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Probus v. Commonwealth

Supreme Court of Kentucky

February 14, 2019



          COUNSEL FOR APPELLANT: Emily Holt Rhorer Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney Hightower Assistant Attorney General



         A circuit court jury convicted Perry Jack Probus Jr. of various crimes for his role as a complicitor in a home invasion. For these crimes, he received an enhanced sentence of forty-five years' imprisonment as a first-degree persistent felony offender. Probus appeals the resulting judgment as a matter of right. He raises several issues for our review, including a matter of first impression in this state: whether the conviction of the principal actor to a lesser offense based on a plea agreement precludes the prosecutor from pursuing a greater offense against the complicitor at trial. We conclude that the principal's guilty plea to a lesser offense does not preclude prosecution of the complicitor for a greater offense. Thus, finding no merit to this and the other arguments Probus raised in this appeal, we affirm the trial court's judgment.

         I. BACKGROUND.

         Tammy Robinson was working as a nanny when at mid-morning she answered a knock at the door. There stood a man later identified as Solomon Slinker. He was dressed as a deliveryman and claimed he had a package for the homeowner, "Billy." Slinker asked Robinson for a signature, so Robinson went to find a pen.

         As Robinson returned to the door, she found Slinker inside the house pointing a gun at her. After a brief struggle, Slinker subdued Robinson. . Robinson told Slinker to take whatever he wanted but not to harm Billy's two children, who were also in the house at the time. Slinker tied Robinson's hands together with zip-ties, but she broke free when one of the children ran to her. Slinker then pushed Robinson and the child into the bathroom and followed them inside the bathroom. While inside the bathroom, Robinson heard drilling and banging coming from inside the house, prompting her to conclude that another person had entered the house and was making those noises.

         Eventually, Slinker left the bathroom, and Robinson retrieved her cell phone and called for help. Robinson did not encounter any other intruder after Slinker left the bathroom. Sergeant Ray Whitehill arrived, and his investigation revealed, among other things of interest, a blue U-Haul blanket covering a safe in the garage. Sergeant Whitehill later found out that the safe had been moved to the garage from the master bedroom.

         Sergeant Whitehill then spoke with Robinson, Billy, and some neighbors. Of note, one of the neighbors recalled seeing a white Ford F-150 in Billy's driveway. After speaking with these individuals, Sergeant Whitehill received a call from Kathy Hatcher.

         Hatcher asked if there had been a home invasion "the other night" in the neighborhood. Hatcher stated that her son, Slinker, may have been involved. Hatcher told Sergeant Whitehill that her husband overheard Slinker's phone conversation in which Slinker stated that he and "P.J." had "made the news" but were unable to get the safe. Hatcher's husband identified "P.J." as the defendant in this case, Perry Jack Pro bus.

         Sergeant Whitehill arrested Slinker on an outstanding warrant for an unrelated crime. Sergeant Whitehill took that opportunity to interview Slinker about the home invasion, and Slinker admitted to the crime and implicated Probus. Slinker gave an account of the events surrounding the home invasion.

         Slinker and Probus had become housemates earlier in the month. Slinker learned of a failed invasion of Billy's home that Probus and an individual named Steven Vaughan had attempted. Slinker offered to help Probus make another attempt at the home invasion.

         Probus showed Slinker Robinson's Facebook picture and told Slinker that Robinson would be the one answering the front door of Billy's residence. Probus apparently told Slinker that Billy would pay them $3500 to take a safe from the house or $1000 to retrieve paperwork out of the safe if they could not take the safe.[1]

         The evening before the home invasion, Probus sent Slinker a text telling him to be ready the following morning. Later, on the morning of the invasion, Probus texted Slinker, telling him to get ready. Slinker dressed as a UPS deliveryman. Probus brought the white F-150 truck to be used in the home invasion, while Slinker brought zip-ties, a cellphone jammer, walkie-talkies, a clipboard, and a box. At the suggestion of Probus, Slinker also brought a BB gun with the orange tip removed.

         Probus and Slinker arrived at Billy's residence and the events with Robinson transpired as described above. As Slinker guarded Robinson and the child inside the bathroom, Probus signaled for Slinker to exit the house and return to the truck. Slinker saw that Probus had not retrieved the safe and asked Probus about it. Probus responded that the safe was too heavy but both would still be paid.

         Upon arriving at Probus's house, Probus told Slinker to leave and lay low for a while. When Slinker asked Probus about the money, Probus told Slinker that he had retrieved some laptops and purses that they could sell and split the proceeds.

         Because of Slinker's confession, Sergeant Whitehill obtained a search warrant for Probus's residence where he collected several Coach purses, (identified as belonging to Billy's girlfriend who resided at Billy's home), walkie-talkies, a cell phone jammer, two U-Haul blankets, and other various items of interest.

         Probus was indicted. After two mistrials, at Probus's third trial, the jury convicted Probus of complicity to first-degree robbery, complicity to first-degree burglary, two counts of complicity to first-degree wanton endangerment, and of being a persistent felony offender, recommending a total sentence of 45 years' imprisonment, which the trial court imposed.

         II. ANALYSIS.

         A. The trial court correctly denied Probus's motion for a directed verdict.

         Probus's first allegation of error is that the trial court should have granted his motions for directed verdict on the complicity to first-degree robbery, complicity to first-degree burglary, and complicity to first-degree wanton endangerment charges. Specifically, Probus argues that the Commonwealth offered insufficient evidence that the gun with which Slinker threatened Robinson constituted a "deadly weapon" or "dangerous instrument," the necessary findings the jury had to make to find Probus guilty of those crimes under the jury instructions. That this issue is preserved for our review is undisputed.

         "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for the jury to find guilt, only then is the defendant entitled to a directed verdict of acquittal."[2] Probus asks this Court to find that the jury's finding of guilt on Probus's charges was clearly unreasonable, specifically, because there was insufficient evidence to believe the gun Slinker used to threaten Robinson during the commission of the crime was a "deadly weapon" or "dangerous instrument." We decline to find so.

         Under the jury instructions, for the jury to have found Probus guilty, it needed to find, among other elements, that the commission of the crimes involved a "dangerous instrument," for complicity to first-degree robbery, and a "deadly weapon," for complicity to first-degree burglary and first-degree wanton endangerment. Probus admits that this Court in Johnson v. Commonwealth observed that "a jury could reasonably determine that a pellet or BB gun was a deadly weapon (i.e. a type of weapon from which a shot could cause death or serious physical injury) in light of history of serious physical injuries caused by BB or pellet guns."[3] Probus argues here that the evidence adduced at trial as to the type of gun brandished during the commission of the crime was insufficient for a jury to find that the gun constituted a "dangerous instrument" and "deadly weapon." But Probus's argument is meritless.

         The gun brandished by Slinker was referred to at trial interchangeably as a "toy gun," "fake gun," "BB gun," "toy BB gun," and "airsoft gun." Slinker characterized the gun at issue most often as a "BB gun." Probus's argument incorrectly assumes that characterization of the gun as a "toy," "fake," or any other less-dangerous-sounding characterization of the gun means that the jury could have not put those characterizations on the same plane as a characterization of the gun as a "BB gun," which this Court has already recognized can suffice as a "dangerous instrument" or "deadly weapon." In other words, the members of the jury may have equated the characterization of the gun as a "toy" or "fake gun" with the characterization of the gun as a "BB gun"-the members of the jury may not have viewed a "toy" or "fake gun" differently from a "BB gun" in the sense that a BB gun is not typically considered to equate to a traditional firearm but can still constitute a dangerous instrument or deadly weapon. Put more simply, who is to say that a BB gun, not considered to be a traditional firearm, but considered a dangerous instrument or deadly weapon under our jurisprudence, cannot be referred to as a "toy" or "fake gun"?

         In any event, as we recognized in Johnson, the jury was entitled to believe that a "BB gun," which Slinker termed the gun in question to be numerous times at trial, constitutes a deadly weapon or dangerous instrument. The trial court did not err in denying Probus's motion for a directed verdict.

         B. Probus's due process rights were not violated when the Commonwealth allegedly chose to prosecute his case on a different theory than his co-defendant's, who pled guilty to a lesser offense.

         Probus argues that his due process rights were violated when the Commonwealth characterized the gun at issue in Probus's case as a deadly weapon but did not do so in Slinker's case. While the Commonwealth disputes the preservation of this issue, the record reveals that Probus did make this argument to the trial court in his motion for a directed verdict. Even so, Probus's argument is meritless.

         Slinker testified at Probus's trial that the Commonwealth stated during Slinker's guilty-plea colloquy that it was amending Slinker's charges from first-degree robbery and burglary to second-degree robbery and burglary because the gun that Slinker brandished was an instrument that could not be considered a dangerous instrument or deadly weapon. Probus argues that the Commonwealth cannot prosecute Probus for complicity to first-degree robbery and burglary, which requires the involvement of a dangerous instrument or deadly weapon, when the Commonwealth proceeded against the principal involved in those crimes on second-degree robbery and burglary for the alleged express reason that the Commonwealth did not believe the instrument involved in the crime constituted a dangerous instrument or deadly weapon.

         But the only basis for Probus's argument that the Commonwealth reduced Slinker's charges because the gun at issue was not a traditional firearm comes from Slinker's testimony at Probus's trial. This testimony alone cannot convincingly support the assertion that the Commonwealth had no other basis for reducing Slinker's charges than this fact alone. In sum, the factual basis for Probus's argument is severely lacking, because, even if Slinker is correct that the Commonwealth reduced his charges based on the characterization of the gun at issue, the Commonwealth could have reduced Slinker's charges for several other reasons.

         Moreover, Probus's argument relies on a fundamentally flawed assumption-that the Commonwealth cannot proceed against a complicitor on greater charges than the charges to which the principal pleaded. But an overwhelming majority of jurisdictions hold to be true the opposite of Probus's argument-a conviction of a principal based on a plea agreement to a lesser offense does not preclude the prosecutor from pursuing a greater offense at trial against a complicitor.[4] As the Indiana Supreme Court explained, where the principal agrees to a plea bargain of a lesser charge and the complicitor is found guilty at trial of a greater offense, "while both [the principal and complicitor] have been convicted, we are not presented with two separate judicial determinations on the merits. Therefore, these convictions do not present the legal inconsistency which may arise under certain circumstances in the trials of accessories and principals and which the law must correct."[5] In other words:

[Although courts have recognized a necessity for consistency in certain situations in this area, they have done so because of certain assumptions implicit in a finding by a court after a trial on the merits. However, these same assumptions do not arise, nor are the same forces at work, upon an entrance of a guilty plea. When the principal is found guilty after a trial on the merits of a lesser offense than the one originally charged, an assumption may be made that the State failed to adequately carry its burden on the principal's greater offense. . . . On the other hand, in the situation where a plea to a lesser offense is accepted by a court it cannot be presumed to be a finding of an acquittal of the greater because of the special nature of the plea bargain that often underlies it. The very nature of a plea bargain presupposes a restraint by the prosecutor on the punishment to be extracted from the accused.[6]

         Regardless of the Commonwealth's reason for offering a plea bargain to Slinker, Probus's conviction of a greater offense does not violate due process, as Probus has alleged, because Slinker pleaded guilty to, i.e. was not found guilty at trial of, a lesser offense. As such, no due process violation occurred.

         C. The trial court did not err in allowing testimony regarding Sergeant Whitehill's commendations and acts of exceptional heroism.

         Probus's next allegation of error was the admission of testimony regarding Sergeant Whitehill's commendations and acts of exceptional heroism. That this issue is preserved for our review is undisputed.

         Sergeant Whitehill was the lead investigator. During Probus's opening statement, Probus stated that Sergeant Whitehill's investigation was "sloppy," "unprofessional," and "lazy." Probus readily admits to this fact. The Commonwealth called Sergeant Whitehill as a witness. During direct examination, after inquiring about Sergeant Whitehill's education, background in criminal justice, and job history, the Commonwealth inquired about various commendations that Sergeant Whitehill received over the course of his career. This led to Sergeant Whitehill to describe in detail three events leading to his commendations. The defense objected to this testimony on relevancy grounds, the same grounds on which Probus now challenges the admission of this testimony.

         "All relevant evidence is admissible, except as otherwise provided[.]"[7]"'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."[8] "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence."[9] "The inclusionary thrust of the law of evidence is powerful, unmistakable, and undeniable, one that strongly tilts outcomes toward admission of evidence rather than exclusion."[10] "The language of KRE 403 is carefully calculated to leave trial judges with extraordinary discretion in the application and use of [KRE 403]."[11]

         "The standard of review on evidentiary issues is abuse of discretion."[12]"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or ...

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