Keller v. Commonwealth

572 S.W.2d 157, 1978 Ky. LEXIS 394
CourtKentucky Supreme Court
DecidedFebruary 21, 1978
StatusPublished
Cited by3 cases

This text of 572 S.W.2d 157 (Keller 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
Keller v. Commonwealth, 572 S.W.2d 157, 1978 Ky. LEXIS 394 (Ky. 1978).

Opinion

STEPHENSON, Justice.

Steve Keller was convicted for armed robbery, KRS 433.140, (committed in 1974, before the enactment of the Penal Code) and sentenced to life imprisonment in the penitentiary.

Keller and Tommy Howard were indicted in 1974 for the armed robbery of a service [158]*158station, the Bonded Oil Company. Keller entered a plea of guilty pursuant to an agreement that the Commonwealth would recommend a ten-year sentence and that he take a lie detector test. According to the agreement, if the results of the test demonstrated that Keller was innocent of the charge, the plea of guilty would be set aside and the charges would be dismissed. The results of the test showed that Keller was not telling the truth when he denied a role in the armed robbery, and he was sentenced to ten years in the penitentiary.

In 1975, Keller filed a motion to vacate the judgment. The substance of the motion was that one William Butler, a fellow inmate of the prison, was the perpetrator of the armed robbery and was willing to testify to that fact and, further, would testify that Keller was not involved in the crime. Subsequently, Butler testified in a hearing that he and Howard committed the armed robbery and that Keller was innocent. The judgment of conviction was vacated. In March 1977, Keller and Howard were put on trial for the charge of armed robbery, resulting in Keller’s conviction. The jury could not agree as to Howard.

The manager of the Bonded Oil Company and an employee both identified Keller as the person who pointed a pistol at them and robbed them inside the service station. Howard was identified by one of the witnesses as the driver of the automobile in which Keller fled the scene.

Keller did not testify in his own behalf, but introduced Butler who testified that he robbed the manager and employee of the Bonded Oil Company and described the circumstances of the robbery substantially the same as described by the manager and employee of the service station. He testified that Keller was not present and did not commit the armed robbery.

On cross-examination Butler testified that upon hearing from Keller the charge on which he was imprisoned he informed Keller that he was the one who had committed the armed robbery. Butler further testified that, “He [Keller] said he would help me get out and get me some money and help me get a lawyer to get me out,” if Butler would testify for him at trial. Although they talked to each other regularly, Butler denied that he and Keller discussed the details of the armed robbery while in prison.

On direct-examination, Keller established that Butler had been convicted of a felony with the usual admonition by the trial court. Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). The Commonwealth was permitted by the trial court to prove on cross-examination that Butler was in prison for armed robbery. At the same time the Commonwealth received permission to show the length of sentence being served by Butler, Keller requested and received permission to show the date Butler would be eligible for parole. The Commonwealth recalled an employee of the service station, who testified that Butler was not the person who committed the robbery.

After the case was argued, the instructions directed that upon a finding of guilty the jury was to impose a sentence of “ten years or life.” Five minutes after the jury retired to deliberate, the trial court recalled the jury and corrected the penalty provision of the instructions verbally by informing the jury that the instructions were amended to say “not less than 10 years or life,” and this correction was inserted in writing in the instructions. The jury then retired to deliberate with proper instructions and returned a verdict of guilty, fixing the punishment at life imprisonment.

Keller asserts as error the ruling of the trial court that permitted the Commonwealth to show that Butler was serving a life sentence and further asserts that he was then compelled to show the date Butler would become eligible for parole, which Keller asserts created a substantial risk of improper penalty assessment and thereby denied Keller a fair trial.

Prior to the cross-examination of Butler by the Commonwealth, this colloquy took place out of the hearing of the jury:

“MR. STREPEY (the prosecutor): May we approach the Bench?
[159]*159[Whereupon the following proceedings were had at the Bench in whispered tones.]
“MR. STREPEY: I’m going to advise the Court and Co-counsel for impeachment purposes I intended to ask, one, specifically what he is in Eddyville for; and I expect the answer to be armed robbery. And two, I’m going to ask him the length of the sentence which is a life sentence.
“I think that goes to the motive for him coming to testify. And since he’s not a defendant on trial, I believe I’m entitled to ask him that question.
“COURT: I think you are. Is that all?
“MR. FRITZ (appellant’s [Keller’s] counsel): To avoid misleading the jury on the life sentence, there has been previous testimony indicating that his first eligibility for parole being 1981, means indeed his knowledge complicity would not — he has nothing to lose. He has plenty to lose because his parole date could be moved back. So I’m suggesting to the Court that if we allow him the testimony concerning his length of present sentence he is serving, that the jury should be allowed to understand that he will have a certain date eligibility for parole.
“COURT: Frankly, on the last point, if you all agree on this there’s no problem.
“MR. TURNER (co-defendant’s [Howard’s] counsel): I didn’t hear it.
“COURT: Mr. Strepey is asking the Court’s permission to ask the Defendant’s term of his sentence.
“Mr. Fritz is asking that if that be done the Defendant should be allowed to testify as to his parole date.
“Now, if that can be done without objection
“MR. TURNER: I have a couple of questions I want to ask first.
“COURT: He is asking about the life sentence to establish a motive.
“MR. TURNER: I have no objection to that.”

Then, during the course of the cross-examination, Butler was asked:

“BY MR. STREPEY:
“Q Mr. Butler, you were previously asked if you had been convicted of a felony and you answered yes. Would you tell us what that felony is?
“A Armed robbery.
“Q And what type of sentence are you serving?
“A Double life.
“Q This question is by agreement of all counsel and is on the record. When will you first become eligible for parole?
“A 1981.”

Keller attempts to counter the argument of the Commonwealth that there was no objection to this line of questioning by arguing that he had no opportunity to object.

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Related

Romero-Perez v. Commonwealth
492 S.W.3d 902 (Court of Appeals of Kentucky, 2016)
Woodward v. Commonwealth
984 S.W.2d 477 (Kentucky Supreme Court, 1999)

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Bluebook (online)
572 S.W.2d 157, 1978 Ky. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-commonwealth-ky-1978.