Lefevers v. Commonwealth

558 S.W.2d 585, 1977 Ky. LEXIS 536
CourtKentucky Supreme Court
DecidedOctober 28, 1977
StatusPublished
Cited by5 cases

This text of 558 S.W.2d 585 (Lefevers 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
Lefevers v. Commonwealth, 558 S.W.2d 585, 1977 Ky. LEXIS 536 (Ky. 1977).

Opinion

STERNBERG, Justice.

On November 5, 1974, John Slusher, a grocer, was shot to death and robbed in his store. On September 14, 1976, the appellant, Billy Charles Lefevers, was indicted by the Bell County Grand Jury for the offenses of murder and robbery. A five-day trial ended with the jury finding appellant guilty of the crime of murder in the commission of robbery and he was sentenced to life imprisonment.

Mitchell Saylor was also charged with the same offenses by separate indictment. He plea bargained and received a lesser sentence.

On this appeal appellant cites five errors, each of which it is charged, if meritorious, would require a reversal. The issues presented call for a review of the evidence.

The first witness to testify for the Commonwealth was Mitchell Saylor, who freely and frequently invoked his constitutional privilege by refusing to answer questions which would tend to incriminate him in the commission of the offenses. The court liberally granted his objections. However, after plea bargaining, Saylor was called again to testify. He stated that on November 5, 1974, the date of the offenses, he and appellant, who are second cousins, drove in appellant’s car to John Slusher’s store at Redbird, Kentucky, on their way to Somerset, Kentucky. Appellant went into the store and Saylor remained in the car. Saylor stated that he heard three or four gunshots, so he got out of the car and went into the store, where he found appellant loading his gun and John Slusher, the victim, lying on the floor. He and appellant then left the store, with appellant carrying some guns, some money, and a watch. They then drove to Somerset and spent about a week with a Katherine Price, the mother of appellant’s girlfriend, where they also hid the guns. A day or so after the robbery the two of them drove back to Lexington, Kentucky, where appellant sold the watch at a pawn shop for $80. The guns were retrieved and placed in appellant’s car. After several days the two of them returned to Cincinnati, Ohio, where they had been living. They gave the guns to Jim Meredith, a person with whom they had been working.

Appellant denied that he had anything to do with the killing or robbery of John Slusher. He denied that he was in the Slusher grocery on the fateful day. The only knowledge appellant had of the murder-robbery was what he learned from other persons. He testified that he and Saylor were living and working in Cincinnati, and that they had been on a weekend visit at his mother’s home in Newtown, Kentucky. He said that on the day prior to the murder-robbery Saylor borrowed his car and returned it in the early afternoon of the following day, and that shortly thereafter the [587]*587two of them left and went to the home of Janice Price. While enroute Saylor told him that he had traded an automobile for a watch, three or four handguns, and a .22-caliber rifle. Saylor gave appellant the watch and hid the guns in a barn at the Price home. Appellant offered to dispose of the guns at a pawn shop. The next day they drove to Lexington; however, appellant declined to sell the guns but did sell the watch for $80 and gave the money to Saylor. Both of them then returned to Somerset, where they stayed three or four days before going back to Cincinnati. During their return trip to Cincinnati, Saylor said that he alone had gone to Slusher’s grocery, after having (speaking in the vernacular of the underworld) “cased the joint;” that Slusher ordered him out and made a movement as if to get a gun; and that he (Saylor) shot him, then got scared and ran out. Saylor said he went back into the store to see if Slusher was dead and, upon finding that he was, he took some money and guns and again left, only to immediately return to get Slusher’s watch. After the two of them returned to Cincinnati, at Saylor’s request, he gave the guns to Jim Meredith. Appellant thus portrays the affair, as Saylor allegedly told it to him.

Janice Price testified that she lived in Chenoa, Bell County, Kentucky, and worked at the Pineville Hospital. She stated that on election day in November, 1974, appellant and Saylor came to her house and that some time later she, her mother, Saylor and appellant drove to Somerset, where they went to a shopping center, where appellant bought some clothes. The four of them then returned to her mother’s home. Later Saylor and her mother drove back to Somerset, leaving the appellant and her at the house. Appellant took Janice to the barn and showed her five or six guns which had been hidden. He also showed her a gold pocket watch and confided in her that he had killed a person, but he did not tell her who it was or where it happened, only that it happened the prior day.

Floyd Randall testified that on November 7,1974, appellant came to his home in Somerset and bought a .32-caliber pistol. While there, appellant showed him some guns, one which was an antique pistol.

Jay Randall testified that in November, 1974, he saw the appellant and Mitchell Saylor at his son’s house. On that occasion he saw four or five guns in the trunk of their automobile. He identified one of the guns as an “old antique thing.”

Luther Slusher,. the victim’s younger brother, visited with him about thirty minutes before his death. He verified his brother’s ownership of a .22-caliber pistol, two rifles, a .55-M rifle, an antique gun, and a B.W. Raymond Elgin 21-jewel pocket watch, with a Simmons chain.

Charlie Rosenberg, a pawnbroker from Lexington, testified that on November 6, 1974, he bought such a pocket watch and chain from the appellant. It was stipulated that appellant signed the pawn receipt.

This thumbnail sketch of the testimony is sufficient for our consideration of the charges of error.

During the voir dire, counsel for appellant made three challenges for cause, each of which was denied by the trial judge. Counsel now contends that the court erred in not granting these three challenges for cause, and because it did not do so, it committed prejudicial error.

Mrs. Joe A. Bingham stated that she would be prejudiced because her father was killed when she was a very young child. Luther Maples stated that in his opinion the appellant had the burden of proving his innocence. Mr. Delbert James was a part-time city police court judge. All three of these prospective jurors were peremptorily stricken by the appellant. After the jury had been fully selected, the appellant still had five peremptory challenges remaining. In Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973), we said:

“Appellants complain of an abuse of discretion by the trial court in refusing certain challenges for cause. The argument is unavailing because nowhere do appellants assert they were forced to exhaust their peremptory challenges, nor [588]*588does examination of the record reveal such circumstance. All the jurors in question were removed by way of peremptory challenges. A defendant who fails to exhaust such challenges cannot complain concerning the jury selection. Certainly if the biased juror is not impan-elled, no prejudice can result. There has been no showing that use of the eleven peremptories to dispose of the suspect jurors resulted in a subsequent inability to challenge additional unacceptable veniremen. Therefore, favorable consideration may not be given to appellants’ assertions.”

It appears that not only were the jurors who expressed bias not impaneled, but appellant had five remaining unused challenges.

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Bluebook (online)
558 S.W.2d 585, 1977 Ky. LEXIS 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lefevers-v-commonwealth-ky-1977.