Snodgrass v. Commonwealth

814 S.W.2d 579, 1991 Ky. LEXIS 114, 1991 WL 165454

• Court: Kentucky Supreme Court
• Decided: August 29, 1991
• Docket: 90-SC-147-MR
• Status: Published

Opinions

SPAIN, Justice.

Following a two-day trial on February 1 and 2, 1990, appellant, Jesse Christopher Snodgrass, was convicted by a Daviess County jury of three charges of sodomy and four other acts of sexual misconduct involving four young boys aged eleven to thirteen years. Following the jury’s recommendation, the trial judge sentenced appellant to a total of twenty years’ imprisonment, the minimum permissible punishment under the circumstances.

The incidents occurred between December 23 and 31, 1988, when appellant was twenty years old, at a “clubhouse” located in a pine thicket next to Our Lady of Lourdes Church in Owensboro. A fifteen-year-old girl observed some of the sex acts and later, at her mother’s urging, reported her observations to the police. They investigated, including interviewing the boys on videotape, and an indictment was returned exactly one year before the trial, on February 1, 1989.

Appellant took the stand and denied having had any sexual relations with the boys, but did admit that he had worked as a male prostitute once for about a week.

In attacking his conviction, appellant cites four claimed errors, two of which were never raised with the trial court and hence are not preserved for this court’s consideration. Wilhite v. Commonwealth, Ky., 574 S.W.2d 304 (1978). The first un-preserved claim is that the punishment of a minimum term of imprisonment of twenty years for first degree sodomy is unconstitutionally cruel, especially considering that, under KRS 439.3401, one convicted thereof cannot be eligible for parole until fifty percent of the term has been served. The second unpreserved claim is that the said parole eligibility statute, titled “Parole for Violent Offenders,” unconstitutionally includes first degree sodomy in its purview although the offense may be committed without any physical violence upon or injury to the victim.

The principal claim of error which was preserved is that the trial court abused its discretion by denying appellant’s motion for a continuance on the morning of trial for the purpose of attempting to employ counsel to replace the appointed Public Defender. At arraignment appellant qualified as indigent, whereupon the court appointed counsel, who continued to represent appellant for the one-year period before trial. Appellant was at liberty on his own recognizance and met with his attorney at least five times. In addition, appellant and his attorney had conferred with the court and the prosecutor at a competency hearing three days before trial and no such motion was made or discussed. As a matter of fact, on that Monday, January 29, 1990, the court asked the appellant the following question regarding the upcoming trial set for Thursday, February 1st:

Q. And you think that you can discuss this case with him [Mr. Lashbrook] and relay information to him sufficient for him to prepare a defense for you in trial this week?

A. Yes.

TE III, 11.

On the afternoon before trial, appellant telephoned his attorney and left a recorded message requesting counsel to move for a continuance so he could employ a specific private attorney. The Public Defender got the message late in the day but filed the requested written motion on the morning of trial, after the jury panel was in attendance. The Assistant Commonwealth’s Attorney objected to the motion, stating, “We have a room full of witnesses and have everybody subpoenaed in.”

The record discloses that the appellant had talked with the private attorney shortly after arraignment about employing him but could not afford to do so. He telephoned him again about 2:15 p.m. the day before trial but again did not have enough money to retain him, according to what the private attorney told the Commonwealth’s Attorney. The appellant nevertheless persisted that he did have “the means of paying him whatever he wants.” Appellant further explained to the court that he wanted to employ private counsel because he felt that public defenders are overworked and that his appointed lawyer wasn’t prepared for trial.

Upon questioning by the court as to whether there was any part of the defense that he was not ready to go to trial on, the defense counsel responded that he had not viewed the six-hour video of the four boys but that the Assistant Commonwealth’s Attorney had relayed to him for the most part what the boys had said. Further, defense counsel stated that he had not viewed the scene. The prosecutor commented that the “clubhouse” had been destroyed in January 1989 (before the indictment was returned). There were photographs taken, however, that were admitted into evidence. Finally, the defense counsel stated that there was a potential witness, Sherry, that he had not contacted and that he couldn’t say for sure whether he had called his secretary and had her subpoena the girl.

After questioning defense counsel as to whether appellant’s defense was simply that he denied the charged acts, the court was told that that was correct. The court then denied the motion for a continuance.

RCr 9.04 allows a trial to be postponed upon a showing of sufficient cause. The decision to delay trial rests solely within the court’s discretion. Williams v. Commonwealth, Ky., 644 S.W.2d 335 (1982); Cornwell v. Commonwealth, Ky., 523 S.W.2d 224 (1975). Whether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). Factors the trial court is to consider in exercising its discretion are: length of delay; previous continuances; inconvenience to litigants, witnesses, counsel and the court; whether the delay is purposeful or is caused by the accused; availability of other competent counsel; complexity of the case; and whether denying the continuance will lead to identifiable prejudice. Wilson v. Mintzes, 761 F.2d 275, 281 (6th Cir.1985). To warrant substitution of counsel, appellant must show: (1) complete breakdown of communications between counsel and himself, (2) a conflict of interest, or (3) that his legitimate interests are being prejudiced. Baker v. Commonwealth, Ky.App., 574 S.W.2d 325, 327 (1978).

Under all the circumstances, including the fact that there had been four previous continuances by agreement of counsel, we believe the trial court did not abuse its discretion in denying this additional delay, especially on the strength of appellant’s representation that he somehow finally had acquired the means of employing the specified private attorney who had indicated otherwise to the Commonwealth’s Attorney. The record reflects that the Public Defender effectively and competently assisted the appellant during the trial. His guilt was established by the testimony of the four victims and the fifteen-year-old disinterested eyewitness and he received the minimum permissible punishment.

The last asserted error is that the trial court did not permit defense counsel to inform the prospective jurors on voir dire examination of the fact that under the “violent offender” statute a defendant would not be eligible for parole until he had served fifty percent of his term of imprisonment. The trial court correctly ruled that matters concerning parole eligibility should not be explored until the penalty phase of a bifurcated trial, although he did permit the jury to be informed as to the range of permissible punishment being from twenty years to life imprisonment. This disclosure was sufficient to ensure that qualified jurors were selected to afford both sides a fair and impartial trial. See Shields v. Commonwealth, Ky., 812 S.W.2d 152 (1991).

STEPHENS, C.J., and LAMBERT, LEIBSON, REYNOLDS and WINTERSHEIMER, JJ., concur. COMBS, J., dissents by separate opinion.