Colwell v. Commonwealth

37 S.W.3d 721, 2000 Ky. LEXIS 202, 2000 WL 1873816
CourtKentucky Supreme Court
DecidedDecember 21, 2000
Docket1998-SC-1071-MR, 1999-SC-0095-TG
StatusPublished
Cited by32 cases

This text of 37 S.W.3d 721 (Colwell v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colwell v. Commonwealth, 37 S.W.3d 721, 2000 Ky. LEXIS 202, 2000 WL 1873816 (Ky. 2000).

Opinions

COOPER, Justice.

Following a trial by jury, appellants Col-well and Dashielle were each convicted of burglary in the second degree and theft by unlawful taking of property valued at more than $300. Additionally, Colwell was convicted of being a persistent felony offender (PFO) in the second degree. Colwell received an enhanced sentence of fifteen years on the burglary conviction and a [723]*723sentence of five years on the theft conviction. The sentences were ordered to run consecutively for a total of twenty years. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Dashielle was sentenced to five years for burglary and one year for theft to run consecutively for a total of six years. He appealed to the Court of Appeals. We granted transfer so that both appeals arising out of this joint trial could be consolidated for appellate review. CR 74.02(2).

I. FACTS.

On the night of June 30, 1998, Laurel County Deputy Sheriff James Reed received a 911 call from a concerned neighbor advising that a burglary was in progress at the residence of Jake Anderson. Reed and another officer arrived at the Anderson residence ten minutes later. Reed heard someone running through the weeds behind the house and, upon investigation, found Colwell and Dashielle huddled together under a tree approximately thirty yards down a hill behind the Anderson home. A pat-down search of Colwell revealed several items believed to have been stolen from Anderson’s residence.

A search of the residence revealed it to have been ransacked. A gray Dodge pickup truck found parked in Anderson’s driveway was filled with items later identified as having been removed from the residence. The value of the goods removed from the home was in excess of $6,200.00. Upon being advised that he would be taken into custody, Colwell asked Deputy Reed to retrieve his driver’s license and cigarettes from the pickup truck. The driver’s license was found in the glove compartment; the cigarettes were on the passenger side of the dashboard.

At trial, each defendant claimed to have been an innocent bystander to a burglary committed by the other. Colwell claimed the truck belonged to Dashielle who had offered to give him a ride home. Dash-ielle stopped at Anderson’s residence, claiming that Anderson owed him some money and had promised to leave it under the doormat. Instead, Dashielle entered the residence. Because he was on parole for another burglary, Colwell got out of the pickup truck and ran into the woods and over a hill behind the victim’s house. Shortly thereafter, Dashielle, pursued by the police, came running over the hill and collided at full speed with Colwell. Col-well denied entering the Anderson residence.

Dashielle claimed that he had been a passenger in the truck which belonged to Colwell.1 He testified that they were on their way to Colwell’s residence when Col-well pulled into Anderson’s driveway and proposed that they burglarize Anderson’s residence. Dashielle declined and was attempting to leave the scene when he fell down drunk in the woods. Shortly thereafter, Colwell, chased by the police, came running toward him and both were arrested. Dashielle, too, denied entering the Anderson residence.

II. DENIAL OF CONTINUANCE.

Colwell’s only claim of error on appeal is the trial court’s denial of his motion for a continuance. When the case was called for trial, Colwell’s counsel made the following motion:

Judge, I have a motion to continue through this jury pool. This is a new jury pool. However, it turns out that Jake Anderson, the complaining witness, is Juror No. 1 of that pool.
The judge responded:
That’s correct. He was not brought into the courtroom, so he has had no [724]*724contact with the other jurors. Mr. Beckner [the prosecutor] made me aware of this on Friday and I advised Mr. Beckner to have him just come to his office, and I told him that I would excuse him from the jury pool, which I did.

In other words, although Anderson was scheduled to serve on the jury pool assigned to this case, the trial judge had previously excused him from jury duty so that he was not in the courtroom mingling with the other jurors prior to trial. Furthermore, since this was the first case for that jury pool, Anderson had not had any prior contact with the other jurors. Col-well’s reliance on Hellard v. Commonwealth, Ky.App., 829 S.W.2d 427 (1992), overruled on other grounds, Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996), is misplaced. In that case, the witness actually had served as a juror on other cases with other members of the same jury pool.

This case clearly involves a “close relationship” of the situational type. As a member of the jury pool, the video store owner had numerous opportunities to meet the other members of the pool. Indeed, the record reveals that the owner had previously sat with at least four of the potential jurors in Hellard’s case and had agreed with them on a verdict in that case. We feel that the possibility of a jury according the testimony of a witness greater weight than it otherwise would have received is just too great when the witness is a member of the same jury pool.

Id. at 429-30.

Here, the judge had made prior arrangements to insure that there would be no interaction between Anderson and other members of the jury pool. Under the facts of this case, there was no possibility that Anderson’s assignment to the jury pool could have tainted the other jurors or otherwise prejudiced Colwell’s entitlement to a fair trial.

III. DENIAL OF SEPARATE TRIALS.

Dashielle’s first claim of error is that the trial court should have granted his pretrial motion for a severance. At trial, he premised his motion on grounds that he and Colwell had antagonistic defenses in that each intended to cast the blame on the other. Of course, that fact is more supportive of joinder than severance.

[N]either antagonistic defenses nor the fact that the evidence for or against one defendant incriminates the other amounts, by itself, to unfair prejudice- That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.

Burdell v. Commonwealth, Ky., 990 S.W.2d 628, 633 (1999) (quoting Ware v. Commonwealth, Ky., 537 S.W.2d 174, 177 (1976)).

On appeal, Dashielle claims it was presumptively prejudicial to try him jointly with Colwell, who was also charged as a persistent felony offender. He relies on Hardin v. Commonwealth, Ky., 437 S.W.2d 931, 933 (1968) and Jones v. Commonwealth, Ky., 457 S.W.2d 627, 629 (1970), cert. denied, 401 U.S. 946, 91 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Keith Rose v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2026
Tyrone Williams v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2025
Kenneth Lamont Boone Jr v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2021
Timothy John Felker v. Commonwealth of Kentucky
Court of Appeals of Kentucky, 2021
John Harden v. Keith Hillman
993 F.3d 465 (Sixth Circuit, 2021)
Commonweath of Kentucky v. Brent Michael Watson
Court of Appeals of Kentucky, 2020
United States v. Jimmy David Malone
889 F.3d 310 (Sixth Circuit, 2018)
Lonnie Conyers v. Commonwealth of Kentucky
Kentucky Supreme Court, 2017
Joseph Hardy v. Commonwealth of Kentucky
Kentucky Supreme Court, 2017
Sasser v. Commonwealth
485 S.W.3d 290 (Kentucky Supreme Court, 2016)
Doneghy v. Commonwealth
410 S.W.3d 95 (Kentucky Supreme Court, 2013)
Matthews v. Commonwealth
371 S.W.3d 743 (Court of Appeals of Kentucky, 2011)
Cecil v. Commonwealth
297 S.W.3d 12 (Kentucky Supreme Court, 2009)
Hudson v. Commonwealth
202 S.W.3d 17 (Kentucky Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
37 S.W.3d 721, 2000 Ky. LEXIS 202, 2000 WL 1873816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colwell-v-commonwealth-ky-2000.