Kevin Darryl Martindale v. Commonwealth of Kentucky ( 2008 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: OCTOBER 23, 2008
NOT TO BE PUBLISHED
.0uprPmr Courf of 'gt~
2007-SC-000322-TG
KEVIN DARRYL MARTINDALE APPELLANT
ON APPEAL FROM DAVIESS CIRCUIT COURT
V HONORABLE THOMAS O. CASTLEN, JUDGE
NO . 06-CR-00328
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A circuit court jury convicted Keith Martindale of kidnapping, criminal trespass,
and for being a persistent felony offender (PFO). Martindale argues that the trial court
violated his substantial rights by granting the Commonwealth's motion to amend the
indictment during trial. We find no error and affirm the conviction .
I. FACTUAL AND PROCEDURAL HISTORY .
Police arrested Martindale after he fought with his ex-girlfriend in her home and
allegedly struck her at least twice. He was charged with kidnapping, burglary in the first
degree, alcohol intoxication, and PFO .
Martindale was originally charged with kidnapping with the "intent to accomplish
or to advance the commission of a felony or felonies, that being burglary and assault"
under Kentucky Revised Statutes (KRS) 509.040(1)(b) . At the close of the
Commonweeklth's case-in-chief, the prosecutor moved to amend the indictment to add
language from KRS 509.040(1)(c) to indicate that Martindale committed the offense of
kidnapping with intent to "inflict bodily injury or to terrorize the victim ." Martindale's
attorney objected to the amendment, stating that (1) Martindale's substantial rights
would be prejudiced and (2) she would have questioned the victim differently and
prepared analysis and expert testimony to refute evidence that the victim was
"terrorized ." But, at this point, Martindale did not request a continuance of the trial . And
the trial court allowed the amendment .
The jury convicted Martindale of kidnapping, criminal trespass, and PFO. The
trial court sentenced him to ten years for the kidnapping, which was enhanced to twenty
years as a PFO.
11 . ANALYSIS .
An indictment is sufficient under Kentucky law if it contains a plain, concise, and
definite statement of the essential facts constituting the specific offense with which the
defendant is charged.' It need not detail the essential elements of the charged crime as
long as it fairly informs the defendant of the specific offense charged and does not
mislead . Kentucky's Rules of Criminal Procedure (RCr) allow an indictment to be
amended so long as : (1) no additional or different offense is charged ; and (2) the
substantial rights of the defendant are not prejudiced . If justice requires, the court must
grant the defendant a continuance when such an amendment is permitted .4
Ernst v. Commonwealth, 160 S.W .3d 744, 751-52 (Ky. 2005).
Id. at 752, citing Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996).
RCr 6.16.
Id.
A. The Amendment to the Indictment Did Not
Charge an Additional or Different Offense.
No additional or different offense was charged in this case. In Schambon v.
Commonwealth, we found no error after the trial court allowed the prosecution to amend
the indictment at the close of its case-in-chief. 5 We said 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 . . . . ,6
In the present case, the original indictment charged Martindale with kidnapping
under KRS 509.040 . Yet kidnapping, under this statute, can be proven either when the
defendant's intent is "fflo accomplish or to advance the commission of a felony," KIRS
509.040(l)(b), which is how Martindale was originally charged, or "[t]o inflict bodily injury
or terrorize the victim or another," KIRS 509.040(l)(c), which was the language included
in the amendment . The amendment merely added language from KRS 509.040(1)(c) to
indicate that Martindale's intention also could have been to "terrorize" the victim. The
amendment to the indictment only designated another subsection of the statute used for
the original charge. We do not believe this amendment constituted an additional or
different charged offense under Schambon since the principal charge was the same,
and no additional evidence was required to prove the amended offense . The
amendment simply provided a different means by which the charged offense was
committed .
5
821 S.W.2d 804, 810 (Ky. 1991).
B . Martinda,le's Substantial Rights Were Not Prejudiced .
Additionally, the substantial rights of the defendant were not prejudiced . With
regard to the amendment of indictments, we have said that "reasonable certainty about
the charge .is required," and that a defendant has the right to rely on the fact that he or
she only has to rebut evidence of which he or she was given notice .' An amendment
may be said to be prejudicial if it leads to a dramatic turn of events in a case, or the
result would be an undue and unfair surprise .8 On the other hand, we have disregarded
its
allegations of prejudice when we concluded that the Commonwealth did not change
theory of the case mid-trial, nor did it amend to add any charges that were not
substantiated by the evidence .9
The basic rule is that an amendment should not be allowed when a defendant
would not have notice to prepare for a defense. The defense should not have to
prepare to meet additional specific charges, and such insertion during a trial would be
prejudicial to the accused.10 Martindale was aware of the nature of the charge and the
underlying fads, and he has not shown that he was surprised or misled by the
amendment to the indictment . The Commonwealth pointed out at trial that Martindale
was charged in the indictment with kidnapping with intent to accomplish the felonies of
burglary and assault, and so he was already on notice that he would have to defend
against the consequences of assault, such as bodily injury or fear. In fact, the statutory
7
Wolbrecht v. Commonwealth, 955 S.W.2d 533, 537 (Ky. 1997).
8
Id.
9
Commonwealth v. McKenzig, 214 S.W.3d 306, 308 (Ky. 2007).
10
Maum v. Commonwealth, 490 S.W.2d 748 (Ky . 1973) .
definition of assault includes the infliction of physical injury ." So Martindale was not
required, in the Commonwealth's assessment, to meet a substantially different charge.
We agree that the amendment was not a dramatic turn of events that would
result in an "unfair surprise ." As explained above, the amendment was permissible
because the basic offense stayed the same and the only change was that another
statutory subsection of the kidnapping charge was added . A substantial change in the
theory of trial did not occur, and Martindale was not forced to meet additional charges or
establish a different defense . And Martindale had not presented his case in chief, which
gave him leeway in presenting his case to counter the amended charge. For all these
reasons, we are not persuaded that there was prejudice to Martindale's substantial
rights .
C. Martindale Waived a Continuance By
Not Specificaliv Askinq for One.
The criminal rules provide that if justice requires, courts shall grant a continuance
when an amendment to an indictment is permitted . 12 In McKenzie v. Commonwealth,
we stated that if the defendant felt an amendment was prejudicial, the defense could
have moved for a continuance in order to revamp its defense. We determined that if
no such motion is made, then any claim of prejudice by the lack of a continuance is
14
waived Thus, a defendant must make the request for a continuance known to the
court.
KRS 508.010, 508.020 and 508.030.
RCr 6.16.
McKenzie , 214 S.W.3d at 308.
Id. at 309.
 Martindale argues that even though McKenzie requires that the defense make
known its need for a continuance, the language in RCr 6.16 does not place any such
requirement on the defendant. Martindale further argues that the court must grant a
continuance on its own motion even if the defense does not ask for it-given the
language in the rule that states that the court "shall grant the defendant a continuance."
But Martindale cites no authority in support of this argument. And McKenzie is
controlling law.
Martindale did not request a continuance after the amendment . He only argues
that the amendment would affect his substantial rights and that his defense might have
been different. He still makes no showing that additional time was needed . Because
Martindale never asked specifically for more time to prepare his case, he waived any
right to a continuance of the trial.
111. CONCLUSION.
For the foregoing reasons, Martindale's convictions and sentences are affirmed .
Minton, CJ ; Abramson, Cunningham, Noble, Schroder, and Scott, JJ., sitting .
All concur. Venters, J ., not sifting.
COUNSEL FOR APPELLANT :
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601-1133
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601