Ross v. Commonwealth

577 S.W.2d 6, 1977 Ky. App. LEXIS 932
CourtCourt of Appeals of Kentucky
DecidedSeptember 2, 1977
StatusPublished
Cited by9 cases

This text of 577 S.W.2d 6 (Ross v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ross v. Commonwealth, 577 S.W.2d 6, 1977 Ky. App. LEXIS 932 (Ky. Ct. App. 1977).

Opinion

PARK, Judge.

Bobby L. Ross and Shelby Spencer were indicted by the Grand Jury of Lee County for armed assault of Charles L. Shuler with intent to rob. KRS 433.150. On joint motion of the defendants and the Commonwealth, the trial court granted a change of venue and transferred the case to the Estill Circuit Court for trial. Following a joint trial, a jury found both defendants guilty. Ross and Spencer both prosecute appeals from judgments entered by the trial court upon the jury verdict sentencing each to a maximum term of imprisonment of ten years.

Three basic issues are raised by these consolidated appeals. (1) Did the trial court err in trying Spencer in the absence of the witness Evan Reeves? (2) Was prejudicial error committed by the procedures followed in impeaching the testimony of Ross, Spencer and a witness for Spencer by evidence of prior felony convictions? (3) Should the judgments be reversed because of improper conduct on the part of the Commonwealth’s Attorney during the trial and in closing argument?

TRIAL IN ABSENCE OF ALIBI WITNESS

Spencer sought to secure the attendance of Evan Reeves as a witness in order to establish an alibi for the time when the assault was made on Shuler. At the time of trial, Reeves was an inmate at the Eddy-ville Penitentiary, where Spencer was also incarcerated. Spencer’s trial counsel filed a motion for an order requiring the personal appearance of Reeves at the trial. This motion was supported by the affidavit of Reeves that his testimony would establish an alibi for Spencer. The trial court overruled the motion. In this appeal, Spencer claims that he was denied compulsory process for witnesses in his favor in violation of Sec. 11 of the Kentucky Constitution and the sixth amendment to the United States Constitution as made applicable to the states by the fourteenth amendment. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

See. 11 of the Kentucky Constitution and the sixth amendment to the United States Constitution contain substantially identical language. In all criminal prosecutions, an accused has the right “to have compulsory process for obtaining witnesses in his favor.” This court can see no basis for any difference in the construction of the two constitutional provisions. Spencer’s right to compulsory process for witnesses in his favor should be measured by the same standard under our Kentucky Constitution and the United States Constitution.

[10]*10Spencer’s motion for an order to secure the personal appearance of Reeves at trial was, in effect, a motion for the issuance of a writ of habeas corpus ad testifi-candum. This common law writ was used to secure the production of witnesses who were beyond the reach of an ordinary subpoena because they were confined in jail. Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375, 385 (1941), cert. denied, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1942). The power of trial courts to issue such orders or writs has long been recognized in Kentucky. In Hancock v. Parker, 100 Ky. 143, 18 Ky.L.Rep. 622, 37 S.W. 594 (1896), this state’s highest court held that a circuit judge could require the warden of the penitentiary to produce a prisoner to testify on behalf of a defendant, Warfield, charged with the crime of rape. The court stated:

Under section 11 of the Bill of Rights Warfield, who is the subject of a criminal prosecution, has the right not only “to meet the witnesses face to face,” but also “to have compulsory process for obtaining witnesses in his favor.” This right, guaranteed to him by the Bill of Rights, can not be denied to him. Chief Justice Marshall in 1 Burr, Trial 158-9; Commonwealth v. Jones, 10 Bush. 746.
He is entitled to have his own witnesses in court, if they can be reached by the compulsory process of the law, and to coerce their attendance whenever they may reside in the State; and, in order to do this, it is not required that he shall tender to his witnesses any compensation for expenses before resorting to process to compel them to attend. 100 Ky. at 146-47.

As the Commonwealth had the custody and control of the witness, the defendant was entitled to an order requiring the warden to produce the prisoner to testify as a witness in the trial of the case. In Wedding v. Commonwealth, 212 Ky. 571, 279 S.W. 981 (1926), the court held that an accused was entitled to an order directing a jailer having custody of a federal prisoner to produce the prisoner to testify as a witness at the trial. Court further held that it was prejudicial error for the trial court to refuse to issue the process and to try the defendant in the absence of the witness.

The Commonwealth takes the position that the issuance of an order for the compulsory production of a prisoner to testify in a criminal trial is not mandatory. In support of this argument, the Commonwealth relies on certain provisions of the Rules of Civil Procedure. Under CR 32.-01(3), the deposition of a prisoner may be used at the trial of a case. Because a prisoner’s deposition can ordinarily be used at trial, prisoners are not subject to subpoena under CR 45.05(2). Under CR 45.05(3), a trial court may, in its discretion, order the personal attendance of a witness otherwise exempt from subpoena. The Commonwealth then argues that these provisions are incorporated into the Rules of Criminal Procedure by RCr 7.04. Under RCr 7.04, the provisions of the rules of civil procedure apply to the compulsory attendance of witnesses in criminal proceedings with the exception that the attendance of witnesses residing in “any part” of the Commonwealth “may” be coerced. Relying on the use of the word “may” in RCr 7.04, the Commonwealth asserts that the trial court did not abuse its discretion in holding that Spencer should have taken the deposition of the witness Reeves. Not only is this contention a strained construction of RCr 7.04, but it flies directly in the face of the provisions of section 11 of the Kentucky Constitution. In Hancock v. Parker, supra, the court specifically held that a criminal defendant was not bound to waive his right to the compulsory attendance of witnesses by taking the deposition of a witness who was a prisoner in a Kentucky penitentiary.1 [11]*11Consequently, there is no merit to the argument that Spencer could be compelled to take the deposition of a witness who was incarcerated in the penitentiary.

In denying Spencer’s motion for an order to secure the attendance of Reeves at the trial, the trial court made a finding that Spencer’s motion had not been “timely filed.” The indictment was originally returned on February 7,1974. When the case was set for trial on February 1976, it was necessary for the trial court to enter an order directing the warden of the Eddyville State Penitentiary to produce Spencer and Ross for the trial, both of them being inmates. The trial was originally scheduled for February 23,1976. However, Spencer’s mother died the night before trial. On February 23, 1976, the trial court entered an order continuing the trial of the case until May 19, 1976, and transferring the trial to the Estill Circuit Court. On May 3, 1976, the trial court on its own motion reassigned the case from May 19, to May 18, 1976.

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

Related

Czech v. Allen
318 Neb. 904 (Nebraska Supreme Court, 2025)
Burton v. Commonwealth
300 S.W.3d 126 (Kentucky Supreme Court, 2009)
Brashars v. Commonwealth
25 S.W.3d 58 (Kentucky Supreme Court, 2000)
Brock v. Commonwealth
947 S.W.2d 24 (Kentucky Supreme Court, 1997)
State v. Stott
503 N.W.2d 822 (Nebraska Supreme Court, 1993)
Brown v. Commonwealth
780 S.W.2d 627 (Kentucky Supreme Court, 1989)
Lamb v. Commonwealth
599 S.W.2d 462 (Court of Appeals of Kentucky, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
577 S.W.2d 6, 1977 Ky. App. LEXIS 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ross-v-commonwealth-kyctapp-1977.