Brown v. Commonwealth

(1969), Hylton v. Bel cher, Ky., 290 S.W.2d majority opinion that “Louis- states right to Scrap has a reasonable

ville Material [by] property at this time ...

access its public Its view of

access to four streets.” subject is strained. The

what is reasonable

property city was condemned time, tracks the railroad

1870’s. Since used Louisville

located thereon have been

Scrap predecessors. Material or its The as- longtime corpora-

sertion that this Louisville ignores

tion has other means of access required ongoing for

fact that rail access is for

operations, a fact which has been so

nearly years. Because access is such

necessary corporation to maintain for the viability, regard I continued rail

economic

access to “reasonable” access

under the decisions of this Court.

affirm the in all re- Jefferson Circuit Court

spects. BROWN, III, Appellant,

James H. Kentucky,

COMMONWEALTH of

Appellee.

No. 94-SC-1036-DG.

Supreme Kentucky.

Aug. 1996.

Rehearing Denied Nov.

360 Appellant,

in the trial of the Court remanded presen comply to trial court to with the forth in tencing requirements set KRS Commonwealth, Ky., 639 532.050. Brown v. denied, (1982), 460 U.S. S.W.2d 758 cert. 1037, 1428, 103 S.Ct. 75 L.Ed.2d Appellant, apparently free on who pendency appeal, of his fled bond Australia, years. several to where he lived for Although is not clear on this the record matter, Appellant apparently was extradited twenty years in 1993 to and was sentenced 1993, a imprisonment. Appellant filed 60.02(f) pursuant to set aside motion to CR his conviction because the Commonwealth’s Appellant’s "witness in trial indicated portions of his testi- to defense counsel mony erroneous. The trial could have been appeal. court that motion. Thus the denied description a This Court set forth detailed Brown, of this case Therefore, summary at a S.W.2d 759-60. purposes. will suffice for our victim, Dud- Mark Brown believed that the ley Bryant, had broken into Mark’s home drugs him. Mark Brown and stolen from for a ride in Appellant and took the victim evening May Appellant’s car on the ques- during which time Mark Brown Robinson, McNally, McNally Kevin & Gail drug theft while tioned the victim about the Robinson, Frankfort, appellant. for following night, brandishing handgun. The 18, 1976, Appellant and May Mark Brown General, Chandler, III, Attorney A.B. house, stopped by girlfriend’s the victim’s Ferguson, Attorney Todd D. Assistant Gen- they left where found the victim. The victim eral, Frankfort, appellee. for Appellant’s ear with the Brown brothers Four visi- to Mark Brown’s home. HABLE, and went Special KEVIN Justice. home saw Mark tors to Mark Brown’s Brown, appeals the deni- Appellant, James Brown, to- Appellant and the victim there motion by the Mason Circuit Court of his al told that Mark gether. The visitors were pursuant to to set aside his made CR go Appellant planning to to Brown and were Appeals The Court of affirmed conviction. night. Lexington later that For the Appellant’s the denial of motion. below, set forth we affirm the order reasons Lexington travelled to The Brown brothers Appeals. of the trial court and they spent night night, later that where brother, day, Mark went to friends. The next Appellant and his Mark with shotgun, allegedly trials, Appellant’s car and fired a convicted in 1976 of the separate shotgun’s safety La- Dudley mechanism. Bryant and each convic- test murder of day, May Appellant traded ter that appealed. This Court affirmed the tion was Lexington friends. to one of his in Brown v. Com- his boots conviction of Mark Brown blood, type A monwealth, stained with Al- Those boots were Ky., 555 the victim. type Appellant and no errors the blood though this Court found reversible of Dr. Shaler’s later, davit to be a true reflection days A Mark Brown called few friend, Collins, testimony. The County, thinking his earlier Robert in Mason about bury help Appellant’s him motion because asked Collins to locate court denied body. victim’s Mark Brown took Collins of ... Shaler “the exclusion of the County Lane in Mason and told Morton’s not have affected the probability in all Lane area is where Collins that the Morton’s that jury.” The court noted verdict of the evidence, “they” the victim. Mark Brown overwhelming had shot view of the “[i]n body. and Collins did not find the testimony not crucial to the Shaler’s case.” Commonwealth’s Afterwards, body off police did find the caused two Morton’s Lane. Death was affirmed, citing Appeals The Court of side-by-side in the back from a shot- wounds Ap- things, prior appeal of among other police Appellant’s at trial gun. A witness In this Court pellant to this Court. that the wound was inflicted a testified admis- that Dr. ruled Shaler’s gauge shotgun. 6 shot fired from a .12 No. Appellant’s in trial. The Court stated sible shotgun-shell wad- The witness identified the appeal surrounding questions that raised on ding having come from brand Federal credibility to and related shotgun shells. than its ad- weight of the rather Appellant The evidence also showed that In missibility. 639 S.W.2d at 760. side-by-side, owned a double-barrelled Ste- evidence, discussing the the Court noted gauge shotgun, vens .12 which had a defec- above, Dr. without evidence summarized safety tive mechanism. Authorities recov- justify testimony, “was sufficient to gauge, shotgun .12 ered Federal No. 6 shot Id. the conviction of Jim Brown....” house, Appellant’s shells from mother’s Notwithstanding ruling, Appel- the earlier to the where he resided. Tire marks similar Dr. attempts lant now to characterize Shaler Appellant’s tires on ear found near the key suggests him as the witness and body. victim’s testimony had a “scientific that Shaler’s In addition to the above-described evi- aura,” jury to might which have led the dence, produced expert the Commonwealth accept question. doubt or without Appellant’s at trial. Dr. Robert 60.02(a) (e) through provides that “a Rule samples concluded Shaler studied and just, may, upon such terms as are court presence that on the or based absence judgment, ... final party relieve a from its specific genetic samples, in that markers proceeding” if one or more of sever- order or Appellant’s the blood found on boots was present, including: mis- al circumstances are only population and found 4.6% of the take, inadvertence, surprise or excusable ne- Appellant. could not been the blood of glect; newly that could discovered evidence testify Dr. Shaler did not that the blood on not, diligence, discovered with due have been belonged did the boots to the victim and he trial; perjury; in time to move for a new possibility not rule out the that the blood judg- affecting proceedings; fraud of a third stain could have been the blood satisfied, released, void, being dis- ment Furthermore, presented person. the defense (f) charged of CR or overturned. Subsection on no evidence at that the blood stain “any provides for relief for other 60.02 also Appellant’s. the boots was extraordinary justifying nature reason of an counsel interviewed Dr. Defense Shaler relief.” time, according 1993. At that to the affidavit 60.02(f) counsel, Generally, place stands in the Dr. CR of defense Shaler indicated of coram nobis. To have asserting mistaken in that the blood of the ancient writ he was judgment pro- in a coram nobis Appellant’s not have set aside stain on the boots could ceeding, petitioner had to convince belonged Appellant. affidavit formed presented facts as later Appellant’s pursuant motion court that “the real the basis for writ, application for the rendered to vacate his conviction. The Rule all, to none at evidentiary original trial tantamount trial court declined to hold an judgment as rendered affi- hearing [enforcement of] assumed defense counsel’s but (and justice that ease involved Dr. an absolute denial of the United States witness). property analogous taking to the of life or himself as the Shal- Shaler process without due of law.” Jones Com- 4.6% of the nation’s er had testified that monwealth, Ky. 108 S.W.2d 817 population particular had blood markers Commonwealth, (1937), Ky., sample cited Gross De- found him the he studied. Gross, 648 S.W.2d the admis- fense counsel elicited from Shaler made it clear that Rule 60.02 did not this conclusion on a sion that he had based scope of remedies available under extend the survey Pennsylva- county-wide population nia, grounds of coram nobis or add new relief. Dr. also admitted cross- Shaler Gross at 856. not whether examination that he did know Appellant’s the blood found on boots be- that actions This Court has held longed to the victim. Shaler also conceded 60.02 are addressed to the “sound under CR belonged blood could have to a third that the discretion of the court and the exercise Shaler, Moreover, Dr. cross- party. ap that discretion will not be disturbed on examination, conducted stated that he had peal except v. Brun for abuse.” Richardson testing respect only three blood anti- with (1959). ner, 572, 574 Rule 327 S.W.2d many separate gens, there are as as 23 when 60.02(f) “may only be invoked under the most ” analyzed. antigens that can be Howard v. unusual circumstances.... Commonwealth, (1963); 364 810 S.W.2d that Dr. was Appellant’s contention Shaler Cawood, also, 329 569 see Cawood v. S.W.2d severely key against Appellant is witness (1959) granted, pur and should not be relief of counsel who undermined the conduct 60.02(f), unless the new evi suant to Rule Appellant at trial and of the Com- defended have, dence, presented originally, if would Attorney prosecuted the monwealth who certainty, changed with reasonable the re to Dr. or case. Neither even referred Shaler See, Commonwealth, 327 sult. Wallace testimony closing argument in to the his (1959). 17 A review of the evidence S.W.2d jury. Appellant’s trial to convince us that at fails course, danger there is a that ex Of different if all outcome would have been occasion, can, pert be witness Dr. had been excluded Shaler’s Likewise, by jury. given weight undue a if later or it had been admitted and Shaler’s injus possible Court must be sensitive to jury misgivings at had been available to incarcerating convicting and on the tice of trial. the time of testimony, man expert basis of discredited shows, summary of the evidence As the Nevertheless, might innocent. “we who ample evidence in there was circumstantial intelligence jury’s must not underestimate upon could have the record which multitude ability in to discern between the its above, Indeed, based its verdict. as noted testimony presented to it and evidence and concluded that this Court has earlier accordingly.” Turner v. to evaluate such testimony of evidence at absent Commonwealth, Ky., 914 347 S.W.2d Shaler, Appellant was sufficient to convict (1996). Brown, supra at 760. Moreover, when Dr. Shaler’s judge who note also that We examination) (the testimony is tak- on direct Appellant’s Rule motion denied whole, it that Dr. Shaler’s en as a is clear Appellant’s trial in 1976. presided 1993 over key piece testimony was not the of evidence testify at trial and was He saw Dr. Shaler Indeed, Appellant. appears not to against position in an excellent to evaluate the thus evidence. important item of have been testimony. judgment import His of Shaler’s under subjected intrepid be afforded deference should

Dr. Shaler was standard of review. Nev coun- abuse-of-discretion cross-examination defense effective ertheless, cross-examination, disagrees if with his con even one Dr. admit- On Shaler sel. in the case clusion that the other evidence particular ted that his blood analysis that “overwhelming,” it is obvious accepted novel and that it had been misgivings in the inclusion of Dr. Shaler’s one other homicide ease evidence clearly erroneous trial court was Dr. or the exclusion of against of the evidence altogether this characterization original from the In Mark Brown’s Mark Brown. not, certainty, James and with reasonable conviction, this Court noted Therefore, appeal of his order of altered the outcome. “abun- Mark Brown was the evidence opinion of the Court of the trial court and the Commonwealth, Ky., 555 dant.” Brown v. Appeals are affirmed.1 (1977). no such We made in James in our decision determination WINTERSHEIMER, JJ., GRAVES, Commonwealth, Brown’s case. Brown REYNOLDS, S.JJ., concur. C. MICHAEL important- Ky., Most 639 S.W.2d WHITE, S.J., by sepa- dissents JACKSON testimony of ly, “Mark was done opinion, rate with LAMBERT and STUM- Collins, con- said that Mark had Robert who BO, JJ., joining that dissent. that he and Jim in him and admitted fided Dudley.” Brown v. Common- had killed WHITE, Justice, Special JACKSON W. wealth, Ky., 639 S.W.2d dissenting. testimony in James was no such There Brown’s case. respectfully I must dissent. majority of this and the Both the persuaded proper I that the standard am testimony to the of Robert trial court refer 60.02(f) of the CR motion includes a of review against James Collins as additional of a funda- determination whether there was to attributed a statement Brown. Collins justice miscarriage of in the trial and

mental Brown in implicated Brown that James Mark Brown, conviction of James E. III for wanton However, this was the murder. statement majority murder. The of this Court focuses inadmissible, clearly and we so indicated solely sufficiency upon the of other incrimina- evidence, of original opinion: our “This ting uphold evidence to the conviction. How- course, against not admissible Jim.” ever, approach proba- the this fails assess Commonwealth, Ky., 639 S.W.2d Brown v. impact testimony ble of the recanted of Dr. 758, 759 right upon the constitutional Robert Shaler fair of Mr. Brown to a trial. am convinced Appeals merely upon relied The Court of injus- that James Brown suffered substantial determination that there this Court’s earlier “extraordinary tice of an nature” as contem- sufficient evidence to sustain James 60.02(f) by judgment plated CR and the of testi- conviction without Dr. Shaler’s Brown’s conviction should be vacated. Likewise, majority mony. the of this Court great emphasis previous on our deter- places The trial court characterized the evidence sufficiency of the evidence mination of the “overwhelming” against James Brown as discussing Brown: “In the James concluded that the exclusion of Dr. Shaler’s evidence, sum- noted the evidence probability not “would all above, Dr. testimo- without Shaler’s marized jury.” affected the verdict of the The basis justify the conviction of ny, Vas sufficient to trial court was this determination Brown_’” p. Majority Opinion at Jim Brown, brother, that Mark James Brown’s 361. was convicted on the same intro- longer question now before us is no duced in Brown’s trial without The James sufficiency absent Dr. exception the of the evidence of Dr. Shaler. The testimony or whether “there was “in the Mark Shaler’s trial court found was that ample evidence in the record of Mark Brown circumstantial Brown case the admissions its ver- could have based in full whereas in the James on which were introduced (emphasis Majority Opinion, p. 361 the admissions were limited to dict.” Brown case added). Rather, question is the likeli- body....” inability Mark to find the Brown’s Appellant regarding allegations Dr. made Appellant also contends that the trial court testimony. misgivings failing evidentiary hearing about his earlier erred in to conduct an Thus, did not abuse its discretion concerning court, however, The trial the trial court his Rule motion. evidentiary hearing. declining accepted to hold an as true all of the factual hood that highly persuasive scientific Federal shells were found at the home of original changed mother, evidence at the trial Mr. Brown’s where Mr. Brown previous regard- result. Our determination lived. ing sufficiency of the evidence means A Anderson: witness identified Anderson only that if James Brown’s conviction were night. looking for Baxter on the fatal vacated, there is sufficient evidence for him Brown: The victim was last seen alive in to be retried. home Mark where both The survival of the common law writ of present. Mark and Brown James were coram nobis for in a relief criminal case Penney Anderson: Anderson and through provisions civil code was considered sighted together in Anderson’s car which Buchanan, by this Court Anderson v. driving night Anderson was seen Ky. case, 168 S.W.2d 48 In that of the murders. the Court reviewed the denial of a motion occasions, Brown: On two different

presented by one of'three men sentenced accompanied victim Mark Brown die Miley from the infamous Marian murder automobile owned driven James Fayette in the Circuit Court. This Brown; prints tire near the scene were petition Court determined the disclosed “that similar to the tires of this automobile. may miscarriage jus- there have been a Id., tice.” 168 S.W.2d at 54. Anderson: Anderson did not take the deny any stand to of the At the two of the accused testified against him. participated that movant Anderson in the young Lexington brutal of a murders Coun- Brown: Brown did not take the stand to try golf pro Club and her mother deny any testimony against of the him. burglary course of a of their apartment at erroneously trial court characterized deposition the club. In a filed with the mo- against this evidence James Brown as “over- nobis, seeking Penney, tion a writ of coram whelming.” Conversely, majority of the men, one of the condemned claimed have sufficiency Anderson Court characterized the taken and used Anderson’s automobile of the evidence convict in that case as .to night knowledge fateful without Anderson’s “problematical” and held: Penney or in perpe- consent. testified that The court which a conviction was had trating accompanied by the crime he was grant has discretion to the writ where it Stewart, by man named not Anderson as he appears alleged that but for false testimo- previously had sworn at the trial. Another ny or undiscovered evidence of such á con- man, Baxter, depo- avowed his condemned clusive character that the verdict most accompanying sition the motion that he could probably would not have been rendered say Penney not it was Anderson he saw with strong probability and there is a of a mis- murder, night contradicting of the his carriage justice process of unless positive identification of Anderson at trial. granted_ Apart positive from the identification and implication of Anderson the commission of by perpetrators, the murders the convicted guilt question The of the or innocence of Baxter,

Penney remaining evidence necessary subject accused is not a of bears a remarkable resemblance to the other inquiry. incriminating against James E. Buchanan, Ky. Anderson v. 292 168 Brown, III: S.W.2d 53-54 pistol Anderson: The from which the fatal not that a would have do believe belonged bullet was fired to Anderson. guilty beyond found James Brown of murder Brown: victim two was killed si- following tes- a reasonable doubt without the shotgun multaneous blasts from Federal timony of Dr. Robert Shaler: shells; brand Brown owned a double- safety Q: suspect shotgun [James barrelled with a defective The blood from the capable firing the blood on the boots? Brown] of simultaneous shots and matched of A: No sir. The blood from the victim Mark was done boot, Collins, that had is on the as far Robert who said Mark matches which typing confided in him and admitted that he and as the GM blood is concerned. evidence, Dudley. This of Jim had killed sir, Q: your typing From GM blood course, was not admissible Jim. possible that the blood on the boot was hand, trial, there was Jim’s on the other of the blood James the defen- found on expert evidence that blood Jim’s dant? boots was not his blood but could impossible. A: It is in- Dudley’s. That evidence was not been Q: possible Is it that it was the blood of in Mark’s trial. troduced Bryant Dudley, the victim? Commonwealth, Ky., 639 S.W.2d Brown possible. A: It is equivalent Evidence Q: percentage population What of the has guilt unimpor- admission of is no means the blood consistent with the of blood tant. the victim? majority’s disagree I also with the conclu- particular A: ... occurs in [T]his sion that Dr. role in the conviction of 4.6, approximately percent about 4.6 significant James Brown was not because population. prosecutor his counsel re- nor neither special reliability An “aura of trust- testimony in ferred to the witness or his worthiness,” surrounds scientific or Throughout closing argument. pro- these eyes jury, especially in the of a ceedings, James Brown and his counsel have within of a the context criminal trial. Hester significant. treated the as At Commonwealth, Ky., requested a contin- counsel for James Brown (1987) (citation omitted). posi- Dr. Shaler uance when Dr. Shaler was called as the last tively excluded James Brown as the source of prosecution. witness for the James Brown’s suspicious blood stain on James Brown’s challenged counsel this evidence in the for- and, Majority Opinion boot as the fails to Indeed, principal appeal. mer contention mention, just positively the vic- identified urged in the for reversal the conviction tim, Bryant Dudley, as one of about four admissibility appeal earlier focused on the sources a hundred candidates. For this for Brown this evidence. Counsel James trial, only in this there were two rele- sought of certiorari from the even a writ relatively vant sources of the rare blood: very Supreme on this United States Court Dudley. Bryant James E. III and Commonwealth, v. issue. Brown U.S. Shaler, According impossible to Dr. it was 75 L.Ed.2d 788 S.Ct. that the blood came from James Brown and closing argument, defense counsel stra- Bryant Dudley the odds that it came from tegically on the avoided direct attack high. unequivocal Dr. Shaler’s exclu- “blood” evidence: sion of James Brown as the blood source provided compelling connecting link James [Tjhen blood, thing, one other that seems Bryant Brown to the brutal murder of Dud- big thing in the blood. to be the this ley. Jimmy if a man with a Now Brown killed shotgun, drug body up an em- his over majority strongly disagree with the bankment, be more blood wouldn’t there “it is clear that Dr. Shaler’s was on him than the little bit on his shoes? key piece against Appel- not the of evidence Indeed, appears lant. not to have been an hand, skillfully prosecutor On the other important appeal of item of evidence.” On closing: pointed in his conviction, equat- James Brown’s this Court gentlemen, he Ladies and reason here, ed the evidence at issue Dr. Shaler’s wanted to trade boots [James Brown] testimony regarding the on James Bryant Dudley’s had because his boots boots, Brown’s in Mark Brown’s blood on them.... trial that Mark Brown had admitted he killed Bryant Dudley: mentioning all of the other

There is no use [approximately 4.6% people ]

one out of 25 Bryant Dudley had the blood that had

who on Brown’s boots.

was found Jim majority that the erro-

For the to conclude Shaler, of Dr. offer-

neous connecting

ing direct Bryant to the murder of Dud-

James Brown insignificant convic-

ley, factor his judicial clairvoyance for a

tion substitutes impartial by jury

fair and reliable

evidence. JJ., STUMBO, join this

LAMBERT and

dissent. RESTAURANTS,

MAN O WAR

INC., Appellant, MARTIN, Jr., Appellee.

John MARTIN, Jr., Cross-Appellant,

John RESTAURANTS,

MAN O WAR

INC., Cross-Appellee. 95-SC-235-DG,

Nos. 95-SC-746-DG. Kentucky.

Supreme

Aug.

Rehearing Nov. Denied

Case Details

Case Name: Brown v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Aug 29, 1996

Citation: 932 S.W.2d 359

Docket Number: 94-SC-1036-DG

Court Abbreviation: Ky.