Jerry Lee MARSHALL and William T. Edwards, Appellants, v.
COMMONWEALTH of Kentucky, Appellee
Court of Appeals of Kentucky
482 S.W.2d 765; 1972 Ky. LEXIS 203
June 30, 1972
Griffith's Market, located
in a densely settled section of Lexington, had been the target of so many
break-ins that its management had an electronic detection system installed,
which was switched on at the close of the working day. The electrodes noiselessly relayed sounds
from the store over a telephone circuit to a control evaluation agency which,
in turn, notified police immediately when the sounds suggested a break-in was
in progress. On the occasion here in
question, the police had checked the front and rear of the store less than ten
minutes before receiving a radio dispatch to return, and had found nothing
wrong on that first visit. But on their
return, they found boards pulled off the back of the store, found a sledge
hammer, a rusted hatchet, a tire tool and a pair of unmatched gloves on a
nearby trash heap, and saw two men on the sidewalk in back of the store, who
took off running when they realized the police had returned, but stopped
running after warning shots from the officers.
The men were the appellants, Jerry Lee Marshall and William T. Edwards,
the first victims of Griffith's Market's electronic detection system.
Marshall and Edwards were indicted for possession of burglary
tools in violation of KRS 433.120 which authorizes punishment from two to ten
years in prison on a finding of guilt; and for attempted breaking and entering,
a common law offense (Roberson, Criminal Law, Section 248), punishable under
KRS 431.075 at a maximum of a year in jail, a fine not to exceed $5,000, or
both. The accused men pled not guilty,
but were found guilty on each charge, receiving the maximum penalty of ten
years' imprisonment for possessing burglary tools with the intent to use them burglariously, and receiving the maximum jail sentence for
the attempted break-in.
The burglar tools, found near where the appellants were seen
crouched near the sidewalk at the back of the store at approximately 2:30 A.M.
that cold February
morning, disclosed no finger-prints or other evidence which
directly connected the tools with the appellants. The convictions are based on circumstantial
evidence which able appointed counsel asserts is as consistent with innocence
as it is with guilt. We think the skein of circumstances was sufficient to take
the case to the jury, and a directed verdict for the accused would not have
been proper.
The prosecution obtained consent of the trial court to introduce
the criminal records of the appellants as substantive evidence of their intent
to burglarize the market, to show that they were the kind of characters who
would do such a thing, and were not hardy, honest citizens having a casual
social visit in back of the market at 2:30 A.M. on a cold morning. For example,
it was shown that Marshall had convictions between 1953 and 1971 which involved
disorderly conduct, receiving stolen property, drunkenness, carrying concealed
a deadly weapon (two convictions), burglary, storehouse breaking, grand larceny
(two convictions), and breach of peace (four convictions). Edwards, comparatively, was a tenderfoot,
with just one conviction of grand larceny and one of knowingly receiving stolen
goods, and a record as a juvenile delinquent.
The best we can say for this evidence of past records is that it
indicates that the appellants were men morally capable of burglarizing Griffith's
Market at various times in their lives,
but not that they necessarily intended to do it the night in question. Their specific intent on the night of the
current crimes must be inferred from circumstances in which they were found at
that particular time and place, and not from their past records. We think the law in this area was well
summarized by Judge Walter V. Schaefer of Illinois in People v. Lehman, 5
Ill.2d 337, 125 N.E.2d 506 (1955):
"Evidence
of other crimes is objectionable 'not because it has no appreciable probative
value, but because it has too much.' (I Wigmore, Evidence,
3rd ed., sec. 194.) The law distrusts the inference that because a man
has committed other crimes he is more likely to have committed the current
crime. And so, as a matter of policy,
where the testimony has no value beyond that inference, it is excluded. But where the evidence is independently relevant
it is admissible as, for example, where it shows motive or intent, identity,
absence of mistake or accident, or the existence of a common scheme or
design. I Wigmore,
Evidence, 3rd ed., sec. 216."
The extent of the punishment imposed -- maximum incarceration on
each of the charges -- suggests but, of course, does not necessarily establish
the prejudicial effect of the objectionable evidence. Nevertheless, it was a violation of
fundamental trial policy to admit the criminal records of the appellants as
substantive evidence of their specific intent to commit the present crimes for
which they were being tried, and as a consequence the judgments of convictions
are reversed for a new trial.
All concur.