truthfulness of the defendant’s subsequent exculpatory story. Moreover, we are convinced that any prejudice caused as a result of the officer’s comment was rendered harmless by the court’s admonishment to the jury. See Sanders v. Commonwealth, Ky., 609 S.W.2d 690 (1980); Stallings v. Commonwealth, Ky., 556 S.W.2d 4 (1977).

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Bluebook (online)
740 S.W.2d 164, 1987 Ky. App. LEXIS 587, 1987 WL 4058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blankenship-v-commonwealth-kyctapp-1987.