http://theadvocate.posterous.com The online presence of the Kentucky Department of Public Advocacy journal posterous.com Wed, 04 May 2011 08:12:00 -0700 Featured Case - Tunstull - Robbery http://theadvocate.posterous.com/featured-case-tunstull-robbery http://theadvocate.posterous.com/featured-case-tunstull-robbery

Troy Anthony Tunstull v. Commonwealth, 2009-SC-000170—rendered April 21, 2011.
Opinion of the Court Affirming by Justice Schroder.
Venters, J., dissents by separate opinion in which Minton, C.J., joins.

The Appellant was convicted of four counts of second degree robbery.  He contended there was insufficient evidence to convict him because there was no evidence he used or threatened the use of physical force as required by KRS 515.030(1), and thus he should have been granted a directed verdict.  The Supreme Court concluded there was sufficient evidence because an individual, particularly when masked or otherwise disguised, coming into a bank aggressively demanding money is a threat in and of itself. 

Moreover, the Supreme Court concluded that a theft by unlawful taking instruction was not required as a lesser-included instruction because there was evidence of the aforementioned implied threat and because theft does not require a threat.  Moreover, a facilitation instruction was not warranted because the evidence was that the Appellant was either an active participant or that he was not involved whatsoever (according to his testimony) as opposed to being “wholly indifferent” as a facilitator. 

The Court also concluded the trial court did not err by denying funds for a false confession expert because the Appellant did not claim his will had been overcome by police or that his confession was unreliable due to a mental condition but rather that he confessed to try to protect his cousin and that he was able to articulate his reasons for making what he claimed was a false confession at trial. 

Contributed by Brandon Jewell

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Wed, 04 May 2011 03:49:00 -0700 Featured Case - Birdsong - Robbery and "force" not aimed at victim http://theadvocate.posterous.com/featured-case-birdsong-robbery-and-force-not http://theadvocate.posterous.com/featured-case-birdsong-robbery-and-force-not

Birdsong v. Commonwealth, 2009-SC-000084— rendered April 21, 2011.

Opinion of the Court Affirming (no justice named).

Venters, J., dissents by separate opinion in which Minton, C.J., joins.

In this case, the Kentucky Supreme Court held that a person can be found guilty of second-degree Robbery as long as “force” is used, even if that force is not aimed at a victim, but is instead aimed at inanimate objects.  Mr. Birdsong, after ordering bank tellers in a loud voice to give him the money, slammed through the teller door and pushed computer equipment on the ground.  Two tellers testified that they felt threatened.  In determining the definition of the word “threaten,” the Court used a definition from the American Heritage Dictionary, which defined the word as “1 . To express a threat against. 2 . To be a source of danger to; menace. 3 . To portend. 4. To indicate danger or harm ." American Heritage Dictionary 840 (3d ed. 1992).  Moreover, a "threat" is "l . An expression of an intention to inflict pain, injury, or evil. 2 . One regarded as a possible danger." Id.  There were two dissenters, who noted that the General Assembly intended that the word “threaten” be considered an active word, describing the actions of the accused, rather than a passive word which includes the impressions of the victims. 

Contributed by Brandon Jewell

 

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