*1 445 injustice might substantial result otherwise E. James James CALDWELL a/k/a clearly pal- decision is the former Caldwell, Appellant,
pably erroneous.” See also White v. Com-
monwealth, Ky.,
pra,
conclude that our former decision
we
was,
fact, “clearly
palpa-
in this
case
2002-SC-0410-MR,
Nos.
bly
Appellant’s
appeal
second
erroneous.”
2003-SC-0155-TG.
in this
pending
review
Court when
Kentucky.
Supreme Court of
and,
Hughes
consequently
was decided
yet
Taylor
was not
final. See
v. Common
18, 2004.
March
wealth,
151,
Ky.,
Rehearing
As
on Denial of
Modified
denied,
945,
2632,
cert.
536 U.S.
S.Ct.
20,May
Grant оf
2004.
Modification
(2002) (citing
preserved the issue court and is application of su Hughes,
entitled to the such,
pra. eligible she is parole As serving twenty years
consideration after year imposed.
the fifty-five sentence decline the
Finally, we Commonwealth’s Hughes, and note
invitation overrule legislature disagree should with interpretation
this Court’s KRS
439.3401, it should amend statute ac-
cordingly. herein,
For judg- the reasons stated
ment and sentence of the Laurel Circuit
Court affirmed. are
All concur. *4 Robinson,
Gail Assistant Public Advo- cate, Department Advocacy, of Public Frankfort, Appellant. Counsel for Stumbo, Attorney D. Gregory General of Kentucky, Sonego, Ian Attor- G. Assistant General, Division, ney Appellate Criminal General, Frankfort, Attorney Office of the Appellee. Counsel for WINTERSHEIMER, Justice. appeals Caldwell from a judgment based on a verdict which сonvicted him of count one of murder and theft over $300. in prison He was sentenced to life and five years concurrently. appeals Caldwell also denying from an order his motion for a new based on discovered evi- dence. have We consolidated these two appeals opinion. order render one questions presented are whether right Caldwell was denied his to confront a witness; whether Caldwell was entitled to an instruction on intoxication and lesser offenses; included whether the should have beеn instructed on the unauthorized automobile; prosecuto- use of an whether guilt rial misconduct occurred at phase; properly whether Caldwell was juvenile from transferred court to circuit court; prosecutorial whether misconduct during penalty phase, occurred judge properly the trial denied whether trial. the motion new Caldwell and the Commonwealth offer a case, detailed factual account of this but purposes opinion, for the of this we recite relatively summary. brief The two vie- sister-in-law, told her to leave tims were found shot to death inside oc- home of of those victims. One victim the murders just one the house before shotgun at had died from three wounds going bad was something curred because wallet, His at the range. close recovered of anyone was not aware happen. She scene, no other money. The contained except house else inside the gun shot wounds victim had died two outside, victims. the sister- the two While range, from a at intermediate which came gunshot, heard a started flee in-law a shotgun. pocket firearm other than His go- After then heard several more shots. his mon- empty was turned inside out and road, Cald- ing a short distance down clip body. next to Both victims ey lay up truck picked her the victim’s well intoxi- high level blood alcohol they pair the area. The encoun- fled cation. and, police attempt roadblock in an tered a Caldwell, 14-years-old, then his sister- it, the truck into to avoid Caldwell drove in-law, his sister and her friend were ditch. She and Caldwell abandoned night home on a the victim’s social police truck and foot. fled *5 point, At the sister and her visit. some witness, of acquaintance Another friend left and his while Caldwell sister-in- Caldwell’s, to that came testified Caldwell undisputed law remained It behind. to the night home that and asked use his that was the victim’s home Caldwell inside paid him for some phone. Caldwell $19 shooting at the time the occurred and that provided. clothes he The witness admitted his sister-in-law was inside home either the left burning the clothes Caldwell behind. just or outside the home at that same time. money, acquaintancе the turned The which It is also that of them uncontroverted both police, proved to have Caldwell’s over to belong- fled the scene the truck pickup Eventually, it. told the on Caldwell blood to ing one of the victims. what at the vic- acquaintance happened Upon juvenile being transferred from him, According to tim’s home. court, to as court circuit Caldwell was tried of shooting both after one admitted victims murder, an adult two on counts of two inappropri- sister-in-law grabbed them his first-degree robbery counts and one ately. shooting witness denied either This trial, count of over At theft his $300. the being or victim’s home victim among evidence, other the Commonwealth night. expert testimony that was presented there Caldwell, 16-years-old at the who was high probability blood Caldwell’s trial, testified in his own defense time comparison matched a taken from a shot- robbing or the killing denied victims. gun Apparently, shell. Caldwell had cut the alleged that his sister-in-law and He finger night. his A taken sample above were re- shotgun acquaintance from also determined to mentioned was with a mixture of ac- sponsible be consistent Caldwell’s for the crimes. Caldwell victims. Another blood and one knowledged mixing alcohol and Xanax ear- thumb- expert testified that Caldwell’s drinking or day in the eleven lier latent found on prints prints matched at the victim’s home. twelve beers while shotgun. other were found prints No money he to explained gave that the He weapon. repay a acquaintance was to debt shotgun on the that his blood was found evidence, physical to addition his away he it from sister-in- because tоok sister-in-law, with whom Cald- Caldwell’s was shot. after one of victims law physical relation- having well admitted off in the that he drove against According him. admitted ship, testified n victim’spickup truck with his sister-in-law testify counsel to alleged prior in- alleged acquaintance was with consistent statements of a witness. At them. He also driving admitted the vehi- trial, presented defense counsel a witness cle into a ditch police order avoid a they obviously whom hoped would admit roadblock and fleeing police. having taken Caldwell and аnother male individual to the victim’s home the night convicted Caldwell of one count true, the murders. If testimony this of murder and theft over It acquit- $300. would have lent credibility ted him of charges. the other three Caldwell’s acquaintance claim that his recommended that Caldwell be sen- there tenced imprisonment night to life for the mur- and shot one of the victims. When der, years theft, imprisonment five stand, however, for the the witness took the he and that the run consecutively. sentences knowledge denied all about the crime and judge imposеd The trial the same terms denied telling ever defense counsel that he except that he ran the sentences concur- transported Caldwell and in- another male rently. He Caldwell, also ordered that as dividual to the Following victim’s home. youthful offender, placed with the his testimony, defense counsel moved to department juvenile justice until he allow co-counsel take the stand and age reaches the eighteen and then to be impeach testimony. the witness’ returned to circuit court for final sentenc- objected Commonwealth based on the can- ing. on of ethics and the trial judge denied the
Approximately four motion. Defense months after final counsel did not seek to entered, judgment was *6 proposed by counsel for introduce the Cald- avow- well filed a motion for a new trial based on al. grounds of discovered evidence. A trial court ruling excluding evi supported The motion was by an affidavit preserved dence must be for appellate re from trial alleged co-counsel which that by view an avowal of the witness. KRE Caldwell’s sister-in-law him admitted to 103(a)(2); Ferrell, Ky., Commonwealth v. that she killed the victim whom Caldwell (2000). Otherwise, the re was convicted of killing. When co-counsel viewing court no way knowing has of ex sought videotape admission, to her she re- actly testimony what was excluded and fused. whether the prejudicial exclusion was to The trial judge arguments heard oral on Ferrell, offering party. supra. the motion for a new trial September “Counsel’s version of the evidence is not 30, 2002. Defense counsel noted that the enough. A reviewing court must have the sister-in-law subpoe- had failed to honor a words of the witness.” Partin v. Com na that had been served on her. The monwealth, Ky., 918 S.W.2d objected Commonwealth to the defendant’s (1996). It makes no difference here that co-counsel, withdraw, who filed a motion to defense counsel and the witness are one testifying hearsay about alleg- statements testimony the same. There was no offered edly by made the sister-in-law. The trial in court under oath.
judge denied the motion for a new trial.
must
We
observe that
future
appeals
These
followed.
cases
judge
the decision of the trial
to
I.
Testimony
Defense Counsel
permit
deny
or
right
testify
counsel the
to
will be
for an abuse of discretion.
argues
trial
reviewed
judge
Knotts,
him
deprived
right
Ky.,
of his
to confront a
Zurich Ins. Co. v.
Cf.
permit
Further,
witness when he
refused
defense
agree
S.W.3d 555
we
Caldwell,
as a lesser offense
of
use of a motor vehicle
with the rationale
State v.
Ariz.
tion unless or or he makes reasonably supported have dence would objection beforе the court instructs possessed the vehicle belief that Caldwell jury, stating the matter to specifically it to restoring its with the intention objects ground which he and the or *7 beyond a owner—but otherwise conclude grounds objection. of his oper knowingly that he reasonable doubt concedes that he did not Caldwell ated an automobile without the owner’s object given to the instructions the Commonwealth, Ky., v. consent. Lawson judge. trial to comply The failure with (2002). 571 The evidence 85 S.W.3d 9.54(2) consistently inter RCr has been the of the left scene was Caldwell preted prevent review of claimed error in truck of a de pickup homicides the in the instructions because of the failure to every then made effort victim and ceased preserve alleged the error for review. and avoid arrest. escape police Thurman, Ky., 691 Commonwealth that Caldwell There is no credible evidence (1985). pursuant S.W.2d Review truck to the pickup intended to return the com RCr 10.26 is unwarranted. Caldwell judge his The trial victim or residence. killing pletely robbing denied or either of requested Caldwell’s less properly denied it can fairly deduced victims There instruction. was er-included offense from the record that defense counsel no error. sought strategy. all nothing or Misconduct IV.Prosecutorial of a
III.Unauthorized Vehicle Use prosecutorial argues that judge The trial did not err de Caldwell fair trial. He denied him a on unauthorized misconduct clining to instruct presents separate two arguments regard- following an objection and admonition indi- ing this issue which we will sepa- address cates satisfactory reliеf. Derossett v. First, rately. Caldwell contends that the Commonwealth, Ky., 867 S.W.2d prosecutor improperly commented on his (1993). right to remain During silent. cross-ex- justify order to
amination,
reversal of a
prosecutor
asked Caldwell
conviction, misconduct of
having
prosecutor
about
long time to come up with a
story
must
explain
be so serious as
the evidence with
to render the entire
the as-
sistance of
attorney.
trial fundamentally
Defense counsel
unfair. Slaughter v.
objected, but
grounds
Commonwealth,
offered no
for his
Ky., 744
objection.
The trial
(1987).
overruled that
prosecutor may
comment on
objection. Caldwell
responded by
then
counsel,
the trial
may
tactics
defense
saying that he did not need time to come
evidence,
comment on the
may
com
up
story
with a
because he
telling
falsity
ment on the
position
of the defense
truth.
appeal,
On
argues
in light of the evidence. Slaughter, swpra.
question
Commonwealth’s
improperly
prosecutor may
comment on the credi
right
commented on his
to remain silent. bility of the defendant when he elects to
argument by
speculative
Caldwell is
testify
Commonwealth,
at trial. Tamme v.
and without merit. There
no
Ky.,
the Massachusetts
Court Com
equal protection rights
late the
Q.,
859,
Quincy
monwealth v.
434 Mass.
our state or federal constitutions.
under
(2001).
urges
murder of one of the
and
by
victims
theft
at
place.
killed
the same time and
He
taking
unlawful
over
He
acquit-
was
$300.
he
the pickup
testified that
drove
truck
ted of the murder of the
victim
second
alleged
that
perpetrators
took the
from the
of
robbery
both
charges. During
pros-
scene;
homicide
to
attempted
assist the
closing argument
ecutor’s
in
penalty
perpetrators
in
a
avoiding
police road-
phase,
following
was stated:
block;
fled
into the woods to avoid
Now,
go
Comm:
I’m not
to
going
back
police
Considering
detection.
lat-
wide
or certainly retry charges
rehash
prosecutors
itude
in
afforded
closing argu-
you’ve acquitted
that
this defendant ment, we find no error.
Bowling v.
Cf.
this,
on.
I want
say
But
we know Commonwealth, Ky.,
that
second
[the
killed
(1993).
night.
that
Of
we do.
course
And
I’m
going
guess
your
not
on what
VII. New Trial Motion
I
feelings were on that but want to
The trial
did not abuse
encourage you to
deliberate
that a
in denying
by
discretion
the motion
little more to this
...
extent
Caldwell for
new trial.
Whether
Objection.
Def:
grant a
trial on
new
the basis of
Comm: I am not finished.
largely
discovered
is
within the
Judge: Overruled.
judge,
discretion
the trial
the stan
Comm:
We know that
[Inaudible].
[the
dard of review is whether there has been
second
was Wiled that night.
victim]
of that
Foley
abuse
discretion.
v. Com
Objection.
Def:
(2000).
monwealth, Ky., 55
809
S.W.3d
Comm:
know he was killed.
We
The evidence must
of such
decisive
Judge: Overruled.
would,
value or
that it
with
force
reason
Comm: And [Caldwell’s mother] has
certainty, change
prob
able
the verdict or
that
keep
testified
she couldn’t
him ably
change the result if
new trial was
running
un-
around with these
granted. Foley, supra.
ruly
thought
friends and that he
premised
The motion for a new trial was
So I ask
you
was cool.
consider
upon an affidavit from trial
al-
co-counsel
cool
was he with one of his
friends
leging
sister-in-law/girlfriend
had
night when both
these men
she,
him that
not
admitted to
the defen-
respect
I
the fact that
were Wiled?
dant,
killed the victim whom
had
you
him
one count
convicted
was convicted of
killing.
affidavit
that,
respect
murder and theft.
I
I
merely
co-counsel was
and in-
impeaching
But
accept that.
there was another
require
sufficient
trial.
new
See Com-
man
He
night.
apparently
killed
Tamme, Ky.,
monwealth
S.W.3d
somebody
was with one of the—with
(2002); Foley; Epperson v. Common-
who
a hand in
there.
wealth, Ky.,
455 prejudiced was Here, Appellant from observes how is no affidavit the crime. there sister-in-law/girlfriend only and not the improper the remarks Commonwealth’s trial, did testify was she she available Truth-in-Sentenc- during its 532.055 KRS Thus, clearly distinguishаble is Boyd so. closing In ing phase argument. other applicable. and not (1) words, judgment I vote to: affirm the it Appellant’s extent that reflects the A is entitled to one defendant convictions, but felony and TBUT Murder a of trials fair trial and not to series based (2) life sentence and aggregate the unless that reverse newly on discovered evidence compelling as to sufficiently evidence is trial court a the case the remand certainty the ver create a reasonable that In sentencing hearing. new 2003-SC- dict have been different would 0155-TG, trial Appellant’s appeal from the been at the former trial. available denying motion for new court’s order his hearsay a trial Foley. Mere evidence that trial, analysis in agree I with contained post-trial made a statement incon witness and I majority opinion, Part of VII testimony is in previous sistent with her majority’s of fully disposition concur in the Foley. by Caldwell sufficient. Reliance appeal. that Commonwealth, Ky., on Mullins v. 375 (1964) Haynes 832 v. Com S.W.2d and C.J., LAMBERT, joins opinion this monwealth, Ky. 753, S.W.2d part. in concurring part dissenting in unconvincing is because there has miscarriage justice been no here. The STUMBO, Justice, dissenting. trial not his in did abuse discretion evidentiary an denying motion without The trial I must dissent. Respectfully, hearing denying or in the motion itself. when it failed to its discretion court abused judgment of conviction and sentence newly grant Appellant a new trial based denying is affirmed and the order the mo- in the form of ad- discovered evidence tion for a new trial is also affirmed. she, Brittany Gregory that mission had shot one of the victims. Appellant, not COOPER, GRAVES and JJ., JOHNSTONE, concur. is general rule that new Although the granted if not be should KELLER, J., part in concurs merely impeaching is discovered evidence part joined by in and is dissents nature, cau- applied in rule should be this LAMBERT, C.J. compelling and if the evidence tiously, STUMBO, J., by separate dissents have in- enough probably it would opinion. verdict, to reach a different duced KELLER, Justice, part concurring v. granted. trial should be Mullins new dissenting part. Commomvealth, Ky., 375 S.W.2d 2002-SC-0410-MR, mat- Appellant’s (1964) (quoting McGregor Common- Circuit ter-of-right appeal the Laurel (1952)). wealth, Ky., judgment of and sen- Court’s conviction case, obviously believed In this tence, as Parts I- only I in result concur Appellant killed other than someone V, Appellant’s allegations which address acquitted as he was one the victims underlying error that are relevant to Brittany Gregory’s one count murder. convictions, dissent as to Part VI be- but put into ser- counsel defense statements entirely agree portion I with the cause person Appellant ious dissenting doubt opinion Justice Stumbo’s *11 who shot jury Clifford Schell. evidence, POPPLEWELL’S ALLIGATOR
entitled to DOCK hear this as it was 1, INC., Appellant, NO. probable that the admission would have induced jury to believe that Brittany v. Gregory had shot Clifford Schell rather CABINET, REVENUE Commonwealth Appellant. than This Court has not hesi- Kentucky, Appellee. tated to grant a new when the merely discovered impeaches witness if it that a appears miscarriage of Cabinet, Revenue Commonwealth Id.
justice may I result. believe this is Kentucky, Appellant, such an instance. addition, the prosecutor’s remarks Inc.; Dock, Popplewell’s State during penalty phase of trial asking Alligator 1, Inc., Dock No. сharges to consider the of which Appellees. Appellant acquitted had been when impos- ing a prejudicial. sentence pros- were 2001-SC-0434-DG, No. ecutor asked consider that 2001-SC-0439-DG. another man had been murdered that Supreme of Kentucky. Court night, for which no one had been charged. The statements to this effect attempted to 22, 2004. April persuade impose the jury to the maximum As Modified June 2004. upon Appellant sentence for crimes he had previously been acquitted, implication
being that Appellant actually commit- yet
ted crimes there was not enough Appellant,
evidence to convict or that he possibly
fraternized with or aided and
abetted did Mends who commit
crimes, punished and thus should be
“running” wrong with the crowd. These prejudicial
statements were and would at very least remand for require a new
sentencing hearing.