Murphy v. Commonwealth

prisoner who had been convicted of mur- MURPHY, Appellant, Ronnell

dering prison guard. v. Perhaps necessary legisla- it is for the Kentucky, COMMONWEALTH aggravating ture to include an circum- Appellee, 532.025(2) stance in applicable to one and hired, procured who or directed another to Kentucky, Appellant, Commonwealth of commit murder. v. Murphy, Appellee, Ronnell

and Murphy, Appellant,

Ronnell

v. Kentucky, Appellee,

Commonwealth of and (a/k/a Sprowls

Dennis Dennis Randall Lawler), Appellant, v. Kentucky, Appellee,

Commonwealth Kentucky, Appellant, Commonwealth of v. (a/k/a Sprowls,

Dennis Dennis Randall Lawler), Appellee, Weathers, Appellant, Brandon Kentucky, Appellee, Commonwealth of Kentucky, Appellant, Commonwealth Weathers, Appellee. Brandon 1997-SC-0595-MR, Nos. 1997-SC-0607- MR, 1998-SC-0960-MR, 1997-SC- 0606-MR, 1997-SC-0621-MR, 1997- SC-0616-MR and 1997-SC-0622-MR. Supreme Kentucky. Court of April 2001. Rehearing Aug. Denied 2001. Arnold, L. Boyce, Timothy Donna G. Department Advocacy, of Public Frank- fort, Murphy. for Ronnell Hoffman, Department Richard of Public Frankfort, Advocacy, Sprowls. for Dennis Diloreto, Department Rebecca B. Frankfort, Advocacy, Public for Brandon Weathers. III, General,

A.B. Chandler Attorney II, Attorney William L. Daniel Assistant General, Division, Appellate Criminal Frankfort, III, Geoghe- Charles C. Simms Associates, Bardstown, gan & for Com- Kentucky. monwealth of GRAVES, Justice. Weathers,

Appellants, Brandon Dennis Sprowls, and Murphy, Ronnell were con- in victed the Larue Circuit Court for first- degree burglary, kidnapping, and second- degree assault. Each was sentenced to a twenty-five years total of imprisonment, appeals and to this Court aas matter of right. herein, For the reasons set forth we affirm Sprowls’ Weathers’ and convic- tions; however, Murphy’s we reverse con- viction and remand the matter to the trial proceedings. court for further 15, 1995, During evening August Weathers, Sprowls, Murphy, and who were time, all years age fourteen at the bur- glarized eighty-four year the home of old Milby. Murphy’s year Thallie thirteen old cousin, Murphy, Alandre outside waited Appellants while forced in an air condition- ing unit and entered the home. Weathers 178 Milby impose and 532.055 does not Murphy pushed

and into a chair duty upon accept the trial court to bound her ankles and wrists with duct jury as tape, eyes as covered and recommendation of the to sentenc as well her Commonwealth, Ky., tape. ing. mouth with the The intruders there- Dotson (1987). jury’s The S.W.2d 930 recommen phone point after cut the lines. At some that, crime, no only mandatory dation is and has of the during the commission Commonwealth, Ky., effect. hair. Swain Milby’s Weathers cut off locks S.W.2d trial court leaving, attempted to loo- Before Weathers recommendation, jury’s scissors, must consider pair sen with a tape the duct may presentence in but also consider Milby’s lacerated arm process and in the vestigation has a report legitimate which All that causing bleeding. some venous Here, sentencing process. role Milby’s Appellants took from was a home clearly explained its for court reasons purse containing twenty dollars. disregarding the recommendation of the All participants subsequently were four remorse, jury Appellants’ lack of noting Weathers, Sprowls arrested and indicted. care, juvenile parental prior dispo lack of were Murphy Ronnell transferred sitions, par and criminal records of the jointly circuit court and tried as adults. fact, court ents. the trial commented juve- case Murphy’s Alandre remained neighbor it away “one concerned trial, Following jury nile con- court. trying penalty from a death case.” We Appellants victed returned sentences conclude the trial court did not abuse first-degree ten years burglary, ten for in sentencing. its wide discretion There years for kidnapping, years five was no error. assault, jury which rec- second-degree At concurrently. be served ommended Secondr-Degree II. Assault Charge however, or- sentencing, the trial court contend that Appellants the Com consecutively. dered to run the sentences to introduce sufficient ev monwealth failed appeal This ensued. Additional facts will support second-degree idence to as necessary. first ad- set forth as We thus, the trial charge sault court erred by Appel- dress raised all three the issues in a verdict. refusing grant to directed lants turn to and then individual issues. Appellants although they concede that verdict at moved for a directed both ASSERTED BY ERRORS close of case-in-chief the Commonwealth’s WEATHERS, SPROWLS, evidence, they all as well the close of as AND MURPHY object language not the as did of sault instruction. I. Imposition consecutive sentences pertinent part: in provides, KRS 508.020 argue Appellants that (1) A in the person guilty is assault imposing terms by court erred consecutive degree second when: contrary to recom imprisonment (a) intentionally serious He causes jury that sen Appellants’ mendation of the person; another or physical injury to concurrently. Appellants served tences be (b) intentionally physical He causes preserved that this issue not concede by means of injury person have mani to another they but that suffered contend in- weapon dangerous or a palpable deadly injustice fest so as constitute strument; or 10.26. disagree. error under RCr We (c) wantonly He physi- calling causes serious to leave the house instead of injury person by stop cal to another means help attempting bleeding. or deadly weapon dangerous of a or a may have an cutting been accidental act; however, instrument. Appellant’s or unintended subsequent abandoning actions in a bleed- instructions, During a conference on certainly subject victim are to a rea- ing specifically trial court Milby found that did they inference that an sonable intended physical injury not suffer a serious as a by exsanguination intentional death from being result of cut with the scissors. the accidental laceration. Moreover, the trial court ruled that al- though Appellants were armed with Unquestionably, the cuts that Mil- knives, used, such were never and under satisfy by physi sustained the element of presented, the facts the scissors were not a Furthermore, injury. cal this Court has deadly Nonetheless, weapon. the relevant previously may held that scissors consti portion jury instruction stated: a dangerous tute instrument. Common county That this on or August about (1994). Potts, Ky., wealth v. 884 S.W.2d 654 15, 1995, finding and before the of the such, whole, viewing As the evidence as a herein, others, indictment he and or act- jury it was reasonable for the to conclude ing complicity with the others inten- Appellants intentionally physi caused tionally wantonly physical caused a injury Milby dangerous cal with a in injury Milby by to Thallie cutting her[.] produced strument. The Commonwealth Clearly, the trial court in including erred sufficient evidence to withstand a directed wanton element the instruction since it second-degree verdict on the assault previously had Milby ruled that did not charge, and thus no error occurred. Com physical suffer a serious injury. See KRS Benham, Ky., monwealth v. 816 S.W.2d 508.020(l)(c). However, ap- the issue on peal is not whether the instruction was correct, but whether the evidence was suf- Kidnapping Exemption III. Statute ficient to avoid directed verdict acquit- Appellants argue they were entitled tal. We are of opinion the that the Com- to the benefit of the kidnapping exemption monwealth presented sufficient evidence Milby statute since the restraint of was jury the to reasonably find Appellants incidental to the burgla- commission of the guilty second-degree assault. ry. Again, disagree. we exemption, The The Commonwealth introduced evidence 509.050, which is found in provides, that Milby suffered at least two cuts on part: relevant scissors, her arms from the as well as scrapes several other and Ap- contusions. A person may not be convicted unlaw- pellant Sprowls admitted in his statement ful imprisonment first-degree, the un- that Appellant Weathers had cut locks of lawful imprisonment the second-de- Milby’s hair while she was gree, bound with the or kidnapping when his criminal Moreover, tape. duct there testimony purpose is the commission of an offense that at Appellants Milby’s the time left defined chapter outside this and his in- house, they might believed she liberty die as terference with the victim’s oc- bleeding result of the severe immediately from the cut curs with and incidental to If, offense, on her arm. Appellant as Weathers the commission of the unless the claims, cut Milby’s the arm was acciden- interference exceeds that which is ordi- tal, then it Appellants was inconsistent for narily incidental to the commission of

180 objective proceeded

the her question, offense which is the of his and to bind wrists purpose. criminal eyes and anMes as well as cover her and tape. Milby mouth with was not released Application of the is exemption until a.m. the approximately 10:30 next case-by-case on a determined basis. Wil morning by when she was discovered Commonwealth, Ky., v. son 836 S.W.2d Thus, neighbor. the of her duration re- (1992), denied, 1034, cert. U.S. 872 507 113 hours, straint exceeded ten one-half 1857, (1993), 123 479 S.Ct. L.Ed.2d over longer and would have been had she not Roark, grounds, ruled on other St. Clair v. It been found. is reasonable to infer that (1999); Ky., 10 S.W.3d 482 Gilbert v. Com concerned, as far Appellants as she were monwealth, (1982), Ky., 632 637 S.W.2d Clearly, would indefinitely. be restrained denied, 794, cert. 103 459 U.S. S.Ct. beyond ten and one-half hours went far (1983). 74 L.Ed.2d 998 A test three-part necessary accomplish the time the mere must be the exemption satisfied before is Moreover, (cid:127) theft the purse. of her nature First, criminal applicable. purpose the necessary more than restraint was be the of an must commission offense de burglary. to commit a a temporary While 509; second, Chapter outside fined Milby’s binding of hands and ankles cer- liberty interference with the victim’s must tainly may have been with ac- associated immediately occur with incidental to burglary, no complishing there was rea- offense; underlying the commission of the of her son cut her arms and locks hair. finally, the interference the vic with liberty tim’s must not exceed which is kidnapping exemption stat normally incidental to the commission strictly ute construed and the is to be underlying offense. Smith v. Com upon burden a defendant to show that it monwealth, (1980); Ky., 602 610 S.W.2d Timmons, supra. The trial apply. should Commonwealth, Ky., see also Griffin if a duty court to determine kid has the (1978). 576 S.W.2d napping charge is excessive or unfounded Here, prong the first of the test is under the case. the circumstances of Cal underlying since satisfied offense was Commonwealth, loway Ky., 550 S.W.2d first-degree defined in KRS burglary, The trial made such court question 511.020. The then becomes Appellants determination and found that lib Milby’s whether interference with had not demonstrated entitlement erty was incidental to the commission of In the abuse exemption. absence of burglary type normally and of a associ discretion, we will not disturb ated with such offense. Timmons v. court’s decision. Ky., 555 S.W.2d (1977), we held that “if the of a victim BY MURPHY ERRORS ASSERTED going crime is to restrained his liber AND SPROWLS commission, ty in order to facilitate its the Challenges I. Peremptory will close in restraint have to be distance for exemp and brief time in order the hearing, the pretrial At apply.” tion to chal peremptory court the issue of raised a total Milby’s lenges and allotted sponte The duration of restraint ex- sua Appel to necessary peremptory challenges time for twelve scope ceeded lants, collectively and burglary. Ap- to nine to be exercised Appellants commit of each pellants Milby’s independently home one to be exercised between entered nor Sprowls other. counsel for p.m. midnight night 11:00 and on Neither objected gant.” Contrary Appellants’ argu- Weathers allotment. Murphy objected ments, Counsel for to the allot- by the preserved the error was not requested eight ment additional sponte trial court’s sua discussion of strikes for his client. The motion was allotment, by Murphy’s request for appeal, Murphy denied. On Sprowls eight challenges. Appellants additional argue that misinterpreted the trial court object interpre- did not to the trial court’s 9.40, provides, pertinent RCr which any contrary tation of RCr 9.40 or offer part: Thus, interpretation. Appellants’ claim

(1) they If were each entitled to an addition- charged felony, the offense is a challenge properly preserved. the Commonwealth is entitled to five al was not (5) Furthermore, peremptory challenges and the de- we find no abuse of discre- jointly fendant or to eight defendants Murphy’s tion in the trial court’s denial of (8) peremptory challenges ... request eight peremptory for additional (2) (1) (2) If challenges. one or two additional

jurors called, are of per- number II. To Excuse Juror For Refusal emptory challenges allowed each side Cause and each defendant shall be increased

by one Appellants argue that the trial (3) court in refusing erred to strike Juror If more than one defendant is tried, Heath1 for after he being each cause advised counsel defendant shall be Milby entitled he had and her husband to at least one known additional However, peremptory years.” for “35 or 40 challenge to a review of be exercised independently any other defen- record reveals that this issue is not dant. sufficiently preserved. case,

In this all Appellants three were dire, During voir Juror Heath stated together tried juror one alternate hoped opinion that he he could form a fair Therefore, seated. proper under a inter- from Murphy the evidence. Counsel for 9.40, pretation of they RCr were entitled then him if asked he would have diffi- peremptory nine shared strikes and culty taking an oath to decide the case each was entitled per- to two additional evidence, strictly on the to which he re- emptory strikes to separately, be exercised it, sponded, “If I swore to I’d have to for a total of Springer fifteen. See Murphy stand back.” Counsel thereaf- Commonwealth, Ky., 998 S.W.2d 489 ter moved to strike Juror Heath for cause. (1999). Instead, Appellants were allotted However, upon questioning by the court nine to be shared and one each to be counsel, by Murphy’s and a clarification separately, exercised for a total of twelve. responded, Juror Heath “If I swore to it I gonna that was form an Kentucky opinion Farm Bureau about Mutual In- Cook, I way surance what heard that’s that it Ky., Co. would S.W.2d (1979), Murphy’s this held that be.” “I’m improp- responded, Court an counsel er peremptory challenges sorry. thought you you’d allocation of I said have oath, reversible error “if properly taking Okay. the issue is stand back on the it. preserved by adversely the Anybody affected liti- in the next row....” prospective jurors though 1. There were two juror subject names it is unclear is the which jury by issue, One Heath. was removed from the a of this our determination that no error peremptory defense strike and the other sat question occurred renders the moot. jury Appellants. that on the convicted Al- 182 was time he objection by

It clear that the case over at the testified is against merely Appellants. was based on a Murphy’s counsel misunderstanding what of Juror Heath 8.30(1) pertinent part pro- of RCr said, and that it was withdrawn once had representation persons hibits of dual was clarified. As Juror Heath’s statement related charged with the same or offenses such, properly preserved was not the issue unless: find for review. Nor do we the refusal to (a) the the court in judge of which the to be palpable strike Juror Heath error. explains proceeding being held Although Juror stated RCr 10.26. Heath the possibility defendant or defendants acquainted the Mil- that he had been with part a on the conflict of interests of bys years, affirmatively for a number of he may attorney the in that what be or impartial he could responded that exercise in the interests seems to be best of one ity deciding in the case. may client not to the best interests of (b) another, in each defendant the A trial court has considerable causes proceeding executes and to be juror determining in discretion whether entered record a statement that into the for cause. Campbell should be stricken possibility conflict interests Commonwealth, Ky., 788 S.W.2d 260 attorney on the has been part of (1990). erroneous, clearly “[U]nless explained by him the court and that to judicial exercise of such discretion is a represent- he to be nevertheless desires subject by and is not review prerogative to by attorney. ed the same Scruggs an court.” v. Common appellate response counsel’s motion to to defense wealth, 405, (1978), Ky., 566 S.W.2d 410 conflict, potential withdraw due to denied, U.S. 99 58 cert. S.Ct. that 8.30 was not court ruled RCr L.Ed.2d 321 implicated Appellant Murphy and because in Alandre codefendants were not trial, BY not engaging ERRORS ASSERTED MURPHY same thus counsel was may in this dual While representation. I. Representation Dual interpretation of may not accurate be an law, on whether Alandre’s depending coun Appellant argues that his adjudicated, case was we nonetheless fully of both him and his representation sel’s any conclude error was harmless. that cousin, Murphy, 8.30 Alandre violated RCr trial, at Alandre re During Amendment. oral When called and the Sixth Court, to of the crimes testify any this fused details argument before the Common being repeatedly in question. Even after argued wealth that no conflict of counsel gave he confronted the statement juvenile because Alandre’s case with existed much of what he police, time of trial. Alandre disavowed Appellant’s over at the was brief, However, informa provide in said declined to its Commonwealth such, clearly was not clearly Appellant tion. As that the record does not concedes testimony. How prejudiced by at the Alandre’s the status of Alandre’s case indicate ever, Ky., testify matter. Peyton time he was called this (1996), too, held that non We, discern we are unable to whether or S.W.2d was, fact, presump adju compliance RCr 8.30 fully not Alandre’s case with tively prejudicial time trial. and warranted reversal. Appellants’ dicated at the juvenile holding, In so overruled line that Alandre remained in we Given proposition cases for the court, likely more than not that his which stood it is 183 merely opened right a violation of RCr 8.30 the defendant the of confrontation. States, 123, case-by-case a door for evaluation to deter- Bruton v. 391 88 United U.S. had, fact, 1620, (1968), mine whether a defendant in 20 L.Ed.2d 476 the S.Ct. prejudiced by been such a violation. See Supreme held that a United States Court Commonwealth, Ky., Conn v. 791 S.W.2d by inculpates confession a defendant which (1990); Commonwealth, Ky., 723 v. Smith non-confessing a codefendant is inadmissi (1984). 669 527 S.W.2d joint confessing ble trial unless the testify defendant to and is thus elects reconsideration, Upon agree we that the available for cross-examination to the as bright line in Peyton, rule established su are three recognized confession. There pra, “replaces proper thoughtful the and exceptions to the Bruton rule. Gabow v. by exercise the trial court of discretion (2000). Commonwealth, 34 S.W.3d 63 A contemporaneous on-the-spot based on or confession of a defendant non-testifying supervision legal of the situation with a may be admissible at the trial of a co- kind of system automatic robotic handed (1) nontestifying defendant if: defen (Winter- high.” down from on Id. at 456. dant’s confession is redacted as de so to sheimer, J., dissenting). This case illus any lete reference to nonconfessing trates the importance analyzing individ Gray Maryland, codefendant. 523 U.S. ual case-by-case situations on a basis. A 185, 1151, 118 S.Ct. 140 294 L.Ed.2d 8.30, case, violation of RCr or as this (1998); Marsh, Richardson v. 481 U.S. violation, questionable which does not re 200, 1702, (1987); 107 S.Ct. 95 L.Ed.2d 176 sult in any prejudice defendant, to the see Cosby Ky., also 776 should not mandate automatic reversal. (1989), denied, S.W.2d 367 cert. 493 U.S. Such a result logic ignores defies and 1063, 880, 110 S.Ct. L.Ed.2d principles judicial economy. According (1990), grounds, on overruled other St. ly, hereby we Peyton, overrule supra, and Roark, (1999); Ky., Clair v. 10 S.W.3d 482 Smith, reinstate the rationale set forth in (2) the “firmly confession falls within a Conn, supra, Holden, supra, supra. exception

rooted” hearsay to the rule. II. Introduction Unredacted Roberts, 56, Ohio v. 448 U.S. 100 S.Ct. Confes-

sions (3) 2531, (1980); 65 L.Ed.2d 597 Co-Defendants possesses “particularized guar confession trial, to Murphy’s Prior counsel moved antees of trustworthiness” which render separate or, alternative, trials in the the statement at as least reliable as a redaction of Sprowls’ and Weathers’ con- firmly exception hearsay rooted fessions. The trial court denied both mo- Id.; Wright, rule. Idaho v. 497 U.S. Although tions. Sprowls neither nor 110 S.Ct. 111 L.Ed.2d 638 Weathers testified during guilt phase, their confessions were introduced though Since Sheriff Edlin testified as testimony of Sheriff Edlin. Both confessions, Sprowls’ to and Weathers’ Sprowls’ Weathers’ and confessions identi- redaction, there nowas and thus the first Murphy fied participants as one of the in exception obviously application has no the crimes against Milby. Murphy did not Moreover, this case. while Weathers’ any make statements or par- admit Sprowls’ may confessions fall under the ticipation in the crimes. hearsay exception against for declarations interest, 804(b)(3),

The Sixth Amendment KRE penal excep such United States yet “firmly Section tion has declared rooted.” Constitution Gabow, Kentucky of the guarantee supra. Finally, Constitution we cannot con- 184 Sprowls the that the have sufficient or redact confessions

dude confessions guarantees of trustworthi- as to reference to “particularized Weathers so exclude so as to render them admissible. the intro- Murphy. permit ness” The decision to Notwithstanding fact that Weathers’ the confes- Sprowls’ duction of Weathers’ and self-inculpa- Sprowls’ confessions were sions, testimony of through albeit the regard tory, they were not with Edlin, consistent rights un- Murphy’s violated Sheriff i.e., they dif- Murphy’s participation, warrants der the Confrontation Clause and Murphy had a knife fered as whether his and a new trial. reversal of conviction plan- he in the and whether was involved

ning of the crime. III. Denial Probation

The asserts that Commonwealth Appellant Murphy raises several issues only to since Sheriff Edlin testified the the trial denial of his regarding court’s Sprowls’ con substance of and Weathers’ reversing probation. motion for As we are fessions, the actual were not confessions the Bruton Murphy’s conviction due to Thus, ac technically at trial. introduced violation, these moot and re- issues are the the con cording to further quire no discussion. frontation clause not violated since was was cross-exam Edlin available for Sheriff BY ASSERTED SPROWLS ERRORS argument completely

ination. This misses Admissibility Appellant’s I. Statement taped mark. a Introducing the written a copy having of a confession or witness that his Appellant argues Sprowls testify a distinction with to its contents is Edlin given to was taped statement Sheriff fact, only a In distinc out difference. the trial. At involuntary and at inadmissable may any type be that it prevented tion juvenile hearing, the district the transfer of the The cross- redaction confessions. on suppressed court the statement Mur of Sheriff Edlin afforded examination that KRS had been violat grounds 610.200 protection no the confessions phy against trial, objected Appellant’s At counsel ed. directly implicated him. which for use of the and moved to the statement grounds. on the With suppression same The reliance on Commonwealth’s court denied hearing, trial out confessions is concept interlocking motion. of interlock misplaced. concept also The to a factual context

ing confessions refers requires peace officer to KRS 610.200 confessed in which both codefendants have notify that the immediately parent a child’s Parker v. Ran inculpated other. custody, and to child has been taken into 2132, 62, 442 U.S. 99 S.Ct. 60 dolph, specific of the give parent notice (1979); Lee v. Illi L.Ed.2d 713 see also the child taking and the charge reason nois, 476 U.S. 106 S.Ct. In custody. Davidson v. Common into (1986). Murphy did not make L.Ed.2d 514 (1981), wealth, Ky.App., 613 S.W.2d Thus, there can be no any statements. Appeals that the statuto the Court of held regard interlocking with confessions immediately language, “the officer shall ry Murphy. Davidson, mandatory2. notify,” was juveniles however, the statements of two required trial court to either grounds on not separate suppressed were Murphy’s motion for grant analogous language current KRS interpreted opinion 2. The Davidson 1987), (repealed 610.200. which contained 208.110 only police did the light clearly officer violate the statu- of the fact that the record 208.110, tory language of KRS he Appellant but establishes that was read his give juveniles failed to any statement, Miranda rights prior giving to his we warnings: cannot conclude error occurred. We (not) however, by juvenile

An may admission must note that the Common- against used in again be him the absence of argued wealth has that this issue is unequivocal clear and evidence that the Appellant’s moot because statement was admission knowledge fact, was made with not into In introduced evidence. obligated speak that he was not to however, concerning Edlin Sheriff testified penalized would not be remaining for Appellant’s the content of statement. silent. belief, Contrary to the Commonwealth’s

the statement at trial. was introduced greatest care [T]he must be taken to Contempt Charge II. that voluntary,

assure the admission was in only not sense that it was not jury After the ver returned the suggested, coerced or but also that it guilty, dict of Appellant Sprowls began a product ignorance rights was not yelling at trial judge obscenities fantasy, of adolescent fright or de- threw a chair in the direction the bench. spair. result, Appellant As a the trial court held Gault, (quoting Id. at 435 Re In 387 U.S. in contempt and issued an in stating, order 1, 1428, (1967)). 87 S.Ct. 18 L.Ed.2d 527 part:

Here, the district court found that Sher- defendant, 1. Sprowls, That the Dennis iff Edlin made no attempt notify to Appel- hereby be contempt and is deemed in lant’s parents violation of KRS 610.200. this Court. However, no issue was raised to as contempt, 2. That for said the de-

voluntariness of Sprowls’ In statements. fendant, Sprowls, hereby Dennis fact, Sheriff Edlin testified at trial that days jail, sentenced to 179 with Sprowls was read rights his Miranda being commencement of said sentence voluntarily signed the rights waiver of until the Defendant has sat- reserved form. primary isfied his sentence of the

The crux Appellant’s argument on charges herein. appeal is that his statement should have upon 3. That pri- satisfaction of the suppressed been because it was involun herein, mary sentence the defendant is tarily obtained. He contends that the trial brought to be before this Court for court in failing erred to a Bradley hold determination of when his con- aforesaid hearing to determine the voluntariness. tempt sentence tois be served. Bradley v. Ky., 439 Appellant argues that the trial court er- (1969), denied, S.W.2d 61 cert. 397 U.S. roneously jurisdiction retained of his case 90 S.Ct. 25 L.Ed.2d 268 completion until underlying of his sentence However, a review of the record reveals in order to run the contempt misdemeanor Appellant only to suppress moved his consecutively twenty-five sentence grounds statements on the that the district year felony Appellant sentence. concedes court had found a violation of KRS unpreserved. that this issue is Absolutely 610.200. no mention of the vol- of Appellant’s untariness statements Recently, Norton v. Common such, wealth, (2001), raised in the trial court. As and in 37 S.W.3d 750 we held: ruling Appellants erred in could not permit If to the KRS we were 532.110(l)(a) requirement of concurrent as a A kidnapping be convicted of Class sentencing for definite and indetermi- jury felony. discussing instruc- im- apply to nate terms sentences tions, pursuant noted that trial court court, contempt of have no posed for we 509.040,in kidnapping order requirement materially doubt the would felony, a A there must a serious Class power contempt. limit the court’s of the victim have physical injury or must not do. If the are to This we will courts place. in an unsafe been released participants control in power have the to that it felt trial court commented because effectively and judicial process the ad- confusing, the statute was language the of justice, power contempt the of minister Appellants court give the would the benefit than a threat. As must be more hollow only permit a of the doubt and conviction we stated in [Woods felony. B kidnapping for as a Class (1986) ], Ky., 712 S.W.2d “Wit- to freely cannot be allowed refuse nesses the We need not reach merits of this requests certainty the court with the of to issue because the Commonwealth failed be of limited dura- penalty that their will it. The properly preserve trial court’s if Similarly, ... a defendant tion.” a conviction of as prohibition kidnaping of certainty any contempt with knows effectively felony A constituted an Class simply be to run conviction will ordered such, As acquittal offense. the of such sentence, felony his concurrently with required to request Commonwealth was the of is made power contempt court’s (Footnote omitted). 76.37(10); If meaningless. Ky. law. certification of the CR the have to power courts are to real cross-appeal § Const. 115. A was ineffec- of the in control the behavior defendants preserve tive to this issue for appellate courtrooms, power contempt their the of review. punishment— it a real carry must with and Weathers’ con- Appellants Sprowls’ serving the possibility of additional time are imprisoned contemptible Ap- victions affirmed. for behavior. and sentences Therefore, we hold KRS the pellant Murphy’s conviction reversed 532.110(l)(a) requirement of 'concurrent to is remanded the LaRue and matter im- sentencing apply does not to terms proceedings. Circuit for further Court for posed punishment contempt as of court. COOPER, C.J., LAMBERT, GRAVES conclude, and the Accordingly, while we JOHNSTONE, J.J., concur. concedes, Commonwealth attempting court in con- erred reserve concurs, however, J., STUMBO, part, contempt until of the sentence sideration majority opinion as to dissents from the underlying completion Appellant’s of Sprowls’ statement and admissibility sentence, trial court did not err Peyton v. overrule decision to contempt to run ordering the sentence Commonwealth, Ky., 931 S.W.2d 451 Appellant’s consecutive sentence murder. KELLER, J., separate in a concurs

COMMONWEALTH’S JOHNSTONE, J., joins CROSS-APPEAL opinion in which J., STUMBO, joins as has filed The Commonwealth significance of KRS 610.200. arguing" that the trial court cross-appeal WINTERSHEIMER, J., important 610.200 as an concurs with visions of the convictions determining juve- affirmation whether a variable Sprowls and Weathers respectfully but given voluntarily. nile’s confession was Murphy dissents from the reversal of the Gault,2 In In re the United States Su- disagrees conviction because he with the preme emphasized “that admissions Court analysis opinion. Bruton found in the juveniles require special confessions KELLER, Justice, concurring. opinion “authoritative caution”3 because Although agree majority’s I with the upon has cast formidable doubt the relia- conclusions, separately clarify I write of ‘confessions’ bility and trustworthiness my interpretation significance of the con- by children.” accordance with its express my opinion 610.200 and to cerns, the Gault Court concluded “the juvenile that in a case where a defendant greatest care must taken to assure that properly challenges the voluntariness voluntary, sense admission was confession, his or her should courts only sug- not that it was not coerced or consider an investigating officer’s failure to that it not the gested, product but also comply with KRS 610.200as evidence rele- ignorance rights or adolescent fanta- inquiry. vant to the voluntariness sy, fright, despair.”5 or I agree majority with the that a police Kentucky Assembly The itself General officer’s violation of parental notifica- juveniles recognized has that accused with provisions tion of KRS 610.200 does not from their adult coun- crimes are different require a court to automatically suppress a terparts and has demonstrated concern juvenile defendant’s incriminating state- protection rights “the of the of accused however, ments. I emphasize, must juveniles they with when come contact provisions these mandatory require- are by adopt- our agencies”6 law enforcement inherently ments1 which are intertwined measures, 610.200, ing such as KRS questions with concerning the voluntari- juveniles protect who have been accused of juvenile’s ness of a incriminating state- my opinion, crimes. the courts of the ments. This Court should not render Commonwealth should examine voluntari- provisions those by allowing moot officers juvenile relating ness issues defendants to ignore impunity. them with According- eye protective an measures ly, I believe trial with towards courts should consider police compliance pro- policy judg- authorities’ with the and the such as KRS 610.200 1, 1428, Commonwealth, Ky.App., 1.See Davidson v. 2. 387 U.S. 87 S.Ct. 18 L.Ed.2d 527 (1981): (1967). 613 S.W.2d 431 appellee argues statutory that the lan- 1428, 45, 3. at 387 U.S. at 87 S.Ct. 18 Id. guage directory [KRS 61Ó.200] rather Ohio, Haley L.Ed.2d at 556. See also 332 mandatory than Cissell Officer 596, 302, U.S. 68 S.Ct. 92 L.Ed. substantially complied procedure. with the agree. specifically We cannot The statute Gault, 52, supra 4. In re note 2 at 387 U.S. at immediately states that "the officer shall 1428, at 87 S.Ct. 18 L.Ed.2d 559-60. notify" parent guardian of the details legislature of the arrest. The fact that the 5. at at 87 S.Ct. Id. 387 U.S. prescribing when into such detail in L.Ed.2d at 561. steps detaining that should be taken in mitigates against directory juvenile ar- gument. supra 6. note 1 at Davidson Id. 431. measures are upon which such ments

based.

JOHNSTONE, J., joins. Although result, majority’s dissenting from the STUMBO, J., joins significance as to the KRS 610.200. COMPANY,

UNION UNDERWEAR INC., Fruit of the Loom d/b/a

Appellant Womack; BARNHART; Zack N. O. Joel Camp Womack; Deep Andrew P. & Leitman, bell; Loper; Dave Sie Payne Campbell, Appellees gal, P.C. &

No. 1999-SC-0091-DG. Kentucky. Supreme Court April 2001. Aug. 2001. Rehearing Denied

Case Details

Case Name: Murphy v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: Apr 26, 2001

Citation: 50 S.W.3d 173

Docket Number: 1997-SC-0595-MR, 1997-SC-0607-MR, 1998-SC-0960-MR, 1997-SC-0606-MR, 1997-SC-0621-MR, 1997-SC-0616-MR and 1997-SC-0622-MR

Court Abbreviation: Ky.