Nugent v. Commonwealth
639 S.W.2d 761
Ky.
1982
Check Treatment

*1 somewhat dis We were at first grant NUGENT, refusal to a by Appellant,

turbed the trial court’s George defense counsel to continuance order for theory. De blood-grouping research the Kentucky, COMMONWEALTH spoke fense counsel Dr. Shaler Sat Appellee. on Mon urday before trial commenced time, indicated a day. At that Dr. Shaler Kentucky. Court Supreme stating that hesitancy testify, his tests were He had contacted inconclusive. 31, 1982. Aug. only on Friday, the Commonwealth Nov. Rehearing Denied throughout testing continued weekend. certainly Defense counsel was aware that might testify, made no for a yet motion

continuance until the Commonwealth called Moreover,

Shaler as last witness. when

presented opportunity during with the

cross-examination, defense counsel failed to

question expressed Shaler about the doubts Saturday conversation. We cannot unfairly prej

conclude Jim Brown was grant

udiced the trial court’s refusal a

continuance. find in the remaining no merit

issues related the conduct of trial.

However, one exercise procedural remains. requires presentencing 532.050

KRS inves

tigation and consideration of written re

port of such The investigation. trial court required also to inform the defendant or

his counsel of the facts and conclusions of investigation him opportuni and afford

ty to controvert them. The record does not

disclose report whether an or requested require or considered.

ment is mandatory precede and must

entry judgment. of a valid Brewer v. Com

monwealth, Ky., judgment is vacated and the case

remanded to the Mason Circuit Court

resentencing compliance with KRS upon

532.050. STEPHENS, J., except

All concur

sitting. *2 Scent, Matheis,

William Kenneth E. S. Simons, Charles R. Wyatt, Tarrant & Combs, Louisville, for appellant. Beshear, Gen., Atty. Steven L. Eileen Walsh, Gen., Frankfort, Atty. Asst. pellee. THE

OPINION OF COURT George Nugent charged by was the Jef- County Septem- ferson Jury Grand ber murder of Clark L. intentional held, and, Kelly, III. by jury Trial 16, 1981, May returned a verdict of guilty and recommended a sentence of 40 years imprisonment. appeal is His before right. us as a matter of We reverse. (1) appeal, Nugent argues: On evidence was not sufficient to conviction; (2) that the trial court commit- prejudicial admitting opinion ted error in Nugent’s guilt; (3) trial admitting court erred in an out-of- witness; contradictory statement of (4) prosecutor improperly com- right mented on his constitutional to remain silent; (5) warrant for his that a search by probable supported residence was not cause. DID THE

I. EVIDENCE SUPPORT THE CONVICTION? 1, 1980, Kelly’s Wednesday, On October body pile in a of dirt and discovered body buried. tracks were had been debris on the of the which is was owned Company, adjacent payloader Ohio made River, County. Kelly Eastern regularly parked Jefferson near company five had been shot times with a .22 caliber been driven payloader offices. The weapon. company oper- is owned of the the isolated area *3 appellant’s appellant family ated and used in a apparently and had regular employee. a an effort manner in somewhat amateurish Scott, regu- a body. to Michael conceal the 20, Monday 1980, evening, September On company, saw lar of the sand Kelly, at approximately p.m., 8:30 Peter evening appellant payloader a the operating Lee Margerum, Kathy Early and Brown that this September of 29. Scott stated met at a restaurant which is a short drive the p.m. 9:00 and was in occurred “around” from the sand company. Shortly thereaft- body was area where the discovered. er, the Kelly left restaurant to deliver four of dump by a row area was blocked off cocaine appellant. ounces of to When 45 empty Payloader tracks showed barrels. lapsed had Kelly minutes and had re- not through the barri- gone that the had turned, vehicle Kathy telephoned Brown the sand Fur- parking er and returned to its area. talked company appellant. and to the Ap- thermore, though it even was established pellant Kelly informed her that had been revolver, there, appellant that owned a .22 caliber but had left approximately min- be- disappeared This the his car ago. utes call occurred at revolver from approxi- when a p.m. call, the tween and October mately Following September 10:15 the testimony in- company. three friends drove the sand search made. Additional to Upon they appellant van arriving, Kelly’s parked Kelly saw dicated that have owed company Kathy money. near the offices. Brown a sum of appel- went into the and talked to building argues that the evi- Basically, appellant appeared very upset lant who to be and jury’s presented support dence does not Kelly nervous. He told her that had come circumstantial, verdict. attacks it as to departed the office had himself but inconsistent, failing to show a motive earlier. being as with consistent innocence as then She drove back to the but restaurant guilt. Kelly. was unable to returned locate She Admittedly, against to company accompa- the sand where she appellant (who own testify did in his Early question appel- nied into the to office behalf) However, is purely circumstantial. given lant. He informed them that he had support a evidence is sufficient $7,500 purchase Kelly four additional long criminal so conviction as the Margerum Early

ounces. left and went whole, taken as shows not be a it would home, they where were Kelly’s unable to clearly to find the unreasonable They immediately locate returned to guilty. defendant Trowel v. Common company, Kathy where Brown had (1977). That Ky., 550 S.W.2d 530 appellant. midnight, waited with About a jury may reasonably which believe to his Kelly’s apart- three friends returned probable have been sufficient ment, unable to still locate finding guilt. Probability a of has been 30, 1980, September Tuesday, ap- On likely defined as “more than not.” Tim a.m., proximately Early Marge- 11:00 Commonwealth, mons rum returned the sand again appel- talked to the At appellant. they Kelly’s lant’s request, drove van back that ad We believe the evidence apartment. morning, to the The next Octo- duced above supports and described 1, 1980, Kelly’s ber body was discovered. was not to find unreasonable An that there revealed were did shoot and kill Clark tracks leading place alone, vehicular to the Kelly. where Kelly and were completed viewing drug question a transaction which in- officer’s as to whether volved a money. Ap- Bryant thought considerable sum of had pellant revolver, “dropped owned a .22 caliber on Kelly, Bryant hammer” did, disappeared had killing. Moreover, you stated “I think he know if you essence, one of want the appellant’s employees identified honest to God truth.” In pellant permitted as the trial court driving payloader introduction of area Kelly’s opin- where written statement which elicited the body during was found ion approximate appellant’s guilt. of a witness as to Kelly time when was killed. Appellant’s described conversations with argues Commonwealth since the Kelly’s three friends are consistent with a “opened defense counsel the door” by finding guilt. Trowel, the test Under (as inquiring into the witness’ state of mind supra, we will the verdict of not disturb appeared written statement) in the first jury. prosecution right bring had the out all *4 that subject. was said on the do not II. DID THE TRIAL COURT COMMIT agree. ERROR PREJUDICIAL IN ADMIT- witness, case, A in criminal TING OPINION EVIDENCE AS TO showing be impeached by prior he made a GUILT? APPELLANT’S contradictory by contradictory statement or Paul Bryant, an of evidence. evidence is not admissible Such Company, prosecu- testified for the pertains for it purpose that unless to a tion. His disclosed that he testimony had material v. matter. Caulder Common given police: two statements to the one on wealth, (1960). Ky., 339 644 More S.W.2d Friday, October and another on over, where of evidence the value for a Tuesday, 7, 1980. October legitimate slight purpose jury’s and the is examination, On direct no reference was probable evidence misuse of the for an in made to the first statement and the second competent purpose great, the only statement was used to refresh the wit- may altogether. Caulder, be excluded su cross-examination, ness’s memory. On in Evidence, pra, (1954), McCormack on Sec. an his attempt impeach credibility, de- 59, p. Bryant’s opinion Clearly 136. as to fense counsel introduced handwritten appellant’s guilt is not admissible. Kenne change which had made in been the second Commonwealth, (14 Bush) dy Ky. v. 77 340 change statement. appel- Commonwealth, described (1878), Ky., Koester v. 449 Bryant lant’s (1969); statement that the middle Deverell Common S.W.2d man (Kelly) going to be dead was when he was Emphasis placed found. was on the issue, it is As we examine this unneces- fact that told Bryant interviewing had the the entire sary to decide whether written always officer that he wanted had to be a is admissible to Bryant’s statement of show policeman. was This fact used defense his hold that it “state of mind.” We was counsel in an show that attempt Bryant clearly erroneous to admit into evidence was “playing detective” appellant’s Bryant’s opinion guilt. murder,

of the Kelly doing, and in so had Koester, Kennedy, supra. Deverell and police. influenced by Specifically, technically Even if the statement admis- defense attempting counsel was to show the evidence, sible into is obvious that witness’ state of mind at the time of the Caulder, McCor- purpose incompetent. first statement. mack, supra. guilt or inno- The issue determine, and prosecution’s

Because of the belief that cence is one for the which intrudes on put opinion defense counsel had the witness’ of a witness admissible, issue, even “state of mind” on re-direct exami- this function is not at is, best, nation, “back through a route which at Bryant previ- was asked to read a Kennedy, in in of the statement. door” in As said ously portion undiscussed nature. we testimony, lawyer “No response It disclosed to the inter- reference to similar in say subject both on the offering evidence in have would think of truth, . . . wherein lies Id., nature of determine p. chief.” at 359. Due to the Id., 792. p. at highly prejudicial ef- trial fect on we jury, believe case, as a Munson called In this admitting erred evidence. He had witness the Commonwealth. Margerum for appellant known both TRIAL COMMIT III. DID THE COURT a conversa He had had quite some time. AN ERROR IN ADMITTING OUT- Kel Margerum after tion at home his OF-COURT CONTRADICTORY Munson been found. denied ly’s body had OF A PROSECUTION STATEMENT appellant Margerum that he told had WITNESS? up with his Kelly didn’t come had said if Erick Commonwealth called Munson Margerum, kill how money, he would examination, as a direct he ever, witness. On had made such that Munson testified testified that he had known requirements a statement All Peter Margerum why some time. testi- no present. of Jett There is reason are fied that he had had a conversation with what “both have to should hear Margerum several say subject weeks dis- to determine where Id., covery Kelly’s body. denied that Munson in lies the truth.” Margerum had told IMPROP- IV. DID THE PROSECUTION said to if Kelly up him that didn’t come THE ERLY ON APPEL- COMMENT (appellant’s) with his he would kill money, *5 RIGHT REMAIN SI- LANT’S TO The then called Commonwealth LENT? Margerum as a witness. testified He had, fact, Munson made such statement re owned a .22 caliber Appellant disappeared volver which closing argument, his homicide. In Commonwealth, Ky., v. Jett 436 In which he prosecutor enumerated evidence (1969), we S.W.2d 788 held that out-of-court pointed appellant’s guilt. felt stated: prosecution statements of a or defense wit George Nugent, “No. 4: Smith & Wes- ness can be received as substantive evi * * * son, Kelly Corky comes .22 After dence. are prerequisites There four ground, out .22 has of the caliber (1) admission: both the who al person is Now, say into thin air. I’ll vanished leged to made the have out-of-court state again: would if happen I wonder what ment and person says who made it in the Ohio plug there was a drain out appear witnesses, subject must as and be River.” cross-examination; (2) a foundation must Appellant argues that this statement consti- be laid by asking the about witness testify. failure to tuted comment his statement; (3) questioned statement jury message given He claims the must be contradictory witness’ in- to the pistol was that owned a testimony or, least, provide at must offering thus testify, failed to relevant information the witness can explanation disappearance. of its and, trial, (4) not remember at statement relevant to must be material best, argument, This tenuous. Jett, the issues we rational of the case. In ambiguous remark indirect but ruling: ized our damag- should be in its most construed DeChristoforo,

“When person ing meaning. Donnelly both the who is said to v. 1868, 637, have 431 made statement 416 94 S.Ct. 40 L.Ed.2d out-of-court U.S. (1974). person argumentative and the who he made it The remark be says as pear subject witnesses but it no more than fair com- under oath constituted simply to cross-examination there is no ment Hunt v. Common- on the evidence. justification permitting (1971). for not 466 S.W.2d 957 hear, they as substantive all no no here. prejudice find error and V. WAS ISSUANCE OF THE that the result any SEARCH would have been differ-

WARRANT BY SUPPORTED ent. I would affirm the case and accord-

PROBABLE CAUSE? ingly dissent.

The warrant to search appellant’s

residence authorized a search and a

seizure of any personal property belonging decedent, firearms,

to the any contraband

or narcotics. The affidavits of two detec

tives investigating the case were submitted the issuance of the warrant. Marge- affidavits recited that Peter CAVINS, Phillip Appellant, rum had told them the cocaine deal about Kelly appellant; Marge- between rum told meeting them about the at the Kentucky, COMMONWEALTH of restaurant before the delivery of the co- Appellee. appellant; caine to that Kelly’s body was found buried on the premises Supreme Kentucky. Court of Company; that an of the had stated that 21, Sept. 1982. addition, weapon. owned a .22 caliber In Petition Modification Denied the affidavit described the of an results 2, Nov. extensive, independent sup- porting these facts. affidavits,

Based on the statements in the issuing judge had sufficient detail to

rely on something more reliable than a cas- States,

ual Spinelli rumor. v. United

U.S. S.Ct. 21 L.Ed.2d 637

There grounds were reasonable for believ-

ing property sought be discover-

ed to be searched. Commonwealth, Ky.,

Robinson v.

S.W.2d 496 these circum- Under

stances, properly the search warrant was

issued. judgment trial court is re-

versed and remanded.

PALMORE, C.J., AKER, CLAYTON,

O’HARA, STERNBERG, STEPHENS

JJ., concur.

STEPHENSON, J., dissents.

STEPHENSON, Justice, dissenting. agree permit

I error portion Bryant’s to hear that state- expressed opinion

ment which

guilt. However, in the context in which

this error was committed and in view of the case,

other evidence in I am of the possibility

opinion there is no substantial