J.D. BARNETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
No. 87-SC-710-MR.
Supreme Court of Kentucky.
Dec. 15, 1988.
Rehearing Denied Feb. 9, 1989.
763 S.W.2d 119
LEIBSON, Justice.
Prejudgment interest may be awarded where justified by the facts of a particular case. See 22 Am.Jur.2d Damages § 179. A careful reading of Atlantic Painting, supra, indicates that as to what is admittedly due, the claimant is entitled to interest. The evidence here indicates the portion of the claim for damages in the amount of $8,471.14 was undisputed. If an item of damages is fixed or ascertainable with reasonable certainty and is not contested and the defendant fails or refuses to timely pay it unconditionally, or at least to tender it into court where it may be withdrawn unconditionally, he should be charged with interest on that item in the judgment. We believe the circuit court and the Court of Appeals have misinterpreted the application of Atlantic Painting.
Therefore, this matter is remanded to the circuit court to award interest at the statutory rate on the admitted amount of $8,471.14 from June 30, 1985.
The decision of the Court of Appeals is affirmed in regard to the private right of action under the Unfair Claims Settlement Practices Act but reversed in regard to the question of prejudgment interest.
The case is remanded to the trial court for further proceedings consistent with this opinion.
STEPHENS, C.J., and LAMBERT and LEIBSON, JJ., concur.
VANCE, J., concurs in result only.
GANT, J., dissents.
Frederic J. Cowan, Atty. Gen., Elizabeth A. Myerscough, Asst. Atty. Gen., Frankfort, for appellee.
LEIBSON, Justice.
The jury convicted the appellant for intentional murder and fixed his punishment at twenty years, the minimum sentence.
At the time of the murder the appellant was 57 years old, with no previous criminal history. The Commonwealth‘s theory was that the appellant carefully planned and carried out the murder of his wife of forty years to dispose of her while retaining the money and property they had accumulated during their marriage.
In support of this theory the Commonwealth produced evidence much of which the defense challenges as inadmissible. A former paramour testified regarding a longstanding extramarital affair which, however, ended 21 months before the murder occurred. She testified that during the course of their relationship the appellant told her he would never divorce his wife because of the money it would cost him. Additionally, the Commonwealth produced the testimony of a son-in-law that shortly before the date of the crime the victim had told him that she would leave her husband if he took another vacation without her, and the testimony of a divorce attorney that more thаn a year before her death the victim had consulted him about domestic problems, principally about tracing the proceeds from certain certificates of deposit that she had jointly held with her husband. Bank employees testified that within the year before the victim‘s death the appellant had transferred approximately $90,000 from certificates of deposit jointly held with his wife to the account of a Delores Fifе, who in turn retransferred $75,000 of these funds to the appellant after his wife‘s murder.1
This case unfolds with the kind of drama more likely encountered in a made-for-television murder mystery rather than a courtroom. The murder occurred in the hour before midnight on July 29, 1985, on a dark and lonely road winding between two major thoroughfares. After the murder occurred, the appellant flagged down a passing motorist to get him to call the police to the scеne. He cooperated fully in arranging a forensic examination of his person and his clothes, and he gave a voluntary tape-recorded statement to the police about four hours after the occurrence.
In this statement the appellant related that after a evening‘s visit with a fellow church member, he and his wife were returning home when the car started missing badly and then stalled out. He checked under the hoоd without success, and then
There was no eyewitness to prove the appellant guilty. There was testimony from passers-by who saw the appellant and his truck before and after the occurrence, some of which corroborated the appellant‘s story and some of which tended to cast doubt on certain details. Examination of physiological evidence consisting of swabs from the appеllant and his clothes were reported as showing traces of blood, otherwise unidentifiable even as human blood. The serologist testified as an expert over objection that this was consistent with the appellant having washed off the blood which could have been expected from the vicious stab wounds in the victim‘s neck and chest. There was a large puddle of water near the scene, but no evidence was offered that it had been disturbed by washing, or of blood, and no one observed the appellant as wet or bearing any signs of a struggle. The Commonwealth‘s mechanic who examined the truck was unable to make the truck stall during vigorous testing, but there was evidence of mechanical problems and other evidence to sustain theorizing that it may have stalled out.
The key witness was a woman, Rose Pierce, living in the area near the crime scene, who, if believed, proved that the appellant was casing the scene during the week before the crime occurred. She testified to seeing the appellant‘s truck stopped in the neighborhood on several occasions in the week before the occurrence, and on one occasion seeing the appellant standing nearby. She made the identification from observing his television appearance at the time of his indictment, which was about six months after the occurrence and eighteen months before trial. She testified that she notified the police immediately through a friend, but the police only showed up to interview her and took her statement two days before the trial started.
Counsel for the appellant vigorously opposed permitting this witness to testify, claiming breach of pre-trial discovery orders and prоcedures, concealment by the Commonwealth after representing that it was providing “open file” discovery, sandbagging and surprise. By court order entered with no prior objection, the Commonwealth had been directed to furnish names of witnesses and statements obtained before the trial started, and, apparently, it had complied omitting Rose Pierce.
On appeal the appellant complains that the evidence in this case, taken as a whole, was insufficient to sustain a guilty verdict, and further of eight different trial errors each sufficiently serious to require reversing and remanding for a new trial. Additionally, he claims that if we should deem no one of the trial errors sufficient in itself to require reversal, then the accumulation of errors is ground for reversal.
We have decided there was sufficient competent evidence to withstand the motion for a directed verdict of acquittal, but the trial court committed reversible error in at least four particulars: permitting the neighborhood witness to testify after the Commonwealth violated discovery procedures; permitting testimony about the appellant‘s extramarital affair which had terminated some twenty-one months before trial; permitting hearsay testimony from the victim‘s son-in-law and former attorney who repeated statements mаde by the victim about her marital problems; and permitting the Commonwealth‘s serologist to give expert opinion not included in the copy
Only some of this testimony is inadmissible on retrial. The testimony as to the opinion of the expert and the testimony of the witness who claims to have observеd the appellant casing the scene during the week before the murder constitute error only because of the Commonwealth‘s failure to properly provide pre-trial discovery. This classifies as trial error, but we do not exclude this testimony in passing on the sufficiency of the evidence. It will be admissible evidence in the event of a retrial.
It is impossible to detail all of the evidence pointing to the appellant‘s guilt within an opinion of reasonable length. We have already pointed to some of the more significant evidence against him. On the other hand, there was evidence, which, if believed, pointed to his innocence. This included: the murder weapon was never found although there was a thorough search of the area in which it was reasonable to expect that the accused would have disposed of it; a stranger was seеn walking near the truck by several of the witnesses who were passers-by, and a composite drawing made of his description matched a known criminal who was never questioned; the appellant‘s employment time records indicated the appellant would have been at work when Rose Pierce claims that he was observed casing the scene. As stated by the Commonwealth at oral argument, the evidence against thе appellant, if believed, was enough to convict but was “not overwhelming.” The oft-stated rule from Commonwealth v. Sawhill, Ky., 660 S.W.2d 3, 5 (1983) is:
“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.”
The appellant cites us to a very recent decision from the United States Sixth Circuit Court of Appeals, Moore v. Parke, 846 F.2d 375 (6th Cir.1988), which in effect overruled one of our decisions about the sufficiency of the evidence, granting habeas corpus relief on grounds that the proof was constitutionally insufficient to sustain a verdict. This was a 2/1 decision, using the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Jackson holds that under the Due Process Clause the question of constitutional insufficiency turns on “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789. We do not believe the standard in Jackson is any different in substance from our own standard as stated in Commonwealth v. Sawhill, supra.
As stated the Commonwealth had given the appellant‘s counsel the statements of all of the Commonwealth‘s witnesses before the trial except Rose Pierce. Also, according to defense counsel, a week before trial the Commonwealth had given a list of the names of its witnesses and the order in which they would testify, but the name of this critical witnеss was omitted from the list. The record reveals that her name, with nothing more, was mentioned in passing in the middle of a list of some thirty-one witnesses read off before the jury on voir dire. Apparently this blip went unnoticed by defense counsel. There was no mention of this witness by name, nor of the substance of her testimony in opening statement. Defense counsel first became aware of her existence five days after the trial started when the Cоmmonwealth was preparing to put her on the stand, and then offered a copy of her statement.
Trial started on June 19, 1987. The statement of Rose Pierce had been taken two days before. The statement was first produced on June 24, and the witness testified on June 25. Had the statement been produced at the commencement of trial the defense would have had an additional five days to investigate the background and credibility of this critical witness.
The Commonwealth insists that
The Commonwealth conceded that this was “a violation of 7.26,” arguing that “a mistake was made,” but “it wasn‘t malicious.” The trial court accepted this explanation and permitted the witness to testify after giving the defense overnight to interview the witness and investigate her background as best it could. In a case where the murder is shrouded in mystery and the question of guilt hung in the balance, it will not do to permit the possibility that victory was obtained by ambush and surprise, even if we accept that the mistake was not “malicious.” As stated in James v. Commonwealth, Ky., 482 S.W.2d 92, 94 (1972), the system cannot tolerate “a cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused.” This is a case whеre the jury first reported that it was deadlocked, and only returned a verdict after it was directed by the court to resume deliberations and “try” to reach a verdict. It then found the appellant guilty, but fixed the minimum punishment, 20 years, on evidence which, if believed, would result in a much more severe sentence because it proved a carefully planned, coldblooded and premeditated murder for money. We cannot say that failurе to discover Rose Pierce‘s statement until the fifth day of trial, thus denying any reasonable opportunity to investigate the circumstances, did not result in the guilty verdict.
Next, we consider the testimony of the Commonwealth‘s serologist who testified that there were faint traces of blood that could be found on the appellant‘s hands and arms, and then opined that this was attributable to washing away the blood that could have been expeсted from the victim‘s wounds. Appellant first contends that this was an impermissible speculation, rather than an opinion, there being no evidence from which it could be inferred that the appellant engaged in washing to support a hypothetical question, as required by Hodge v. Commonwealth, 289 Ky. 548, 159 S.W.2d 422 (1942). The presence of a nearby puddle would support an inference, albeit weak, that there was at least an opportunity for the appellant to wаsh the blood off of his hands. This evidence was weak because the undisturbed condition of the puddle and of the appellant and of his clothing refuted the implication that washing had occurred. All things considered, we conclude that the serologist‘s conclusion was admissible as opinion evidence, but the appellant was entitled under
We agree with the appellant that the trial court erred in permitting a witness to testify that she had had an extramarital affair with the appellant that went on for
In the present case the Commonwealth contends that the evidence was not offered to prove the appellant disregarded his marital vows, but only to establish motive. The only portion of this witness‘s evidеnce tending to establish motive was her testimony that the appellant said he would never divorce his wife because he did not want to lose any of the money or property accumulated during his marriage. Arguably such statements tend to show motive and are not too remote, but evidence about such statements could have been admitted unburdened by background information establishing an extramarital affair. With this excess baggage its inflаmmatory nature far outweighed any probative value. See Empire Metal Corp. v. Wohlwender, Ky., 445 S.W.2d 685 (1969); Commonwealth v. Morrison, Ky., 661 S.W.2d 471 (1983); and Ice v. Commonwealth, Ky., 667 S.W.2d 671 (1984), cert. denied, 469 U.S. 860, 105 S.Ct. 192, 83 L.Ed.2d 125.
Next we consider the hearsay testimony given by the victim‘s son-in-law and by her former attorney repeating complaints by the victim about the appellant‘s marital misconduct. As we stated in Jarrell v. Commonwealth, 240 Ky. 845, 43 S.W.2d 177, 178 (1931), “proof of such statements of the deceased out of the presence of the defendant was a flagrant violation of the rule against the admission of hearsay testimony.” Conсeivably, if there had been proof that the appellant knew that his wife had made statements of this nature, the testimony might be admissible as tending to show motive. They might be admissible not for their truth but as bearing on the appellant‘s state of mind. See Robert G. Lawson, Kentucky Evidence Law Handbook, 2d ed., 1984, p. 199. But the Commonwealth has admitted that there was no evidence that the appellant knew of the victim‘s conversation with either her son-in-law оr the former attorney, only the speculation that perhaps this was so. In such circumstance this evidence was inadmissible hearsay unrelated to any proper nonhearsay use of a victim‘s statements. Admitting such evidence in this case constituted prejudicial error.
The appellant complained that the trial court had improperly refused to allow evidence that he voluntarily submitted to a polygraph. In Penn v. Commonwealth, Ky., 417 S.W.2d 258 (1967), we statеd why such evidence is inadmissible, and we adhere to that decision.
The remainder of the appellant‘s claims of error are either lacking in merit or of such a nature that they are unlikely to occur on retrial.
We reverse and remand subject to a new trial conducted consistent with this Opinion.
STEPHENS, C.J., and GANT and LAMBERT, JJ., concur.
STEPHENSON and VANCE, JJ., dissent.
WINTERSHEIMER, J., dissents by separate opinion.
WINTERSHEIMER, Justice, dissenting.
I respectfully dissent from the majority opinion because Barnett‘s claims do not amount to reversible error. I believe the trial judge hаd the best opportunity to consider and evaluate the allegations of error and correctly decided each question.
Barnett contends that he was unfairly surprised by the testimony of a serologist because the expert‘s testimony went beyond the information contained in a laboratory report previously provided by the prosecution. I do not believe there was any violation of
The trial court did not abuse its discretion in allowing the testimony of witness Pierce. Although there may have been a technical violation of
It was not reversible error to allow testimony of a romantic relationship between the accused and another witness from 1972 until November, 1983. The testimony was introduced only to establish a motive for killing the wife. The admission of this testimony was a judgment call within the proper ambit of the trial judge.
The trial judgе did not commit reversible error by allowing testimony from the victim‘s son-in-law and her former attorney relating to marital problems. Obviously the victim is unavailable for testimony. The statements were not admitted for their testimonial use, but for their relevant circumstantial use. The statements were not offered to prove the victim would leave her husband if he took another vacation or that the husband transferred marital assets. The statements tended to show that the accused feared the loss of money and property accumulated during the marriage and that a separation would reduce his economic position. They were not admitted for the truth of the matter asserted, but for their indirect value of establishing a motive for the murder and were therefore not barred by the hearsay rule. 6 Wigmore, Evidence § 1788 (Chadbourn rev. 1976). I believe the trial judge was correct in his conduct of this aspect of the trial, and I would affirm the conviction.