Booth v. Commonwealth

675 S.W.2d 856, 1984 Ky. LEXIS 266
CourtKentucky Supreme Court
DecidedSeptember 13, 1984
StatusPublished

This text of 675 S.W.2d 856 (Booth v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Booth v. Commonwealth, 675 S.W.2d 856, 1984 Ky. LEXIS 266 (Ky. 1984).

Opinion

OPINION OF THE COURT

The appellants were convicted of robbery in the first degree and for being persistent felony offenders in the first degree. They received sentences of life imprisonment, and appeal to this court as a matter of right.

Mrs. Mildred James, a worker at Consolidated Freight Ways, entered a First Security Bank on March 10, 1982, to obtain a cashier’s check for the company in the amount of $230.98. Unfortunately, she entered the bank as a robbery was in progress. Appellant Booth, who was carrying a gun, demanded that she give him her money and lie down on the floor. Mrs. James gave him all but $.93 she was carrying. The men also robbed the bank tellers and fled from the bank, but were arrested a short time later.

The appellants pled guilty to federal bank robbery charges under 18 U.S.C. § 2113 and received a sentence of twenty-five years each. The appellants assert that their subsequent conviction in state court for the robbery of Mrs. James is in violation of KRS 505.050 and their right against double jeopardy under the state and federal constitutions.

KRS 505.050 states in part:

When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state, a prosecution in such other jurisdiction is a bar to a subsequent prosecution in this state under the following circumstances:
(1) The former prosecution resulted in an acquittal, a conviction which has not subsequently been set aside or a determination that there was insufficient evidence to warrant a conviction and the subsequent prosecution is for an offense involving the same conduct unless:
(a) Each prosecution requires proof of a fact not required in the other prosecution; or ... (Emphasis added)

The issue before this court is whether the robbery of Mrs. James is within the concurrent jurisdiction of the state and federal courts. The federal bank robbery charge necessitated proof that the bank in question had some federal connection, i.e., it was insured by the Federal Deposit Insurance Corporation (F.D.I.C.). Goode v. McCune, 543 F.2d 751, 753 (10th Cir.1976). For the robbery of Mrs. James to come under the federal statute, her money must have been in the “care, custody, or control” of the bank.

18 U.S.C. § 2113 states in part:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; ...

The appellants cite four cases to support their position that the robbery of Mrs. James is included within the statute. All of the cases are distinguishable from the present case in that they involve much more bank/customer interaction than an individual merely being on the premises of a bank: United States v. Dix, 491 F.2d 225 (9th Cir.1974) involved the theft of bonds transferred from a bank vault to the bank’s conference room; Chapman v. United States, 346 F.2d 383 (9th Cir.1965) involved books and papers locked inside a bank after business hours; United States v. Lankford, 573 F.2d 1051 (8th Cir.1978) involved money deposited inside a bank’s night de[858]*858pository; United States v. Clark, 398 F.Supp. 341 (E.D.PA.1975) involved a safe deposit box situated inside a bank.

The money taken from Mrs. James was not in the “care, custody or control” of the bank, and therefore, the robbery of her by appellants was not within the concurrent jurisdiction of this state and the United States. The trial court properly overruled appellants’ motion to dismiss the count of first-degree robbery of Mildred James.

The appellants also assert that their subsequent prosecution in state court violated their right against double jeopardy as guaranteed by the Kentucky and United States Constitutions. Double jeopardy is not implicated in this case because, as stated above, the appellants were not charged with the same offense in both state and federal court.

Appellant Harris asserts that the trial court erred in overruling his motion for a directed verdict of acquittal on first-degree robbery. Harris’ position is that while he was behind the bank counter grabbing the teller’s money, his accomplice, stationed in the bank lobby, took Mrs. James’ money without Harris’ knowledge. Harris states that there was no evidence that he intended to aid and abet in the robbery of Mrs. James, and so, he should have been granted a directed verdict on the charge. The trial court did not err by denying the motion. Callahan v. Commonwealth, Ky., 508 S.W.2d 583 (1974).

Finally, appellants contend that the trial court erred by permitting a United States probation officer to testify concerning their dates of birth and probationary status on the date of the offense, during the PFO portion of the trial. Appellants assert that, by permitting this testimony, their right of confrontation and their privilege against self-incrimination were violated. The objection at trial was not based upon appellants’ right to confrontation, so that issue is not preserved for review.

During previous federal court proceedings, both appellants and their attorneys consented, in writing, to a pre-sentence investigation. As part of this investigation, the federal probation officer asked each appellant to provide his date of birth, which they did. The officer also informed each appellant that his investigation had disclosed that they were on probation from previous offenses at the time of the instant offense. Both appellants confirmed this information. Appellants’ probationary status at the time of this offense and their age at the time of their previous offenses were essential elements which the Commonwealth had to prove to obtain the PFO convictions. KRS 532.080. Appellants argue that the probation officer’s testimony should have been excluded because these statements were involuntary under Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) and Jones v. Cardwell, 686 F.2d 754 (9th Cir.1982). Appellants further argue that, without this evidence, their PFO convictions must fall.

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Estelle v. Smith
451 U.S. 454 (Supreme Court, 1981)
Betty Jane Chapman v. United States
346 F.2d 383 (Ninth Circuit, 1965)
United States v. Ellen Mae Dix
491 F.2d 225 (Ninth Circuit, 1974)
Marcus T. Baumann v. United States
692 F.2d 565 (Ninth Circuit, 1982)
United States v. Clark
398 F. Supp. 341 (E.D. Pennsylvania, 1975)
Callahan v. Commonwealth
508 S.W.2d 583 (Court of Appeals of Kentucky, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
675 S.W.2d 856, 1984 Ky. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booth-v-commonwealth-ky-1984.