Taylor v. Commonwealth

545 S.W.2d 76, 1976 Ky. LEXIS 144

• Court: Kentucky Supreme Court
• Decided: April 16, 1976
• Status: Published

Opinions

PER CURIAM.

Appellant Larry Taylor was convicted of rape of a child under twelve years of age and sentenced to life imprisonment. He contends on this appeal that the trial court abused its discretion in refusing to grant a continuance.

An indictment under KRS 435.080 was returned against the appellant on July 25, 1974. Although an arrest warrant was issued on July 29,1974, appellant was at that time incarcerated in a federal prison in Texas and he was not formally arrested until he was returned to London, Kentucky, on December 2, 1974. He was assigned counsel and arraigned on December 3,1974, at which time trial was set for December 5, 1974.

On the trial date, appellant, through counsel, moved for a continuance on the basis that appointed counsel had only talked with the appellant for two brief intervals and that he had been given insufficient time to prepare the defense and subpoena possible witnesses. His motion was denied.

RCr 9.04 specifies that a motion by the defendant for a postponement of the trial “may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it. If the motion is based on the absence of a witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant believes them to be true. * *

Appellant’s oral motion was not accompanied by the required affidavit. Moreover at no time, before, during or after trial did appellant specify any evidence bearing on appellant’s guilt or innocence which might have been presented had a continuance been granted.' Indeed there is no showing in the record that counsel could have presented any additional evidence had a continuance been granted.

Inherent in the concept of right to counsel is a reasonable time and opportunity for counsel to prepare. Roberts v. Commonwealth, Ky., 339 S.W.2d 640 (1960); Turner v. Commonwealth, Ky., 485 S.W.2d 511 (1972). Nevertheless, the granting of a continuance is within the sound discretion of the trial court and a conviction will not be reversed for failure to grant a continuance unless that discretion has been plainly abused and manifest injustice has resulted. Adams v. Commonwealth, Ky., 424 S.W.2d 849 (1968); Stewart v. Commonwealth, Ky., 479 S.W.2d 23 (1972); Thacker v. Commonwealth, Ky., 306 S.W.2d 292 (1957).

The evidence of the appellant’s guilt was overwhelming. The defense admitted that the victim had indeed been raped. The appellant was identified by the victim as the man who attacked her and witnesses placed appellant and his car in the vicinity of the crime.

Not only did the victim positively identify the appellant but prior to his apprehension she described the clothes he was wearing as a blue Levi jacket, blue Levi breeches, a white tee shirt, a blue hat and red tennis shoes. When appellant was apprehended on another charge the night of the rape he was wearing a blue denim jacket and jeans and red tennis shoes.

Medical and scientific evidence also pointed strongly to the guilt of appellant. Appellant took the stand, denying commission of the crime, and presented his uncle as an alibi witness. The record does not indicate and appellant does not claim the existence of any other particular witnesses not called at trial who could have aided in the defense.

This court is unanimously of the opinion that defense counsel in a rape case is entitled to more than one day in which to prepare for trial. Conceding error in the denial of the continuance, we are not convinced from the showing made here that the error resulted in any manifest injustice in prejudice to appellant.

The defense presented was alibi. There is no suggestion in appellant’s brief that had additional time been granted a different or more effective defense could have been presented. Only one witness, an uncle, supported appellant’s alibi testimony although according to appellant’s testimony several of his kinfolk were present with him on the afternoon in question. The names and addresses of these kinfolk were known to appellant and his counsel. The fact that no effort was made to secure their attendance as witnesses does not give much credence to the idea that they would have supported appellant’s testimony. In the motion and grounds for new trial there is no allegation that any additional witnesses could have been obtained if more time had been granted nor does counsel suggest any way in which the grant of additional time would have been beneficial to appellant.

Under these circumstances we are not constrained to hold the failure to grant a continuance to be a prejudicial error.

Appellant also argues that he was denied the opportunity to secure counsel of his own choice. We fail to see any merit in this contention. Appellant never asserted that he had the funds to hire a private attorney nor did he tell the court he wanted to hire private counsel. The fact that the public defender is still representing appellant on appeal is further evidence that the appellant did not truly intend to retain private counsel.

Finally appellant claims he was prejudiced by improper questions addressed to him by the attorney for the Commonwealth. This argument is devoid of merit as well as unpreserved for judicial review. Although he now contends the Commonwealth’s questions were calculated to inflame and prejudice the jury, he did not object to them at trial nor move for a mistrial or an admonition to the jury.

An examination of the entire record has disclosed no basis for reversal of the judgment.

The judgment is affirmed.

All concur except REED, C. J., and LU-KOWSKY and PALMORE, JJ. LUKOW-SKY, J., dissents and files a written dissenting opinion in which REED, C. J., and PAL-MORE, J., concur.