author: STEPHENSON, Justice. PALMORE, Justice,

text:
    Robert Earl CALLOWAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.

      Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Raymond M. Larson, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Calloway was convicted of kidnapping, KRS 509.040, and sentenced to 20 years’ imprisonment. We affirm.

The facts are not disputed. Calloway, his brother Charlie, and a Wayne Lanham, after a session of “sniffing glue,” went to a mall in Owensboro for the specific purpose of “robbing a girl.” There they seized the victim in the mall parking lot, forced her into her automobile, and, with Calloway driving, proceeded across the bridge from Owensboro to Indiana. The automobile was parked near the bridge in Indiana, and the three men took turns raping the victim. Afterwards, while still in Indiana, $30 was taken from the victim, of which Calloway, kept $20 for himself and his brother and gave $10 to Lanham. After the rape and robbery, Calloway drove them back across the bridge into Kentucky and pulled into a cemetery where the automobile became stuck in the mud. Calloway and the other two men left the victim in her car and went on their separate ways.

The victim identified the three men. She, Calloway’s brother and Lanham (both of whom confessed) testified at the trial in detail about the entire episode. Calloway’s confession was read to the jury.

The principal assertion of error is the failure of the trial court to submit an instruction to the jury on the exemption to the kidnapping statute, KRS 509.050. Cal-loway argues that his only defense to the crime charged was that his actions fell within the exemption statute.

KRS 509.040, Kidnapping, provides:

“(1) A person is guilty of kidnapping when he unlawfully restrains another person when his intent is:
(a) To hold him for ransom or reward; or
(b) To accomplish or to advance the commission of a felony; or
(c) To inflict bodily injury or to terrorize the victim or another; or
(d) To interfere with the performance of a governmental or political function; or
(e) To use him as a shield or hostage.
(2) Kidnapping is a capital offense unless the defendant voluntarily releases the victim alive, substantially unharmed, and in a safe place prior to trial, in which case it is a Class B felony.”

The trial court instructed under (b), to accomplish the commission of the crime of rape and/or robbery.

KRS 509.050, Exemptions, provides:

“A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose. The exemption provided by this section is not applicable to a charge of kidnapping that arises from an interference with another’s liberty that occurs incidental to the commission of a criminal escape.” (Emphasis ours)

Calloway submitted an instruction on the exemption. The thrust of his argument is whether the interference with the victim’s liberty occurs immediately with and incidental to another offense or whether the interference exceeds that which is ordinarily incident to the commission of the other offense and is a question for the jury.

The trial court properly declined to give the instruction. We are of the opinion the application of KRS 509.050 is to be determined by the trial court and not by a jury in the absence of standards by which a jury could make such a determination.

The larger question presented by Callo-way’s argument that his actions fall within KRS 509.050 is whether the exemption statute has any application at all in the circumstances presented here. We are of the opinion that it does not.

The purpose of KRS 509.050 and the legislative intent is supplied in the commentary to the statute:

“The necessity for this provision arises out of the fact that many of the crimes defined in this code have as an essential element, or as an incidental element, a restriction of another’s liberty. For example, offenses of robbery and forcible rape are defined in such a way as to always involve physical restraint. Other offenses may involve a restriction of someone’s liberty because of the manner in which they are committed. Because of this fact, a prosecutor could misuse the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses than are otherwise available. (Emphasis ours)

The logical extension of Calloway’s argument approaches fantasy. What he is saying here is the unlawful restraint of the victim in Kentucky is wiped out by the fact that he raped and robbed the victim in Indiana and that by virtue of the exemption statute he should be free from any prosecution in this jurisdiction.

Accepting this reasoning would result in an absurd interpretation of the exemption statute. We do not believe the legislature intended the statute to be construed so as to reach an absurd result.

The commentary clearly explains the intention of the legislature. The statute is to act as a restraint on abusive prosecution by Kentucky authorities in charging kidnapping or degrees of unlawful imprisonment in addition to charges of rape, robbery, etc., all of which occur in Kentucky.

Here, Kentucky authorities did not charge kidnapping to secure greater punitive sanctions for the rape and robbery. Here, the charge of kidnapping to accomplish or to advance the commission of a felony was to charge the only offense committed in this jurisdiction.

We hold that KRS 509.050 is applicable only to the charge of kidnapping or degrees of unlawful imprisonment made in conjunction with other charged offenses committed in this jurisdiction. In those situations, it is the duty of the trial court to determine whether such charge constitutes an abuse of the kidnapping and unlawful imprisonment statutes according to the circumstances presented in each case.

Had this entire episode occurred in Kentucky, the trial court would then have had to make a determination of the application of KRS 509.050. The practicality of the situation in our view is that ordinarily the authorities would be satisfied with charges of rape and robbery and not be disposed to pile on additional charges unless the circumstances were unusual.

Should Calloway be charged with rape and robbery in Indiana, we do not consider that to be an “abuse of prosecution” by Kentucky authorities. In that event, he will be tried in accordance with the laws of the state of Indiana, not Kentucky.

The other contention by Calloway that improper remarks by the trial court to the entire jury panel denied him a fair trial could be argued more appropriately in a close case. Here Calloway’s argument goes to the law of the case, not the facts. We are of the opinion that he does not show prejudice to the extent of denying him a fair trial.

KRS 500.030 provides, “All provisions of this code shall be liberally construed according to the fair import of their terms, to promote justice, and to effect the objects of the law.”

We are of the opinion we have construed KRS 509.050 in accord with this section of the Penal Code.

The judgment is affirmed.

CLAYTON, JONES, STEPHENSON and STERNBERG, JJ., concur.

LUKOWSKY, J., and REED, C. J., concur in result only.

PALMORE, J., dissents.

PALMORE, Justice,

dissenting.

In construing ERS 509.050, the exemption statute, the majority opinion emphasizes that portion of the Commentary in which it is said that “a prosecutor could misuse the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses than are otherwise available” and draws from it the conclusion that the purpose of the statute is “to act as a restraint on abusive prosecution by Kentucky authorities in charging kidnapping or degrees of unlawful imprisonment in addition to charges of rape, robbery, etc., all of which occur in Kentucky.”

After mentioning the possibility of abuse, the Commentary goes on to explain how the Model Penal Code and certain other criminal codes (including the New York statute, which requires a detention of 12 hours) are directed toward that particular problem. Then it says in so many words that there is a different basis for the Kentucky statute, as follows:

“The approach reflected by KRS 509.050 is unlike all of the above. The provision seeks to express a policy against the use of kidnapping to impose sanctions upon conduct which involves a movement or confinement (of another person) that has no criminological significance to the evil toward which kidnapping is directed. It then provides a flexible standard by which courts are to enforce that policy. Before criminal behavior that is directed toward the completion of robbery, rape, or some other offense can constitute kidnapping, there must be an interference with liberty in excess of that which ordinarily accompanies that offense.” (Emphasis added.)

The foregoing excerpt merely re-emphasizes what is said in the concluding portion of Commentary appearing at the beginning of KRS Chapter 509:

“More specifically, kidnapping convictions are precluded for confinements which are directed toward the commission of robbery, rape or other crimes of violence and which do not exceed in length and character the type of confinement which ordinarily accompany such offenses.” (Emphasis added.)

The point made by the Commentary (written by the drafter of the statute) is that physical detentions that are merely incidental to the commission of such crimes as rape and robbery are not the evil toward which kidnapping laws are directed. Presumably the laws against those particular crimes provide sufficient protection against them without the aid of kidnapping statutes.

In this case the detention existed for “about an hour, maybe a little more.” Had the rape and robbery taken place on the other side of town, in Kentucky instead of Indiana, the assault and unlawful imprisonment offenses leading up to and culminating in the rape and robbery would have merged in them. Certainly the appellant could not have been convicted of both rape and kidnapping. That the crimes culminated in Indiana should not make any difference. Indiana has laws against rape and robbery and has courts and prosecutors capable of enforcing them. It is my opinion that the defendants in this case should have been turned over to the Indiana authorities for prosecution there. Instead, I am afraid that KRS 509.050 has been misunderstood and subverted, and as a result we may witness a good many of the very abuses that the majority opinion indicates it was intended to prevent.

Another respect in which I come to a parting of ways with the majority opinion is in its treatment of the possible effect of a portion of the trial judge’s remarks to the jury panel at the beginning of. the term of court during which the appellant was tried. From my own personal acquaintance with the able and distinguished trial judge I am satisfied that if he had realized the similarities between the facts of this case and the example mentioned by him to the jury panel, and that this case would be tried by 12 of the same jurors to whom he was speaking, he would have used a different example to illustrate his point. Nevertheless, here it is:

“I instruct you do not compromise your verdict, and here’s what I mean by that. Suppose you’re a member of a twelve-man jury and you go back there and you have some doubt about this man’s guilt; but just to get along with the remaining eleven, you say, “Okay. I’ll go along with the verdict of guilty, but I’m going to give the absolute minimum sentence.” That’s no way. That’s a compromised verdict. Once you agree a verdict of guilty is your verdict, you set an appropriate punishment. An aggravated offense certainly warrants more punishment than one that is not aggravated. In the words of Gilbert and Sullivan, “Let the punishment fit the crime.” I’ll give you a little example, and I don’t want to mention names. It would be embarrassing. A few months ago here we had a young man with a family — an attractive young man with a family charged with an offense — a sexual offense against an elderly lady. A bizarre type thing which nobody could believe that it could happen. Why? Why would that happen? He took her across the river. The serious offense took place in southern Indiana. We couldn’t prosecute him for the most serious offense. All they could prosecute for was for detaining a woman against her will, which carried a punishment from two to seven years in the penitentiary. Now that jury of mostly young women went back there and they went in there and thought — I know in their minds they thought this is unbelievable. It’s incredible and bizarre. I don’t understand how a young man would do this with a seventy-two year old lady. So there’s something awry here. The, evidence was overwhelming I’ll admit that, but I’m not going to give anything but the minimum sentence. Well, they did that — two years, and they might as well have hung a medal on him. Now that’s about the most poignant example that I can think of in my two years on the bench of a compromised verdict, and I don’t want you to do that. If your punishment should be too great under the law, I can reduce it. If it’s too little, I could never increase it. I’m not saying go back there and give the maximum sentence in every case. Don’t give the minimum sentence in every case. Give a sentence that fits the crime once you vote for a verdict of guilty.”

In a motion for new trial filed some six weeks after the trial, counsel for the appellant stated “that after due diligence and subsequent to the trial of this matter and the filing of a Motion and Grounds for New Trial . . . and the Court’s Order overruling said motion . . counsel became aware” of the court’s charge to the jury panel containing the passage quoted above. From this it is to be assumed that counsel was not present when the prospective jurors were addressed and had no reason to know what had been said in time to bring it up before the trial.

Appellant’s contention that the foregoing charge to the jurors conduced to deny him a fair trial is sloughed off by the comment that it “could be argued more appropriately in a close case. Here Calloway’s argument goes to the law of the case, not the facts.” Such an answer begs the question. It misses the point that the jury had a choice with respect to the penalty, ranging from 10 to 20 years. This was the precise aspect of the jury’s function toward which the trial judge’s remarks had been directed. Presumably the jurors accepted the guidance offered by those remarks. They chose the maximum sentence of 20 years. That the appellant’s main argument goes to the law of the case rather than the facts is simply irrelevant to the possible influence of the trial court’s remarks upon the jury’s choice of a penalty. I think he has a substantial due process claim.


source: Caselaw Access Project

author: LUKOWSKY, Justice.

license: Public Domain

text:
    Ethel Ann DUVALL, Appellant, v. James S. DUVALL et al., Appellees. Ethel Ann DUVALL, Appellant, v. Wavy E. DUVALL, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.
    Rehearing Denied June 10, 1977.
    John L. Arnett, Collier, Arnett, Coleman & Cooper, Elizabethtown, James A. Hubbs, Louisville, for appellant.
    Paul M. Lewis, Lewis & Bland, H. L. James, Elizabethtown, Stephen F. Schuster, Richard F. Newell, Ogden, Robertson & Marshall, Louisville, L. A. Faurest, D. Michael Coyle, Elizabethtown, John L. Smith, U. S. Atty., Richard F. Mitchell, Tax Div., Dept, of Justice, Washington, D. C., Joseph H. Eckert, Robert L. Sloss, Wyatt, Grafton & Sloss, Blakey Helm, Louisville, William S. Riley, Dept, of Revenue, Frankfort, Hud-dleston, VanZant & Coyle, Elizabethtown, Howard B. Hunt, Louisville, for appellees.
   LUKOWSKY, Justice.

In Duvall v. Duvall, Ky., 431 S.W.2d 491 (1968) we affirmed the judgment of the Jefferson Circuit Court in part with directions that it be modified to award Ethel Ann $300 per month future alimony. Our mandate to that effect was filed in the Jefferson Circuit Court on October 7, 1968.

Wavy died on March 7, 1969 without a modified judgment having been filed in the Jefferson Circuit Court. No steps were taken by Ethel Ann to either revive the action against Wavy’s estate or have a modified judgment entered until the spring and summer of 1973.

Revivor of the action in the Jefferson Circuit Court was necessary because our mandate was not self-executing and required that other steps (modification of judgment) be taken in the circuit court. Wallace v. Wallace’s Ex'x, 150 Ky. 33, 150 S.W. 13 (1912); Murphy v. Blackburn, 229 Ky. 109, 16 S.W.2d 771 (1929). The Jefferson Circuit Court was not in error when it refused to revive the action and enter a modified judgment on the ground that the relief was not sought within the time provided by KRS 395.275 and KRS 395.276. CR 25.01(1).

Ethel Ann’s claim for alimony against Wavy’s estate in the Hardin Circuit Court had to be supported by a final judgment because Ethel Ann and Wavy never made an agreement. Our mandate may not be construed to be such a judgment because it, unlike the mandate in Smith v. Garbe, 86 Neb. 91, 124 N.W. 921 (1910), required that further steps be taken in the circuit court. CR 54.01. The Supreme Court of Nebraska saw fit to modify the judgment and affirm it as modified. This is not a method of disposition which this court has adopted. In the absence of a judgment of the Jefferson Circuit Court awarding periodic alimony the Hardin Circuit Court was not in error when it denied Ethel Ann’s claim.

The views we have expressed make it unnecessary for us to determine whether a periodic alimony award to a wife continues beyond the death of the husband. As a matter of purely academic interest the attention of counsel and the trial courts is directed to Shepherd v. Shepherd, Ky., 521 S.W.2d 74 (1975).

The judgments are affirmed.

All concur, except STERNBERG, J., who did not sit.


text:
    Wallace Oscar BOYD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.
    Rehearing Denied June 10, 1977.
    See Ky., 550 S.W.2d 511.

      Jack Emory Farley, Public Defender, Allen W. Holbrook, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Wallace Oscar Boyd was indicted, tried and convicted in the Greenup Circuit Court of the intentional multiple murders of Alete Gilliam and Edward Howard. The statutes required the jury to fix his punishment at death. KRS 507.020(2)(e) and KRS 532.-030(1). He appeals.

The primary question presented for decision is the constitutionality of Kentucky’s 1974 mandatory death penalty, visa-vis, the Eighth and Fourteenth Amendments of the Constitution of the United States. Relying on the decisions of the Supreme Court of the United States in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the Attorney General of the Commonwealth candidly concedes the unconstitutionality of Kentucky’s mandatory death penalty.

The Supreme Court of the United states is the final interpreter of the Federal Constitution. Article VI, Section 2 of that document provides:

“This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or laws of any State to the contrary notwithstanding.” ,

Consequently, we have no choice but to aeeept the concession and hold the mandatory death penalty to be unconstitutional.

The secondary question presented for decision is that of the punishment to be imposed upon Boyd once the unconstitutionality of the mandatory death penalty is established. The trial court instructed the jury on the intentional simple murder of Gilliam, KRS 507.020(l)(a), the intentional simple murder of Howard, the intentional multiple murders of Gilliam and Howard, KRS 507.020(2)(e), the manslaughter in the first degree of Gilliam, KRS 507.030, and the manslaughter in the first degree of Howard. The jury found Boyd guilty of the intentional multiple murders of Gilliam and Howard. In order for the jury to reach this result it was necessary that it find Boyd guilty of the intentional murders of both Gilliam and Howard under aggravated conditions and reject all possibilities of intentional simple murder or manslaughter convictions.

The jury chose to convict Boyd of the most serious and aggravated offense and invoke the ultimate punishment of death. It deliberately rejected the opportunity to extend mercy by declining to convict Boyd of simple intentional murder or manslaughter in the first degree. It was clearly the intention of the jury to impose the maximum punishment legally permissible. The maximum punishment constitutionally permissible under Kentucky’s 1974 penal code is life imprisonment. Unless the verdict of the jury is to be completely frustrated, it is this punishment which must be imposed upon Boyd for each of the two murders of which he stands convicted.

The Public Defender also favors us with a shotgun blast of alleged procedural and trial errors. It is not necessary that we consume bales of paper and barrels of ink to dispose of them. Considering that the unconstitutionality of the mandatory death penalty means that this is no longer a capital case, we are satisfied that the pellets of alleged error are either not error at all or are not properly preserved for appellate review.

The judgment is reversed insofar as it imposes the death penalty upon Boyd, with directions that Boyd be sentenced to terms of life imprisonment in conformity herewith; in all other respects the judgment is affirmed.

All concur.

      . A Class A felony, punishable by imprisonment for not less than twenty years nor more than life.

      . A Class B felony, punishable by imprisonment for not less than ten years nor more than twenty years.


author: STEPHENSON, Justice.

text:
    Jimmy Keith SELF, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.
    See Ky., 550 S.W.2d 511.
    Jack Emory Farley, Public Defender, David E. Murrell, Deputy Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Jimmy Keith Self was convicted of the capital offense of murder during the course of robbery in the first degree. KRS 507.-020(2)(b). The jury in accordance with the statute fixed his punishment at death.

In addition, Self was tried and convicted on four counts of first-degree robbery, KRS 515.020(l)(b), and given 20 years’ imprisonment; first degree assault, KRS 508.-010(l)(b), and given 20 years’ imprisonment; and criminal attempt, KRS 506.010, and given 20 years’ imprisonment. Self was not sentenced on these convictions.

Self asserts the unconstitutionality of the 1974 statute providing for a mandatory death penalty.

This assertion has been answered and disposed of in Boyd v. Commonwealth, Ky., 550 S.W.2d 507, decided this day.

We have determined the 1974 mandatory death penalty statute to be unconstitutional in Boyd by virtue of the decisions of the Supreme Court of the United States cited therein. We hold that the punishment to be imposed on Self for the conviction of murder is the maximum constitutionally permissible under the 1974 Penal Code, life imprisonment. This disposition answers Self’s arguments with regard to the death penalty and assignment of error in closing argument.

The sole remaining assertion of error is that Self’s right to effective assistance of counsel was violated by the trial court.

The evidence developed at the trial shows that Self and Beverley Headley, a codefend-ant, entered the Bachelor II Cocktail Lounge in Paducah, Kentucky. After shooting pool for a while with Ronnie Morris, Headley left the premises. Shortly thereafter, according to the other persons present, there was a shot near the pool table, Morris was seen lying on the floor, Self was waiving a pistol and stated “this is a robbery.” Self pointed the pistol at Herman Bentley, the bartender, Brenda McDonald and Richard Flowers, patrons of the bar, and ordered them to approach the pool table. Self ordered them to persuade Morris to get to his feet. They did so and when Morris, wounded, reached his feet, Self said in substance, “Now watch me kill this Nigger,” and fired again at Morris, killing him. He then proceeded to rob Bentley, McDonald and Flowers and took money from the cash register. Bentley informed Self there were no guns on the premises; and when Self found a .45 caliber revolver under the bar, he placed the muzzle of the gun under Bentley’s chin and attempted to pull the trigger. The gun did not fire. Then Self discovered a safe next to the bar. He ordered Bentley to open it. When Bentley denied he knew the combination, Self stabbed Bentley in the abdomen with a knife. During this episode, N. T. Younger came to the door. Self led Younger in, identified himself and robbed Younger.

Self then left the premises, and he and Headley were later captured in Missouri. The authorities recovered the stolen money, watches and rings.

Self made a statement to the Missouri authorities that the shooting was in self-defense and that Bentley offered him the money from the cash register. Self did not testify at the trial.

Self’s trial counsel, a public defender, also represented Headley. On the day of the trial, Self objected to his trial counsel representing him and asked for other counsel. It appeared that Headley, after a visit in jail by the Commonwealth’s attorney and a detective, agreed to enter a . guilty plea to the charges on the promise to receive less than a life sentence in return for testifying for the Commonwealth. At first Self thought his trial counsel was present at the meeting with Headley and stated he and Headley had been “sold out.” The Commonwealth’s attorney had invited Self’s counsel to the meeting, but he declined to attend. Self appeared to suggest to the trial court at the in-chambers hearing that his trial lawyer should have prevented Headley from agreeing to testify and in not so doing created a conflict at the trial and failed to properly represent either Self or Headley or both of them. The trial court declined to grant a continuance.

Headley was not present in the Bachelor II premises when the incidents occurred. She testified to the details of herself and Self travelling from Illinois to Paducah and entering the Bachelor II premises. She testified she left the premises on instructions from Self, that he stated he was going to “rob the place.” She testified about waiting in the car, the get away and pursuit leading up to the capture. We cannot see Headley’s testimony as adding to the strength of the Commonwealth’s case. Self, in his argument for other counsel, asserted Headley was not guilty of any crime. He argues that Headley’s testimony as to his stated intention to rob had great significance, showing premeditation.

We are of the opinion Self was not denied effective assistance of counsel. The evidence of guilt was clear, convincing and overwhelming. In view of the other evidence for the Commonwealth, Headley’s testimony was innocuous. Even had it been otherwise, there is nothing in the record to show a conflict of interest on the part of Self’s trial counsel or that he failed in any respect in his duty to afford Self competent representation.

' The judgment is reversed insofar as it imposes the death penalty upon Self with directions that Self be sentenced to a term of life imprisonment. In all other respects, the judgment is affirmed. Further, this cause is remanded to the trial court for sentencing on- the three convictions for which sentence was not pronounced.


author: PALMORE, Justice.

text:
    Ronnie MEADOWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.
    Rehearing Denied June 10, 1977.
    See Ky., 550 S.W.2d 509.
    Jack Emory Farley, Public Defender, Frankfort, J. Vincent Aprile, Anna H. Isaacs, Asst. Public Defenders, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

Ronnie Meadows appeals from a judgment sentencing him to death pursuant to a verdict finding him guilty of intentional murder committed in the course of lst-de-gree burglary,' KRS 507.020(2)(b). In view of Boyd v. Commonwealth, Ky., 507 S.W.2d 550 (decided today), the judgment must be reversed insofar as it imposes the death penalty. Otherwise, however, we find no prejudicial error.

On May 23,1975, Meadows was placed on parole from a four-year sentence being served at the Kentucky State Penitentiary for breaking and entering. He was given a bus-ticket to Cincinnati, Ohio, where a job had been procured for him. Instead of using the ticket, he exchanged it for cash in Paducah, procured a shotgun, shotgun shells and some other items from the home of a friend, stole a truck and abandoned it when it developed mechanical trouble, and then stole another truck. The second stolen vehicle also quit running at about 5:15 A.M. on May 25, 1975, near the home of Charles Grief and his wife, Mary Eloise, situated in a rural area near Paducah. Meadows saw a light come on in the kitchen of the Grief house and, according to his own testimony, decided to go up and see if could get a car and some money. He was carrying the loaded shotgun and a lunchbox with some clothes in it. He says he went to the door and rang the bell and that when Mrs. Grief appeared he asked if he could make a telephone call. Mrs. Grief let him in, but then for some reason unknown to him she threw her hands up to her mouth and screamed, whereupon he “brought the gun up [and] it just went off . . . . I didn’t shoot her on purpose. It was an accident. Accidental. I just brought the gun up and it went off.” At this point Mrs. Grief’s husband appeared in the hallway with a pistol in his hand and Meadows fled the scene, leaving the lunchbox and its contents, including his parole papers, behind. Mrs. Grief died from the gunshot wound.

Most of the alleged errors or irregularities on which Meadows relies for a reversal of his conviction were not timely raised in the trial court and thus were not preserved for review. Though in cases of capital punishment it has been a long-standing policy of this court to overlook procedural deficiencies, cf. Bowman v. Commonwealth, Ky., 290 S.W.2d 814, 817 (1956), this is no longer a capital case and that policy will not be applied. Hence we confine our discussion to the matters that are reviewable under conventional principles.

Some 20 prospective jurors were excused for cause when they expressed opposition to the death penalty. Each of them was first asked whether he had any conscientious scruple against imposition of the death penalty and then, after answering in the affirmative, was addressed as follows: “I take it by your answer that you could not find a death penalty in this or in any other case, regardless of the facts?” It was only after responding affirmatively to this inquiry that each of the prospective jurors was stricken.

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), held that the exclusion of prospective jurors solely on the ground of their having expressed general objections to or scruples against imposing the death penalty deprives a defendant of due process. Though counsel for Meadows recognizes- that the voir dire in this case does not fall under the proscription of Witherspoon, he argues that whenever in any case the jurors have been qualified as not opposed to capital punishment they are likely to be more disposed to convict than would otherwise be so. That may be entirely true, but so far it is not unconstitutional. See Witherspoon, 391 U.S. at pp. 517, 518, 88 S.Ct. 1770.

In his closing argument to the jury counsel for Meadows concluded with the following statement:

“So, if you would think about the evidence when you get back into the jury room and apply it to the law which the Judge will give you and arrive at a fair and impartial judgment and give Ronnie Meadows, I think he deserves punishment, but give him what you think he deserves.”

It is now contended that this statement amounted to a plea of guilty, destroying Meadows’ defense of accidental shooting, and that because there had been no hearing to determine whether he had voluntarily and intelligently acquiesced in it the conviction must be set aside under the principle of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We think, however, that this particular approach to the jury by counsel, seeking more to save his client’s life than his liberty, was not a plea, but a ploy. It entreated the jury to find Meadows not guilty of the most serious offense covered by instructions, even if the price of its so doing were to find him guilty under one of the other instructions. A lawyer’s role in trying a case is much like that of a military commander on the field of battle. His decisions to advance, retreat or stand fast cannot always be plotted in advance or be laid before headquarters before taken. The action of trial counsel in this particular instance may have amounted to a tactical retreat, but certainly it did not surrender the cause. We therefore need not pass on the question whether the Boykin principle would apply to a de facto guilty plea made, for example, in the form of a lawyer’s admitting his client’s guilt and ■pitching his case on the mercy of the jury.

This last point leads into another contention that has become all too common in the appeals being presented by the Public Defender, which is that because trial counsel did or did not do this, that or the other which he should or should not have done, according to the hindsight judgment of appellate counsel, the defendant was deprived of his Sixth Amendment right of counsel and, indeed, of his due process right to a fair trial. It is easy for brilliant young lawyers to flyspeck a trial record and pick out flaws in the manner in which it was practiced. It is even more simple if one has had no first-hand experience of his own in the pit. We have read the transcript of this trial and are not at all convinced that it was incompetently tried or that any of the alleged errors and irregularities, singly or in toto, resulted in an unfair trial. This was a mean, desperate case. In our opinion it is beyond any reasonable doubt whatever that even if it were practiced, and every trial action taken, as appellate counsel would have it, any impartial jury in the country would find Meadows guilty of murder just as this jury in McCracken County did. The outcome was just plainly inevitable, and the appellant is fortunate that by grace of the United States Supreme Court he escapes the electric chair.

One more comment and we are done. It is argued that the evidence warranted an instruction on the defense of intoxication under KRS 501.080. In Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (decided today), it was held that in order to justify such an instruction there must be evidence not only that the defendant was drunk, but that he was so drunk that he did not know what he was doing. Meadows testified that he had consumed a large quantity of medicine and alcohol, but there was not a scintilla to suggest that he was not fully in possession of his faculties when he murdered Mrs. Grief. The only tangible effect the evidence of intoxication could have had was to reduce the offense from intentional homicide to wanton or reckless homicide, and that does not require an instruction.

In accordance with Boyd, cited in the first paragraph of this opinion, the judgment must be modified to reduce the sentence to life imprisonment. In all other respects it is affirmed.

The judgment is affirmed in part and reversed in part with directions that it be modified in accordance with this opinion.

All concur.


author: JONES, Justice.

text:
    Jimmy Wayne EVERSOLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied June 10, 1977.

      Jack E. Farley, Public Defender, Gary E. Johnson, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   JONES, Justice.

Jimmy Wayne Eversole, Mellie Holcomb and Odell Farley were charged by the Grand Jury with the murder of Green Gibson. KRS 507.020(l)(a). In a previous trial, the jury was unable to reach a verdict. Farley was granted a severance. In a subsequent trial which gives rise to this appeal, the jury found Eversole guilty of murder and fixed his punishment at 20 years and 1 day in the state penitentiary. Mellie Holcomb was acquitted. The trial court sentenced Eversole in conformity with the jury’s verdict. Eversole prosecutes this appeal. He contends: (1) the trial court should have given an accomplice instruction; (2) the evidence was insufficient to support a conviction; (3) the trial court should have instructed the jury on lesser degrees of homicide; (4) the trial court’s instructions should have required the jury to reach a unanimous verdict, not only as to guilt of murder, but also as to which alternative method the murder was accomplished.

This is a sordid drama of the events that occurred nn. May. 24⅜ .19.75, .culminating in the brutal slaying of Green Gibson.

Because the testimony of the witnesses was inconsistent as to the events, it is necessary to relate the facts in some detail. It is apparent that some of the witnesses did not tell the truth. Several witnesses placed Eversole at the scene where the altercation between Eversole and Gibson took place. Eversole and Mellie Holcomb deny seeing Gibson on May 24, 1975.

The records of the hospital show that Gibson was admitted on May 25, 1975, and died June 1, 1975. When Gibson was brought to the hospital he was semi-conscious. He had swelling on the right side of the scalp and abrasions of the skull. The physicians’ report and the death certificate read at trial showed the cause of death to be “epidural hematoma and severe brain damage.”

Roberta Shepherd testified that on Saturday, May 24, 1975, she met Eversole, Mellie Holcomb and Green Gibson in a tavern. They invited her to join a party and offered her a sum of money to go with them. She went with Eversole and the others to his house. Later all of them went to Mellie Holcomb’s house. Roberta was drunk. She took a nap. She was awakened by Eddie Saylor, who was attempting to remove her clothes. She fought Saylor and the noise brought Mellie and her daughter Loretta into the room. They aided Roberta in resisting Saylor’s advances. Roberta testified that she took another nap. She was awakened by Eversole shining a light in her eyes. He was asking Gibson, who was sitting on the bed, for the $50.00 he claimed Gibson owed him. When Gibson refused to pay, Eversole followed him into the yard where a fight took place. Eversole knocked Gibson down three times. Gibson cut Eversole with a knife, and fled toward his truck. Eversole fired his gun and Gibson fell.

After this altercation Miss Shepherd and the others went inside the house and continued to drink. They were in the house about half an hour. The men then loaded Mr. Gibson into his truck and left. The women followed in a separate ‘Vehicle; fThey'wait* ed in the car while the men proceeded in the truck to a graveyard. Roberta heard “some banging” down under a hill.

Odell Farley, a defendant who was tried separately, stated that he and members of his family went to Mellie Holcomb’s and Jimmy Eversole s houses on May 24, 1975. There they played cards and continued drinking. While they were there, Gibson and John Dixon arrived. Farley and some of the others went swimming. When they returned Gibson and Eversole were playing cards. Gibson lost money to Eversole. Farley’s testimony as to the altercation corroborated that of Roberta Shepherd. He was in the truck when the others drove it to the graveyard where Gibson was left. The women were then taken home. Farley, Ev-ersole and Eddie Saylor returned to the graveyard, because “they wanted to finish him (Gibson) off.” Eversole told Eddie Saylor to finish killing Gibson, and told Eddie, “If you don’t I’ll kill you.” They then left Gibson and returned home.

John Dixon testified at the first trial of Eversole and Mellie Holcomb, but had died before the trial in this case. His prior testimony was read to the jury. Dixon’s prior testimony was that Gibson had been living with him for two months. He and Gibson went to Harlan on May 24,1975, the day of the altercation. They stopped at either Eversole’s or Mellie Holcomb’s home on the way back. Gibson asked Eversole to take him to Harlan and pick up Roberta Shepherd, and he would pay him $50.00. Eversole, Mellie Holcomb and Gibson left together and returned with Roberta Shepherd. Dixon contradicted the testimony given by Roberta Shepherd. He testified that Eversole struck Gibson lightly and that, “It wouldn’t hurt a baby.” Dixon testified that he saw Eversole fire “up in the air” and that Gibson did not fall to the ground.

Jack Brown, a part-time deputy sheriff, testified that on May 25,1975, he was called to investigate an injured man in a graveyard. He found a pickup truck with Green Gibson in it. Gibson had a cut between 1 ½ to 2 inches across his chest. He was still alive, but did not respond to questions. A hawkbill knife and his wrist watch were found beside him. His empty wallet was found about 100 ft. from the truck.

At the close of the Commonwealth’s case in chief, both Eversole and Mellie Holcomb took the stand in their defense. Eversole and Mellie Holcomb denied seeing Gibson at all on the day of the fracas. Eversole denied that he and Gibson played cards. He denied procuring a prostitute for Gibson or that he and Gibson fought.

Eversole’s counsel introduced the testimony of Loretta Holcomb, Mellie’s daughter. She had testified in the former trial, but was ill at the time of this trial. Her testimony, read to the jury, corroborated the testimony of Eversole and Mellie Holcomb.

Eversole’s first assignment of error is that the only witnesses at his trial that connected him to the murder were accomplices as a matter of law. He contends that the trial court erred by not instructing the jury that such testimony required corroboration.

There is no merit to this argument. Ev-ersole never requested an accomplice instruction as required by RCr 9.54. He cites Stone v. Commonwealth, Ky., 456 S.W.2d 43 (1970) as supportive of the requirement despite the failure to request an instruction required by RCr 9.54. Stone, supra, haunts this court in every case where counsel fails to do that which he is supposed to do. Stone, supra, has become like the clickety-clack caused by the needle on a cracked phonograph record. Stone, supra, is not a panacea to cure the ills caused by failure of counsel to abide by the rules of procedure promulgated by this court.

Despite the lack of preservation of this contention of error, the court was justified in refusing an accomplice instruction. All of the witnesses who knew of the facts leading to the murder were not accomplices.

Roberta Shepherd had no knowledge that Eversole was going to shoot Gibson. She did not know that Eversole was going to beat Gibson when he returned to the graveyard. She was a. witness to the crime, not an accomplice.

Odell Farley did not participate in the first fight or the shooting. He did witness the beating and cutting of Gibson at the graveyard. However, his testimony was corroborated by Roberta Shepherd. At most, Parley was a passive actor in the sordid drama of May 24, 1975.

John Dixon certainly was not an accomplice. There is no evidence that he caused the shooting or participated in the fight in the yard. Consequently, the witnesses about which Eversole complain did not meet the test of true accomplices.

Eversole’s allegation that there was insufficient evidence to support the jury’s verdict is baseless. He contends that the only substantive evidence was that of Roberta Shepherd, Odell Farley and John Dixon. He contends they were accomplices as a matter of law.

Eversole admits that he did not move for a directed verdict. However, he contends that the question should be preserved on the merits of Stone v. Commonwealth, supra.

Because Eversole never preserved the point for consideration on appeal he has waived it. This court will not now consider the question raised for the first time in this appeal. This court expects counsel to abide by its rules.

Eversole’s third assignment of error was that the trial court should have instructed the jury on the lesser offense of homicide. However, Eversole never requested such instruction as required by RCr 9.54(2). His failure to do so precludes him from raising the point for the first time in this appeal.

Finally, Eversole contends that the court’s instructions should have been clear and that the jury’s verdict should be unanimous, not only as to guilt, but unanimous as to the alternative method the homicide was accomplished. It is true that the trial court’s instructions contained two alternative theories of the cause of Gibson’s death.

The trial court’s Instruction No. I is as follows:

“You will find the defendants guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
(a) That in this County before the finding of the indictment herein, the defendants, Jimmy Wayne Eversole and Mellie Hollins Holcomb killed Green Gibson by striking and beating the said Green Gibson with a deadly weapon or a dangerous instrument used in the manner of a deadly weapon;
AND
(b)(i) That in so doing they intended to cause the death of Green Gibson, the decedent;
OR
(ii) They were wantonly engaging in conduct which creates a grave risk of death to another and thereby caused the death of Green Gibson under circumstances manifesting an extreme indifference to the human life.
If you find the defendants guilty, you will fix their punishment at confinement in the penitentiary for not less than 20 years or at life, in your discretion.”

It is obvious that the alternative instruction is erroneous because the trial court omitted “In so doing” from (b)(2), supra. However, Eversole failed to raise the question.

Eversole argues that this type of instruction could cause half the jury to believe the first theory, that is, he intended to cause the death of Green Gibson; and that half the jury could believe the alternative of wantonly engaging in conduct that caused the death of Green Gibson under circumstances manifesting an extreme indifference to human life. Thus, he contends there was no unanimity as to the cause of death and that it could not be determined by the form of the verdict which theory was adopted by the jury. The record reveals that Eversole requested no such instruction as required by RCr 9.54. In fact, he admits that no such instruction was offered.

As to unanimity the trial court’s Instruction No. 4 required a unanimous verdict. Furthermore, Eversole could have polled the jury, which he failed to do. There is no constitutional issue here; there’s a mere allegation of error which was not preserved for appellate review.

In conclusion, this court notes that all of Eversole’s points deal either with error in the instructions or insufficiency of the evidence. This court on many occasions has determined that to preserve such points for consideration on appeal, the defendant must either offer an instruction which he contends should have been used, or move for a directed verdict. Eversole failed to do either. Because Eversole failed to preserve such points, this court will not consider them since they are raised for the first time in this appeal.

This court is of the opinion that the judgment should be and it is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    William Henry LUCKETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied June 10, 1977.
    Jack E. Farley, Public Defender, Kevin M. McNally, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

The appellant, William Henry Luckett, was found guilty of first degree robbery and sentenced to serve 20 years in the penitentiary. On this appeal he claims three errors and, as taken from his brief, are as follows:

“1. Did the trial court commit reversible error and deny the appellant due process of law when it denied the appellant’s motion to suppress the unnecessarily suggestive pretrial photo-identification procedure and the resulting tainted in-court identification?
2. Did the trial court commit reversible error and deny the appellant’s constitutional right to a fair trial, „by permitting the Commonwealth’s Attorney to testify as a prosecution witness and thereafter continue to participate in the trial?
3. Did the trial court commit reversible error and deny the appellant’s constitutional right to a fair trial by permitting the Commonwealth to engage in improper conduct during trial and closing argument?”

On February 2, 1976, the appellant made a motion to suppress all of the evidence relating to his identification. A hearing was held on February 4, 1976, after which the motion to suppress was denied. The following day appellant was tried and found guilty as charged.

The evidence discloses that at about 9:15 a. m. on October 24, 1975, a person, later identified as appellant, entered the Fitzgerald Warehouse under the pretext of being a potential customer and waiting for his wife or girlfriend to come so that together they could pick out some furniture. He stayed and looked about the store for about forty-five minutes. During this time the store manager, Gilbert Barron, and appellant were in conversation and appellant gave his name as Luckett. Appellant left the store and was away for about an hour. Upon returning, he again pretended to be waiting for his wife or girlfriend. After a short period of time appellant struck Barron on the head with an iron pipe, took his wallet containing $140, and ordered him into a nearby bathroom, with directions to lie on the floor. As the robber departed he told Barron that he was going to take a stereo and warned him against reporting it to the police. After several minutes had passed, Barron came out of the bathroom and the man and stereo were gone. Barron washed off the blood and changed his bloody shirt, then went to the hospital, where he reported the assault and robbery to Detective Sergeant Robert A. Meadows. The assailant was described as being about 22 years of age, 6 feet 1 inch or 6 feet 2 inches tall, weighing between 190 or 205 pounds, having fairly long hair, wearing a turtleneck sweater and raincoat, and using the name of Luckett. At the police station that afternoon Barron made a tentative identification of appellant from four mug shots. Seven days later, at the store, Barron again was shown the same four pictures and at this time he reaffirmed his former identification. Although Barron had formerly equivocated as to the identity, on this latter viewing of the pictures he made a positive identification of the appellant as being the person who had assaulted and robbed him.

A witness by the name of Clarence Calhoun, who had spoken to appellant while he was in the store on October 24,1975, and of course prior to the robbery, identified appellant from a group of three pictures as the person that he saw in the store on that day. The evidence of appellant having a stereo was furnished by Conchita Posey, appellant’s girlfriend. She testified that when she returned home from work, at about 2:30 p. m., appellant and her brother were there. When she queried them about the stereo, appellant first said that he bought it in Evansville, but later said he bought it from two men whom he identified as Keebie Smith and Tyronne Green. This concluded the case for the Commonwealth in chief. Appellant’s motion for a directed verdict was properly denied.

The appellant testified in his own behalf. His defense was an alibi, claiming to be at the home of Faye Floyd the entire morning. He stated that he met Smith and Green on two occasions that afternoon and that he bought the stereo from them. Both Smith and Green were called as witnesses by the Commonwealth, each of whom denied stealing, selling, or trying to steal the stereo. Appellant claimed to be regularly employed by the Corbell Construction Company, but stated that when he reported for work on the morning of October 24, 1975, he was told that there was no work that day. By way of rebuttal, the treasurer of the construction company testified that he had checked the company records for the last half of 1975 and could not find any record of appellant having worked for them during that time.

During the time appellant was in jail awaiting trial he sent word that he would like to talk with the Commonwealth’s Attorney. Thereupon, the Commonwealth’s Attorney went to the jail where he and appellant engaged in a conversation, the context of which varies between the two. Appellant contends that all he said was to repeat his contention of innocence. The version of the Commonwealth’s Attorney was that appellant, after affirming his innocence, said that (1) he, Conchita and Karen Hatchett, during the afternoon of the day in question, were standing on a street corner when Smith and Green drove by with the stereo in their pickup truck; (2) Green and Smith said they got the stereo from an old man they hit on the head; and (3) he did not buy the stereo. Earlier in his testimony appellant stated that he had purchased the stereo and Conchita, the woman with whom he lived, testified that he told her he bought it from two men. After the in-jail conference with appellant, the Commonwealth’s Attorney forthwith relayed the information to Detective Meadows for further investigation. In doing so, Detective Meadows talked with Conchita at her home and while there recovered the stereo.

Officer James Gass testified that he took a fingerprint from a glass-top piece of furniture at the Fitzgerald Warehouse and identified it as appellant’s. Albert Holbert, a public defense investigator, would not make a positive identification from the print.

In support of appellant’s first issue, challenge is directed to the first and second photographic displays. It is argued that the photographs reflect appellant larger than the other persons and as being the only one bearing a resemblance to appellant and the only one wearing a turtleneck sweater. Appellant further complains that too few photographs (4) were used in the comparison; that the photographs (mug shots) had criminal information written on the back sides; that the Commonwealth failed to secure a positive identification the first time; and that the same pictures were used in the second display for identification purposes.

First of all, the height and weight of the persons whose pictures were used were written on the back of the photographs and were not seen by the person making the identification. Second, the height and weight of the persons whose pictures were displayed were not suggestive because they showed the persons from the waist up only and the shoulders were cropped off. Third, concerning appellant’s complaint that his picture which was used showing him wearing a turtleneck sweater was suggestive, counsel answers his own argument when he hammers home the proposition that Barron was unable to make an identification from the mug shots. If, as appellant contends, Barron was unable to make a positive identification from the mug shots, the pictures could not have been very suggestive. Lastly, it is argued that too few pictures were displayed. This court is called on by counsel to clearly define constitutionally acceptable procedures for photographic identification. This, we have already done. In Myers v. Commonwealth, Ky., 499 S.W.2d 277 (1973), this court said:

“ * * * If Strange’s in-court identification was based upon his independent recollection of appellant on the occasion of the crime, his testimony was not necessarily made inadmissible because of the improper jail confrontation. See Sobel, Eye-Witness Identification in Criminal Cases (1966), § 7, page 18. The trial court conducted a hearing and the record is before us. Many circumstances, including the opportunity of observation at the crime, should be considered. In the instant case Strange saw appellant face to face. Under the highly intense experience it was possible that Strange would receive impressions of appellant’s appearance that would be more definite and longer lasting than a casual meeting of him on the street.”

On appellant’s motion to suppress, the trial judge held an in-chambers hearing. The testimony was transcribed and is filed in the record. The trial judge denied the motion and the record clearly supports his action. Barron’s identification came about by reason of the more than an hour that appellant was in the store in view of and in conversation with Mr. Barron.

The attacks made by counsel for appellant on the conduct of the Commonwealth’s Attorney and the Assistant Commonwealth’s Attorney are not well taken. The objectionable conduct and statements, as taken from appellant’s brief, are:

“1. The Commonwealth’s Attorney testified that in his personal opinion the appellant was guilty;
2. The Assistant Commonwealth’s Attorney repeatedly called the appellant and his alibi witness liars;
3. The Assistant Commonwealth’s Attorney used emotional appeals in his closing argument which were calculated to inflame the passions of the jury;
4. The Assistant Commonwealth’s Attorney repeatedly called the appellant a ‘dangerous criminal’ and stated that he was attempting to ‘intimidate’ the witnesses and prosecutors;
5. The Commonwealth’s Attorney acted improperly in testifying against the appellant in the manner in which he did and in actively participating in the case thereafter.”

The record discloses that no objection was made when the Commonwealth’s Attorney expressed his opinion of appellant’s guilt and no objection was made to the Assistant Commonwealth’s Attorney referring to appellant and his alibi witness as liars. No where is there reflected any objection to any conduct of the Assistant Commonwealth’s Attorney or to any statements made by him in his closing argument that would inflame the passions of the jury. No objection was made to the Assistant Commonwealth’s Attorney referring to appellant as a dangerous criminal. No objection was made to the manner in which the Commonwealth’s Attorney testified or to his participation in the trial after he testified. The attorney for appellant did object when the Commonwealth’s Attorney first took the stand; however, this objection was predicated on a charge that the Commonwealth had failed to lay a proper foundation to justify this action on the part of the Commonwealth’s Attorney. Jett v. Commonwealth, Ky., 486 S.W.2d 788 (1969). Not only did counsel for appellant fail to timely object, but in no circumstance was there a request made of the trial judge that he instruct the jury relative to the competency of the challenged conduct. Appellant’s failure to properly object constituted a waiver of his right to later complain. RCr 9.54(2); Ohio River Sand Company v. Commonwealth, Ky., 467 S.W.2d 347 (1971); Bush v. Commonwealth, Ky., 457 S.W.2d 495 (1970).

The judgment is affirmed.

All concur.


text:
    Lindsay Darrell SWEATT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    As Modified on Denial of Rehearing June 10, 1977.

      Thomas, E. Clay, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Sam É. Isaacs, II, Deedra Benthall-Nietzel, Asst. Attys. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Lindsay Darrell Sweatt was convicted on a count of armed robbery, KRS 433.140, and sentenced to life imprisonment; on a count of malicious striking and wounding, KRS 435.170, and sentenced to twenty-one years’ imprisonment; and on a count of robbery in the first degree, KRS 515.020(l)(b), and sentenced to twenty years’ imprisonment. The sentences run concurrently. Sweatt appeals. We affirm.

Fred Syers, owner and operator of a jewelry store, was beaten with a pistol and robbed on the morning of December 23, 1974. His testimony was that a man entered his store, and as he was going back to his desk in his walker, the man asked for a Longinnes watch then came toward him and began beating Syers on the head with a pistol. After the beating, Syers saw the man go behind the counter. The man demanded a sack. When Syers told him where to find a sack, the man began taking watches and other merchandise from the showcase. Syers saw the man take off his hat and wipe the glass showcase. After the man left, Syers called the police and was taken to the hospital where he remained for three weeks. The police followed a trail of jewelry to a nearby home occupied by an Ernest Gore. There in a bedroom they discovered the stolen merchandise and a pistol. Gore denied any participation in the robbery, told the police that Sweatt was a frequent visitor, that his front door did not lock securely. He identified the pistol as belonging to Sweatt. Gore was arrested. The police displayed a photograph of Gore to Syers who informed the police Gore was not the man who robbed and beat him. Gore established the fact that he was at work at the time the robbery was committed and was released.

On January 6, 1975, Sweatt was.arrested and taken to the hospital where Syers identified him as the one who robbed and beat him. The police explanation for this one-man showup was that Syers could not leave the hospital and they did not know whether he was going to recover. Syers later made an identification from a photographic lineup and positively identified Sweatt at the trial. Sweatt moved to suppress the in-court identification for the reason that it was tainted by the one-man identification at the hospital. The trial court conducted a hearing and determined the in-court identification to be proper based on Syers independent recollection.

Syers identified the merchandise found in Gore’s bedroom as the items taken in the robbery and stated that the pistol found with the merchandise “looked like the pistol” used by Sweatt to beat him. Syers described the pistol as being a 6-inch barrel, blue steel revolver, which was a description consistent with the revolver found in Gore’s bedroom and identified by him as belonging to Sweatt.

On January 30, 1975, Bessie Kimble, an employee of the S & S Liquor Store, testified that a man came into the store, picked up some potato chips, asked for a soft drink, and when another customer left and she proceeded to the cash register and told him the cost of the purchases, the man pulled a pistol and told her to open the cash register. Kimble protested and stepped back. The man opened the cash register himself, took money from the cash register, and left the store. Kimble called the police and described the man and, being shown a series of photographs, pointed out a photograph of a Leonard Alexander with the remark, “It looks an awful lot like him.” The police discovered that Alexander was in the penitentiary, and according to one of the officers testifying at the in-chambers hearing on a motion to suppress the identification of Sweatt, there had been previous mistaken identity incidents involving Alexander and Sweatt. With this background, the officers placed a photograph of Sweatt in a photographic lineup and submitted the lineup to Kimble. She immediately identified Sweatt as the robber, positively identified him at a subsequent lineup, and identified him at trial.

Sweatt had filed a motion for a bill of particulars, requesting in addition to other information “any exculpatory evidence in possession of the Commonwealth. The answer to this request was, “No exculpatory evidence is in possession of Commonwealth.” Apparently the police officers had not informed the Commonwealth of Kimble’s tentative identification of Alexander.

At the conclusion of the hearing on a motion to suppress Kimble’s identification of Sweatt, on the ground the Commonwealth had not given answers to the bill of particulars, and a motion for continuance on the ground of surprise, the trial court overruled both motions.

Sweatt asserts as error (1) the refusal of the trial court to suppress the in-court identification of Sweatt by Syers for the reason that the one-man showup was unduly suggestive; (2) the refusal of the trial court to suppress the in-court identification of Sweatt by Kimble or to grant a continuance on the charge of robbery in the first degree; (3) failure of the Commonwealth to lay the proper foundation for admitting the pistol into evidence; and (4) prejudicial rulings of the trial court in six instances.

From our review of the evidentiary hearing on Sweatt’s motion to suppress Syers’ in-court identification, we are of the opinion that the trial court did not commit error in admitting Syers’ identification into evidence. In our view, it is significant that Gore’s photograph was first displayed to Syers at the hospital and the police informed he was not the robber; and, although taking Sweatt to the hospital for a one-man showup is not the approved method to secure an identification, a police officer testified it was not known if Syers would recover. This situation is analogous to Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). There a hospital showup was imperative for there appeared to be a question as to whether the victim would recover. In any event, Stovall states: “However, a claimed violation of due process of law in the condition of a confrontation depends on the totality of the circumstances surrounding it * * *.”

Here, in addition to the hospital identification, Syers testified at the suppression hearing that he later identified Sweatt from a photographic lineup and from an independent recollection at the scene, and he testified as to his opportunity to observe Sweatt and gave his description of Sweatt at that time. Cf. Myers v. Commonwealth, Ky., 499 S.W.2d 277 (1972). In our view, the totality of the circumstances justified the trial court in overruling the motion to suppress.

We are unable to understand Sweatt’s assertion that the trial court committed prejudicial error in not suppressing Kim-ble’s in-court identification or alternatively to grant a continuance. This argument is based on Sweatt’s assertion that the Commonwealth denied possession of any exculpatory evidence, and it follows that Sweatt considers Kimble’s tentative identification of Alexander as exculpatory evidence. It is not. This evidence does not tend to establish that Sweatt is free from guilt. At most, it is a factor which relates to the credibility of Kimble and the weight to be given his testimony by the jury. In any event, in view of the opportunity to cross-examine the witness on the tentative identification, we fail to see any prejudice. Further, it is apparent that Sweatt and Alexander do, in fact, bear a resemblance to each other. And in our opinion, this tentative identification of Alexander leading up to the later positive identification of Sweatt was not withheld evidence, either as to guilt or punishment, in view of Kimble’s later identifications and description of Sweatt. Cf. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The argument that Sweatt was surprised by this revelation at the suppression hearing and was entitled to a continuance in order to determine if Alexander was, in fact, in the penitentiary at the time is frivolous. We are not advised what difference it would make in this situation if he was not so incarcerated at the time. The trial court properly declined to grant a continuance.

We are of the opinion Sweatt's argument that the Commonwealth failed to establish the integrity of the pistol before its introduction as an exhibit is without merit. Syers testified that it was the type and shape, but understandably could not testify that it was the same gun, nor was he required to so do. His testimony was that he was struck over the head with a gun. For this purpose, we cannot see any necessity for the Commonwealth to prove the chain of custody. Beason v. Commonwealth, Ky., 548 S.W.2d 835 (rendered March 11,1977), is dispositive of this argument.

Lastly Sweatt asserts a litany of what he claims are trial errors prejudicial to him. In our view, these assertions are not errors, and further, none of the cases cited as authority are in point.

The judgment is affirmed.

All concur.

      . The armed robbery and malicious striking and wounding offenses occurred in December 1974 before the effective date of the Kentucky Penal Code. The robbery in the first degree offense occurred in January 1975 and is included in the Kentucky Penal Code.


text:
    Elmore STEPHENS et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied June 10, 1977.
    Henry E. Hughes, Tackett, Keller, Hughes & Roney, Lexington, for appellants.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Elmore Stephens and John Bishop were convicted of kidnapping, KRS 509.040, and each sentenced to twenty years’ confinement in the penitentiary. Robert Channels was convicted of being an accomplice to the kidnapping by Elmore Stephens and John Bishop and was sentenced to twenty years’ confinement in the penitentiary. In addition, all three appellants were found guilty of reckless homicide, KRS 507.050, and sentenced to one year in the penitentiary. We affirm.

On a Saturday afternoon, Stephens and Channels were the victims of an armed robbery at Channels’ apartment. Channels identified the robbers to the police as Luron Taylor and Rodney Perkins. Later in the day, Stephens, Channels, and Bishop visited police headquarters inquiring if Taylor and Perkins had been apprehended. The three appellants learned the address of the apartment where Luron Taylor lived and then visited the apartment. Taylor was not at home. The three appellants proceeded to the apartment of a relative of Channels where they obtained a shotgun, which was returned by Channels the following day. The three appellants were seen together later in the evening between 10 p. m. and 11 p. m. Near midnight, as Luron Taylor and wife were returning to their apartment, they were intercepted by four armed men. They forced Luron Taylor into the trunk of an automobile and left the scene. Ten days later, Luron Taylor’s body was found in the Ohio River near Louisville. Mrs. Taylor identified Stephens and Bishop as two of the abductors at a lineup and at the trial. She could not identify Channels. Luron Taylor’s fingerprints were found on a radio discovered in the trunk of Bishop’s car.

One other witness tentatively identified Stephens as one of the abductors; and on the second day of the trial, one of the witnesses at the scene, Mike Marler, who before could not identity Stephens, informed the Commonwealth’s attorney that he could now positively identify Stephens and so testified.

Channels admitted being at the scene when Luron Taylor was kidnapped, but stated he did not participate, that he was afraid to intervene, and further that he was in the company of an unknown man who committed the offense.

Bishop stated Channels was with him the entire evening. The three appellants were seen together about 1:30 a. m. after the incident.

Appellant Channels asserts there was insufficient evidence placing him at the scene with Stephens and Bishop in order to sustain a conviction.

Appellant Stephens asserts error in the denial of a motion for a new trial based upon surprise testimony introduced by the Commonwealth.

There is no assignment of error with respect to the conviction of appellant Bishop.

The thrust of Channels’ assertion of error is that his admission of being at the scene of the abduction is insufficient evidence on which the jury could base a conviction. This argument ignores the other competent circumstantial evidence inculpating Channels. Bishop testified they were together throughout the evening. The three appellants were seen together before and after the crime. We are of the opinion from our review of the evidence that it was not unreasonable for tfye jury to find that Channels was at the scene and was guilty as an accomplice of Stephens and Bishop.

As to Stephens’ argument that he is entitled to a new trial on the basis of the surprise testimony of Mike Marler, we are of the opinion the trial court did not commit an abuse of discretion in denying the motion for a new trial. Marler was a witness to the crime. He had been listed as a Commonwealth witness. This is not a case of misrepresentation by the Commonwealth’s attorney. During the second day of the trial, Marler informed the Commonwealth that he could now positively identify Stephens. He was subject to cross-examination as to the reasons why he at first stated he could not make a positive identification, and as to his identification at the trial. Marler’s identification was cumulative. Luron Taylor’s wife had identified Stephens, another witness had made a tentative identification, and the other evidence linking the three appellants together militates against Stephens’ argument that Mar-ler’s testimony was decisive and, thus, denied him a fair trial. We are of the opinion that Keser v. Commonwealth, 195 Ky. 809, 243 S.W. 1020 (1922), is not applicable to the facts of this case and that Stephens was not denied a fair trial by the admission of Mar-ler’s testimony.

The judgment is affirmed.

All concur.


author: CLAYTON, Justice.

text:
    James L. KIMBROUGH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied June 10, 1977.

      Nicholas W. Carlin, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

This appeal arises from an attempted robbery of a Shell service station in Louisville by appellant, James L. Kimbrough, and an accomplice, Roger Lee Bailey, during the late evening hours of November 9, 1974. Appellant and Bailey, wearing nylon-stocking masks]'trained ⅛ shotgun on Joe McCain while ordering his friend, Joe Sut-tle, to obtain money from the gas station attendant, threatening harm to McCain should Suttle fail. Suttle attempted to comply with their demands, but the attendant refused to cooperate. Returning to where the two were holding his friend, Sut-tle advised them he could not get the money; whereupon the two would-be robbers disappointedly drove away from the station, providing their former hostages an opportunity to record the getaway vehicle’s license number on the service station wall. A description of the automobile and its license number were given to the police, resulting in the arrest of appellant and Bailey shortly thereafter that same night. A search of the car incident to the arrest produced a loaded shotgun and two nylon stockings.

Appellant was subsequently indicted by the Jefferson County grand jury and charged with one count of armed assault with intent to rob, in violation of former KRS 433.150, and as a habitual criminal within the meaning of former KRS 431.190. He and Bailey were jointly tried in the Jefferson Circuit Court, Criminal Branch, First Division, on March 8 and 9, 1976. Although appellant presented testimony at trial to support his contention that he did not participate in the attempted robbery, but had spent the evening drinking and gambling at various taverns, and attempted to explain the presence of the shotgun in the trunk of his vehicle as necessary for his protection in his job as a security guard at Shawnee High School, the jury found him guilty on both counts of the indictment, sentencing him to life imprisonment on each. Kimbrough now brings this appeal, presenting seven assignments of error.

Appellant first complains the trial court erred in denying his motion for a bifurcated trial, one segment of which would have been the trial on the principal charge and the other directed to his status as a habitual criminal. Although a bifurcated trial is provided for under the applicable section of the present penal code, KRS 532.080, this section does not apply to offenses committed prior to January 1, 1975, which offenses must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if the present code had never been enacted. KRS 500.040(1). Since the principal offense of armed assault with intent to rob, on which the indictment as a habitual criminal was based, was committed on November 9,1974, we feel the trial court properly applied the provisions of former KRS 431.190, and so was not required to afford appellant a bifurcated trial.

Appellant also insists the trial court erred in permitting the arresting officer to remain in the courtroom prior to his testimony and after a motion for separation of all witnesses pursuant to RCr 9.48 had been made. It is beyond question that the matter of which witnesses will be excluded under this rule from hearing others testify before them lies within the sound discretion of the trial court. Webster v. Commonwealth, Ky., 508 S.W.2d 33 (1974). The record before us does not indicate this discretion to have been abused, nor has it been shown how if so the appellant was prejudiced by the policeman’s presence at trial prior to his testimony. We therefore must conclude no ground for reversal exists on this point.

The third assignment of error concerns the trial court’s denial of appellant’s motion for a continuance. Appellant claims this motion should have been granted so as to avoid trying the case before a jury which possibly had been prejudiced by pretrial statements attributed to a judge of the Jefferson Circuit Court and to a member of the staff of the Jefferson County Commonwealth’s Attorney appearing in articles carried by the Louisville Courier-Journal and The Louisville Times on March 5, 1976, to the effect that leniency had unjustifiedly been shown criminal defendants in Jefferson County. He further argues the jurors could also have been prejudiced by statements of similar import made by the same judge at the conclusion of a prior criminal proceeding. In order to determine if any such prejudice had resulted from these occurrences, the trial judge afforded the attorneys for the defendants and the Commonwealth the opportunity to conduct an extensive voir dire examination of prospective jurors, allowing the defendants sixteen peremptory challenges and six challenges for cause, but denied appellant’s request for in-chambers examinations of individual prospective jurors. The record does not show any objection being made to the manner of selecting the panel used by the court, and at the conclusion of the questioning, during which the defendants exercised thirteen of their allotted challenges, the jury was accepted by both the defendants and the Commonwealth. In our opinion the steps taken by the trial judge were sufficient to insure to the defendants a trial by an impartial jury, so that any continuance of the case to a later date was rendered unnecessary. We further feel that by accepting the jury without objecting to the manner in which it was chosen, the appellant has waived the right to complain to this court as to the procedure used.

Appellant’s fourth argument is that the trial court erred in permitting a deputy circuit court clerk to read to the jury the entire entries from the court’s order books concerning prior felony convictions of appellant relevant to his status as a habitual criminal, arguing to do so allowed the jury to hear prejudicial evidence concerning the amendment and reduction of these prior criminal charges. The clerk’s testimony, it is argued, should have been restricted to a reading of the offense charged and the date of conviction. We have reviewed the testimony in question and are unable to perceive how the information thereby conveyed to the jury was in the most remote degree prejudicial to the appellant. The entry read concerning the first prior offense merely indicated that on June 13, 1963, Kimbrough had withdrawn an earlier plea of not guilty and had pleaded guilty to a charge of robbery, receiving a sentence of five years’ imprisonment. The entry concerning the second was even more succinct, simply indicating Kimbrough was found guilty, following a jury trial, of armed robbery, for which he was sentenced to ten' years’ imprisonment on April 7, 1971. Any contention that this information was prejudicial is, in our opinion, more fallacious than plausible, and we therefore conclude there to be no reversible error in this aspect of the case.

Appellant’s fifth and sixth arguments concern the instructions given the jury. He first contends the jury failed to follow the instructions given it when it found him guilty under the habitual criminal instruction, Instruction No. 4, because that instruction referred to his first prior felony conviction as a conviction of armed robbery when the testimony of the deputy circuit eourt clerk showed it to have been of simple robbery. In light of this, the argument goes, the jury could not find appellant to be a habitual criminal because it could not under the evidence find him to have been previously convicted of armed robbery as the instructions required. As we view this matter, however, in order to find appellant to be a habitual criminal, the jury was merely required to find him to have been convicted of felonies on two separate prior occasions in addition to finding him guilty of the, principal offense charged herein. Since both armed robbery and simple robbery are felonies, a finding by the jury of a conviction of either, in addition to a finding of guilt on the principal offense, permitted its finding him to be a habitual criminal. We thus find no prejudicial error to result from the defect in this instruction. A similar complaint is made in regard to Instruction No. 1, which refers to an armed assault on Joe McCain for the purpose of robbing him, rather than the service station. Kim-brough alleges that since there was never any proof of an attempt to rob McCain, the jury could not on the evidence find appellant guilty under this instruction. Although the instruction is technically incorrect as drawn, it does recognize the assault of McCain with a shotgun for the purpose of furthering a robbery, and in our opinion was not so defective as to require reversal of appellant’s conviction. We therefore also hold this error to be harmless.

Appellant’s final assertion of error is that the trial court erred in denying his motion for a directed verdict of acquittal on the habitual criminal charge because the Commonwealth did not produce any direct proof that the prior felonies were committed in sequential order. We have reviewed the record on this issue and conclude that because appellant failed to move for a directed verdict at the close of all the evidence, instead making this motion only at the close of the Commonwealth’s case, this error has not been preserved for review. A motion for a directed verdict made at the close of the plaintiff’s (here the Commonwealth’s) case is not sufficient to preserve error unless renewed at the close of all the evidence, because once the defense has come forward with its proof, the propriety of a directed verdict can only be tested in terms of all the evidence. If there has been no motion for a directed verdict at the close of all the evidence, it cannot be said that the trial judge has ever been given an opportunity to pass on the sufficiency of the evidence as it stood when finally submitted to the jury. In effect, therefore, a motion for directed verdict made only at the close of one party’s evidence loses any significance once it is denied and the other party, by producing further evidence, chooses not to stand on it.

We must further note here, however, that even if appellant’s motion for a directed verdict of acquittal on the habitual criminal charge had been made at the conclusion of all the evidence in this case, it would not have been the proper method of challenging the sufficiency of the evidence on that issue. When the evidence is insufficient to sustain the burden of proof on one or more, but less than all, of the issues presented by the case, the correct procedure is to object to the giving of instructions on those particular issues. See Columbia Gas of Kentucky, Inc. v. Maynard, Ky., 532 S.W.2d 3, 7 (1976), which, though a civil case, applies in principle to criminal cases as well. The appropriate procedure here would thus have been for appellant, at the close of the evidence and before the instructions were given, to apprise the trial court that he objected to the giving of an instruction or instructions based on the previous convictions for the reason that they had not been sufficiently proven.

The judgment of conviction is affirmed.

All concur.


text:
    George Leslie TROWEL, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

George Leslie Trowel, Jr., was convicted of murder under KRS 507.020(l)(a) and sentenced to life imprisonment. He appeals, claiming among other things that the trial culminating in his conviction violated the constitutional protections against double jeopardy. Cf. Amendments 5 and 14, U.S. Constitution; Sec. 13, Kentucky Constitution.

On September 8, 1975, a grand jury of Franklin County indicted Trowel for the capital offense of murder during the commission of first degree rape. The indictment was drawn under KRS 507.020(2), which classified murder as a Class A felony except for certain aggravating circumstances in which it classified murder as a capital offense. One of the aggravated situations in which it specified the crime as calling for the death penalty was that the “act of killing was intentional, and occurred during the commission of . rape in the first degree.”

KRS 532.030(1), which prescribed the death penalty for capital offenses, provided that “any crime classified as a capital offense may at the discretion of the state be prosecuted as a Class A felony, provided such election to so prosecute is made at the time of indictment.”

The case was tried on November 19, 1975. At the conclusion of the evidence Trowel moved for a directed verdict of acquittal. That motion being denied, he moved “to dismiss the charge of rape contained in the indictment,” which motion was granted to the extent that the case was submitted to the jury under instructions authorizing a conviction for murder, but not for murder during the commission of rape. However, the jurors proved unable to agree on a verdict, whereupon the court declared a mistrial. Later on, the grand jury em-panelled for the next term of court returned a new indictment charging Trowel with murder under KRS 507.020(l)(a), a Class A felony, following which the trial court dismissed the original indictment of September 8, 1975, and the case proceeded to trial and a verdict of guilty under the new indictment. Trowel’s timely motion for dismissal of the second indictment on the ground of double jeopardy was denied.

The death penalty as authorized under KRS 507.020(2) and KRS 532.030(1) has now been declared invalid in Boyd v. Commonwealth, Ky., 550 S.W.2d 507 (decided March 11, 1977). Nevertheless, it is Trowel’s contention that after having been effectually acquitted in a prosecution under KRS 507.020(2) he could not constitutionally be tried again for another offense “made up of the whole or part of the same crime,” cf. Runyon v. Morrow, 192 Ky. 785, 234 S.W. 304, 306 (1921). It is elementary, of course, that a mistrial precipitated by a jury’s inability to reach a verdict does not prevent another trial of the same charges on which the hung jury could have found the defendant guilty, Cornwell v. Commonwealth, Ky., 523 S.W.2d 224, 226 (1975); Logan v. United States, 144 U.S. 263, 297-298, 12 S.Ct. 617, 36 L.Ed. 429 (1891); but Trowel’s argument is that in view of the “election” requirement of KRS 532.030(1), simple murder under KRS 507.020(l)(a) was not a lesser degree of, or an included offense under, the capital murder offense defined by KRS 507.020(2). His theory is, therefore, that upon determining that the evidence was insufficient to justify submission of the case to the jury under a capital murder instruction the trial court erred in submitting it under a simple murder instruction.

Though it may be academic now, the election requirement of KRS 532.030(1) apparently was intended to preclude prosecu-torial use of the death penalty as a plea-bargaining tool. We do not agree with counsel for Trowel that its purpose was to avoid impermissible discretion by the jury. A choice between different degrees of the same offense based on the presence or absence of substantial elements or other reasonable differentiating considerations does not amount to impermissible discretion. If it did, there could never be a capital punishment case in which the defendant might be found guilty of a lesser offense. Anyway, our opinion in Boyd v. Commonwealth, Ky., 550 S.W.2d 507 (1977), by necessary implication holds that capital murder was simply a higher degree of intentional murder as defined in KRS 507.020(l)(a). Thus it was entirely proper for the trial court to instruct on the lesser offense after determining that the evidence would not support a conviction under KRS 507.020(2).

We recognize that a decision by the trial court that the evidence is sufficient only to convict on a lesser offense could be regarded as in the nature of an “election,” but we cannot and do not believe that in enacting KRS 532.030(1) the General Assembly had any notion whatever of denying to either party, state or defendant, the benefit of instructions covering lesser degrees of a capital offense.

It occurs to us also that if Trowel’s theory were correct, the subsequent invalidation of capital murder as defined in KRS 507.-020(2) probably would have expunged the jeopardy as well. As a conviction under a void statute would itself be void and subject to collateral attack, it is difficult to see how there could be any jeopardy.

Though Trowel does not seek to rest his claim of former jeopardy on the substitution of a new indictment for the one pursuant to which he was first tried, it bears mention for the sake of clarification. A new indictment charging only the lesser degree that was still in litigation by virtue of the mistrial was not necessary, but probably the Commonwealth’s Attorney thought that it was required by the “election” provision of KRS 532.030(1). In any event, the return of a new indictment and dismissal of the old was simply a procedural move to restate a viable charge then pending for retrial. In terms of jeopardy it changed nothing.

Trowel stresses that in the first trial he was “acquitted” of rape, yet he was tried again for the same thing because at the second trial the Commonwealth pitched its case on rape as a motive for the crime. It must be remembered, however, that under the capital murder indictment the commission of rape was an indispensable element, whereas in the trial for simple murder the only significance of rape or attempted rape was as evidence of motive. A belief by the jury that rape had been committed was not essential to a conviction. Had the Commonwealth sought to prosecute Trowel for rape instead of murder, his theory that he had been acquitted at the first trial would have had a sounder basis.

A similar argument is made with respect to the prejudicial effect of the Commonwealth’s summation to the jury, in which the prosecuting attorney contended that the murder had been committed incident to a brutal rape. Again, however, we think the answer is that the withdrawal of this element from consideration by the jury at the first trial was not tantamount to an adjudication that in fact the defendant had not raped the victim. The adjudicated fact was merely that the evidence in that trial was not sufficient to support a finding beyond a reasonable doubt that he had. Had this been an old-fashioned murder-manslaughter case submitted to the jury only under manslaughter instructions because the evidence of malice aforethought was insufficient to support a conviction for murder, the Commonwealth at the second trial, for manslaughter alone, would not have been precluded from contending that there had been malice aforethought. Such a contention certainly could not amount to retrying the defendant for murder, because the instructions would prevent it. In any event, we are of the opinion that there was nothing in the outcome of the first trial to restrict the Commonwealth in its efforts to prove rape as a motive for murder in the second trial.

Trowel’s last contention is that the evidence was not sufficient to support a conviction for murder. We think, however, that the circumstances proved by the Commonwealth cannot be dismissed as raising no more than a suspicion. Though Trowel was not caught in the act, it seems distinctly probable from the evidence that he was the guilty party. Numerous variations of the rule, or a rule, have been expressed with respect to the sufficiency of circumstantial evidence to support a conviction in a criminal case. See Moore v. Common wealth, Ky., 446 S.W.2d 271, 272-273 (1969). These various statements have not been altogether harmonious, so it has become customary for them to be cited at cross-purposes, as if they stood for different principles. In fact, however, they are supposed to mean the same thing, which we think can be better expressed as follows:

If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. Applying that criterion, we cannot avoid the conclusion that the verdict of the jury in this case was not unreasonable.

The judgment is affirmed.

All concur.

      . Technically, the motion should have been denied and then treated as an objection to an instruction on capital murder. In substance, however, the same result was reached. As to the impropriety of a motion for a directed ver-diet as a procedural means for obtaining any relief short of a complete acquittal, see discussion in Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (decided today).

      . Cf. Beach v. Lady, Ky., 262 S.W.2d 837, 839 (1953).


author: PER CURIAM.

text:
    Russell CALDWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    April 1, 1977.
    Rehearing Denied June 10, 1977.
    Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Raymond M. Larson, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Appellant was convicted on the charge of shooting and wounding with intent to kill and sentenced to three years’ confinement in the penitentiary.

Appellant assigns as error the court’s failure to direct a verdict of acquittal. The only evidence produced by the Commonwealth consisted of out-of-court statements of three witnesses made to Detective Stogs-hill. The statements were introduced as substantive evidence after the three witnesses denied on the witness stand having made the statements.

Deputy Sheriff Oscar Brown, while on call looking for “a load of drunks,” was shot in the arm by shotgun pellets. Rufus Harris, another deputy sheriff, was with Brown but neither saw who fired the shot. The only evidence connecting appellant with the shooting was the out-of-court statements made by Willard Creech, Everett Allen and Rickey Allen, friends of appellant. When they were called by the Commonwealth to testify they denied making the statements. The Commonwealth then presented Detective Stogshill and produced written statements of the three witnesses which inculpated appellant.

The statements were admissible as substantive evidence under the rule announced by Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). Appellant insists, however, that Jett is not authority for the proposition that a person may be convicted upon evidence consisting solely of out-of-court statements. We do not agree. Such evidence should be considered as any other competent evidence. Its sufficiency to support a conviction should be determined under the same criterion prescribed in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (decided today).

The judgment is affirmed.

All concur.