Opinion
No. 2002-CA-001098-MR.
September 17, 2004.
Appeal from Campbell Circuit Court, Honorable William J. Wehr, Judge, Indictment No. 01-CR-00191.
Kathleen Kallaher Schmidt, Shepherdsville, Kentucky, Brief for Appellant.
Albert B. Chandler III, Attorney General, Brian T. Judy, Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.
Before: BUCKINGHAM, MINTON, and TAYLOR, Judges.
OPINION
Patrick D. McKenzie was convicted of third-degree burglary as an accomplice, enhanced by a finding that he is a persistent felony offender in the first degree. He appeals, arguing that the Commonwealth should not have been permitted at the end of trial to amend the indictment to add a complicity theory after he was indicted only as being the principal who committed the robbery.
In the early morning of September 3, 2000, the basement of the Cold Spring Roadhouse Restaurant was burglarized. The burglary resulted in a loss of over $10,000.00. On May 31, 2001, McKenzie was indicted for the burglary by the Campbell County Grand Jury. The relevant portion of the indictment states:
The Campbell County Grand Jury charges that on or about the 3rd day of September, 2000, in Campbell County, Commonwealth of Kentucky, the above named defendant, Patrick McKenzie, committed the offense of Burglary in the third degree by knowingly and unlawfully entering the building housing the Cold Spring Roadhouse Restaurant in Cold Spring, Campbell County, Kentucky with the intent to commit a theft[.]
Following the presentation of all the evidence at trial, the Commonwealth moved to amend the indictment to add as an alternate theory that McKenzie was complicit to another's commission of the robbery. The Commonwealth pointed to the testimony of Matt Connor and Jason Woods as demonstrating that McKenzie was not alone but was, at a minimum, an accomplice.
McKenzie objected to the addition of the complicity theory, arguing that the Commonwealth's late attempt at modification amounted to unfair surprise that prevented adequate preparation of McKenzie's defense. The Commonwealth responded only by saying that the defense had been aware of the substance of the two witnesses' testimony long before trial but candidly admitted in response to a question from the trial court that there was no good reason for its failure to seek amendment of the indictment at an earlier time.
The circuit court granted the Commonwealth's motion and, accordingly, instructed the jury alternatively that it could find McKenzie to have burglarized the Cold Spring Roadhouse Restaurant himself, or been complicit to another's commission of the burglary. The circuit court provided separate instructions on each theory so that if the jury decided to convict, it would be easily discernable from the record under which instruction it reached its decision. McKenzie was convicted only under the complicity instruction.
On appeal, McKenzie presents three arguments. His first is that the Commonwealth should not have been permitted to amend the indictment to include complicity. His second argument is that if the jury were to be instructed on complicity, it should have included an instruction on the lesser included offense of facilitation. Finally, he argues that he was entitled to a directed verdict of acquittal with respect to the complicity count.
We must note here that the Commonwealth's brief was of absolutely no assistance on this argument. Included in the Commonwealth's argument, the sum total of which is roughly one page long, is the following passage: "Both the original indictment and the amended indictment charged Appellants with murder either as principals or by complicity. An amendment which only alleges a different method of committing the same offense does not prejudice the substantial rights of the defendant." (Brief for the Commonwealth at 3.)
We hold that the circuit court erred in giving the complicity instruction sought by the Commonwealth. "It has long been the law of this state that where an indictment charged one alone with the commission of a crime, it is error to instruct that he may be convicted if he aided or abetted another in its commission." The conclusion that a defendant indicted for acting alone could not be tried for aiding another's commission of the crime was viewed as settled by Kentucky's highest Court as far back as 1914 and as recently as 1997. However, most of the cases provide little, if any, explanation of the rationale for reaching that conclusion, thereby leaving little guidance should a more thorough analysis be needed.
Brown v. Commonwealth, Ky., 498 S.W.2d 119, 120 (1973) (internal quotation omitted).
Hollin v. Commonwealth, 158 Ky. 427, 165 S.W. 407 (1914).
Wolbrecht v. Commonwealth, Ky., 955 S.W.2d 533 (1997).
See, e.g., Schambon v. Commonwealth, Ky., 821 S.W.2d 804 (1991). In Schambon, the Court stated that "the amendment merely altered the designation of the subsection of the statute under which appellants were charged. The offense was the same. No additional evidence was required to prove the amended offense and appellants have not shown that they were prejudiced by the amendment." Id. at 810. This analysis is not helpful because it fails to identify the statute to which it refers. It is wholly conceivable that two subsections of the same statute could differ enough to prohibit the sort of amendment allowed in Schambon.
Therefore, we will take this opportunity to provide the explanation lacking in prior Kentucky cases. In Stirone v. United States, the defendant had been indicted for unlawfully interfering with interstate commerce in violation of the Hobbs Act. The indictment charged that he interfered with shipments of sand from outside of Pennsylvania to a concrete plant in Pennsylvania. However, at trial, the government presented a theory on which the court instructed the jury that the defendant may have interfered with interstate commerce by interfering with the production of cement which would be used in a steel mill whose products would later be sold in interstate commerce to customers in Michigan and Kentucky.
361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
Id., 361 U.S. at 213-214.
On appeal, the defendant argued that he had been tried for an offense not included in the indictment. The Court agreed, first looking at Ex parte Bain, Jr. Bain "stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him."
121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887).
Stirone, supra, 361 U.S. at 217.
The indictment [at issue in Stirone] cannot fairly be read as charging interference with movements of steel from Pennsylvania to other States nor does the Court of Appeals appear to have so read it. The grand jury which found this indictment was satisfied to charge that Stirone's conduct interfered with interstate importation of sand But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone's conduct would interfere with interstate exportation of steel from a mill later to be built with [the victim of Stirone's alleged extortion]'s concrete. And it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned. Although the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same. And the addition charging interference with steel exports here is neither trivial, useless, nor innocuous. While there was a variance in the sense of a variation between pleading and proof, that variation here destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.
Stirone, supra, 361 U.S. at 217-218.
Although Stirone was decided under the federal system's grand jury requirement, we see no reason why its reasoning should not apply to Kentucky's grand jury scheme. Section 12 of the Kentucky Constitution sets out a requirement for grand jury indictment, although it may be waived by a defendant. There is no indication from the record that McKenzie waived his right to be proceeded against only by indictment, so the only departure the circuit court was allowed to make from the indictment is that contemplated by RCr 6.16, which allows a circuit court to amend an indictment any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. However, as established in Stirone and explained in later cases below, the circuit court's actions here exceeded the scope of permissible amendment under RCr 6.16.
Ky. R. Crim. P. (RCr) 6.02; Malone v. Commonwealth, Ky., 30 S.W.3d 180 (2000).
Burglary in the third degree is defined in KRS 511.040, which provides in relevant part that "[a] person is guilty of burglary in the third degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building." Complicity is defined generally in KRS 502.020, which provides in relevant part:
(1) 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:
(a) Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) Aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c) Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
KRS 502.020(2) deals with what is referred to as "complicity to the result," which is irrelevant in this case.
From the above statutes, it is clear that to convict McKenzie of burglary in the third degree, the Commonwealth would have had to prove that he (1) entered or remained unlawfully in the Cold Spring Roadhouse Restaurant, and (2) did so with the intent to commit a crime. However, to convict him of complicity to third degree burglary, the Commonwealth would have had to prove that (1) with the intention of promoting or facilitating the burglary, he (2) did one of the acts listed in KRS 502.020(1)(a)-(c).
The distinction between burglary in the third degree and complicity to burglary in the third degree is exactly the sort of amendment prohibited by Stirone because it involves a modification at trial in the elements of the crime charged. This is distinct from the concept of a variance, in which the evidence at trial proves different facts but leaves the charging terms of the indictment unaltered. A variance may be subject to a harmless error analysis, whereas an amendment is prejudicial per se. In this case, the circuit court's action in amending the indictment resulted in a modification of the elements to be proved against him. This was prejudicial per se and must be reversed.
See Watson v. Jago, 558 F.2d 330 (6th Cir. 1977).
Id. at 334, citing Gaither v. United States, 413 F.2d 1061, 1071 (D.C. Cir. 1969).
Watson, supra, at 334.
Having decided that the circuit court committed reversible error in permitting the indictment to be amended, we must now decide what direction the case is to take on remand Specifically, the jury's verdict convicting McKenzie under the complicity instruction presents a double jeopardy question regarding whether he may be retried for burglary in the third degree.
The circuit court commented that it was providing the jury separate instructions and verdict forms on third-degree burglary and complicity to third-degree burglary in order to better preserve the record for appellate purposes. We commend the circuit court for its foresight and appreciate its efforts to facilitate our review.
Typically, our discussions of implied acquittal barring retrial are in the context of a greater versus lesser included offense. "[T]he conviction of a defendant of a lesser-included offense constitutes an acquittal of all higher degrees of the offense. Accordingly, if the conviction of the lesser-included offense is reversed on appeal, the defendant cannot be retried upon any other higher degrees of the offense." However, this case presents a somewhat unique scenario in that per our discussion above, the complicity count upon which McKenzie was convicted was not a lesser-included offense of third-degree robbery. Therefore, the more commonly seen double jeopardy analysis is irrelevant.
Couch v. Maricle, Ky., 998 S.W.2d 469, 471 (1999) (citations omitted).
The United States Supreme Court addressed the precise question currently before us in Green v. United States. In deciding a case involving the charges of second-degree murder and felony murder, the Court stated:
355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense. If anything, the fact that it cannot be classified as "a lesser included offense" under the charge of felony murder buttresses our conclusion that [the defendant] was unconstitutionally twice placed in jeopardy. American courts have held with uniformity that where a defendant is charged with two offenses, neither of which is a lesser offense included within the other, and has been found guilty on one but not on the second he cannot be tried again on the second even though he secures reversal of the conviction and even though the two offenses are related offenses charged in the same indictment.
Id., 355 U.S. at 194, fn.14 (citing 114 ALR 1406).
In this case, the jury was called on to consider two distinct offenses. By convicting McKenzie of complicity to burglary, the jury necessarily acquitted him of the primary offense. Accordingly, he may not be retried on the charge of burglary in the third degree.
Accordingly, McKenzie's conviction of complicity to burglary in the third degree is reversed. Furthermore, because he was never properly indicted for this offense, the Commonwealth must seek an indictment on this charge from a grand jury or a proper waiver of indictment by the defendant before McKenzie may be retried. Finally, because McKenzie was acquitted of burglary in the third degree, he may not be retried on that charge. Because we have resolved the case in this manner, we need not reach McKenzie's other arguments.
ALL CONCUR.