Davis v. Commonwealth

899 S.W.2d 487, 1995 Ky. LEXIS 47, 1995 WL 124074
CourtKentucky Supreme Court
DecidedMarch 23, 1995
Docket93-SC-855-MR
StatusPublished
Cited by19 cases

This text of 899 S.W.2d 487 (Davis 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
Davis v. Commonwealth, 899 S.W.2d 487, 1995 Ky. LEXIS 47, 1995 WL 124074 (Ky. 1995).

Opinions

LAMBERT, Justice.

Appellant, Tommy Richard Davis, was convicted in the Warren Circuit Court of two counts of robbery in the first degree, and persistent felony offender (PFO) in the first degree. Appellant was sentenced to two consecutive twenty year terms of imprisonment on each robbery conviction, with enhancement to two consecutive terms of life imprisonment by tiie PFO charge. He appeals as a matter of right.

In the early morning hours of June 19, 1993, appellant entered a 24r-hour convenience store in Bowling Green, brandished an 18-inch knife, and demanded the clerk hand over all the money in the store’s two cash registers. Two weeks later, in the early morning of July 3, 1993, appellant returned to the store and again demanded another clerk hand over money from the two cash registers, and threatened the clerk with the jagged edge of a broken bottle. After the robberies, both clerks picked appellant out of a photographic lineup, and identified him once again at trial. Appellant was convicted of two counts of first degree robbery, and first degree PFO, for which he was sentenced to two consecutive terms of life imprisonment.

Appellant contends that the trial court’s refusal to grant him separate trials on the two robbery charges amounted to a denial of his due process rights under the Fourteenth Amendment of the United States Constitution. Our rule of criminal procedure on the issue provides that

Two (2) or more offenses ... may be charged in the same indictment ... in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transaction connected together or constituting parts of a common scheme or plan.

RCr. 6.18.

In Rearick v. Commonwealth, Ky., 858 S.W.2d 185 (1993), appellant was charged with committing several acts of sexual perversion with three different children. No connection existed between the crimes, other than the fact that all three victims were children. We held it was error for the trial court to consolidate all indictments into one trial. Id. at 187. While the trial court is granted broad discretion in this area, our Court reversed, finding that “evidence of the crimes charged in indictments ... would not have been admissible as evidence of a common scheme or plan.” Id. at 188. However, in Anastasi v. Commonwealth, Ky., 754 S.W.2d 860 (1988), this Court determined that the factual circumstances surrounding the appellant’s charged crimes were of such similarity that the consolidation of all charges was within the trial court’s discretion.

In the present case, in a two week period, appellant robbed the same market, during the early morning, with both a knife and a broken bottle. In both robberies, appellant demanded that the store’s clerk hand over money from both registers. Although both clerks gave slightly different descriptions of appellant immediately after each robbery, both picked appellant out of a photographic lineup and were able to identify him at trial. The substance of the two robbery charges was so similar that we cannot consider the trial court’s refusal to grant separate trials an abuse of discretion on this issue. See [489]*489also, Cardine v. Commonwealth, Ky., 628 S.W.2d 895 (1981); Harris v. Commonwealth, Ky., 556 S.W.2d 669 (1977).

Appellant also contends that the introduction and use of his prior felony convictions in the State of Arkansas faded to meet authentication standards which would allow them to be used for the persistent felony offense. The prosecution presented four documents which were certified by the Arkansas court clerk. These documents, however, were not exemplified by a judge, as required for a document to be self-authenticating, nor were they authenticated by a witness.

KRS 422.040 provides that

The records and judicial proceedings of any court of any state, attested by the clerk thereof in due form, with the seal of the court annexed if there be a seal, and certified by the judge, chief justice, or presiding magistrate of the court, shall have the same faith and credit given to them in this state as they would have at the place from which the records come.

Thus, for a court of this Commonwealth to properly give full faith and credit to the judgment of a court of another state, certification by that court is required.

To support its argument that introduction of certified, self-authenticating records of conviction is not required to support a PFO conviction, the Commonwealth cites both Commonwealth v. Mixon, Ky., 827 S.W.2d 689 (1992), and Jackson v. Commonwealth, Ky., 703 S.W.2d 883 (1986). While it is true that these eases allowed PFO convictions to stand without introduction of self-authenticating documents, those circumstances were far different.

In Mixon, the custodian of records of appellant’s former convictions testified concerning the contents of the records, and Mix-on’s status as a convicted felon. In Jackson, certified records were introduced through a witness who was competent to testify about the records and the former convictions. Neither circumstance is present here. Detective Martin Scott of the Commonwealth Attorney’s office was the only witness for the Commonwealth to support the PFO conviction. The Commonwealth admitted that it did not truly understand the “confusing” Arkansas judgments. The detective admitted that he had no knowledge of any previous convictions of appellant, as he was simply reading from the documents. While KRS 532.080 does not specifically require the introduction of records to prove PFO status, it does require that the Commonwealth present evidence to prove every aspect of the PFO conviction that is sought.

In Mixon and Jackson, sufficient safeguards were present regarding proof of former convictions to justify PFO convictions. Those safeguards are not present here. The documents were not self authenticating under our rules of evidence, nor do they meet the requirements of RCr 9.44, CR 44.01, or KRS 422.040. No one with any knowledge of the facts surrounding the documents testified as to their authenticity. As such, evidence of appellant’s prior convictions is insufficient to support the PFO conviction in the present case.

Error is further contended in the trial court’s refusal to grant a directed verdict on the PFO charge, as appellant asserts that the Commonwealth failed to prove that he was then on probation or parole, or that within five years of the 1993 robberies he had served his sentence for the 1989 conviction. Under KRS 532.080

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Davis v. Commonwealth
899 S.W.2d 487 (Kentucky Supreme Court, 1995)

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Bluebook (online)
899 S.W.2d 487, 1995 Ky. LEXIS 47, 1995 WL 124074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-commonwealth-ky-1995.