Ruppee v. Commonwealth
821 S.W.2d 484
Ky.
1991
Check Treatment

*1 RUPPEE, Appellant, Keith Kentucky,

COMMONWEALTH

Appellee.

No. 89-SC-636-MR.

Supreme Court of

9,May 1991.

Rehearing Denied Feb. *2 His on third trial was 28,1989. again He was convicted and

June appeal this followed. argues the trial

Ruppee first that de error and judge committed reversible right of confronta nied his constitutional over prosecutor, he allowed the tion when calls Ruppee introduce objection, to what Advocate, Namkin, Julie Asst. Public hearsay the offi investigative regarding Frankfort, for Dept, Advocacy, of Public The money. for the stolen cer’s search appellant. he police testified about information officer Cowan, Gen., Atty. Frederic J. Carol C. the pertaining from witnesses to received Ullerich, Gen., Atty. Appellate Asst. Crim. the bills numbers of stolen one dollar serial Frankfort, Div., for appellee. exchange by of some of those bills and the at De sister a local bank. the defendant’s WINTERSHEIMER, Justice. successfully objected to some fense counsel on appeal judgment This is from a based testimony disputed but none of the of the Ruppee of jury verdict which a convicted challenged appeal on now robbery him to first-degree and sentenced establish the commission of used to He was as a first- years. 15 also convicted robbery. The demonstrated his degree persistent felony offender and during sequential dollar bills were stolen 50 years pris- sentence was enhanced to 35 they subsequently robbery and that on. investigation and passed to a bank that an presented questions The are whether to locate the bills. Such was undertaken Ruppee substantially prejudiced and exception hearsay testimony is an right his to when a denied confrontation did not innocence or rule it indicate because permitted testify police officer was to admission not error. guilt and its investigation; re- about his whether it was Commonwealth, Ky., 432 v. Stallard an versible error to allow the (1968); v. Common S.W.2d Manz witness; the defendant absent whether wealth, Ky., 257 S.W.2d 581 Unlike a fair trial by was denied Commonwealth, Ky., 730 Hughes v. closing statements; opening and whether (1987), of defendant’s S.W.2d 934 prosecu- by offered clearly eye guilt established two reversible; persistent tion was whether the overwhelming. and was witnesses felony proper offender conviction was un- properly admitted incompetent evi- whether and inaccurate Commonwealth, Ky., 754 der Sanborn sentencing dence was at (1988) it “tends to ex- phase of the trial. by the plain action that was taken Ruppee, at trial Evidence indicated that as a result of this information police officer stocking companion wearing cap, and a taking is an issue action and the Septem- entered the convenience market Ruppee’s exchanged ten sister the case.” 10, 1984, emp- gun, showed ber the clerk a stolen dollar bills at a local bank of the register store. the cash and robbed the tied keeper who quarters. store a roll of range robbery gave degree first rob- was indicted for was victim on the stolen bills persistent felony offender serial numbers bery and as a police to watch to have alert banks degree. He first tried order the first Notification from bank charges in March of 1985. for the bills. convicted of both sequential ten dollar bills receipt con- majority of this Court reversed discuss the matter with police in 1986. retried led the viction her to the transport charges in Febru- sister again convicted on both produced she another this where majority police station ary, 1987 have a condition. dollar bill in mint sequential again reverse the conviction Court Sanborn, supra, Ruppee’s is satisfied because the citation to from other cases directly persuasive. information states is not In this case the by police. led to action his officer element of Sanborn duty The other satisfied as an also satis- reading Immediately of the Court. prose- fied because issue of before the central deposition, he police investigation cution and advised the trial was who witness still resided in Flor- robbery. prosecu- had the absent committed the *3 Although practice may ida. the obligated present tion and the better police are to place have in the Florida complete any steps been to record a case. Therefore tak- address, telephone place number or of em- money en to locate stolen neces- the were ployment, suggest did sary the defense not even identity and relevant to the the witness was It was not properly robber. The admit- available. clearly to the ted. unreasonable believe witness was outside this state. The trial The testimony of the owner store judge abuse his did not discretion. hearsay. not At trial the defendant’s Ruppee not a fair trial denied objection to the store owner’s testimo opening right by or his to confrontation the ny grounds custody on chain the closing prosecutor statement of the when introduced into evi regarding matters were not introduced dence the dollar bills. A new recovered argues prosecu at trial. that the theory be on error cannot pertaining Ruppee’s tor facts mentioned Commonwealth, Wilson v. appeal. Ky., opening sister in his which he statement (1980); 601 S.W.2d 280 RCr 9.22. The prove did not at trial and then noted hearsay store owner’s was not closing argument. same in Dur facts specific he his con testified about ing argument men opening observing sequential in num duct serial tioned sister had ex contacting police. bers and the bank and changed of the new bills for ten dollar judge properly The trial admitted the testi quarters laundry. she could her so that do mony. statement, opening In both dire and voir indicated sister would There no or defense counsel reversible error remarks, testify. opening defense by in In the judge abuse of the trial discretion in variety ways counsel determining discussed that a witness unavailable may acquired the may A which the sister have deposition for trial. be used at trial In the appears stolen dollars. earlier trials when it that the witness is outside her in prosecution had called as a witness RCr the Commonwealth testify in 1985 defense called her to is for and the 7.20. Whether a witness unavailable developed, trial neither side pursuant is to As this trial to this rule be decided Opening as a called the sister witness. by judge the trial in the exercise of his v. by either side is not evidence. sound discretion. Carter statement Common Sowders, (6th wealth, The Crane v. (1990). 889 F.2d 715 Cir. Ky., 597 782 S.W.2d 1989). merely summary by coun judge It is by determination the trial will not be proof expected is At sel of be. judge’s what reviewed unless the trial decision is a failure of most this clearly unreasonable. prosecution. It does not part of the question The resided in Flor- witness error viewed amount to reversible when ida at the time of the second trial. opening light counsel’s own of defense presided over each of the same had comments. specifically found that previous trials. He closing state resided outside the State the witness prose ments not reversible error. Kentucky that she was not available in mak cutor reasonable latitude ques- is allowed for the third trial. v. Lynem Com ing closing argument. degree required by his tion was reliable (1978). monwealth, Roberts, 56, 141 Ky., v. 448 U.S. 100 S.Ct. Ohio situation, pros (1980). by the In this the comments 597 L.Ed.2d prior of- that the yond a reasonable doubt of reason ecutor did not exceed the bounds progressively and committed inferences fenses were latitude. He drew fair able age of 18 at the time present he over the had been that was from the committed. prior felony offenses were regarding recovery of the stolen his ed question was not rise to admits that this money. The remarks here do not review, appellate by properly preserved of those condemned this Court level Sanborn, and a supra Wager v. palpable error Common but claims there wealth, This injustice. agree. We do not Ky., 751 The manifest ap- properly preserved for was not prosecutor exercised reasonable latitude matter pursuant to RCr 9.22 and closing opening argu pellate review presenting both under the grant not review ments. There is no basis for reversal. this Court will showing no There has been circumstances. its The trial court did not abuse required by RCr injustice as of manifest admitting discretion Commonwealth, Ky., 456 10.26 Stone *4 reviewing In an alle from Officer Davis. (1970). Ruppee’s in record gation of discretion a trial abuse 1985, part of the first trial in which court this must consider Court both pursuant to RCr 12.02 and CR record here surrounding circumstances the introduction 76.10, 18 at the indicates that was testimony as well as the actual prior felony. There is no basis time of the Commonwealth, introduced. Gilbert v. invoking palpable error there because (1982). The Ky., 633 S.W.2d 69 admission injustice. Turpin v. Com- no manifest was testimony sound of rebuttal is within the monwealth, 619 at 622 Ky., 780 S.W.2d 9.42(e); judge. discretion of the trial RCr (1989). supra. Wager, argument regarding his Ruppee’s final Here, appellate states that counsel prosecutor’s injection of incom- claim of the theory defense of the case at trial was during the inaccurate evidence petent and Ruppee by the identification of two is without sentencing phase of the trial overly sugges witnesses was based an unconvincing. penalty merit and photo display. A defense witness was tive phase complied with K.R.S. 532.055. person the first to mention a haircut and of conviction is affirmed. judgment give opinion an the defendant was “scroungy unkempt.” neat and not or Ac SPAIN, LAMBERT, and REYNOLDS cordingly, prosecution fully enti was JJ., concur. opinion tled to rebut the that the defendant COMBS,J., separate freshly groomed always and neat in dissents and files a Commonwealth, STEPHENS, Archer v. appearance. dissenting opinion which (1971). C.J., LEIBSON, J., part. judge join in Ky., 473 S.W.2d 141 The trial testify permitted Davis to because Officer COMBS, Justice, dissenting. the defense tes his statement contradicted Firstly, good I dissent. Respectfully, timony the identification issue. about complained testimony police deal of the jury that The trial admonished the The officer tes- hearsay. was inadmissible testimony only introduced to con- numbered dollar bills tified that certain may evidence that have been tradict certain during robbery; stolen (reportedly) during on behalf of the defense (reported- of these bills were and that some case-in-chief. careful examination by (reportedly) ly) passed to a bank throughout indicates that the record sister, (reportedly) also who judge correctly restrict- testimony the trial po- of the bills surrendered another the issue of ed the majority, this According to the lice chief. only. identification it “did admissible because testimony was (ante, guilt” p. or not indicate innocence argues that the first- now majority 485). breath the But another degree should be dismissed PFO conviction closing claim prove failed to be- defends prosecution C.J., LEIBSON, J., STEPHENS, argument,1 acquired join that the sister had defendant, dissenting opinion, solely with re- from this money as a “reason- spect investigative hearsay. to the issue of able from the inference[] presented regarding recovery had been (ante, 6). money” p.

of the stolen proba-

If the indeed not guilt,

tive it not of innocence

hearsay but irrelevant and immaterial well; allowing

as damning by way introduce evidence new Kentucky, COMMONWEALTH closing argument prejudicial patently Appellant, error. If on the other hand the permit did inferences that the reasonable possessed the defendant had bills COLLINS, Appellee. Douglas Paul bills, it

these were in fact the stolen No. 90-SC-523-DG. prejudicial, clearly highly inadmissible offered, hearsay. The evidence was not to Supreme Court issue, police prove any action which was 21, Nov. 1991. prove guilty of but to the defendant rob- Rehearing Feb. bery. Commonwealth, Denied See Sanborn v. Here,

Ky., *5 ignored the trial court upon previous

law of the case established a matter,

(unpublished) very review of this

that such evidence should be introduced

through having knowl- witnesses firsthand

edge facts.

Secondly, I that the believe erroneously witness was admit- absent provides:

ted. KRS 422.150 any witness taken

stenographic reporter may, in the discre- taken,

tion of court in which it is be any subsequent

used as evidence in trial par- issue the same the same between

ties, testimony of such witness where the no so procured, be but

cannot any used in criminal case

taken shall be consent of the defendant.

without view, prohibits in a crim- my

In this statute reading prior testimony, in of

inal case the

including deposition, without the consent and, accused, legis- as a substantive 7.22, RCr prohibition, transcends RCr

lative

7.20, judicial precedent. me_” objected, point- The defense During closing, prosecutor argued he owed ing had not testi- defendant’s sister but out that the jury; who cashes them "And Io and behold at insisted she fied all. guy’s the one that [T]his this gave sister.... her as to remarks. they police officer had testified called her Police when to the Bellvue fact, testimony, com- no get you record contains you money? Do In in. Where did hearsay, or whom Ms. you get petent as to how from testimony? Where did remember that Well, twenty Ruppee acquired the bills. money? paid me dollars Keith