Wednesday, May 4, 2011

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