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Conyers v. Commonwealth

Supreme Court of Kentucky

September 28, 2017



          COUNSEL FOR APPELLANT, LONNIE CONYERS: Emily Holt Rhorer Assistant Public Advocate Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky, Jeffrey Ray Prather Assistant Attorney General

          COUNSEL FOR APPELLANT, ROY'EDWARD TUCKER: Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky, Joseph Todd Henning Assistant Attorney General

          COUNSEL FOR APPELLANT, JOSEPH HARDY: Erin Hoffman Yang Assistant Public Advocate Department of Public Advocacy

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph Todd Henning Assistant Attorney General



         Following a joint jury trial, Lonnie Conyers, Roy Tucker, and Joseph Hardy were all found guilty of two counts of first-degree burglary. Each defendant was sentenced as a first-degree persistent felony offender (PFO) to concurrent, twenty-year terms of imprisonment, and each has now appealed to this Court as a matter of right. Because of the large degree of overlap in the factual background and in the legal issues raised, we have consolidated the appeals for disposition in this single opinion. All three defendants contend that, in light of juror and witness misconduct during the recess following the trial's first day, the trial court should have declared a mistrial. Each defendant also insists that the trial court erred by refusing to dismiss the first-degree burglary charges and by failing to give a jury instruction on receiving stolen property as a lesser, alternative offense to burglary. In addition, Hardy claims that he was entitled to a jury instruction on the defense of voluntary intoxication, while Conyers seeks resentencing on the ground that he was improperly found to be a PFO in the first degree. Convinced that none of the alleged errors gives the defendants, either jointly or singly, a right to relief, we affirm all three judgments.


         During the morning of February 11, 2015, in Melbourne, Kentucky, two residences about one-half mile apart were burglarized. The proof at trial, construed favorably to the Commonwealth, showed the following.

         Brothers Stan and Brian Turpen, the owners/occupants of one of the homes, testified that they left for work early that morning after having locked the doors. When Stan returned that afternoon, he found one of his guitar cases lying in the driveway and signs of what appeared to be a forced entry. His home was in shambles with drawers and cupboards opened, their contents strewn over countertops and on floors, mattresses removed from the beds and closets ransacked. Stan confirmed that photographs introduced by the Commonwealth accurately showed the state of his home that afternoon. After his initial look around, Stan called both his brother and 911.

         Officer Robert Diamond of the Campbell County Police Department responded to the 911 call. Earlier that day he had participated in the arrest of three persons suspected of another burglary in the area, and after talking with Stan Turpen and walking through the residence, he thought it likely that the same persons were responsible for the scene he found there.

         The Turpens' missing property list included a wide-screen television, a Fender guitar, and several other household items and five handguns, at least two of which (the two from the brothers' bedside tables) were loaded and ready to fire. The list also included two long guns (a Remington shotgun and a Winchester rifle) and a starter's pistol-a blank gun-that looked like a .22 caliber revolver. Also missing was ammunition for several of the weapons.

         Earlier that day, a 911 caller had reported what he believed to be a burglary in progress. George Crawford testified that at about 10:30 that morning he was looking out his kitchen window toward the rear of his property. His residence borders on a pasture, Crawford testified, across which . he could see the garage side of the residence of Joe and Brittany Vance.[1] Crawford testified that his attention was attracted to the Vances' driveway by a dark-colored, sedan-type car he had never seen there before. Three men appeared to have gotten out of the car, and one of the men had apparently gone up the steps to the front door. Although Crawford was suspicious, he was about to dismiss his suspicions in light of the fact that one of the men could be Joe Vance. Before he could turn away, however, he saw one of the men walk toward the "pedestrian" door of the garage and kick the door open. All three men then disappeared inside the garage. At that point Crawford called 911.

         On the 911 recording, after Crawford relayed what he had observed, the dispatcher asked Crawford for a more detailed description of the vehicle. As Crawford tried to comply with that request, it occurred to him that a Nikon camera with a 300mm zoom lens that he used for bird-watching was sitting on his kitchen table. While using the camera, Crawford exclaimed to the 911 dispatcher that one of the men had just come out of the house and appeared to have put something in the backseat of the car. At that point, Crawford started taking pictures.

         At trial, the Commonwealth was able to introduce about two dozen photographs-authenticated by Crawford-of the burglary as it happened, of the vehicle and of the three men as they came and went carrying things from the house to the vehicle. After a few minutes, Crawford told the dispatcher that all three men had exited the house, one of them putting what looked like a white pillowcase filled with something into the backseat. In the closing portion of the call, Crawford narrated for the dispatcher the burglars' short lived get- away: their entering the car; the car's descent down the sloped driveway to Kohls Road; the car's right turn in the direction of Ten-Mile Road; and the almost immediate appearance of a police cruiser right behind the car.

         When Crawford's direct examination resumed after the 911 recording, he reiterated that he saw all three persons enter the Vances' residence and later come out carrying items which they placed in the car. During the various cross-examinations, Crawford admitted that he could not see clearly enough, either with or without his camera, to identify any of the persons he saw or to say what items they brought from the house. In particular, he admitted that he saw no one with a gun. He also admitted that while there are photos showing two of the men (in the enlarged photos introduced by the Commonwealth two persons clearly resembling Hardy and Conyers) carrying items from the house, the photo of the third man (strongly resembling Tucker) does not make it clear that he is carrying any property. During redirect examination, however, Crawford explained that during the episode he was juggling the phone and his camera and was not able to photograph everything he saw. Crawford testified emphatically, however, that notwithstanding the lack of a clear photograph of the third man removing property from the home, he witnessed all three men do so.

         The Commonwealth's case included testimony from the officers who stopped the suspects' car moments after it left the Vances' driveway. They stopped it as it approached the intersection of Kohls Road and Ten-Mile Road and arrested its three occupants: Hardy the driver, Tucker in the front passenger seat, and Conyers behind him in the backseat. On Hardy's person the arresting officer found eight prescription pills, slightly more than $ 1, 200 in cash, a silver money clip engraved "Vance, " a gold chain necklace, and a silver pocket knife. From Tucker the arresting officer took a pocket knife, about $570 in cash, a gold chain necklace, headphones, part of a wall cell phone charger, and an ID card. Conyers was carrying a wallet with his ID card and a cell phone. One of the officers explained that they did not go directly to the Vances' house, but waited for the suspects to leave, because it was safer to approach a defined set of suspects all contained in a car than an indeterminate set spread throughout a residence.

         The detective who searched the defendants' car the next morning pursuant to a warrant testified that he and an assisting officer photographed the various items seized during the search. They included a starter's pistol, later identified by the Turpens as theirs, which was found under the driver's seat near the back, and a 9mm Ruger handgun, loaded with a live round of ammunition in the chamber and a full clip, which was found under the front passenger seat. The Vances identified that gun as belonging to Brittany. Brittany testified that she kept it in her jewelry case, which was found, among other items later identified by the Vances, in a white pillowcase in the car's backseat.

         The Vances also testified regarding photographs taken by one of the investigating officers depicting their home in shambles shortly after the burglary. The Turpens and the Vances all testified that items found in the defendants' possession had been taken from their respective homes. The items identified included jewelry, the silver "Vance" money clip, a TV, a guitar, handguns, long guns, ammunition, a jewelry box, a purse, a hammer, savings bonds, an electric drill, and a set of exercise weights.

         The Commonwealth's proof included some additional evidence, but the first-degree burglary charges rested primarily on the evidence summarized above. Notwithstanding the obviously sufficient evidence of burglary, the defendants all maintain the trial court erred by including first-degree burglary charges in the jury instructions. We begin our analysis with this contention.


         I. The Trial Court Did Not Err by Refusing to Dismiss the Charge of Burglary in The First Degree.

         Burglary, the basic offense, is a crime against real property-an unlawful intrusion thereon. Because such intrusions pose risks to persons on the premises, the basic offense is punished more-or-less severely depending on the presence or absence of circumstances which increase or decrease those risks. Litton v. Commonwealth, 597 S.W.2d 616 (Ky. 1980) (discussing the 1978 amendments to the burglary statutes); Colwell v. Commonwealth, 37 S.W.3d 721 (Ky. 2000) (discussing the interrelationship of the burglary and trespass offenses). Kentucky Revised Statute (KRS) 511.040 outlaws the basic offense- burglary in the third degree-as follows: "A person is guilty of burglary in the third degree when, with intent to commit a crime, he knowingly enters or remains unlawfully in a building." KRS 511.040(1). A "building, " for the purposes of the burglary statutes, is a building in its ordinary sense plus "any structure, vehicle, watercraft or aircraft: (a) Where any person lives, or (b) Where people assemble for [various] purposes. . . ." KRS 511.010(1). Third-degree burglary is a Class D felony. KRS 511.040(2).

         The risks posed by the intrusion increase if the building involved is a dwelling-"a building which is usually occupied by a person lodging therein." KRS 511.010(2). Accordingly, a person is guilty of burglary in the second degree, a Class C felony, "when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling." KRS 511.030(1).

         Burglary in the first degree, a Class B felony, occurs if, in the course of the intrusion, the intruder actually injures someone (a non-participant in the crime), or if, as relevant here, he "[i]s armed with explosives or a deadly weapon." KRS 511.020(1). "Deadly weapon" means, in pertinent part, "[a]ny weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged[.]" KRS 500.080(4)(b).

         Finally, as relevant to this case, KRS 502.020, the complicity statute, provides in pertinent part that:

A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense [.]

KRS 502.020(1)(b). The Commonwealth's theory of the case was that the three defendants all participated as principals in the burglaries of both residences, and were also complicit in the burglaries, with each defendant being guilty, by complicity, of the offense committed by any of them.

         Because the buildings involved in this case were clearly dwellings, the jury instructions for each defendant included two second-degree burglary instructions (Vance and Turpen residences), and the defendants raise no objections to those instructions. Because both sets of victims reported the loss of at least one firearm and the police found weapons corresponding to those reports in the car occupied by the defendants at the time of their arrests, the instructions for each defendant also included provisions such as the following for each residence:

         You will find the defendant. . . guilty of First Degree Burglary under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this County, on or about February 11, 2015, and before the finding of the indictment herein, the Defendant. . . either entered or was in complicity with [either of the others] to their entry of the building owned by the Vances [the Turpens] and without the permission of the [owners] or any other person authorized to give such permission; AND
B. That in so doing, he knew that they did not have such permission; AND
C. That it was the Defendant's intention that either the Defendant or [either of the others] would commit a crime therein; AND
D. That when effecting entry or while in the building or in immediate flight there from, the Defendant or [either of the others] was armed with a deadly weapon.

         The defendants all objected at trial and continue to object to the giving of this instruction on a number of grounds. Each insists that there was no evidence that he was armed, that he was armed with a deadly weapon, or that he knew or intended that either of the other two men was armed. Implicitly, at least, the defendants concede that their complaint on all of these points is not really with the trial court, which only applied existing law, but rather with prior decisions of this Court. Two of those decisions they ask us expressly to reconsider.

         A. There Was Evidence That the Defendants Were Armed ...

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