Houston v. CommonwealthHouston v. Commonwealth
- Reporters:
- Before:
- Gant
Houston appeals from his conviction and sentence for theft of a pickup truck in Kentucky. His case began when he was arrested on May 15, 1980, in Indiana for the theft of a van from Vandalia, Ohio. On May 19, 1980, Kentucky authorities questioned Houston about a vehicular homicide which had occurred in Jefferson County on May 13, 1980. While being questioned, Houston admitted stealing the Kentucky pickup truck in Louisville on May 14, 1980. On May 20, 1980, a Jefferson County Grand Jury indicted Houston for the theft of the truck. A trial was conducted on April 9, 1981. A jury found Houston guilty of theft by unlawful taking over $100 and recommended that a sentence of five years imprisonment be imposed. Judgment was entered in accordance with the jury’s verdict.
Houston asserts six errors were committed at his trial. He first alleges that he was denied a speedy trial. The facts indicate some delay in Houston’s being brought to trial. No exact time limit defining a speedy trial can be predetermined. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), it was held that a determination of whether a defendant has been denied a speedy trial must be based upon four considerations. See also McDonald v. Commonwealth, Ky., 569 S.W.2d 134 (1978).
The first consideration examines the length of the delay. Houston complains that although he was indicted on May 20, 1980, he did not learn of the indictment until October 8, 1980. He argues that the delay is inordinate and prejudicial in and of itself. We do not agree that the delay in itself prejudiced Houston or that it denied him his right to a speedy trial.
The third consideration is whether Houston asserted his rights to and desire for a speedy trial. We note that he did.
The fourth consideration is the resultant prejudice to Houston due to the delay. One of Houston’s witnesses died between the time Houston requested a speedy trial and the trial date. Houston characterized the witness as crucial. The loss of the witness is certainly unfortunate. However, the loss of one potential witness because of death during the pendency of a trial is not so prejudicial that dismissal is necessarily warranted. Further, the Commonwealth cannot be blamed for the loss of the witness; neither can it be said that it deliberately delayed Houston’s trial or that it knew that by doing so Houston’s defense would be potentially weakened. Therefore, we do not find sufficient prejudice to have resulted to have resulted to warrant a dismissal of his conviction now or the charges against him earlier.
Significant in our consideration of this issue is the impact of the Interstate Agreement on Detainers.
Houston next alleges that the evidence was insufficient to sustain his conviction for theft by unlawful taking over $100. Rather, he contends the evidence shows that he took the truck only temporarily for transportation and not with the intent to deprive the truck’s owner of his truck or to appropriate its major value. However, the prosecution’s evidence showed that Houston was in the business of stealing vehicles and selling them by parts, that Houston told police where the truck was sitting in Van-dalia, Ohio, and that police officers testified that Houston admitted stealing the truck. Houston even admitted telling police officers that he had stolen the truck. From the evidence it was not unreasonable for the jury to disbelieve Houston and to believe that he did intend to strip the parts at some later time or to use the truck for personal transportation for some indefinite period.
Houston contends that the trial court erred in not suppressing two incriminating oral statements he had made to Officer Bates and Detective Hall because of various constitutional violations that occurred in the taking of these statements. However, Houston’s contentions of impropriety by the police officers involved with the taking of the statements are contradicted by testimony. Under the totality of the circumstances, the trial judge’s treatment of this issue is not clearly erroneous. Thus we decline to disturb his decision.
Houston’s fourth allegation of error is interesting. However, we fail to agree with his reasoning or conclusion. Houston was transferred from the Indiana Reformatory to the Jefferson County Jail on February 13, 1981. Bail was set at $25,000. He was not able to secure a bond in that amount and remained in custody until his term of imprisonment began. Houston claims that he is entitled to full credit for
Houston’s fifth allegation of error is that he was denied a fair trial because of the introduction of collateral criminal activity and extraneous matters creating substantial prejudice. His sixth allegation of error is that the prejudicial nature of the prosecutor’s closing argument and cross-examination also denied him a fair trial. None of these allegations was raised before the trial court by way of contemporaneous objection. Therefore, they have not been preserved for review by this Court.
Further, the allegations of error do not demonstrate any manifest injustice done to Houston, nor are they of sufficient substance to persuade us that his rights were violated. Evidence of collateral criminal activity is competent and admissible to show intent or motive. Pankey v. Commonwealth, Ky., 485 S.W.2d 513 (1972). Counsel have a wide latitute for their closing arguments, and a prosecutor may express his opinion as to the falsity of a defense presented by the defendant. Koonce v. Commonwealth, Ky., 452 S.W.2d 822 (1970).
Accordingly, the conviction is affirmed.
All concur.