Sherley v. Commonwealth

889 S.W.2d 794, 1994 Ky. LEXIS 151, 1994 WL 713101

• Court: Kentucky Supreme Court
• Decided: December 22, 1994
• Docket: 93-SC-348-MR
• Status: Published

Opinions

WINTERSHEIMER, Justice.

This appeal is from a judgment based on a jury verdict which convicted Sherley of first-degree burglary, first-degree robbery and attempted second-degree burglary. He was found to be a persistent felony offender and sentenced to a total of 80 years in prison.

Sherley raises five claims of error which will be treated in sequence. The principal issue involves the standard of review to be applied under the circumstances of this case. The role of this Court is to review the direct appeal of the second trial. Previous trials and federal habeas corpus determinations regarding this defendant are not factors in our current analysis in regard to the direct appeal of the second trial.

Sherley was first charged in 1986 with first-degree robbery and first-degree burglary of the residence of an 81-year-old Padu-cah woman, attempted first-degree burglary of the dwelling of another 89-year-old Padu-cah woman, and with being a second-degree persistent felony offender. He was originally tried in October of 1986. He appealed to this Court and his conviction was affirmed in an unpublished opinion on October 15, 1987. Sherley then petitioned for a writ of habeas corpus. Although the magistrate’s report recommended dismissal of Sherley’s petition, the district court rejected the recommendation and found that Sherley’s confrontation clause rights had been violated. In Sherley v. Seabold, 929 F.2d 272 (6th Cir.1991), the Sixth Circuit Court of Appeals directed that a retrial be instituted because of the hearsay statements of one of the two victims. The first victim died sometime after the filing of the habeas petition. The second victim also died in the interim between the first trial and the second trial. Sherley, who had testified at his first trial, decided not to testify at retrial. This appeal is from a retrial of a case that was reversed on the petition for habeas corpus.

I

A) Sherley argues that the introduction of alleged hearsay evidence at the retrial prejudiced him and deprived him of his right of confrontation and due process. We disagree. During the first trial, the statements of one of the victims were admitted into evidence although the victim did not testify. These statements formed the basis for reversal by the Federal court. The Federal court applied the then valid test for review of a federal habeas question announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This standard has since been replaced and overruled in part by Brecht v. Abrahamson, 507 U.S. -, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), which requires that the error have substantial and injurious effect or influence in determining the jury’s verdict.

During the second trial, some of the same evidence was offered by the prosecution. The evidence was admitted without objection. Error on appeal cannot be considered in the absence of a proper objection to preserve that error for appellate review. Todd v. Commonwealth, Ky., 716 S.W.2d 242 (1986). Here there was sufficient evidence even without the statements to allow the jury to reach a verdict of guilty. Even if subject to review, the complained of alleged hearsay evidence was merely cumulative, and there is no substantial possibility that the result would have been any different. Cf. Commonwealth v. McIntosh, Ky., 646 S.W.2d 43 (1983).

The U.S. Supreme Court held that the proper standard in a federal habeas corpus case is that of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and not that of Chapman, supra. Consequently, Sherley, supra, has been overruled in part. Sherley admits that this issue was not properly preserved for appellate review indicating that no contemporaneous objection was made to the introduction of the evidence set forth here. The argument now presented is founded on circumstances that were not properly preserved for appellate review as required by RCr 9.22.

We find no reason to review this issue as one of palpable error pursuant to CR 60.02. The Federal courts have repeatedly refused to review alleged error where state courts have initially refused to consider the issue due to procedural default such as in this case. Ewing v. McMackin, 799 F.2d 1143 (6th Cir.1986). The defendant failed to make contemporaneous objection as required under a state procedural rule in the absence of a demonstration of both cause and prejudice. This is not an extraordinary case in which a constitutional violation has probably resulted in the conviction of one who is actually innocent. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

Here, Sherley waived any complaint about the exhibits. He filed a pretrial motion for discovery with which the Commonwealth complied, and there is no claim that there was any failure to show defendant or counsel the exhibits during open file discovery. Any possible error was unpreserved and not prejudicial. RCr 9.22. Sherley’s defense at trial was that he was not the person who robbed the first victim. His guilt was established by the following: 1) he admitted guilt to two inmates at the jail who informed police; 2) his method of operation during the burglary of the second residence was similar to that of the first dwelling; 3) the coat button left on the floor matched the buttons on Sherley’s coat; 4) the hair samples found on the floor revealed that the intruder was a man with hair similar to that of Sherley; 5) the fiber samples found on the first victim’s clothing matched the fibers on Sherley’s coat; 6) witnesses testified that the first victim routinely kept money in her purse and that after the assault she had no money in her purse, and 7) witnesses testified that they saw the first victim shortly after the robbery and that her face and head had been beaten.

B) In the reply brief, Sherley, with new counsel, raises the argument that the decision of the Sixth Circuit is the law of the case and relies on Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), as support.

The State Supreme Court is the final arbiter of the application of the doctrine of law of the case. King v. West Virginia, 216 U.S. 92, 30 S.Ct. 225, 54 L.Ed. 396 (1910). The doctrine of law of the case is based on policy and is not inflexible. See 5 Am.Jur.2d Appeal and Eiror § 751 (1964). Courts are not absolutely bound by the doctrine and may exercise discretion in its application. United States v. U.S. Smelting, Refining & Mining Co., 339 U.S. 186, 70 S.Ct. 537, 94 L.Ed. 750 (1950). The Federal Constitution contains nothing that requires adherence to the law of the case.

Reliance on a law of the case argument is misplaced. The doctrine is reserved for situations where the decision of a superior court within the same judicial organization is binding on a subsequent trial court of that judicial organization or upon itself. See Loverett v. Veatch, 268 Ky. 797, 105 S.W.2d 1052 (1937). In Bailey v. Robinson, 244 Ill. 16, 91 N.E. 98 (1910), an appellate court determined that a witness at the first trial was incompetent to testify. The superior state appellate court was free to make an independent determination as to the competency of the witness. Research fails to disclose a single situation where an intermediate federal appellate court determination is the law of the case for a subsequent state retrial or appeal to the state’s supreme court.

At the second trial, the same evidence which caused the reversal based on the Chapman test, was admitted by the trial judge pursuant to the Brecht standard. Sherley now argues that the law of the case requires this Court to again reverse and remand for a trial consistent with the Chapman test. Sherley claims that the United States Supreme Court “held that a final ruling from the highest court before which a case is submitted will become the law of the case.”

In Strunk, supra, certiorari was granted on his “claim that once a judicial determination has been made that an accused has been denied a speedy trial, the only remedy available to the court is to ‘reverse the conviction’.” Strunk. The Court of Appeals reversed the trial court which denied Strunk’s motion to dismiss. The prosecution did not file a cross-petition to review the determination of the Court of Appeals.

The U.S. Supreme Court did not hold as argued by Sherley. It chose to “not resolve” whether it “might deal with an issue involving constitutional claims, absent its being raised by cross-petition.” “We are not disposed to examine the issue since we must assume the Government deliberately elected to allow the ease to be resolved on the issue raised by the petition.” Strunk.

Closer on point is Sherley’s reliance on Commonwealth v. Schaefer, 639 S.W.2d 776 (1982). The Schaefer trial court refused to admit a tape recording made by police officers. Schaefer was nevertheless convicted. The conviction was reversed and remanded. At the second trial, the tape was again refused admission into evidence. The Commonwealth appealed and this Court determined that the law of the case acted as a bar to the matter. It determined that because the Commonwealth did not appeal or cross-appeal the issue during the first series of appeals, it “allowed all of the issues presented on the first appeal to become ‘res judicata’ under the doctrine of the ‘law of the ease.’ ”

Again Sherley’s analysis is flawed. The distinguishing factor between the law of the case opinions and the current situation is that where the law of the case applies, it is limited to situations where a ruling of law is made based on existing law and that ruling has gone unchallenged during the original appeal. See Inman v. Inman, Ky., 648 S.W.2d 847 (1982); Siler v. Williford, Ky., 375 S.W.2d 262 (1964); Martin v. Frasure, Ky., 352 S.W.2d 817 (1962).

In the current situation, the law changed between the first and second trials. It was only when Brecht changed the law that the issue became ripe. Application of the law of the case doctrine would require every defendant and every prosecutor to immediately challenge every aspect of the law involved in the case or forever be denied relief.

The law of the case doctrine does not apply in this limited situation where the controlling law changes after reversal of a conviction but prior to a subsequent re-trial. Such a rule would require every party to appeal or cross-appeal every single issue in every ease. The burden on the justice system would be intolerable.

The trial court did, however, err in its application of the Brecht standard. The only concern on direct appeal is whether any errors which occurred were harmless beyond a reasonable doubt. The Brecht standard is of limited application to federal review of claims of habeas relief. The core question Sherley brings to this Court involves the admission of the testimony of one of the victims during the retrial. It was this testimony which caused the reversal- by the federal court. The trial court allowed some of this testimony to be admitted during the second trial based on an erroneous understanding of the Brecht analysis.

That mistake is not however sufficient to require reversal and retrial. There was no contemporaneous objection to the admission of the statements. Sherley did not provide the trial court with an opportunity to correct any error. RCr 9.22. Even palpable error can be waived. Turpin v. Commonwealth, Ky., 780 S.W.2d 619 (1989). Sherley was provided with the exhibits prior to trial and did not object to their admission. He cannot now claim reversible error. There is nothing to indicate that the statements affected the outcome of the case and any error was indeed harmless. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

II

Testimony given by the defendant during his previous trial was properly admitted in the second trial. He was not prejudiced or denied a fair trial.

At the first trial, Sherley testified in his own defense, however, during the second trial, he did not testify. During the second trial, the prosecutor advised the court that he wanted to read to the jury parts of Sherley’s testimony in the previous trial. Sherley objected on the grounds that he was not required to testify pursuant to the Fifth Amendment, that he would not testify at the trial and that to read his previous testimony would violate his rights. The trial judge permitted the testimony to be read.

Once the defendant decides to speak to police officers or testify in open court, he waives his Fifth Amendment privilege. There was nothing improper about introducing the prior testimony at the second trial. Sherley waived his right to silence when he testified at the first trial in his own defense. There is nothing which requires the extension of immunity to any trial other than the one where the right is preserved by a refusal to testify. McKee v. Commonwealth, Ky. App., 720 S.W.2d 344 (1986). See also Raffel v. United Stats, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926); Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).

Ill

The claims that there was prosecutorial misconduct in the opening and closing statements and that the introduction of post attack photographs of the first victim were inflammatory are without merit. The issue is properly preserved only as to the use of the photographs.

During opening statement, the prosecution showed the jury an enlarged color photograph of the first victim, the 81-year-old prosecuting witness as she lay in a hospital bed recovering from her injuries. The trial judge was not given an opportunity to rule on the comments made by the prosecution during either opening or closing argument. When a trial court has not had the opportunity to rule, the appellate court is unable to review the alleged error. Todd, supra; Magruder v. Commonwealth, Ky., 281 S.W.2d 716 (1955).

Even if objection had been raised, the statements made by the prosecutor do not rise to the level of reversible error. Cf. Slaughter v. Commonwealth, Ky., 744 S.W.2d 407 (1987). None of the complaints amount to “egregious error” as condemned in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). A review of the record does not indicate anything in the argument by the prosecutor which violated the latitude permitted during opening or closing argument and the arguments did not cause the trial to be fundamentally unfair to the defendant. Lynem v. Commonwealth, Ky., 565 S.W.2d 141 (1978).

Presenting the photographs of the victim to the jury during the opening statement was not reversible error. Such photographs of the injuries of a victim are admissible to show how those injuries were sustained. Salisbury v. Commonwealth, Ky., 417 S.W.2d 244 (1967).

A review of the record does not indicate that the prosecutor misrepresented the facts to the jury. Sherley lists individual statements attributed to the prosecutor, any one of which he claims requires reversal. We do not agree. The jury was informed that opening statements are not evidence. Any summary or general remarks by the prosecutor were clarified by the witnesses during the actual testimony at trial. The opening or closing remarks were of little effect upon the determination of guilt or sentence by the jury. The prosecutor may argue reasonable inferences from the evidence without causing reversible error. Bills v. Commonwealth, Ky., 851 S.W.2d 466 (1993). Contrary to the argument by Sher-ley, referring to the attack as “almost obscene” and describing the photographs as showing “what she went through” did not constitute a “Golden Rule” violation. Lycans v. Commonwealth, Ky., 562 S.W.2d 303 (1978). Statements made by the prosecutor did not amount to reversible error.

IV

The trial judge properly permitted the introduction of evidence that the first victim died over three years after she was allegedly attacked and robbed. Sherley claims that he was denied a fair trial by the introduction of that evidence contrasted with victim impact evidence of what her life was like prior to the attack. He claims neither was relevant to the issue of guilt. We disagree.

During the opening statement, the prosecutor told the jury that the first victim, although 81 years of age, had been very active, but after the attack and robbery, she required permanent care in a nursing home. Defense counsel objected but was overruled. During the trial, the prosecutor asked the neighbors of the first victim to describe what sort of activities she had enjoyed prior to the attack. A review of the testimony indicates that although elderly, the first victim was active and independent until the day of the attack. Following that, she was confined to a nursing home until her death three years later. Evidence regarding the victim may be presented to the jury as background information so that the jury can appreciate the -full impact of the crime. Campbell v. Commonwealth, Ky., 788 S.W.2d 260 (1990).

The contention by Sherley that the evidence that the first victim died was tantamount to accusing him of murder is without merit. It was proper to admit such evidence simply because the jurors would then have no doubt about her whereabouts and why she was unable to testify at trial. There is no evidence to support the claim that the prosecutor was attempting to inflame the jury.

V

It was not reversible error for the trial judge to refuse to sever the robbery and burglary counts from the attempted burglary charge.

This Court has held that the trial judge has broad discretion with respect to joinder of charges and will not be overturned in the absence of a showing of prejudice and a clear abuse of discretion. Rearick v. Commonwealth, Ky., 858 S.W.2d 185 (1993). Offenses closely related in character, circumstances and time need not be severed. Cardine v. Commonwealth, Ky., 623 S.W.2d 895 (1981). See also, Schambon v. Commonwealth, Ky., 821 S.W.2d 804 (1991); Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972) and Seay v. Commonwealth, Ky., 609 S.W.2d 128 (1980).

Here the offenses were related in character, circumstance and time as required by Cardine, supra. The two offenses occurred within a month of each other and were similar in nature. They involved a breaking or attempted breaking into the home of an elderly female with the intent to commit a robbery inside. They involved a similar method of operation.

There is no showing of any abuse of discretion by the trial judge. Sherley has not demonstrated that the joinder would be so prejudicial as to be unfair or unnecessarily or unreasonably hurtful as is required by Romans v. Commonivealth, Ky., 547 S.W.2d 128 (1977).

The judgment of conviction is affirmed.

LAMBERT, REYNOLDS and SPAIN, JJ., concur. LEIBSON, J., files a separate opinion concurring in result only. STUMBO, J., dissents by separate opinion, in which STEPHENS, C.J., joins.