Stiles v. Commonwealth

570 S.W.2d 645, 1978 Ky. App. LEXIS 577
CourtCourt of Appeals of Kentucky
DecidedMarch 17, 1978
StatusPublished
Cited by7 cases

This text of 570 S.W.2d 645 (Stiles 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
Stiles v. Commonwealth, 570 S.W.2d 645, 1978 Ky. App. LEXIS 577 (Ky. Ct. App. 1978).

Opinion

LESTER, Judge.

This appeal arises out of the conviction of appellant and two codefendants of third degree burglary in violation of KRS 511.-040.

Charles Stiles was a resident of Bowling Green and the offense took place at a supermarket in Owensboro. There was more than sufficient evidence upon which to base the conviction but we are urged to reverse upon several constitutional issues, some of which we will explore in depth while others we will deal with summarily.

On October 26, 1976, Kentucky State Police Detective, Jarold Nickens, obtained a search warrant for appellant’s house trailer and while at that residence, in the presence of Stiles, some tools were seized. At the trial, the prosecutor inquired of the officer if appellant explained what those tools were used for, to which the reply was “[t]o the best of my knowledge he’s never explained nothing to us.” Later on, during the proceedings when the Commonwealth’s attorney was cross-examining Stiles the following colloquy took place:

XQ Did the officers inform you of what you were being arrested for?
A Yes.
XQ And did you give them any statement—
MR. DUKE: I object, Your Honor. It’s not incumbent upon the defendant to explain his actions in any form.
THE COURT: He’s on the witness stand.
MR. DANIEL: He’s testifying now.
MR. DUKE: I’m talking about—
THE COURT: He’s a witness as any other witness for all purposes.
MR. DUKE: Okay.
A (continuing) I gave him no statement.
XQ You didn’t tell him about Mr. Graham?
A No.

The Commonwealth made no reference to appellant’s failure to give a statement in its final argument and the foregoing constitutes the evidence in its entirety upon which the contention is based that reference to Stiles’s postarrest silence deprived him of due process. In support of his position, appellant relies upon Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976); Salisbury v. Commonwealth, Ky.App., 556 S.W.2d 922 (1977); and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

[647]*647In Niemeyer, supra, there were repeated references to those appellants’ failure to deny their guilt, not only during the direct and cross-examinations but also during the prosecutor’s closing remarks. Nevertheless, in spite of condemning the practice, the court determined that those specific errors were not prejudicial. In Salisbury, supra, the jury was required to determine whether it should believe that appellant’s testimony or the testimony of a witness. In other words, the Commonwealth’s comparison of Salisbury’s silence with the witness’s voluntary statement at the time of the arrest went to the vital issue of that case, namely, the credibility of the two persons present at the commission of the crime. The case at bar falls short of the Niemeyer and Salisbury situations on a comparative basis. To paraphrase Chief Justice Palmore in Summitt v. Commonwealth, Ky., 550 S.W.2d 548 (1977), even though we wish to discourage the type of questioning here under discussion, and to warn against its possible consequences, we are not ready to hold that in this particular instance it was all that bad. It was innocuous in comparison with the example in Niemeyer, supra.

One of the foremost tests in determining whether an error is prejudicial is consideration of whether upon the whole case there is a substantial possibility that the result would have been any different. Niemeyer, supra, and Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969). As we pointed out in the beginning, there was ample evidence upon which to base this conviction.

We wish to point out that, although it is inferred that Stiles was placed under arrest, there is no indication whether his testimony concerning giving no statement had reference to before or after the arrest. It should be mentioned that, from the number of exhibits searched for and produced from the trailer, we assume that some time was spent there on the day in question. There is absolutely no evidence of when the Miranda warnings were given so we cannot say that appellant’s silence was based thereon as was the case in Doyle, supra. It is our conclusion beyond a reasonable doubt that appellant’s first assignment of error was not prejudicial.

Detective Nickens testified that he had requested a counterpart in Bowling Green to determine if any burned or scorched money (some of the stolen cash in the instant case had been burned) had been passed in that area. Twelve questions later the same witness was asked:

Q Now why did you—if you will explain to the jury did you make a request in regard to looking out after or having someone watch out after burned money?
A Through an investigation a few years back we felt that the people responsible for these safe burglaries were from the Bowling Green area.

Appellant objected and moved for a mistrial which was overruled. However, the trial court delivered a strong and very complete admonishment to the jury which more than cured the error, if any there be. We cannot perceive how the remark of the witness could have any substantial influence upon the jury in light of the overwhelming circumstantial evidence of guilt and we believe beyond a reasonable doubt that the alleged error was harmless.

With respect to the foregoing argument, appellant urges, by way of reply brief, that “[t]he time has come to put a stop to this infringement on the constitutional rights of defendants by reversing convictions.” We would remind appellant that if we regarded every minor defect in all the criminal trials conducted in this Commonwealth as infringements upon constitutional rights then there would be no convictions. A defendant is entitled to a fair trial—not a perfect one.

In relation to appellant’s complaint concerning the third degree burglary instruction, we believe this issue to be without merit and accordingly, we invite a comparison between that given in this case and 1 Palmore Kentucky Instructions To Juries, Sec. 3.01, 2 at p. 113 (1975).

Since there was no objection to the alleged impropriety in the closing argument [648]*648to the prosecutor, that issue is not preserved for review. RCr 9.22.

The most serious assignment of error is the prosecution’s inquiry into Stiles’s prior felony conviction. The Commonwealth’s attorney notified the court that he wished to impeach the appellant with a 1967 conviction for two counts of breaking and entering. The court thereupon retired to chambers and conducted a Cotton

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570 S.W.2d 645, 1978 Ky. App. LEXIS 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stiles-v-commonwealth-kyctapp-1978.