Adcock v. Commonwealth

ADCOCK, Jr., Appellant, Louis William

COMMONWEALTH Appellee.

Kentucky, Kentucky.

Jan.

441 Heft, Jr., Goyette, Daniel T. Prank W. The court evidence concluded that concern- Office, Jefferson Dist. Public Defender’s ing parole necessarily status would inform Louisville, appellant. for jury of the fact Mann had been ' thus, felony, convicted of a would ac- Armstrong, Gen., David L. Atty. Gerald complish indirectly what could not be ac- Henry, Atty. Gen., Frankfort, ap- Asst. for complished directly. appellant was pellee.

precluded asking parole. from OPINION OP THE COURT. party Neither cites us to a case in Appellant murder, was convicted of rape, clear, point. however, It is that a defend burglary and was sentenced to life right put ant has a fact imprisonment murder, for imprison- life might which show part bias on the of a rape, ment for years and 20 burglary. for witness who has testified him. No concerning is raised the suffi- This would include the fact that the wit ciency of the evidence to the ver- indictment, ness is under Spears v. Com dict. monwealth, Ky.App., 558 S.W.2d 641 Appellant raises ten issues for review on (1977); Chesapeake & Ohio Railroad Co. appeal. Some of the issues raised re- Pittman, quire consideration of the facts. (1940), or proba that the witness was on victim, Relkin, Marie eighty- was an Alaska, tion. Davis v. 415 U.S. year-old woman raped who was and severe- S.Ct. 39 L.Ed.2d 347 ly during beaten burglary. course of a right denial of the potential show such hospitalized She was and died in hospi- bias was characterized the United days tal 29 later from a heart attack. The States as a constitutional

jury was entitled to believe from the evi- magnitude error of such which could not be dence that the heart attack was attributa- by showing Davis, prejudice. cured a of no ble to beating which the victim received supra. and/or hastened her

death. veracity The fact that the of a wit For reasons indicated below we reverse may impeached by proof ness not be judgment. prior involving dishonesty convictions not not a deny sufficient reason to a defendant

Terry Mann testified that he saw the potential to show bias of a wit appellant run from the victim’s home on juror might ness which a infer from the night of the attack. He described the parole fact that the witness was on under clothing appellant wearing was and identi- supervision. active fied him in court. He was the purportedly who appellant saw the run The Commonwealth also contends that from the victim’s home. Kentucky precludes the settled law in men- Appellant sought to show on cross-exam- parole jury tion of a before a criminal Mann, ination that at the time he however, holding, case. The cases thus testified, was on super- under active only preclude considering vision. He contended this evidence was possibility if of a defendant possible admissible to show a bias on the applicability convicted and have no to a part Mann in that Mann have witness. give been motivated

stay good graces witness, within Riggs, permit law enforce- A Mark ment officials. testify concerning ted to a conversation said he which previously The trial court had ruled that inwas trouble. by prov- could not Mann “Q you him conviction of arson because 69 Did continue ask arson was not -type” felony. questions a “Cotton about it?

“A I him I seen on TV that old in Relkin robbery told was the of Mrs. got

woman her house broke reported into television. eastend. Appellant’s objection should have been “Q any questions Did him ask permissible for the sustained. It was wit- about that? ness to relate what told “A Yes sir. permissible allow him to ex- it was not “Q you 71 And do specifically recall appellant press his view as to what meant him, you what asked sir? v. said. DeVerell Common- TV, “A I him I told that seen it on like I wealth, Ky., 539 S.W.2d 301 (1976). It was said, just the old I about woman and prerogative to make its own beat, him got got told that she or she independent appel- determination of what robbed, know, you and I if asked statement, Riggs’ lant meant and that was it. expression opinion province invaded the “Q you 72 And asked him—what do jury. you you asking mean by him if that likely Because there will be a retrial of was it? case, necessary it is to discuss some “A I seen it supposed and it on TV was allegations may other of error arise part to be in the same of town. So I again in the new trial. just asked him about it. indictment, separate counts of the ap- “Q what, 73 if anything, say And did he pellant charged was crimes various you? which were committed when said, “A He ‘That’s it.’ broke into the home of Marie Relkin on said, “Q it,’ He meaning ‘That’s 11, 1982, 19, again April October and you? what to granted, appel- 1983. Severance was and Objection. “MRS. HASELDEN: relating charges lant was tried on the Overruled, “THE COURT: an- April Appellant’s motion to ex- swer. relating clude evidence to the October

“Q that, 75 What is sir? 1982, events was overruled. talking “A What we were about Commonwealth, consequence, As a “Q 76 And you talking what were burglary, for the trial of about? Relkin, robbery, and murder Mrs. was TV, “A I just What had seen on permitted appel- to introduce that got up the old woman that beat lant, thereto, six months had also robbed. broken into Mrs. Relkin’s home and had “Q you 77 Did mention other detail her. robbed and beaten himto about it? long standing Kentucky pro- A rule “A I asked him if she had a cat because in criminal cases of hibits introduction evi- seeing I remember on TV. that crimes, dence of the commission of “Q 78 And when asked him if she charged, subject crime to the ex- than the cat, anything say had a what if did he ception competent that such evidence is then? knowledge, identity, guilty establish intent said, “A just He nodded his head and scheme, motive, pattern or when oth-

‘That’s it.’ offenses are so interwoven with the one er “Q He saying, nodded his head they cannot be under trial that Commonwealth, meaning you? it’

‘That’s what to separated. Arnett v. (1971). Ky., 470 S.W.2d 834 Meaning “A that was the that I one talking was about.” especially upon O’Bryan Appellant relies Commonwealth, v. appellant’s Ky., 634 S.W.2d 153 objection, Riggs Over was Pankey permitted (1982), thought appel- that he Ky., lant meant that the trouble was 485 S.W.2d O’Bryan Pankey perceive each turned on the he fails to offense when sub- although fact that the defendants unjustifiable were stantial and risk that charged with other crimes which conceiva- result occur or that the circumstance will bly might pattern have involved a similar The risk must of such exists. be nature or scheme as employed the one in the crime degree perceive failure to they tried, being for which were there was gross constitutes a deviation from the proof no they had committed the other per- standard of care that a reasonable They simply crimes. been indicted for son would observe the situation.” other similar crimes. per- No reasonable could fail to It is true that indicted eighty- ceive that a severe of an for, but not convicted of the October year-old woman such as was administered 1982 crimes Mrs. Relkin. The evi- posed here totally unjust- substantial and against him, however, dence introduced ifiable risk that death would result. charged that had been with the did not that he was other offenses but that he had admitted his unaware of the risk. We do not find guilt as to them. permit circumstance which would jury a to every case which evidence of find that he did not know that there was a sought other crimes is to be introduced to might substantial risk that Mrs. Relkin die pattern scheme, establish a or the real as a result of his actions. The fact that question is whether the method of actually the com she survived for days in the mission of the other crime or crimes is hospital so does not lessen the fact that the similar unique and so as to indicate a rea beating posed a substantial risk of which sonable probability that the crimes were appellant could not help but be aware of. by person. committed the same If it does was not error to in refuse the It so, evidence that the defendant committed struction on reckless homicide. jury the other crime is admissible. If only it might was instructed that it find tends to tendency show a disposition guilty of murder if it believed crime, commit a the evidence is not admissi injured beat and Marie Relkin and that her ble. death was by either caused or hastened case, In this the evidence is not injury. reason of the The instruction was committed a similar crime Palmore, Kentucky Instruc taken from previous months, within the six but that he Juries, tions to Appellant object § committed it in the same household and instruction, ed to the person, the same each case “in that it confuses the situation rather residence, broke into a severely assault appears taking than clarifies it. It to be ed and occupant beat the and robbed her. away jury from the their determination We think the circumstances were so similar of what the actual cause of death was. enough and were near in time as to consti appears muddy It the water rather signature tute a appellant, sorts of the clarify than it in any way whatsoever. and the evidence was therefore admissible. object We would to it on that basis.” Appellant contends he was entitled appeal, appellant On contends the in- to an instruction on reckless homicide be hastening require structions on do not jury reasonably cause a could believe that jury beating to find that the was the direct he was a risk unaware of that Mrs. Relkin permit guilt cause of death but a verdict might beating die as a result of the admin finding beating based on a that the has- by istered him. death, tened the an indirect cause. 501.020(4)provides:

K.R.S. Although questionable it is indeed if the “ ‘Recklessly’—A person recklessly argument acts pre- advanced this court was respect to a result or a “muddy circum- served for review water” instructions, defining objection will, stance described a statute an to the we be- - trial, by rea- dis hastens or accelerates his death likelihood of a new cause of the on the merits. pose of the issue son of some disease with which afflicted, wrongdoer guilty of the medical from which There was resulting. thereby crime rule to believe that the beat- a was entitled Bishop in subject is thus stated Al- the death of Mrs. Relkin. caused Law, volume work Criminal old, previ- had suffered a though she was ‘Though person subsec. 3: coronary § had serious ous heart attack and died some other cause disease, would have amply the evidence would artery enough that the finding already operating, that the hastened it is life; in that she would not have died her death wound hastened the termination except precipitating when she did for as, example, already if he had been for beating. factor And if mortally wounded another. by dis- the one attacked was enfeebled though person suffers from seri- Even ease, and was done would not have he will die sooner ous maladies from which still, person, wheth- mortal to a well later, infliction of to the extent that the assaulting his condi- it er the knew injury hastens death and causes an later, not, rather than he did what was mortal occur sooner tion or after other, of the death at time a direct cause the offense is committed.’ occurred. Hubbard Clark, (page in his Criminal Law Hop- (1947); person killed says: fact that ‘The kins v. health, and in ill or wound- was diseased S.W. another, likely or sure to by ed given, or that die when the blow was Hopkins we said: neglected given he or after the blow was shot, “Cole, time he was was in a at the himself, proper of or refused to take care health, being very of in feeble condition operation by which he could submit to an stage of is known as the second Hale, cured, in is no defense.’ probably not have been consumption, and would (volume 1, p. if he not very long lived even his Pleas of the Crown have by The inflicted been wounded. sick of some such says: ‘If a man be fatal, shooting necessarily was not possibly, by course of na- disease which and, of but for the enfeebled condition ture, year, his life in half a would end would, health, he more the deceased’s or hurt gives him a wound and another probably, than have recovered. evi- irritating by hastens his end his physicians of the show that dence operate more the disease to provoking accelerated or hastened death was hastening of speedily, this violently or appel- the hands of wound received at his sooner than it would have death testimony is the ef- Appellant's lant. murder, hap- as the case is homicide self-defense, in but the fect that fired gives in him that the wound pens, tends to of the commonwealth hurt, simply by not die for he doth shooting of Cole was an show that the God, hurt that he but the visitation The verdict assassination. act wanton it, and an offender of receives hastens evi- contrary to the of the apportion his shall not own such a nature dence. wrong....’” in- in the court did not err “The trial Id., at 156-157. 80 S.W. Although the complained of. struction Hopkins were ren- Both Hubbard upon the appellant inflicted wound which penal adoption of the before the dered probably have deceased would not code, that the hasten- the fact remains man, well had he been a caused his death would not otherwise ing of a death which therefore, not, guiltless of the crime is a at that time cause have occurred charged. If one which he stands in instruction. see no error another, death. We thereby unlawfully wounds appellant sought presence. reputation General in the credibility of the witness Mann community may be entirely different from showing reputation that his for truthful- regard which he is held family Pointer, ness was ques- bad. Robert when only general members. It reputation concerning reputation tioned testimony about which can be received. Mann, was asked: Because there showing was no that Rob- reputation “Do know his in the com- ert general reputation Pointer knew the munity for truthfulness?” Terry Mann for truthfulness and veracity community among those with whom Objection was made as follows: he associated and came into contact honor, “Your go- Commonwealth is life, everyday the trial court sus- object to her bringing objection tained the testimony. to his with reference to that man’s character.” The remaining allegations of error are proceedings hearing outside the either likely not to occur retrial or are jury, developed that the witness did not not of sufficient merit to warrant fur- neighbors know Mann’s and associates in ther extension opinion. of this community did, in which he lived. He however, state that family he knew other judgment is reversed for further members who knew Mann spoke and who proceedings consistent opinion. with this about him. The trial court ruled that knowledge of Mann’s reputation among STEPHENS, C.J., and GANT and family members was not quali- sufficient to VANCE, JJ., concur. fy the witness to reputation. as to LEIBSON, J., general reputation

One’s by separate opin- concurs not what an- ion. know or think about but it is the estimate in which he is held WINTERSHEIMER, J., by sepa- dissents people generally with whom he associ- opinion rate in which AKER and STE- ates and comes in everyday contact life. PHENSON, JJ., join. Hunt, Citizens Bank Morehead v. (1941). LEIBSON, Justice, concurring. Before testimony as reputation to bad results, I concur in the disagree introduced, can be it necessary is to show majority opinion the respects. two that the witness reputa- knows what that First, agree I with the that the among tion is people generally with whom murder sufficiently instruction did not de- he associates and comes in contact fine what necessary before conviction everyday life. The thrust of inquiry the hastening based on the victim’s death. To general as to reputation of the find the guilty of the murder for community among people who know having injury inflicted wounds or reputation and not to his among a death, segment the victim’s the instruc- small of the “hastened” community. require tions should explicitly “a causal members, course, Family among are connection between the wounds or people knowledge who have of one’s inflicted the defendant and the victim’s reputation, and we why see no reason death but for which death would not have statements by family made members occurred at the time when it did.” should be excluded as a source of knowl- edge general reputation. given of one’s Never- The instructions as are not suffi- theless, a witness gen- ciently appellant’s cannot as to clear on the fact that the reputation eral solely upon based acts directly must contribute to the cause family members have stated to him or in of death. Here there was reliable medical indicating that the argument inflict- The crucial on which the ma- jority opinion

ed was not a substantial is based contributing hastening factor in defendant to prosecution the vic- cross-examine a parole tim’s death. witness about such circumstances it is status in order to prejudice. demonstrate my incumbent on bias or the court to make view this re- judge trial quirement excluded all evi- jury. clear to the parole dence status. Adcock concedes Next, disagree I with the decision of the ordinarily probation status is majority regarding impeachment evidence during not to be mentioned trial. See witness, Mann. The evi- Payne Ky., 623 S.W.2d dence reputation offered to show that his (1981). veracity for truth and was bad should have Here, the who neigh- was a new been admitted. A meaning common sense victim, bor identified Adcock as run- “general reputation of the term in the com- ning out of the victim’s house. Adcock (Lawson, munity” Kentucky Evidence argues that the witness have had an Handbook, 2d ed. Sec. includes fami- interest in pleasing police because he ly. was on active supervision. The witness in this case was felony of the witness was not Mann’s first cousin. He had known him subject an offense to comment under Cot- baby. since he was a opinion The witness’ Commonwealth, Ky., ton v. 454 S.W.2d family based on statements one judge The trial ruled that Ad- member, general but Mann’s reputation cock question could not the witness about family. within his own That should be why criminal record but could ask enough qualify such evidence. gave police. information prose- cution witness try testified that he did not WINTERSHEIMER, Justice, dissenting. help police, just help wanted to family they himself and his because lived I respectfully must dissent because I be- alley happened across the where lieve the require claimed errors do not and his home previously burglar- had been reversal and because the ultimate result Consequently, ized. appear it would upon any retrial will be the same. inquire Adcock was free to as to No is raised about the sufficien- possible motive for bias the witness in cy evidence to ver- testifying. dict of presents conviction. Adcock ten An examination of the record indicates legal arguments rather technical related to that a neigh- later witness who was also a My the conduct of the trial. review of the bor of the victim testified that the witness alleged record indicates that the errors are in did not want to talk to the marginal, judgmental trial situations which police get at all because he did not want magnified should not be into er- reversible my opinion involved. In the record indi- ror on appeal. my view trial was cates that the witness trying fundamentally fair. any obtain police favorable treatment from in result this case will any not be get but did not want to in any involved different an ultimate retrial. Consid respect. I do not any believe there is rea- ering the entire case there is no substantial sonable basis under the of facts this case possibility the result would be permit inquiry into status. alleged and different errors are non Use of the federal case of Davis v. Alas- prejudicial. 9.24; Abernathy RCr v. Com ka, 308, 1105, 415 U.S. 39 L.Ed.2d S.Ct. monwealth, Ky., (1974), inappropriate for witnesses Therefore, pur- Alaska, reversal serves no useful parole Kentucky. on Davis v. pose. supra, possibility is related to the of favor- expecta- and the reasonable able treatment obtaining of favorable BELL TELEPHONE by the witness CENTRAL

tion SOUTH COMPANY, Appellant, police prosecutors. and treatment v. are Kentucky, parole probation concepts. may be totally distinct Probation COMMISSION; Con SERVICE PUBLIC pa- granted by judicial system Division, whereas of Protection Office sumer General; Attorney a function of the admmistrative role is Cabinet; government. probationer A re- Administration branch of Finance and Louisville; Kentucky City T.A.S. subject to the trial court and adverse mains Committee; Agen Federal Executive prosecutor, but the comment the local cies; Business Citizens and Concerned jurisdiction of the parolee is under the Kentucky; Tel-A-Mar men of Central insulated from local State board Communications, Inc.; keting Alaska, the chief pressure. In Davis v. Church; Baptist Jefferson Pleasureville probation; on prosecution witness was County, Kentucky, Appellees. parole. witness was GENERAL, ATTORNEY OF should be in OFFICE I do not believe Court Protection Division and Consumer position precursor of a of United States Kentucky, Finance Commonwealth expanding rights of Supreme Court in Cabinet, Cross-Appel & Administration If anything, criminal defendants. our obli- lants, the direction of the gation is to follow highest provide federal court and not to v. existing Ken-

new means for erosion of BELL TELEPHONE CENTRAL SOUTH tucky legal principles procedures. CO., Cross-Appellee. concurring interesting It is to note in the Kentucky. Appeals Court Alaska, opinion in Mr. Justice Davis Aug. 1985. finds that the to cross- Potter Stewart Rehearing 1985. Denied Oct. particular prosecution examine a probationer his status as a Opinion Discretionary Review Denied and every qualified right and is not conferred Published Ordered general credibility of a case to Jan. witness. re-

I would affirm the conviction all

spects. JJ„ STEPHENSON, join

AKER

this dissent.

Case Details

Case Name: Adcock v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Jan 16, 1986

Citation: 702 S.W.2d 440

Court Abbreviation: Ky.