*1 sence of mistake or accident December
1993. opportunity
The trial has the joint
to exercise sound discretion to trials
and such a decision will not be set aside showing prejudice. absence Wil
son v.
(1985). Robert Parker has not demonstrated joint prejudice undue as a result of the
trial. The trial did not abuse his dis any respect during the conduct of
cretion joint signif trial. RCr 9.16. There were charges
icant similarities of and evidence
against both defendants. of conviction is affirmed.
All concur.
Gary LUTTRELL, Appellant, Kentucky,
COMMONWEALTH of
Appellee.
No. 96-SC-0802-MR. Kentucky.
2, Oct. 1997.
credibility of a witness and whether sentencing great- Luttrell to a judge erred his er sentence on by a guilty of murder Luttrell was found years prison twenty and sentenced unpublished in 1992. In an memorandum opinion, by a 4 to 3 vote reversed this Court this matter to the conviction and remanded the circuit court for a new trial. The second guilty found Luttrell of murder and prison. fixed his sentence at life long-standing the victim were acquaintances. Luttrell shot the victim apartment. the victim’s pistol that he the victim with a that he killed kept in his boot because he heard concealed say something to the effect going girlfriend to kill both his pull Luttrell. Luttrell saw the victim beginning bolt on the rifle back and was rifle, insert a shell into the but Luttrell actually claimed that he did not remember cross-examination, firing pistol. Lutt- his On memory rell insisted that his blanked out began point where he to reach for pistol. acknowledged Luttrell also was drunk at the time. The victim found Luttrell of murder and he was imprisonment. appeal sentenced to life This followed. Wettle, Louisville, appellant. Mark for I Chandler, III, General, AJB. Attorney Ian Luttrell was not to a directed entitled General, Sonego, G. Attorney Assistant self-protec verdict because of the defense of Division, Frankfort, Appellate Criminal protection tion or Luttrell’s
appellee. claim of was not raised in his previous appeal ap to this Court.
OPINION peal, presented he has no reason to indicate why this issue could not have been raised in Justice. appeal. previous opin This Court’s appeal This is from a on a based ion authorized a retrial and Luttrell did not mur- verdict which convicted Luttrell of contend otherwise at that time. See Wil impris- der for which he was sentenced to life liamson v. onment. questions are whether the motion for directed verdict on the At the second Luttrell moved verdict, however, granted; should have been for a directed the motion referring justification, self-protection, whether the erred did not mention the forensic firearms examiner as an of another. These defenses are jury; improper of the offense of mur before the whether there was not elements commentary by as to the der as KRS 507.020. See Rich- defined merely that the Ky.App., nized as an wit-
ardson v. give There ness could in this case. was no See reversible The evidence Luttrell did not re- KRE 702. quire a Luttrell’s directed verdict because *3 self-protection claims of not conclusive- judge made to the The comment the physical ly demonstrated. The evidence es- witness, may expert opinion,” an “You render highly that tablished the victim was intoxicat- witness, police was harmless error. The a time, possession at the that the rifle in of ed only specialist, forensic firearms testified the deceased was not in fact loaded at the that the bullets which killed could time, dexterity be that considerable would gun from Luttrell’s and that have been fired necessary a bullet for the deceased to load been fired from spent cartridge had another bring place into that bullet into the rifle and first fact was not the victim’s rifle. The by operating rifle The victim the bolt.' was was favorable to challenged the second and times, shot three and two of the three Luttrell’s claim of self-defense. reflecting that wounds were contact wounds exercised a care should be Great weapon the deceased was shot with the has been judge the determination trial when presséd against the skin of the deceased’s jury expert. If the is an made that a witness testimony police head. There was that Lutt- a conclusion so informed such contempo- rell made a number of statements witness credibility of that enhances the reflecting raneous with his arrest be rulings should eyes jury. All such of the harbored malice the deceased. jury hearing of made outside Luttrell was not entitled to a directed ver- that the wit no declaration there should be acquittal pertaining dict of to the defenses of occur, it did expert. is an If ness of prejudicial error unduly was not See West defense jury and the evidence before the of the witness. counsel’s cross-examination RCr 9.24. II not reversible error for the was It Ill Kentucky judge trial to allow the State Police A the record shows review of testify an Forensic Firearms examiner to as testimony by a wit prosecutor’s reference expert by stating hearing of the within the deprive operate “story” ness as a did not opinion.” jury may an “You render fundamentally trial. fair Luttrell of a complains qualifica- that after tions were testified of firearms examiner ruling a received Luttrell never hearing jury, prose- to within the admonition, therefore an motion for qualified as an cutor asked that he be for review. properly preserved issue is not n witness. Defense counsel indicated that he Commonwealth, Ky., 890 S.W.2d an qualified that the witness as believed was made a motion Luttrell never objected jury should not that an isolated a mistrial and the comment was a judge be told that the trial had made instances of cited no other one. has expert. an After this finding that he was Byrd prosecutorial misconduct. See alleged argued matter at the bench and the was Ky., 825 S.W.2d counsel, objection by court noted the defense witnesses, including Six judge hearing within the the trial stated rell, wit following The this witness. expert opinion.” jury may “You render ex cross-examined questioned ness was tensively by The conduct a trial defense counsel. has never held that
This Court
cir
a
in the
jury
prosecutor, taken as whole
precluded
informing the
judge is
from
preclude the
did not
recognized as an
cumstances of the
that a
been
witness had
pre
ease,
fairly assessing the evidence
judge
from
expert.
In this
the trial
was no error.
recog-
sented. There
state to the
that the witness
which
life
IV
permissible statutory range,
within
judge
Luttrell claims that
him
after the
found
murder
by imposing a
committed reversible error
following
more severe sentence
imposed following
than what was
of conviction affirmed.
case,
record indicates
imprison
fixed the sentence at life
GRAVES,
STEPHENS, C.J., and
required
ment. The trial
was not
JOHNSTONE, LAMBERT and
justify imposing a more severe sentence after
JJ.,
concur.
Luttrell’s retrial because the trial
sim
COOPER, J.,
by separate opinion
concurs
ply imposed the
been
had
fixed
STUMBO, J., joins.
*4
in which
by
in both trials.
by
The authorities
on
relied
Luttrell are
COOPER, Justice, concurring.
persuasive.
Supreme
not
The United States
by
I concur in the result reached
the ma-
exception
Court announced an
to the cases
jority,
separately
express my
to
but write
by
relied on
Luttrell in a circumstance where
major-
in
view on the assertion contained
by jury
determined
with-
ity
self-protec-
opinion that the defenses of
jury being
prior
out that
advised of the
sen-
tion
of another are not ele-
Supreme
tence. The U.S.
Court stated that
ments of the offense of murder.
prerequisite
imposition
for the
is introduced which would
Once evidence
retaliatory penalty
prior
knowledge
justify
on
instruction
Stynchcombe,
sentence.
v.
412 U.S.
Chaffin
any
chap-
defined KRS
17,
1977,
93 S.Ct.
does not justify
fact to the increased sentence. rights not violated
rell’s constitutional